Hmmmm….

Whether the night before Christmas is the right time or not, I have just finished devouring — with great relish — a book that Glenn Reynolds recommended not long ago: After You Shoot: Your gun’s hot. The perp’s not. Now what?

It’s a real head trip of a book, especially if you’re one of those philosophical types like me who like to analyze issues and spot contradictions. If you are looking for easy answers, though, be forewarned, because if there is anything you will learn from this book, it’s that there are no easy answers.

Each situation is different, the laws vary, and the innumerable attorneys and firearms experts quoted in the book have very different opinions on how to proceed should you be unfortunate enough to have to shoot a criminal in self defense.   

Author Alan Korwin’s primary point is to call public attention to a major defect in what we euphemistically call “the system.”

Calling 911 is an inherent exercise in self incrimination.

This point cannot be overstressed. Many an honest homeowner has been turned into a pariah, tarred by the media, and prosecuted as a criminal simply on the basis of what he said to a 911 operator in a state of fear, panic and shock. Worse, the 911 tapes can end up in the hands of the media as well as anti-gun activists (if that is a distinction with a difference) and then be played on the air or streamed at online websites (meaning they will be online forever for the world to hear). Your right to remain silent under the Fifth Amendment is inherently compromised as soon as you pick up that phone and dial 911. The author makes an excellent case for having an attorney make the 911 call for you, but this is hotly debated in the book by numerous criminal defense attorneys. They say that all they will do is tell you to shut up, which you can and should do on your own without their help — unless of course it is in your interest not to shut up. But that can be very tricky, because each individual situation will vary. If you are in a small community with cops who are on the side of armed citizens, they might be on your side from the start. But if you are in a place like Philadelphia, with a police chief who has publicly stated that he considers armed CCW citizens to be like enemies, you can assume that from the moment you call 911, the machinery of the state will be doing its level best to build a case against you.

The overall consensus is that it is generally a good idea to invoke your right to speak with your attorney. Not “an” attorney. Your attorney. But not always. If the cops are on your side, it might be best to talk. But how on earth can you know?

Because of the obvious problems the current 911 system presents, the author proposes model legislation offering immunity to citizens who call 911 after self defense shootings. Here’s a link to the language at his website:

Model legal language will protect innocent people
who defend themselves against an attacker

Defense attorneys report that about 50% of convictions
in self-defense cases rely on traumatized and frantic calls to 911
made by the victim of the assault, who survived the mortal combat.
That’s just wrong. Here’s a solution. Including a “teeth” clause.

I suggest reading the proposed legislation for yourself, and maybe passing it along to your favorite state legislator. After reading the author’s book I think an immunity statute is more than an idea whose time has come; I think it’s long overdue.

As the author points out, 911 has been with us since the 1970s, but there is no law requiring anyone to call 911. It’s just become the thing to do. A social more. Most people have been conditioned to see not calling 911 in a situation involving a shooting as immoral, and it would not surprise me if many juries could be persuaded by a DA to see it as evidence of the shooter’s guilt. 

But think about it in the absence of emotion and social mores. Self defense is a legal right. If someone slugs you without provocation and you defend yourself by slugging him back, he’s the bad guy and you are not obligated to call 911. Why should it be any different in the case of a criminal who has invaded your home?

I often like to come up with theoretical law school exam questions, and I’d be fascinated to see one about a hypothetical homeowner who failed to call 911 after shooting a burglar who had put him in fear for his life. Assume that no one else heard the shots and called the police (this would be a safe assumption if they failed to show up after a certain amount of time had elapsed). The burglar is either alive or dead, right? Since when are citizens obligated to render aid to people who have tried to kill them? Now, if we suppose the burglar was wounded and ran away, the incident has ended. Why should there be any obligation on the part of the homeowner who has acted legally to do anything more? And if the burglar is dead or dying on the floor, what would the legal obligation be? Other than not violate whatever laws might exist against illegal disposal of human remains, I don’t know. While I don’t think non-reporting of legal conduct could be charged as obstruction of justice, it is quite possible that disposing of the body could be. 

Obstruction charges can also be laid if a person alters or destroys physical evidence, even if he was under no compulsion at any time to produce such evidence. Often, no actual investigation or substantiated suspicion of a specific incident need exist to support a charge of obstruction of justice.

So you might be stuck not knowing what to legally do with a dead body that happens to be in your home through no fault of your own. It would certainly seem to be evidence — whether of your own innocence or of the guilt of the invader. Whether destroying evidence exculpatory to yourself is obstruction would be an interesting question, but common sense would suggest that a dead body in your home could lead to trouble.

Letting nature take its course might not be wise either, as it would probably render your house uninhabitable for some time as well as violate various health codes. So maybe the best way to avoid an obstruction of justice charge would be to go the Ted Kennedy route. Get shitfaced drunk and go to bed. Then much later you can get around to making phone calls to your lawyers and private investigators, and let them figure out what to do. 

But will what worked for Ted Kennedy work for an honest homeowner who acted in self defense?