Limited Immunity for Calling 911
to Report a Self-Defense Incident
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.
by Alan Korwin, Author
Gun Laws of America
August 27, 2010
So, do you have the right to remain silent or don't you?
Do you have the right to have an attorney present
prior to and during any questioning by the authorities?
Do you have a virtually sacred Fifth Amendment constitutional right
protecting you from self incrimination?
Then why on Earth would you call 911 immediately after you survive a self-defense incident
and spill your adrenalized, traumatized, blood-pressurized nearly incoherent blather
into a police voice recorder -- which (by the way) the media will then broadcast for weeks?
It's complicated. And most lawyers will tell you if you don't call 911 right away,
that will be held against you. It will look bad to the jury. The prosecutors will
turn you into chop meat, and if the murderous assailant bleeds out and dies
you'll face a murder charge instead of some lower homicide or maybe nothing at all.
If you should dare to call your attorney first, omigod, that's the worst thing you can do.
You lawyered up, you must be guilty --
from the prosecutor to the media to the public, right?.
Do you really have the right to an attorney?
Something here is just not right.
No state in the union requires you to call 911. But you better do it or else.
Lawyers always tell you "Don't say anything," but even they tell you to call 911.
Well, which is it? How are you supposed to accomplish that piece of magic?
The Miranda warning says you have the right to remain silent.
But don't go and exercise that right, or you'll face a hanging jury.
Have I got your attention?
(Pre-release:) This conundrum, and the worlds of ambiguous, impossible, ignorant, conflicted and
paradoxical advice floating around out there has prompted me to work on my next book:
AFTER YOU SHOOT:
Your gun's hot,
The perp's not,
I have a solution to the problem, a really good solution, a solution with tried-and-true test cases by the thousand, but the dozens of experts and lawyers I've shown it to don't like it one bit. All of that is in the book -- my ideas, and their totally negative reactions. I get down to the nitty gritty, make my case, it's totally compelling, but everyone (well, almost everyone) tells me it's a bad idea. I'm a pretty good listener, I will not ignore their advice, and when this book is done, you'll get both sides, so you can decide. Maybe I'll help move the national debate on this ahead. Or at least start a national debate. It's needed.
In the meanwhile, I have another solution, and it also seems like a good one. Let's take the sting and the risk out of making the 911 call to the police after a self-defense incident. Phoenix criminal-defense attorney Thomas Baker (who has been a tremendous resource in developing this new book) suggested this approach, did the first draft. I cleaned it up, took out the Arizona specific parts, and present it here as model legislation for anyone in a 911 calling area. (You may not know it, but 911 is an optional service, cities and counties pay a lot to provide it, and some places don't have it and don't even want it, but that's another story.)
LIMITED IMMUNITY FOR STATEMENTS MADE
WHILE REPORTING THREATENED OR ACTUAL USE
OF PHYSICAL OR DEADLY PHYSICAL FORCE
IN JUSTIFIABLE SELF DEFENSE.
a) Any individual who is directly or indirectly involved in an incident involving the threatened or actual use of justifiable physical or deadly physical force shall be granted limited immunity for all statements made in a good faith effort to promptly report such incident to the appropriate authorities in an effort to obtain emergency medical or law-enforcement assistance.
(b) The term “limited immunity” shall mean that no statement(s) made by an individual in a good faith effort to promptly report an incident involving the threatened or actual use of justifiable physical or deadly physical force may be used against that individual in any civil or criminal proceeding. [Other terms are defined as necessary.]
(c) This grant of limited immunity shall not apply to the prosecution of false reporting, obstruction of justice, tampering with evidence or perjury.
(d) The contents of a report made to promptly report an incident involving the threatened or actual use of justifiable physical or deadly physical force, in a good faith effort to obtain emergency medical or law-enforcement assistance, shall not be released to the public or the news media prior to its use in a trial involving any such incident.
Attorney Baker also included a legislative Statement of Intent
to go along with the draft language, which I've fine tuned just slightly below:
Whereas the state legislature has enacted legislation defining certain circumstances in which a person may lawfully threaten to use or actually use physical or deadly physical force;
Whereas the state legislature recognizes the need for justifiable instances of threatened use or actual use of physical or deadly physical force to be promptly reported to the appropriate authorities to assist in the prompt dispatching of emergency medical and law-enforcement personnel;
Whereas the state legislature recognizes that individuals who threaten or actually use physical or deadly physical force have a deeply rooted constitutional right to remain silent, and to have an attorney present prior to and during the course of a pending potentially criminal investigation;
Whereas the state legislature desires to strike a balance between the potentially competing needs for prompt reporting of such incidents and an individual's constitutional right to remain silent, have an attorney present prior to and during questioning, and be protected from self incrimination, all of which could delay prompt reporting;
Therefore, the state legislature hereby enacts the following statute to provide limited immunity to individuals who are directly or indirectly involved in an incident involving the threatened or actual use of physical or deadly physical force if they promptly report such instances by calling 911 or other appropriate authorities.
Adding "Teeth" To The Law
And finally, a proposed "teeth" clause, which I believe many laws need to have, to control employees, authorities, politicians, bureaucrats and other "officials" who frequently and with impunity violate laws and emerge unscathed:
"(e) Anyone who violates or attempts to violate the immunity provided in subsection (a) of this section, or acts in violation of subsection (d) of this section, shall be subject to prosecution as a class 1 misdemeanor for a first offense, a class 6 felony for a second offense, and a class 5 felony for any additional offenses, whether or not additional offenses are committed against the same or different persons, or related to the same or different cases, and regardless of time that may pass between subsequent offenses."
This is modeled after the highly successful Posse Comitatus federal law (18 USC §1385). Instead of saying, as so many federal laws do (paraphrasing here), "It's illegal to use the military to enforce civilian law," which would be toothless against an offender, the statute says, "Anyone who uses the military to enforce civilian law shall go to prison for a long time and pay a very stiff fine." That difference, and people's unwillingness to suffer those enumerated consequences, is why America is not a banana republic.
A movement to get similarly biting teeth attached to numerous other laws on the books would sure get my vote.
Larry Pratt, at Gun Owners of America has recognized the value of adding "teeth" to statutes in this circulated comment about efforts to nullfiy unconstitutional laws:
... [E]ight states have recently enacted a Firearms Freedom Act. These Acts provide for a nullification of all federal gun laws in cases involving guns made in a state, and which remain in the state. Wyoming’s law has one extra provision that is almost perfect.
The Wyoming statute provides for a penalty of up to 365 days in jail for a federal official who attempts to impose a federal gun law in contravention of the state’s Freedom Act. Perfection would require amending the law to provide for up to 366 days in jail. That extra day – even if the sentence were suspended following conviction – would trigger the federal law which would revoke the offending agents’ civil rights, including their right to keep and bear arms. I personally do not think that revoking a person’s Second Amendment freedoms for non-violent crimes is constitutional, but for the time being this penalty provides a handy tool for removing the federal boot from our necks.
A 366-day provision inspired by the Wyoming law not only needs to be inserted into all states’ Firearms Freedom Acts, it needs to be part of any state law nullifying all unconstitutional federal laws and regulations. For a first-class treatment of the history and contemporary promise of the use of the Tenth Amendment, one need look no farther than Thomas Woods’ book Nullification: How to Resist Federal Tyranny in the 21st Century.
Talking Points for the 911 Limited Immunity statute
• The state has a legitimate interest in encouraging people
to seek medical and police help right after a shooting.
• A person has a right to remain silent, and the right to have an attorney present
which are fundamental to our system of justice and must be safeguarded.
• People have a legitimate interest in making no statements
that might be used against them in a court, especially into police voice recorders.
• The Fifth Amendment to the Bill of Rights guarantees protection
to everyone against self-incrimination, and must be respected.
Calling 911 after a traumatic criminal event compromises this precious right.
• To balance the interests of the state with the rights of the people
a 911 Limited Immunity Law is needed to protect people who call 911
or otherwise seek emergency assistance.
• Speaking into a police voice recorder immediately after a self-defense incident
violates the right to remain silent, and most attorneys advise against saying anything.
• The Miranda warning clearly reminds us that you have the right to remain silent,
and the right to have an attorney present before and during any questioing.
• The 911 Limited Immunity Law is a good way to balance both needs.
All it does is protect the innocent.
• People who say the law will protect criminals made the same lame argument
when the Miranda ruling came out to protect the innocent. They said, "We'll never
be able to convict anyone if we can't use their statements against them," (in other words,
if people don't convict themselves we're too incompetent to get the job done legally.)
• The same applies here. Instead of using frantic traumatized 911 tapes to convict people,
authorities will have to do good police work to gain convictions against truly guilty parties.
• The 911 Limited Immunity Law protects the rights of all citizens equally.
• The 911 Limited Immunity Law prevents police abuse and protects the innocent.
• The 911 Limited Immunity Law has no financial cost associated with it.
• You should support the 911 Limited Immunity law because it is good law.
• If God-forbid you ever have to face a lethal assault and defend yourself,
you'll wish the 911 Limited Immunity Law was in place.
"We publish the gun laws."
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