This same question always seems to come up on discussion forums every few months and the points made rarely change. There a lot of bogus information often contained. The simple bottom line is that one should look to how Law Enforcement Officers are trained to respond when they're involved in a defensive shooting. The criminal liabilities for a LEO and a non-LEO involved in a shooting are essentially the same. The civil liabilities are different.
I spent several years maintaining my agency's operational policies, and have studied those of many other agencies. With the exception of New York City, nearly all major agencies have similar polices. The NYPD is close, but theirs is influenced by a history of labor-law issues. The policies are mainly driven by three factors:
1) There is a long history of folks (LEO and non-LEO) making excited and poorly deliberated statements when under the stress that accompanies a shooting. It's a normal human reaction and you need to provide for it. Once a statement is made, you can't pull it back. When you make a statement, you need to consider what it says, what it doesn't say, and how it can be taken out of context.
2) A shooting will produce an emergency response. It's not over when the last shot is fired. The suspect likely put you in jeopardy (why else would you use force), but if you fired, you also put folks in the area in jeopardy. The Supreme Court has ruled (refer to New York v Quarles) that some information is so time-critical to the processing of a shooting scene that it outweighs the "right to silence". That is commonly understood to be the number of rounds fired and their direction, the number and location of suspects and witness, and the location of key evidence.
3) There is an old adage that "Information comes three ways: fast, accurate, and complete. You can have any two of these." At the scene we deal with "fast and accurate." As the investigation moves on, we shift to the "accurate" and "complete."
So here's the common post-shooting policy that results from the above: 1) Manage the scene until help arrives. 2) Give a short, concise, statement of the urgent information covered by Quarles (commonly called the "Public Safety Statement'). 3) Decline to discuss any other aspect of the shooting until you have recovered from the event and have conferred with counsel. You're not refusing to answer questions, you're only postponing the discussion to a proper place and time. That's what LEOs do after a shooting, and it's what you should also do.
Here's a couple of points that often come up in discussion:
1) You're probably not going to be arrested. During by 30+ years of working, I've responded, or supervised the response to, around 30 cases of defensive shootings (14 of them being LEOs). None of the victims was arrested. An arrest requires the establishment of "Probable Cause." You can't make a lawful arrest simply because there has been a shooting. We really do not like making an immediate arrest in major cases and will typically do so only if there is a risk of flight, or if the quality of investigation would be compromised if the arrest were not immediately made. Once an arrest is made, we only have 48 hours to submit the case for a Gerstein Hearing, and the case has to go to trial within 60 days of the arraignment (if still in custody and time not waived). Those are difficult time limits to meet. We're not gonna back ourselves into that corner if we don't to.
2) You don't necessarily have a "Right to Remain Silent." That right is derived from the Fifth Amendment's provision that no person can be compelled to be a witness against themselves in a criminal matter. But you don't need a "Right" to remain silent. You get to the same conclusion when you realize that there is no legal compulsion to speak. The difference is when you consider the application of Salinas v Texas (more on that later). The key point is that the "Right to Remain Silent" is a conditional right. It only applies where there is a criminal matter. You don't need a "Right" to silence, you remain silent simply because you choose to.
3) The LEO responding to the scene is neither your friend, or your enemy. They're there to bring order, and to initiate the investigative process. Whether they ultimately take "friendly" or "unfriendly" actions toward you will depend upon their evaluation of the evidence (remember that "Fast, Accurate, and Complete" thing).
4) A lot of pundits can provide examples of folks getting into trouble for what they say, but you can also get into a lot of trouble for not saying what you need to say, The Salinas case involved a defendant who was in conversation with LEOs, and who then became silent when the line of conversation turned. The court allowed the prosecution to use that silence as evidence of guilt. There's a lot of legal interplay between the "Right to Silence" (derived from the 5th Amendment) and "Your silence can be used against you" (derived from Salinas). That interplay is best left to your attorney. Stick to the LEO policy and you'll avoid the issue.
5) IMHO, one of the worst things that you can say at the scene is "I was in fear for my life", or anything similar. There is no urgency to that issue. It doesn't fall under the Quarles criteria. The reasons why you applied force, and your state of mind when doing so, are matters that should await your conference with counsel. But if you should elect to make such a statement, here's where it can get you into trouble: The statement invites the question as to "why were you in fear for your life?" If you respond, stand by for a continuing line of questions (which will be recorded). If you go silent, then stand by for that silence to be used as an inference of guilt under Salinas. Why even go down that road if you don't have to?
6) If you elect to carry, do some advance preparation. As a Field Training Officer, I'd occasionally toss the radio microphone to the trainee officer, describe some emergent event and then say "Don't key the mike, but put out the broadcast." The first time it would sound pretty horrible, the tenth time, it would sound pretty good. Do the mental gymnastics and practice the art of articulation. When you read of shooting events, practice what you would, and more importantly what you would not, put in your "public safety statement."
. There's enough going on, know a pissy attitude isn't going to help you or anyone else.
