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View Full Version : Is justifiable homicide de facto jailtime?


cbn620
01-26-2011, 7:49 AM
I don't think this exact question has been asked here. Sorry if it has, I did try a search.

I'm familiar with California's penal code statutes that protect justifiable homicide on the grounds of self defense. Like any relatively optimistic person I doubt I will ever have to use a firearm to save my life, but in the event that I did, even if it were justifiable, I'm curious what chances there are I'd spend the night in jail anyways. Talk me through this, especially anyone who has or knows someone who has had to use a gun to save their or someone else's life. I realize the moment the cops get there the first and only thing coming out of my mouth is, "I was in fear for my life, I am in too much grief to talk about it, I want a lawyer" etc.

What I primarily want to know is what happens after you've acted in last resort, after police arive, etc. Are you going down to the station in handcuffs anyways? I have always just assumed I would be no matter how clean my actions were, and over the years have sort of tried to mentally prepare myself for such a thing were it to ever come to such. But I got to thinking, and I wondered: if a person has done nothing wrong and acted in completely justifiable self defense as a complete last resort, why should they be the ones who are being punished? Even if it is just a night or two in jail. I can't imagine it happens to everyone whose only choice was to shoot to save their lives. Does it?

I can't imagine experiencing the sheer terror of a near death experience, the adrenaline rush of being forced to greatly injure or take another persons life, the anxiety and stress of being accosted by police at my residence after the incident, and then on top of all that being taken down to the station anyways to be locked up and left alone like an animal.

If someone could give me a detailed description of what happens after a civilian self defense shooting, that'd be great. Things like how the police respond, what their procedure is for determining whether you were negligent, and how they determine / what your odds actually are of ending up in jail anyways.

socal2310
01-26-2011, 8:04 AM
There is simply no way to predict with certainty the aftermath of a defensive shooting, but no, it is not guaranteed that you will be arrested for a defensive shooting. Homeowners are rarely arrested after shooting a burglar for example (yes, even in California). For other defensive shootings, it's going to depend on too many factors to predict the outcome: were your assailants known to the police; are there any witnesses who can corroborate your assertion that the shooting was defensive; what is the disposition of the lead officer, his/her supervisor; what is the policy of the responding agency? etc.

Ryan

Crom
01-26-2011, 8:22 AM
Perhaps post this in the LEO subform and ask them if any of them have had personal experience with this.

Untamed1972
01-26-2011, 9:00 AM
Assume the worst, hope for the best. Alot of it depends on the jurisdiction you live and the stance of the LOCAL DA. It will also depend on the evidence found at the scene and how clearly it points to justifiable self-defense or not.

So again....assume the worst. In most CA, there is prolly a WAY better then even chance you'd spend at least a few hours in custody.

Just remember to not make ANY statements w/o a lawyer present.

El Gato
01-26-2011, 9:04 AM
of my clients who have had to shoot people...
none have been arrested nor sued ....

the key is that you say very little when the cops show up....
something like : he attacked me.. I want him arrested.. I shot him in self defense...I want to talk to my lawyer so that I can cooperate with you officer...
then shut up... period...
... make an unequivical demand to talk to your lawyer...they may threaten or acually they lock you up...demand a lawyer and just shut up...

MindBuilder
01-26-2011, 9:56 AM
It seems like asking for a lawyer before giving a statement would greatly increase the chance of getting locked up for a short time. But talking without a lawyer would increase your chance a little of getting locked up for a long time. I'm thinking that maybe how much you say should be based on how strong a case you have. If you think that a jury looking at your case from the outside will easily see you're innocent, then maybe avoiding a short stay in jail is worth giving a short to moderate statement at the scene to look more innocent. If the evidence for you is unclear, then maybe a night in jail is much less concern compared to a conviction and long stay, and you better consult an attorney before saying much or anything.

The decision may also be different for those who can't afford a large bail or a lawyer. Then it could easily be three months in jail before your speedy trial, or longer if you need to waive time. Even if you can put yours or a family member's house up for bail, it will likely take weeks in jail before you get that process done.

And an arrest record for homicide could make job hunting more challenging and may result in many more thousands lost if you have to accept a lower paying job.

Of course even many thousands of dollars and weeks in jail is not much risk compared to even a small chance of conviction.

sholling
01-26-2011, 10:51 AM
I would count on spending the night in jail since only a fool makes any statement beyond "I was in fear for my life and now I would like to speak to my attorney".

creekside
01-26-2011, 1:20 PM
Like any relatively optimistic person I doubt I will ever have to use a firearm to save my life, but in the event that I did, even if it were justifiable, I'm curious what chances there are I'd spend the night in jail anyways.

Plan on a night in jail so that you can be pleasantly surprised if you are not arrested and taken into custody. Even if you are not arrested at the scene, you can still be prosecuted later. You will be detained, searched, and interviewed. I will let the lawyers speak to how to handle the interview.

First off, being held in pre-trial custody is NOT a punishment. It is an assurance that the suspect won't be going anywhere until a decision is made whether they can safely be released or not. A defendant may be released on their own recognizance (ROR), or be required to post bail. There is the option to post either cash or real estate instead of using a bail bondsman; this can be cheaper, as the bondsman will charge 3% to 10% of the bail amount or more (non-refundable).

Any competent criminal defense attorney can advise you on all of this if the time should ever come.

The ultimate decision to prosecute is not made by the police, but by the District Attorney's office based on the information presented.

I'd much rather spend a night in jail than a night in my local trauma center's ICU, let alone start eternity with a night in the morgue.

RickD427
01-26-2011, 8:54 PM
The likelihood of being arrested after a self-defense shooting is small, but also highly dependent on the situation as it is apparent to the responding LEO’s. I have responded to a few situations where a private person used deadly force. None of those cases resulted in the person’s arrest. One was a store security guard who shot a robbery suspect, the others were homeowners who shot intruders. In all of the cases the readily apparent facts of the shooting were clear and the immediately available evidence pointed to the conclusion that the force was reasonable. There was a lengthy period of detention for everyone involved. The fact-finding process takes quite a bit of time, but no one was arrested. Every LEO would prefer to work with a cooperative witness and believe it or not, we really try to keep our victim’s and witnesses in a good disposition – we’re going to get better information from a cooperative person than from a hostile one.

Asking for a lawyer is understandable. That act alone should not increase your chances of being arrested at the scene. There is considerable case law on the right against self-incrimination where emergent conditions are present. The police have the right to demand what has been termed “public safety” information. That would include the number and direction of rounds fired (so that undiscovered gunshot victims can be located) and the location of any known weapons (so that a young child doesn’t find a discarded gun). The courts have held that the right against self-incrimination (just like every other right) isn’t absolute. Everything else can wait until you’ve met with counsel. If there is a death involved, the situation is going to take some time to resolve. Your lawyer will have time to get there. The only time that seeking counsel might conceivably increase your likelihood of being arrested is where the other evidence is less than clear, and your statements would otherwise have tipped the scale. I haven’t seen such a case.

I have taken “victims” to jail in two cases where they used force that was far in excess of what was reasonable. Once case involved an off-duty police officer who intervened in a fist-fight between his 12 year-old son and another 12 year old. Several minutes after the actual combat was over, and while engaged in verbal dialogue with the now non-violent 12 year-old, the officer grabbed the 12 year-old with enough force to break his arm. The other case involved a “victim” who beat a “suspect” severely with a baseball bat after he caught the suspect “breaking into his pickup truck.” The on-scene investigation showed no evidence that the pick-up truck had even been touched, and that the “suspect” had only been walking along a foot path that passed immediately by the truck.

Anchors
01-26-2011, 9:41 PM
I don't even think I would say "I was in fear for my life".

I would just say "He was going to kill me. I want him arrested. I'm going to call my lawyer now."

I would say that even if he was dead.

Asking for permission to call your lawyer implies that you consent to being detained or you think you should be.
Just say what you are doing.

Pred@tor
01-26-2011, 10:03 PM
More than likely you will sit in jail for shooting someone. Even though the law is on your side out here in Missouri we have uses of lethal force to protect private property even. Just have that attorney on dial when you're packing that way if something happens you can contact him/her. More than likely though chances are in a shooting and you use your gun to defend your life and/or others you may sit in a cell for a day or two. Sucks but you still gotta pay the fees to protect yourself in court even though the law is on your side.

cbn620
01-27-2011, 12:20 AM
Thanks to all for the thoughtful and well-written responses. Love Calguns! Looks like my suspicions are kind of reaffirmed, though I'm surprised to hear a few people saying an arrest/jailtime are not necessarily automatic. I also agree that a person should not necessarily clam up and just refuse to say a single word and become really hostile and suspicious. But I do think as a general rule of thumb, being polite and keeping your trap shut is a good idea when you're looking at the possibility of jail time. I just hope if someone ever does break into my house the sight of my gun will send them running without the need for violence.

Also to whomever said this should be posted on the LEO forum, I give you full permission to do so. I don't want to cross post my own stuff, that would make me feel a little full of myself. :o

Again thanks to all!

TheBundo
01-27-2011, 3:01 AM
No matter how justifiable, the hours, night, and longer, after killing someone can turn tricks on your mind that you would never expect or predict, and it happens to policemen in such situations too. Even if you spend the night or a few days in jail while it gets sorted out, that isn't what will stick with you, nor cause you to wake suddenly at night, the killing is what will. It can come back at any time, even years later, like abortion does to some women. It's a "brain thing", and there is little you can do about it.

In jail, just try to remember the rules about talking, even to others in jail. Play cards, read, sleep, think, pray, etc. It's about all you can do, and it's not like you're in a concentration camp.

sholling
01-27-2011, 8:22 AM
The likelihood of being arrested after a self-defense shooting is small, but also highly dependent on the situation as it is apparent to the responding LEO’s. I have responded to a few situations where a private person used deadly force. None of those cases resulted in the person’s arrest. One was a store security guard who shot a robbery suspect, the others were homeowners who shot intruders. In all of the cases the readily apparent facts of the shooting were clear and the immediately available evidence pointed to the conclusion that the force was reasonable. There was a lengthy period of detention for everyone involved. The fact-finding process takes quite a bit of time, but no one was arrested. Every LEO would prefer to work with a cooperative witness and believe it or not, we really try to keep our victim’s and witnesses in a good disposition – we’re going to get better information from a cooperative person than from a hostile one.

Asking for a lawyer is understandable. That act alone should not increase your chances of being arrested at the scene. There is considerable case law on the right against self-incrimination where emergent conditions are present. The police have the right to demand what has been termed “public safety” information. That would include the number and direction of rounds fired (so that undiscovered gunshot victims can be located) and the location of any known weapons (so that a young child doesn’t find a discarded gun). The courts have held that the right against self-incrimination (just like every other right) isn’t absolute. Everything else can wait until you’ve met with counsel. If there is a death involved, the situation is going to take some time to resolve. Your lawyer will have time to get there. The only time that seeking counsel might conceivably increase your likelihood of being arrested is where the other evidence is less than clear, and your statements would otherwise have tipped the scale. I haven’t seen such a case.

I have taken “victims” to jail in two cases where they used force that was far in excess of what was reasonable. Once case involved an off-duty police officer who intervened in a fist-fight between his 12 year-old son and another 12 year old. Several minutes after the actual combat was over, and while engaged in verbal dialogue with the now non-violent 12 year-old, the officer grabbed the 12 year-old with enough force to break his arm. The other case involved a “victim” who beat a “suspect” severely with a baseball bat after he caught the suspect “breaking into his pickup truck.” The on-scene investigation showed no evidence that the pick-up truck had even been touched, and that the “suspect” had only been walking along a foot path that passed immediately by the truck.

Thank you for the insights and professionalism.

tyrist
01-27-2011, 9:40 AM
If it's a justified homicide you won't be booked into jail but expect an extremely long detention.

Lrchops
01-27-2011, 11:19 AM
In a rightious self defense shooting you would not be arrested in most jurisdictions, except for maybe San Francisco or Davis. Only reason there may be an arrest is if you are carrying illegally (felon or misdo carry).

Kill or be Killed!!!