The Three Most Common Post-Shooting Errors
This interview with Massad Ayoob first appeared in the Network's February 2008 journal.
by Gila Hayes
The name of Massad Ayoob is well known to armed citizens, whether they have taken his training courses, or read articles published by this prolific author. All of the officers of the Network have felt his influence, both by participation in his classes, as well as the less direct influence of receiving training from other instructors who count Ayoob among their mentors. While we like to think we might have attained some measure of understanding of the legal peril following a shooting, our time with Massad Ayoob made that understanding foundational to our early work as instructors, and formed our individual defense strategies and tactics, as well.
Though best known as an author and instructor, Ayoob’s 36-year career has also encompassed extensive work as an expert witness and legal consultant, called upon when citizens or law enforcement officers face legal challenges after self-defense. This work links his name with a number of high profile cases dealing with defensive use of deadly force, and has made him a walking encyclopedia of self-defense case law.
Ayoob enthusiastically supports the fledgling Armed Citizens’ Legal Defense Network, LLC. “The big thing that attracted me to the Network is this: Historically, when an armed citizen has to shoot and there is an accusation either criminal or civil, they tend to be very much alone. The cop has a department and the tax base of the community; the officer has a union or professional association. The armed citizen really does not have any of that,” he pointed out in a recent phone conversation.
“While the NRA helps with a few cases, they simply can’t get bogged down in local incidents,” he continued. “I’ve always encouraged folks to join their grass roots organizations, like Washington Arms Collectors in Washington State, but they aren’t budgeted for the expense of putting on a legal defense.”
Massad estimated that defending against charges that go to trial can cost a minimum of $50,000 and can easily rise into six figures. If they really drag it out, the cost can go into seven figures. “Just Google the OJ Simpson case,” he suggested.
“Marty (Hayes, Network president) is putting together a team of people who are very well connected in the defense bar community,” Ayoob noted. This kind of resource has not been available to this degree to the armed citizen, he added.
What Armed Citizens Do Wrong
As we moved on to the topic of this interview, I asked Massad to identify the most common mistakes armed citizens make that get them in trouble following a justified self-defense shooting. Without hesitation, he replied, “Failing to call police after the incident.”
“The citizen is in a situation that warrants drawing the gun,” he continued. “They do everything right, the suspect turns and runs, and it ends without bloodshed as most of these things do. The citizen figures that it is over, so they do not call the police, but the offender calls in and complains and the next thing you know the citizen has become the perpetrator and the original assailant becomes the victim/complainant, or at least is seen as such.”
“Who ever calls in first, by default, gets to be the victim/complainant,” he emphasized.
Massad referred to the prominent case State of NY v. Frank Magliato. In 1983, a junkie brandishing a club attacked Magliato. He cocked his Colt Detective Special revolver, which discharged unintentionally while he pointed it at his attacker, who was killed by the shot.
Magliato left the scene in his Ferrari, and went into hiding until two days later when he turned himself in. By this time, the media had played up accounts by a buddy of the junkie who reported Magliato’s flight. In a frenzy, the press dubbed Magliato the Ferrari killer, having a field day with the witness reports. “Once he fled, he fit the profile of a fugitive. He fell into the trap of ‘flight equals guilt’, the presumption that the good man who did the right thing will stand his ground to explain his justifiable actions, and only the guilty will flee, to avoid punishment,” Massad pointed out.
In addition, his attorney, going against advice from Massad and another expert, Emanuel Kapelsohn, claimed that the discharge of the cocked gun was purely accidental, thus eliminating the ability to argue that Magliato acted in self-defense. “The judge said ‘there’s no such thing as a justifiable accident,’” Massad recalled.
Magliato was imprisoned in a NY State penitentiary, though an appellate court later reduced the charges to manslaughter. “Frank was not one of our graduates. He just didn’t know any better,” commented Massad. Had he remained on the scene and immediately contacted law enforcement, Magliato would likely have never been prosecuted. Massad believes it unlikely that then-District Attorney Morganthal would have pressed charges against a citizen who killed a vicious junkie, with a gun the authorities had given him a permit to carry. “At worst, any charges would have been ‘no billed’ by the grand jury,” he noted.
I asked Ayoob why armed citizens fail to call law enforcement immediately after an incident. Does it seem too unlikely that the criminal assailant would voluntarily contact the police? “People forget that their assailant probably has a lifetime of experience working the criminal justice system, and that they have figured out how to work it to their advantage. Criminals don’t live in blind fear of the cops. It is not unusual for one drug dealer to walk right up to a narcotics officer and drop the dime on a competitor. They are accomplished liars who twist the system,” he explained.
“You should also know that if you are in a holding cell with criminals and one overhears you discussing what happened to you, they may call a guard and make up a story against you in exchange for leniency in their own case. Snitches have no honor!” Ayoob added.
Ayoob theorized that most citizens have no conditioning to call police after an incident. “As kids, we all watched movies where the good guy – wearing his white hat – shot the bad guy in the black hat, then just walked off into the sunset. Unless trained to deal with this kind of situation, nothing in most people’s life experience tells them that they have missed a critical step here,” he noted. In his classes, he teaches citizens how to avoid making these and other mistakes. Part of his curriculum outlines a five-point checklist for handling police response after a shooting.
Massad advised giving a brief statement when officers arrive, to explain, “This person attacked me.” Describe the situation, stating from the beginning to clarify “I’m the victim, that person is the perpetrator.” Ayoob called this statement the Active Dynamic, defining as it does, what caused the citizen to draw their firearm. He added, “Be sure to admit to drawing your gun if you did so; to fail to mention it will be seen as deceptive.”
Massad Ayoob’s Five-Point Checklist
1. Tell responding officers “I’m the victim; he is the perpetrator.”
2. Tell responding officers, “I will sign a complaint.”
3. Point out pertinent evidence.
4. Point out any witnesses who saw what happened.
5. If there is any hint that you are a suspect, say “Officer, you will have my full cooperation after I have counsel here.”
I couldn’t help but notice that calling a lawyer came well after speaking with the responding officer. Ayoob acknowledged, “The lawyer is a lower priority, though all five steps need to be there,” comparing each of the five steps to links in a chain. “If you ask for a lawyer first, you won’t get the chance to go through steps 1-4,” he pointed out.
“I like to start from ground zero, because I have been on both sides,” Massad explained. “I’ve been the responding officer and have been to calls where I didn’t know what the hell happened. It is absolutely critical that your first statement make it clear who is the victim! If ‘I want a lawyer,’ is the first thing out of your mouth, you will sound like the criminals officers deal with all the time.”
Don’t Run Off At The Mouth
Still, in following the five-step checklist, the armed citizen must take care not to go to the other extreme. Common post-shooting error number two is “running your mouth, according to Massad.
He cited the State of Florida v. Zane Britt to illustrate this point. “Britt is your basic New Age yuppie who is smart enough to have a carry permit,” Massad began. Britt was a gentle kind of a guy who loved telling stories to his grandchildren.
After the shooting, Britt waived the Miranda warning and his right to counsel. The audiotape of his interview sounded like a second-grade teacher reading a story to a child. He gave nicknames to things, stating in his interview, for example, that he was out walking his “diggity-dog,” a term he used several times, setting a flippant tone. “The cops think this guy is whacked out,” Massad commented. “We won the case, but he had to go through a full-blown murder trial in order to win an acquittal.”
The trial might have been avoided had Britt taken 24 hours to recover his bearings before the interview, or had an attorney been at his side, who could have told him, “Think before you answer,” or if he had put together a written statement, pleading that he was traumatized to give a verbal statement immediately.
In an aside, Massad acknowledged the value of an attorney educated about defending innocent people. “Very, very few criminal defense attorneys have any significant experience in defending these kinds of cases. The affirmative defense principle is 180-degrees reversed from the usual damage control and credibility attacks lawyers use to defend guilty men,” he explained. This is another tremendous advantage offered by the Network: procuring referrals to lawyers who understand the unique task of defending the armed citizen who has shot in self defense, as well as connecting members with court-recognized experts who can assist the legal defense team.
Statements made to responding officers are extremely critical, Massad emphasized. “The questions come at random as they occur to the officer, but your answers create the illusion in the officer’s mind that this is the sequence in which things happened. It certainly comes across that way in the narrative of the written report,” he stressed. This false impression creates damage when it appears that your time line does not agree with other evidence.
The third most common error is closely related to the second. It is attempting to embellish the story of what happened to make your self look better. “This is human nature,’ Massad exclaimed. “Cops do it on the stand. Lawyers do it when they’re on the stand instead of the podium. It’s something all of us have to be alert to, and have to fight when we’re on the witness stand.”
For illustration, he cited State of California v. Herman Kreutzer, a case in which a citizen defended his daughter against her abusive husband. The son-in-law came to the family home claiming to have a gun inside a cast he wore on his arm. His intimidating behavior, terrorizing the family, prompted Kreutzer to pull out a gun and shoot the abuser, who cried out “I guess I made a mistake,” then died. Kreutzer dumped the body, threw his handgun in the ocean and quickly departed on an unscheduled journey.
Later, when authorities found the body and questioned him, he claimed, “I don’t know a thing about it.” Despite the justifiability of his defense of his family, he is serving a life sentence for murder, with no hope for parole.
“When humans have anything important on the table, human nature turns us all into attorneys, maximizing what makes us look good and minimizing what makes the other guy look bad,” Massad explained.
While we may not be able to imagine ourselves in a situation as extreme as Kreutzer’s, it is not that difficult to envision giving verbal commands, then, for example, uncomfortable with bad language used, deny making the statement. When witness statements debunk your denial, your entire case falls under suspicion.
When asked, Massad acknowledged that witness statements may also be incorrect, citing the immense exaggeration surrounding reports of John Dillinger’s shooting, or more recently tremendous discrepancies between public belief and the actual facts borne out on videotape of the Rodney King arrest. The same thing happens in microcosm with private citizens, and for most there is no videotape as proof. “A lie repeated often enough is seen as the truth,” Massad warned. “The defendant is not in a position to call a press conference and say, “here is what actually happened.”
“We need to be able to articulate why we did what we did, what we perceived, and we need to be able to explain why we saw what others did not,” continued Massad. “As the intended victim, we are the only one who was watching his hands. Thus, the witnesses may miss the small pistol in the assailant’s hands, while focused on the armed citizen’s larger gun.”
To armed citizens pondering these topics, the mental preparation to face the aftermath appears daunting, but Massad is convinced that the training carries people through.
“If you think about it, stating the active dynamic works in almost any situation where it is a he said/she said kind of deal,” he notes. He recalls the time when a motorist ran into the car driven by his daughter, then 16. The other driver jumped out, furious and blaming the teen-ager. When law enforcement arrived, the teen immediately told the officer that she was driving down the street when the other driver backed in front of her. Stating that she was unable to avoid the collision, she volunteered to sign a complaint against the other driver, and pointed out witnesses who backed up her account, as well as the skid marks where she had tried to stop.
If a new driver involved in a traffic accident can maintain the presence of mind to make a proper statement to authorities, Ayoob believes that all our training will carry through in more serious situations.
“The Network grew out of the training community and has tremendous roots there. It gives members access to discounted training, with possible seminars in the future just for Network members to allow them to tap into the distilled and concentrated knowledge of the best and brightest in our field,” he avowed.
Massad derives tremendous satisfaction from the motivated students who attend his training. Unlike the average cop, these people are in class on their vacation time, paying tuition out of their savings. “It is so important to them,” he commented. In addition, these same armed citizens pay attention to the constant need to update their knowledge. Owing to their motivation, their ability in an emergency to use concepts they learned is above par.
Massad Ayoob Group
P.O. Box 1477
Live Oak, FL 32064