"assault rifle" for home defense = legal issues?

[soloman02]

Someone pointed out earlier that a lack of conversation with the police and a request for a lawyer cannot be used against you in court.

Even if it did "hurt" you in court, it would hurt you less than saying something wicked stupid like "I shoot to kill." After a SD shooting you are going to be coming down off a huge adrenaline high. The first thing you are going to want to do it to blab your mouth to as many ppl as possible. This is the wrong thing to do, mainly because your thinking will not yet be clear and you will likely says something about the events that transpired that is wrong. And that WILL be used against you.

Be polite in dealing with the police, request a lawyer, and if they keep pressuring you to talk before your lawyer arrives and you feel like you can't hold out, you can always claim the fifth.

 

[SecondAmdFirst]

It seems like a good statement is....."Officer X, I mean absolutely no disrespect to you or the police, but I am requesting an attorney and refusing to speak". I would never hurt a soul without justifiable cause, but I don't want an innocent "slip of the tongue" to be used to railroad me into a prison sentance I don't deserve. Knock on wood I never even find myself in such a situation.

 

[fubar]

" Officer , I am more afraid of you than the man who just tried to kill me. My life is now in the hands of Martha Coakley. And if The Ghost of St Teddy tells her to use me as a pawn in her political career I am screwed. I wonder if you know my cousin the Police officer in xxxxxtown , or my friend the son in law of Congressman xxxxx , Did I mention I am all for Police Details , higher taxes and a stronger Union for y'all ? "

 

[Coyote33]

" Officer , I am more afraid of you than the man who just tried to kill me. My life is now in the hands of Martha Coakley. And if The Ghost of St Teddy tells her to use me as a pawn in her political career I am screwed. I wonder if you know my cousin the Police officer in xxxxxtown , or my friend the son in law of Congressman xxxxx , Did I mention I am all for Police Details , higher taxes and a stronger Union for y'all ? "

If only there were a window sticker.

 

[Jose]

I've always figured that failure to talk to the police would be automatic grounds for arrest. That would seem to be a lousy way to start ones defense (in the eyes of the court). I'm also reluctant to get a lawyer on speed dial. It just seems like an automatic admission of guilt, but the same could be said of auto insurance ("what, were you planning on having an accident?"), I suppose....

It is sad to see how afraid some are to A) know what their rights are and B) force others to respect them.

When the cops show up to investigate the dead intruder in your home, or the shooting you had to do on the street to save your life, go right ahead and tell them everything in gory detail. Tell it to as many cops as you can, so your story comes out a different way every single time.

That way, when the DA brings you to trial, you can sweat through all the testimony given by the cops who you thought were your friends about your inconsistent and incriminating statements. Then take the stand and lose all credibility in front of the jury as you try to explain away all the inconsistencies recorded by police regarding the statements you made under extreme stress and without the wisdom of counsel.

Me? I'll say the bare minimum. I was attacked by him, I tried to escape but could not (if out on the street), I was in fear for my life, and I defended myself. Here, there, and there is evidence. I would like to speak to my attorney before making any more statements. THEN STFU and get on the phone.

So what if I get arrested then for lawyering up? I'd rather get arrested for flexing my rights and then walk away a free man because my lawyer made sure I didn't get railroaded by dumb statements made in the heat of the moment.

When you are being investigated for something as serious as a shooting in self defense you have only one ally: your attorney. The judge is not on your side. The jury is not on your side. And most definitely not the DA nor the police are on your side.

This is an extremely serious issue. Make decisions based on ignorance or assumptions at the peril of your freedom and your future.

 

[supton]

Sorry, I'm just not on the same page yet.

If I get arrested for lawyering up, well, I'll probably lose my job, since I won't be working (since I don't have bail money). [That, and since it looks bad to employ some like that.] Then I have to pay for lawyer fees. Then whatever fees/fines/settlements come after the "speedy" trial that will take years to finish. All because I excersised my right to self defense. It sounds to me like both of these rights conflict each other, and will do nothing but get me in trouble--the right to defend, and the right to STFU. I'm starting to think that the only right that is safe to excersise is the right to be a victum.

I see your point about not telling the story sixteen times to everyone there; I've already come that conclusion. I'm just not sure what point to lawyer up yet.

 

[Jose]

Sorry, I'm just not on the same page yet.

If I get arrested for lawyering up, well, I'll probably lose my job, since I won't be working (since I don't have bail money). [That, and since it looks bad to employ some like that.] Then I have to pay for lawyer fees. Then whatever fees/fines/settlements come after the "speedy" trial that will take years to finish. All because I excersised my right to self defense. It sounds to me like both of these rights conflict each other, and will do nothing but get me in trouble--the right to defend, and the right to STFU. I'm starting to think that the only right that is safe to excersise is the right to be a victum.

I see your point about not telling the story sixteen times to everyone there; I've already come that conclusion. I'm just not sure what point to lawyer up yet.

First off, let's start with your first assumption.

Who told you that would would be arrested for making a brief, concise statement and then stating that you will make further statements only after consulting with your attorney?

 

[supton]

Nobody. Perhaps it's an ASSumption. But, look at the facts from the officers eyes: there's someone on the floor, in pain or ready for a bodybag. Then there's me, who's already dropped his weapon, and had his hands up when the officer(s) showed up. And I'm requesting a lawyer right off the bat. It doesn't look good.

I think we agree on making a statement of some sort; we don't agree yet as to how much information to give in that initial statement. I'm concerned about how to get back to my family as soon as possible.

 

[Jose]

I'm concerned about how to get back to my family as soon as possible.

In your haste to "get back to your family", you can end up being gone for 25 to life.

Why don't you do yourself a favor and talk to an attorney NOW and ask these questions? Then LISTEN to him or her and DO what they tell you to do.

How do you think I know what I have been telling you? I spoke with mine about it. Do you know what he answered me when I asked what should I say in the aftermath? He said: say nothing. Call me. I will take care of the rest.

They are the experts at this game.

 

[supton]

Yeah, you're right. I should have a lawyer consult before I bother with self defense. Too bad it's no longer a right anymore.

 

[fencer]

People who think like this are defeated before the start.

You will be so overcome with doubt, recriminations, and second guessing thatyou will never shoot.

I hear what you are saying and agree. It's not an issue for me as I don't own an AR. My primary home defense weapon is a Sig 226 in .40. Months ago you had suggested that I take a close quarters course and that was what i used for the course and the gun I am most accurate and comfortable with.

I was just pointing out that in the state of Massachusetts it might make a difference to a jury. My personal opinion is to use whatever you are most comfortable with if possible.

 

[drgrant]

I see your point about not telling the story sixteen times to everyone there; I've already come that conclusion. I'm just not sure what point to lawyer up yet.

I don't think you will have to make that decision. Regardless of what you say, or don't say, the probability of getting arrested (or at least detained) is still very high. Running your mouth will not improve the situation at all. You might do that, jeopardize your case, and still not "get back to your family" any sooner than you would have anyways. At best you can end up talking yourself into a jail cell. (or, making your case a lot more complicated than it has to be, because then your attorney has to deal with the fact that what you really wanted to say is different than the version of events that the cops recorded when you ran your mouth to them. )

If you don't think running your mouth to the PD is bad, look at what happened to Harold Fish. A key reason he got sent to jail is because of the gigantic discrepancies in his testimony vs. the statements he had issued to police shortly after the event. IMO, those inconsistencies caused the Jury to question his reliability as the only witness, which in turn, basically made his testimony worthless, because the Jury likely felt they couldn't trust what he said. Veracity is everything (or at least the perception of it is) especially when you might be the only witness to the event.

I guess I'm just not seeing where babbling to the police is going to help anything.

Ironically, think about what LEOs often do when they are involved in shootings. They get put on paid admin leave for a day or three or whatever, and
they don't even give their statements until they come back.... there's a REALLY good reason for that.

-Mike

 

[supton]

Gee, an officer is involved in a shooting, he gets to go home. Me, I'll probably get a ride to a jail cell (or at least to the station). What a great society we live in.

I see your points now, drgrant and Jose. I'll just STFU if I'm ever involved in anything.

 

[TomH]

I question the need to immediately lawyer-up for an o-dark thirty shooting at your own home. I don't understand yet how it works, but it seems to me that making a statement at home, at least before going to the station, makes sense. [I presume going to the station is part of the process?] Makes one look less guilty, like one had nothing to hide. I mean, if it's a clean shoot, why would they prosecute? Wait until morning to lawyer up. [I have to wonder if having a lawyer on speed dial isn't also something of an indicator.]

It is best to say nothing at all. The police are there to take down everything you might utter. You may say something you will regret later in a courtroom if it came to that. They are not there to help you get off of any potential charges... they are there to get information. Always call a lawyer first.

Edit: it is probably ok to make blanket statements such as "he broke in and I fired in self defense, that's all I want to say before consulting a lawyer."

 

[Titan]

It seems like a good statement is....."Officer X, I mean absolutely no disrespect to you or the police, but I am requesting an attorney and refusing to speak". I would never hurt a soul without justifiable cause, but I don't want an innocent "slip of the tongue" to be used to railroad me into a prison sentance I don't deserve. Knock on wood I never even find myself in such a situation.

Suggestion:

Substitute "exercising my right to not speak without an attorney" for "refusing to speak" and you've got a good statement - IMHO.

.

 

[Titan]

Supton,

Do yourself a favor and search this forum for 'Harold Fish' or Google him.

You'll read about a guy in Arizona who used deadly force to defend himself and ended up in prison for a long time. There are lots of elements to his case and the circumstances are a little odd, but one thing you'll learn is that he did himself ENORMOUS DAMAGE by talking to the police without a lawyer present.

His own statements were a major element (IMHO) in his conviction.

.

 

[Carguy]

ar will create a lot of holes on your wall. stay with the pistol lol. and Use the ar when he is outside lol !!! it is just a joke. all you need is a weapon + good aim. good weapon but bad shot is useless.

Thus a shotgun is the best avenue. Bad shot + buck shot = alot of holes some in the wall and some in a bad guy.

 

[supton]

Here is a link that should work:
http://www.youtube.com/watch?v=6wXkI4t7nuc

The attorney in my sig specializes in self defense. I have not met with him yet, though I hear he is one of the best.

Interesting vid. I'm keeping that link and will watch again in the future; forwarding it off too. I've made note of that attorney also.

 

[supton]

Supton,

Do yourself a favor and search this forum for 'Harold Fish' or Google him.

You'll read about a guy in Arizona who used deadly force to defend himself and ended up in prison for a long time. There are lots of elements to his case and the circumstances are a little odd, but one thing you'll learn is that he did himself ENORMOUS DAMAGE by talking to the police without a lawyer present.

His own statements were a major element (IMHO) in his conviction.

.

I've only done a couple of minutes of reading; I can see what you're saying, but really, it's the combination of an over-zealous DA too. It's a fair enough case to prove the point, though.

 

[ErichCS]

I am new to the site. Great info around here. And a very nice video.

This seems to be how Tiger Woods got out of any possible legal issues last month.

Thanks!

 

[supton]

Welcome to the neighborhood. As always, take everything with a grain of salt, this is the internet after all.

 

[06LemansC6]

I've only done a couple of minutes of reading; I can see what you're saying, but really, it's the combination of an over-zealous DA too. It's a fair enough case to prove the point, though.

First off I see you are also located in NH. That's good news. This state will be far more understanding than what our friends in MA need to deal with.

I second what everyone else has had to say, keep your mouth shut until you've had a chance to consult with a competent attorney. It's been said many times on this forum. No one ever got in trouble by keeping their f-ing mouth shut.

Keep in mind after the adrenaline dump you may not be thinking straight of feeling so well. You may even request medical attention prior to making a statement or contacting your attorney.

 

[MXD]

I own an assortment of guns but in the event my home is attacked, my weapon of choice is my 870 Express HD with 00buck/Slug (every other). My 870 has a Knoxx Spec ops stock and a forend pistol grip. Why? Because I find it more comfortable to shoot from the hip and I also believe the double pistol grips give me better leverage and grip to hold onto the weapon in the event of a struggle. Mounted to the front of my barrel is a laser/flashlight combo with pressure switches mounted to the front grip.

Does it look evil? Not to me but probably to a jury.

Is it legal? 100%

If my life or more importantly the lives of my wife and kids are in danger do I give a rat's a$$ what a jury thinks? NO!

When the safety of my family is in jeopardy, there are no considerations other than how to end the threat as quickly and efficiently as possible.

God forbid I am ever in that situation, I will say nothing more than "Our lives were in jeopardy and I did what I had to do in order to preserve them. I intend to co operate completely but before I do I would like to consult my attorney"

 

[GSG]

A couple things.

What the others have said is true, speaking through the filter of an attorney is going to be the best bet; keep in mind however that you don't need to already have an attorney in mind to call when you say you'd like to speak to an attorney before answering questioning.

However, there is some Massachusetts specific case law that you should be aware of when it comes to your right to remain silent and firearms law.

The courts have ruled several times that the burden of proof is on the individual to show that they are in compliance with licensing laws.

Commonwealth v. Irving Jones:

We sum up the established interpretation of G. L. c. 278, Section 7, as it applies to prosecutions under G. L. c. 269, Section 10 (a). The holding of a valid license brings the defendant within an exception to the general prohibition against carrying a firearm, and is an affirmative defense. Cf. Mass. Proposed R. Crim. P. for Dist. & Super. Cts. 11 (a) (1) (C), 11 (b) (1) (C), 14 (b) (3) (July 30, 1976). Absence of a license is not "an element of the crime," as that phrase is commonly used. In the absence of evidence with respect to a license, no issue is presented with respect to licensing. In other words, the burden is on the defendant to come forward with evidence of the defense. If such evidence is presented, however, the burden is on the prosecution to persuade the trier of facts beyond a reasonable doubt that the defense does not exist.

This was upheld in Commonwealth v. Ben Seay:

In addition, we have held that the defendant has the burden of producing evidence to show that he was licensed or otherwise permitted to carry a firearm.

This thread also touched on the burden of proof WRT LTC's, and how one can be arrested if they have an LTC but don't notify the police.

Also, the Seay case also touched on the defendant's silence:

At a criminal trial, comments by the prosecutor, in his discussion of the defendant's evidence of entrapment during final argument, with respect to the absence of evidence concerning the defendant's frame of mind did not improperly call the jury's attention to the defendant's failure to testify.

Keep in mind that the courts found in Patrick Godfrey v. Chief of Police of Wellesley that it's not arbitrary and capricious for a chief to find you "unsuitable" based on you invoking your right to remain silent:

A police chief's revocation of a person's license to carry firearms on the basis that he was no longer a "suitable person to be licensed to carry a firearm" was not arbitrary, capricious, or an abuse of discretion, in circumstances where the person had refused to cooperate with the police in their investigation of gunshots having been fired into a school, a private residence and an automobile.

Massachusett's gun laws are a complex mire of insanity. This alone is enough reason to consult with an attorney if you wish to own guns in Mass., but it's even more important when it comes to a self defense shooting.

So, if you're involved in an SD shooting in Mass., keep in mind that you still need to prove to the police that you are licensed, and if you refuse to answer questions, your LTC can be revoked.

I'm also wondering now if the "burden of proof" standard for licensing can be applied to pre-ban mags/rifles in Massachusetts...? For instance, requiring the defendant to prove that their mags are pre-ban, which could get very unpleasant if they don't have reciepts, or if they use Glock mags that Glock can't date (which is any without marking or the ambi notch).

Would any of my fellow Mass. law geeks care to get into this discussion with me?

 

[Bill Nance]

So, if you're involved in an SD shooting in Mass., keep in mind that you still need to prove to the police that you are licensed, and if you refuse to answer questions, your LTC can be revoked.

I can always transfer my guns and move out of town (I'm leaving this state soon enough so either way).

I can't get out of a jail sentence because I said something stupid at 3am after having shot someone dead in my home. As a matter of fact I can practically guarantee that I WILL say something stupid/inconsistent/incriminating under those circumstances.

Anyone who says more than a bare minimum and doesn't lawyer up after IMO is a fool. Period. There is no possible way talking to the cops will help you. Jail is a Hell of a lot worse than losing an LTC, which isn't necessarily even likely as a result of having lawyered up in such a situation.

Daniel Cotnoir was someone who got screwed in Mass. post self-defense shooting, in his home.

Actually he did not have a defensive shooting in his home. He fired his shotgun out his window at a bunch of A-holes who were whooping it up in front of his house outside a bar. When someone threw a bottle through his downstairs window he fired a shotgun at the ground in front of them which is an old-fashioned crowd control technique, btut not with 00 buck. He wounded a 15-y/o kid in the process. The severity of the charges are ridiculous. But the incident doesn't even remotely meet the standards for a lawful self-defense shooting in Mass.

 

[GSG]

Anyone who says more than a bare minimum and doesn't lawyer up after IMO is a fool. Period. There is no possible way talking to the cops will help you. Jail is a Hell of a lot worse than losing an LTC, which isn't necessarily even likely as a result of having lawyered up in such a situation.

I'm not advocating that people run their mouth, I'm saying that they should stay quiet, but that they should understand that in Mass. they can get screwed depending on how silent they stay. It's a topic people should discuss with their attorney.

Actually he did not have a defensive shooting in his home. He fired his shotgun out his window at a bunch of A-holes who were whooping it up in front of his house outside a bar. When someone threw a bottle through his downstairs window he fired a shotgun at the ground in front of them which is an old-fashioned crowd control technique, btut not with 00 buck. He wounded a 15-y/o kid in the process. The severity of the charges are ridiculous. But the incident doesn't even remotely meet the standards for a lawful self-defense shooting in Mass.

IIRC they threw bottles and threatened to rush into his home. Derek laid it out better than I did somewhere else. Regardless, he lost his LTC and lost when he fought for it back in court. I also seem to recall that his police chief revoked his FID as well based on suitability, which is illegal.

Most importantly, he got screwed.

 

[Jose]

I find it more comfortable to shoot from the hip

I know you have a laser, which may negate what I am going to say, but I think it is irresponsible in the extreme to fire any kind of firearm without some aiming method that will give you a very high probability of hitting your target every time.

Particularly so when you are alternating buck and slugs, with slugs being one of the most overpenetrating rounds of ammunition one can fire in any shoulder fired weapon.

If you have a Knoxx recoil reducing stock, why do you fire off the hip?

 

[FreeWillie]

If you have a Knoxx recoil reducing stock, why do you fire off the hip?

My question exactly. The reason I bought the Knoxx was so I *didn't* have to shot from the hip. I'm curious!

 

[MXD]

Before I answer your questions let me first say that I don't plan on ever hunting an intruder in my house. The way my house is laid out I can suppress a small army trying to get up to the bedrooms if I had to. They can have my TV as long as they don't come near the stairs they will likely remain alive. So all of my responses below are based on the fact that I know where I will be shooting from if God forbid I ever find myself in that position.

I know you have a laser, which may negate what I am going to say, but I think it is irresponsible in the extreme to fire any kind of firearm without some aiming method that will give you a very high probability of hitting your target every time.

You would have to see my house layout to understand why this might make sense but I'll see if I can paint a good enough picture. I live in a very old house and the stairway to the bedrooms is almost entirely enclosed and not very wide so very little traditional aiming would be needed. There is a spot that I can see into the hallway on the first floor so in that instance I would more than likely take a traditional shot from the shoulder but if I shot from the shoulder down the stairs it would block my line of sight to that spot in the hallway.

Particularly so when you are alternating buck and slugs, with slugs being one of the most overpenetrating rounds of ammunition one can fire in any shoulder fired weapon.

Again, without knowing the layout of my house it is a logical question but I live up against conservation land up on a hill. Shooting "down" my stairway would be shooting straight down in to my back yard that butts up against thousands of acres of nothing. Over penatration is a non issue for me from that position

If you have a Knoxx recoil reducing stock, why do you fire off the hip?

This one is easy. I enjoy firing my HD shotgun at the range but they are very strict about shooting from the shoulder. I figured if I had to shoot from the shoulder I might as well make it comfy. Plus, even when shooting from the hip I "lock" the stock between my elbow and ribs and it feels more secure.


I don't think the S will ever HTF at my house but just in case it does I wanted to have a plan that eliminated as many variables as possible and gave me very little to think about. If the alarm goes off (motion on all floors except the second floor where we all sleep and contacts on every door) or the dog goes bonkers, my wife knows exactly what do and where to go while I stand behind cover at the top of the stairs. No hunting, no guessing, nothing. Nice and easy decision. If I see someone coming I pull. If I don't see someone coming, I don't pull and that's it.

 

[Jose]

MXD, I can dig your tactics.

One last question: have you patterned your shotgun with the buckshot that you plan to use at a distance equal to the longest range inside your house?

You might be surprised at how little spread you get out of buckshot inside HD distances