BY HARVEY HEDDEN
When we decide to arm ourselves for protection it is important that we not be mistaken for dangerous criminals. You know you are one of the “good guys,” but to other “good guys” you might appear to be a “bad guy,” as in the case above. There have been numerous cases in which off duty or plainclothes police officers have been mistaken for “a man with a gun” and were killed by uniformed officers. In some cases the officer involved even personally knew the victim but did not recognize him.
“The driver failed to stop for the stop sign, as though she didn’t see my marked squad approaching the intersection. So I stopped the late model Ford with lights, no siren, called in my traffic stop and made the approach. As I neared the driver’s door she turned away and I glimpsed her handling a small box that looked vaguely familiar. Too late to retreat, I picked up my pace as she now turned towards the open driver’s window. I recognized a snubby revolver in her hands being thrust out the window in my general direction. I grasped her hands with my left hand as I drew my weapon with my right, while another part of my mind was trying to understand what she was saying, “I just bought this officer…” I was able to disarm her with my left hand while she continued to say “…for my protection.” A moment later she saw my weapon and looked confused, then put everything together and said, ‘Oh, you thought I was….oh no!’”
When you make the decision to carry a firearm, there are several circumstances in which you may encounter law enforcement, from a simple traffic stop to a shooting, and your goal is to not present yourself as a threat. Police officers, like you, want to go home safely at the end of the workday. Unfortunately, there are criminals who will use every tool – from deception to deadly force – to avoid arrest. Lacking a detector of evil intent, the police officer who stops you doesn’t know who you are and must make a threat assessment, based on your demeanor and actions, until they can determine through investigation who and what you are about. They are trained to assume that almost anyone they contact could potentially pose a threat to them. I recall the words of an old veteran when I was only a rookie, “Boot, you must treat everyone you meet with dignity and respect… and have a plan to shoot them.” If an officer observes you with a firearm in your possession, you are not innocent until proven guilty. You are a potential threat. Yes, you should expect courtesy, but safety comes first.
Because so many states have concealed carry, more law enforcement agencies are developing training protocols to handle contacts with lawfully armed citizens, whether they are carrying concealed or open. Such initiatives result in safer contacts and fewer complaints from permit holders against officers and agencies. But many agencies lack these protocols or training, and there remains a wide variety of potential responses by law enforcement to contacts with an armed citizen. Some permit holders have found significant variances even within a single police agency. No matter what the training or policy, the person with the badge ultimately is in charge of the contact, and although we may disagree with their conduct it is the best course to follow their instructions and avoid holding court on the street. You can always make a complaint to command at a later time.
No matter how conscientious you are, it can happen that you will be stopped for a traffic or equipment violation by a police officer. Your vehicle might also be similar to the description of one wanted for a crime or “check the welfare” call. As difficult as it may be, your best response is to not become excited, argumentative or nervous. Take a deep breath, focus on what is happening, listen to any signals or instructions carefully and act slowly and deliberately. At worst the stop may be an inconvenience and you may have to eventually post a bond or pay a fine.
If you are signaled to stop by an officer, decelerate normally and look for a safe place to pull over with a wide shoulder or a parking lot. Officers are killed every year by traffic when out of their squads performing their duties. Turn your engine off. If your driver’s license, registration and CCW permit are not immediately accessible, don’t start reaching around the interior of the vehicle to locate them after you are stopped or as the officer approaches, as this might be misinterpreted as an attempt to hide something or access a weapon. Turn on your interior lights at night, turn your radio off, put your cellphone down, open your window and place your hands high on the steering wheel and leave them there. Don’t turn around or move your mirrors to try to see from where the officer is approaching. Don’t try to sneak your seatbelt on or make any other movement that might appear suspicious. If there are passengers in the vehicle, advise them to keep their hands visible, sit still, and let you do the talking unless the officer directly asks them a question.
“In another traffic stop a nervous teen driver put his cigarette in the dash ashtray but then returned his hands to the wheel as I examined his license. Somehow he had forgotten he had stored a few small firecrackers there and somehow the cigarette managed to light their fuse causing them to explode. Fortunately, because his hands were visible to me he avoided being shot.”
The officer(s) may or may not initially tell you why you were stopped, but will usually ask for your license and registration. In addition to providing these documents, you may provide your CCW permit to bring that awkward subject into this conversation. If you need to retrieve these from someplace, tell the officer you will obtain them but that you want the officer to know you do have a concealed carry permit valid in the state, and that you are carrying a weapon on you/in the vehicle. This is preferable to the officer seeing your firearm as you reach for your wallet or open your glove box and reveal that hand cannon. Never just blurt out, “I have a gun on me.” When officers hear the word “gun,” it takes them back to training or street encounters in which a fellow officer found a hidden weapon on a suspect and yelled the warning “gun.” Instead use terms like firearm or weapon. Keep your voice calm and your rate of speech slow so that you do not appear to be nervous or agitated.
The officer may ask where the weapon is located. Tell – don’t show – the officer where it is. Just because you have told the officer you have a permit and a firearm doesn’t mean his guard is down and that you can relax, take your hands off the steering wheel, grab a snack or make a phone call. Don’t make idle chatter about the weapon the officer is carrying. Don’t expect that since you are a CCW holder the officer views you as a “good guy” and is going to give you a warning instead of a citation.
Note that not all states require you to tell the officer that you are carrying concealed, but it is a strongly recommended practice because if you do not and they do find out through observations or a computer check that you are a CCW permit holder, they will wonder why you did not relate this information to them. Even if you are not carrying a concealed weapon, if you have a permit you should tell the officer that you do but that you are not armed, so that if they run a computer check and learn you have a permit, they won’t wonder why you failed to mention it.
From this point the officer may ask you to not make any movement towards the weapon. You might be asked to exit your vehicle. You might be patted down and your weapon taken from you temporarily. You might be asked to turn over the weapon to the officer. In this case, be sure to ask and understand exactly how they want this task completed. Before taking any action, verbally tell the officer what you are going to do and get an acknowledgement that they agree. You want to reduce the chance of any confusion wherever possible.
BEFORE TAKING ANY ACTION, VERBALLY TELL THE OFFICER WHAT YOU ARE GOING TO DO AND GET AN ACKNOWLEDGEMENT THAT THEY AGREE.
Before turning the weapon over, ask if you may unload the weapon. Whenever handling your weapon always keep the muzzle away from everyone. Make your movement slow and deliberate in a manner that is easy for the officer to observe. You may not like this treatment, but don’t argue with the officer. You can always make a complaint later.
It is also possible you weren’t stopped for traffic, but because you or your vehicle matches the description of one wanted for a crime. In this case you might be asked to exit the vehicle and may be ordered to the ground and handcuffed at gunpoint. Your best course, again, is to inform the officer verbally and keep your hands visible in front of you and comply with all commands. Do not argue or reach anywhere the officer cannot see. Cellphones or a wallet can appear to be a firearm in reduced light.
If you are stopped on the street, it might be that you may be a potential witness or suspect (Terry Stop). Use the same cautions about where you place your hands and, before retrieving documents or identification, let the officer know if you have a concealed firearm/permit. Police officers actively look for signs that someone is carrying a concealed firearm and may suspect you are CCW before they even begin a conversation with you. In my own experience, many criminals failed to wear clothing that adequately concealed the weapon, or failed to use a good holster with the consequence that their firearm shifted and caused their clothing to sag or bunch unnaturally. This is another good reason to invest in a quality holster in lieu of the waistband or coat pocket. You don’t want to be mistaken for a thug by the police or recognized by a criminal as a source of a free gun.
There are many ordinary tasks that require remastering to carry a concealed firearm, most notably squatting in lieu of bending over. But if you had a lapse and a call went out or an officer saw your weapon, you need to use extreme caution. If a police officer does order you to stop, don’t move or turn towards the officer. Keep your hands in plain view and don’t reach for your permit. If you are asked to produce it or your identification, repeat the command back to the officer, and then slowly say it again as you perform the action in easy view.
If you are ordered to disarm yourself, ask for details on how the officer wants this accomplished and ask if you can face a direction and or get into a position that is least threatening, such as prone. I caution officers about giving this command because another unit rolling up on the scene could misinterpret the citizen’s disarming as drawing the weapon. Do not grip your weapon as you would normally, but use two fingers on the portion of the grip farthest from the trigger. Your other hand should be raised palm facing outward. Some have suggested using the non-gun hand for this action, but my concern would be that the less coordinated hand might drop the weapon and the citizen might try to grab at it. Once the weapon is out of your hands, raise them both; do not move towards your firearm again.
Armed citizens use the threat of deadly force with much more frequency than actually firing upon a criminal. Unfortunately, some of those armed citizens decide not to call the police after the incident because they believe that if no actual crime was committed, why make it a police matter? But in many cases citizen witnesses (and in a few others, would-be offenders) have called 911 and described the armed citizen as the bad guy. Law enforcement tends to think of the first involved party that calls as the victim, so it is to your advantage to get your account of an incident heard first.
Assuming the threat is no longer present, re-holster your weapon or otherwise secure it so that you are not visibly armed. Make your hands visible and tell bystanders that you are legally permitted to carry a firearm and that you were concerned for their/your safety (why you had your weapon in hand). In any scenario, intentional or accidental, in which you believe your weapon may have been observed by someone who would contact the police, you should proactively call 911 to head off a “man with a gun” call. You might still be asked to meet an officer and should use the safety protocols outlined below. Try to stay on the line with the dispatcher until the first responding officers arrive to provide better communication and coordination for a safe response.
There are legal considerations in even the threatened use of deadly force. Most importantly, is the threat you are trying to stop one that involves death or great bodily harm, or is it just a property crime? The cost of replacing your wallet or your car, even household possessions, pales in comparison to the costs associated with hiring competent defense counsel for a shooting. Even when you are right, it can cost you dearly to prove it. Typical legal defense costs are around $50K. The cost of George Zimmerman’s legal defense was reportedly $2.5 million. If you decide to undertake a citizen’s arrest, you will be investing many hours in the subsequent investigation and court appearances. You might be charged or sued for false imprisonment and need to hire counsel to defend your actions. The bottom line is that property is replaceable, people are not.
We tend to imagine a scenario in which a stranger is the attacker, but in fact often this person is known to us or we have had some relationship with that person that may influence how the incident is judged afterwards. After the incident there may be an attempt to paint the incident as an angry reaction or an opportunity for you to settle a score rather than lawful self-defense. In these cases it is preferable that someone else who is unrelated to the offender intervenes, ideally law enforcement. This means you may wish to retreat even if your state laws indicate you are not required to do so.
But there are also important tactical considerations in deciding to use a firearm, such as can I isolate my target if I have to shoot? If I should miss, where might my round end up? Will I put other bystanders at risk if I engage this person in a gunfight, including my own family? But we should also consider the possibility that someone else at the scene might misinterpret your actions and think you are a criminal. Could one of these bystanders be an off duty officer or CCW permit holder?
WHETHER ARMED OR NOT, THE BEST WAY TO HANDLE AN ATTACK IS TO AVOID IT ALTOGETHER.
The police aren’t the only side that utilize backup. Could a bystander actually be a covert, armed, seeded backup for the armed suspect you did identify? In Las Vegas, two insane criminals murdered two uniformed officers as they ate lunch, and then fled to a retail store across the street. As panic swept through the store and shoppers and staff tried to flee, a courageous armed civilian prepared to engage one of the shooters but was ambushed by the second and killed. We can take some solace in the fact that other civilians were able to escape while the killers engaged this brave citizen, but it is possible that better tactics might have provided a more satisfactory resolution.
Whether armed or not, the best way to handle an attack is to avoid it altogether. Be aware of potential threats, avoid dangerous environments, and if you get a hunch that something is wrong, believe in it and if possible retreat to a safer area. Often our subconscious mind perceives threats that we are unable to fully conceptualize in our conscious mind until it is too late. This does not mean you should use proactive force based on intuition, only that when you think you might be getting into trouble you may have a limited opportunity to avoid it altogether.
In the rare case in which an armed citizen is required to use their weapon to defend their own life or that of another, communicating with responding police is critical. In a perfect scenario, that communication would begin even before the shooting starts. In several cases the 911 recordings even captured the verbal warnings the armed citizen gave to the suspect. In scenarios where the suspect fled the scene, a physical description of the suspect led to their rapid arrest.
Thanks to 911 dispatching with auto location and other advances in technology, such as Shotspotter (http://www.shotspotter.com), police are often able to respond to shootings in urban and suburban areas much more quickly. In some cases the shell casings were still rolling on the pavement when officers arrived. In other cases, particularly more rural jurisdictions, you might wait considerably longer. In either case, contacting law enforcement as soon as possible will expedite their arrival and also begin to provide them with important information to help them determine who are the good guys and who are the bad guys. Never leave the scene (flight = guilt) unless staying in that area would be too dangerous, and then let law enforcement know where you have relocated as soon as possible.
We tend to assume that the police will recognize we are one of the good guys, and this assumption can get us killed. The aftermath of a shooting is sometimes more physically stressful than the tactical resolution of the incident itself and could cause you to respond to arriving officers as a new threat. Witnesses who call in a shooting are not always accurate, and responding officers will have to assume anyone they encounter is a potential threat, especially a person with a firearm in hand. In one case, an officer had to remove the service weapon from a brother officer’s hands that he had used minutes before to shoot an armed suspect and was still aimed at his body so other officers could safely work the shooting scene. Being aware of these stressors can help you stay alive and protect you legally.
WE TEND TO ASSUME THAT THE POLICE WILL RECOGNIZE WE ARE ONE OF THE GOOD GUYS, AND THIS ASSUMPTION CAN GET US KILLED.
Once it appears there is a pause in the armed confrontation – because the suspect is no longer a threat or has fled the area – take cover, reload, and scan the area to be certain the suspect is not trying to flank you or for other threats like a backup bad guy. Slow your breathing and determine your own status, as you may have been wounded and are not aware of it. Tell anyone in the area that you are a legally armed citizen and that you were attacked and that you are the victim. Ask if any of them were hurt or if they saw the incident.
The body and mind will experience a variety of effects that make us less aware of our surroundings (including tunnel vision and auditory occlusion) making it easy to miss threats. It will also tend to cause diarrhea of the mouth. You should assume that someone has their cellphone video camera rolling and what you say in the heat of this moment will impact whether or not you are prosecuted for this shooting, as well as appear on television.
If the suspect is down, never assume the suspect is out of the fight. Verbally challenge the suspect to give up their weapon and raise their hands. Do not attempt to physically contact the still-armed suspect or chase them if they flee the scene. If you are able, secure their weapon but never assume there is only one. Be cautious when in close proximity to the suspect in case they are faking injury or death to lure you closer or locate you. If circumstances dictate that it is safe to do so, you or someone at the scene might attempt to provide first aid to the suspect within the scope of your/their experience and training, and only after seeing to any innocent injured persons, and only if you are reasonably certain there is no additional threat. Why treat the criminal who tried to hurt you? Because it makes it clear that you used deadly force because you had to, and not because you wanted to murder this person. In cases in which citizens or police officers made such a good faith effort until emergency medical professionals arrived, plaintiff’s counsel and prosecutors found it difficult to paint the shooter as a stone cold killer. But you should not risk anyone else’s safety or attempt more than very basic first aid without proper training.
Once we have survived the tactical event, we want to be certain we don’t create conditions for another one by being misidentified as a threat. This is best achieved in a system that Mas Ayoob calls the three rings of safety. I first heard of this concept in connection with off duty and plainclothes officer involved shootings, but it applies equally well to armed citizens. The three rings of safety that protect the armed citizen include: the message, the welcoming committee, and you. The most critical information that will be repeated in each of these will be the descriptions, location and current status of the armed citizen and the suspect(s) and their weapons and the need for emergency medical response.
The message is communication sent out to law enforcement by someone who will be calm, rational and reliable, which for the reasons stated above might not be you. Ideally someone in authority at this location, like a storeowner, should make the call. Remember that stranger could be a seeded backup. Don’t delay this call, as it is possible someone else may have already called 911 and incorrectly identified you as a bad guy. The message should include a description of what has happened, including the elements listed above. Follow up messages can provide updates or more complete information as it becomes available, such as suspect(s) fleeing or hiding in the area. You might consider taking advantage of technology by having someone take photos and or video for the record or to send to the responding officers or dispatch.
If you have any doubts about the ability of the person being tasked to do this important duty, call yourself. The upside of being the caller is that you have more complete information about what is happening and can stay on the line with the dispatcher until the responding officers arrive. The downside is that it distracts you from potential threats still in the area and will be part of the investigative record and possibly replayed by the media. Try not to sound too excited or too calm, as either will be used against you.
The welcoming committee is a reliable person of authority who can meet responding officers, and assume they have none of the information provided to dispatch, and provide the same information to those now on scene just in case they did not receive everything that was provided to the dispatcher or the situation has changed. It is important that they be highly visible and not appear to be a threat. Give this person your cell number in case the officers want to communicate directly with you.
You are the final ring of safety in a post-shooting incident. If it is no longer necessary to cover the suspect, depress your muzzle downwards or better yet re-holster and make your hands visible. You might also consider laying your weapon on a nearby object where it is easily accessible. You can then step away from it with your hands visible and direct the officers to its location.
Try to orient yourself in a manner that allows you to see the officers arriving, but not in a manner that it appears you are aiming in their direction. Expect to be surprised by them and that they may yell commands that you are not to move. Do not turn towards the sound of the officers. Make sure you understand and obey their commands. Let them know you are the victim/legally-armed citizen and where the suspect is and what potential threat he is to the officers. If you still have your weapon in hand, the responding officers will likely ask you to holster or put your gun down/away. If you are told to drop the gun, keep the muzzle pointed in a safe direction and try to drop it on its side to reduce any chance of an accidental discharge. They may then ask you to step away from the weapon and into a location and position where you can be searched and possibly even handcuffed until they sort out the scene.
Once the scene is secure, you will want to provide officers information as described above from the message and welcoming committee that helps them capture the suspect if necessary and secure valuable evidence and witnesses. It is best to limit these recollections to things you are certain of and can corroborate with current observations. Never exaggerate or feel the need to say something to fill in gaps in the story. Avoid providing details, because much of what you think you know now will change in 24 to 48 hours. When police officers are involved in shootings, they are not asked for a detailed account for at least 24 hours so that their mind can return to some sense of normalcy (something you may mention to the investigating officers). Conversely, those who tried to fill in the blanks of their memory often had to change their account in light of physical evidence and other witness accounts, which made it look as though they were being deceptive. In my first shooting, I was almost certain I had pulled the trigger on empty chambers in my revolver because I had not heard or felt the .357 magnum discharge, but the next day I had a much better recollection of the event.
Tell the officers you wish to cooperate with them and will sign a complaint because you are the victim. Use “sir” a lot in speaking with them. Tell them you were in fear for your life or the life of another and had no choice. Don’t say you are sorry or that you didn’t mean to kill the suspect, just scare them off, or that your gun “went off.” If the officer asks for details, state that you are pretty shaken up right now and would like to be able to recover from this traumatic event so that you can provide accurate information, and that you would like to have your attorney present when you do. You may wish to ask to go to the hospital to get checked out because of the stressful event you just experienced, and that you may have health problems that are not immediately visible or recognizable.
In these statements, you have asserted your right to counsel, told the officer that information you provide now could be influenced by the trauma of the shooting (and therefore not accurate), and asked for medical treatment, which if delayed can establish additional trauma and duress during questioning, making your subsequent statements inadmissible in court. Note that if you do go to the hospital, you might ask for a blood test for drugs and alcohol to establish that you were in a proper state of mind at the time of the shooting and that it was not an accident.
But the police want those details and are likely to tell you things like, “If you don’t get your side on the record we might have to arrest you and you don’t want that,” or, “If you’re not guilty of anything you have nothing to worry about.” They have a job to do and would prefer to complete this investigation rather than have to follow up later. They may downplay the importance of their questions or ask for “yes” or “no” responses to things that “you certainly must know” or offer that telling them about the incident will help you better deal with the trauma. At some time or another I used all these tactics and more to convince people to talk.
You should respond that you appreciate the job they have to do and that you will cooperate once you have had a chance to calm down, just as would be the case if the officer were involved in a shooting, but that you want to have your attorney present before answering any questions. Do not consent to searches of your home, business or vehicle. Anticipate that these may be searched with a warrant and that if you have firearms improperly stored, not only will you be charged but also it will contribute to the picture of you as a reckless gun owner. Expect that you may be arrested, handcuffed, booked, jailed and arraigned. Do not argue or resist the police, but obey all their commands. Technically you have committed a violation of law until some authority determines you have not. Police anticipate that at some point from the arrest but prior to your arraignment, you will insist on speaking with them without your attorney.
If you decide to carry a gun, start your search now for qualified legal counsel with experience in self-defense cases. Don’t settle for someone who primarily deals with traffic offenses or car accidents. However, an attorney is only one element in your defense. You may wish to consider hiring a private investigator to look into the background of the suspect and to review the reports of investigating officers for completeness after they are released to your attorney. Your attorney may also seek expert witnesses who can educate a jury or the court about the realities of self-defense.
As we have seen in George Zimmerman and Officer Darren Wilson shootings over the past several years, a lie repeated enough times in the absence of the truth becomes the truth, and can result in a prosecution based more on political correctness than the facts of the case. You may wish to hire a media consultant that, in concert with your attorney, is able to communicate the truth of the event without endangering your defense. Never take on this task yourself as George Zimmerman did by appearing for a TV interview that was subsequently used by the prosecution.
Benjamin Franklin said, “If you fail to plan, you are planning to fail!” Having a plan for a dangerous encounter will reduce your reaction time and make your response more effective. Part of your planning should include mental scrimmages against potential threats. But your planning should also include what you will do if you are contacted by law enforcement, whether it is a traffic stop or the defensive use of your weapon. You want to act in a way that you will be recognized by the police as one of the “good guys” and not put your life or freedom in peril.
Harvey Hedden served for 39 years in law enforcement, in roles from patrolman to chief. Most of his career was spent in plainclothes and undercover assignments. He has been a law enforcement trainer for 35 years, specializing in firearms, officer survival, defensive tactics, arrest control, investigations and customer-based policing. He has taught thousands of officers and civilians, authored numerous articles, and created and contributed to a variety of training programs. In 2009 he became the Executive Director of the International Law Enforcement Educators and Trainers Association.