Family Concerns During and After Self Defense

Posted 5 months ago — Ooley Law Blog

This interview is reposted from the Armed Citizens’ Legal Defense Network and was originally posted at the following link:

https://armedcitizensnetwork.org/family-concerns-during-and-after-self-defense

When armed citizens discuss training, two philosophies emerge: one is the alpha family member training to be the sole protector of the family. The other is collaboratively working to create an all-family safety team with vital roles filled by parents, spouses, children and anyone else sharing the home.

Some months ago, this journal published an Attorney Question of the Month column about statements made to investigators by witnesses, including family members. Commentary contributed to that discussion by attorneys Mike and Alex Ooley alerted me that as armed citizens, firearms instructors and lawyers, the Ooley family has worked through the issues, decisions and preparation needed by many young armed families. I asked if they would chat with me about how families can better prepare for family safety and to weather the legal aftermath if a family member uses force in self-defense. I was very pleased when they agreed.

Mike and Alex Ooley are attorneys practicing law in southern Indiana. Doris Ooley, a former Army Captain, and bank officer, along with her husband Mike and sons Alex and Ryan, teaches firearms skills and safety through the O2 Gun Group. The Ooleys are graduates of Massad Ayoob Group courses.
Photo: (L-R) Ryan (who could not join us for this conversation), Alex, Mike, and Doris Ooley share their experiences as an armed family that trains together to address dangers both during and after an incident.

I thoroughly enjoyed their discussion of both the legal and practical reasons for including spouses and children in defense preparations, and I know members will benefit from sitting in on our visit, too, so we switch now to Q & A with Doris, Mike and Alex.

eJournal: Having family members present could greatly complicate a self-defense incident–but then again, if prepared, the whole family can pull together to keep one another safer. How might that work?

Mike: I certainly do think that in the heat of a self-defense encounter, the whole family can help. First of all, they can help you de-escalate a situation. They can help you if the situation moves into actual, physical self-defense. They can help identify cover, concealment, escape routes and other threats. They can provide communication to you regarding other threats and exits. There are a lot of other things they can do to enhance your response.

The two most important things in a self-defense situation are communicating and moving. The more the family members know, the more they can help us in any particular situation.

eJournal: Family dynamics can be interesting. Much rides on trusting your family’s independent decisions and assessments. We are not necessarily talking about one strong alpha leader giving orders that everyone else obeys.

Mike: The more the folks in that family unit have overlapping abilities, the better off that family is going to be. You may be injured. You may be disabled in some way, so you need somebody else to pick up the pieces and be able to perform whatever tasks are necessary in that situation. All that planning could also turn out to be crucial if we have a house fire, or if there is a tornado or a hurricane or a wildfire. If we can think through many of these situations in advance, it will enable us to provide an enhanced response should a crisis arise.

Alex: No two threats or encounters are ever going to be the same, so we don’t know who will be the first person to engage the threat be that verbally, or otherwise. Two family members may be coming to the scene at different points in time, so communication and overlapping skills are important.

Mike: Depending on the age of the children or other family members, I think you are going to have to evaluate their level of ability and competency. What your family can do will depend a great deal on their capabilities and training.
We don’t want to be rigid in how we address threats. We need people to be able to solve problems. I will attribute this to Tiger McKee whom I think is the first person I heard say something to the effect that, “A self-defense gunfight is really problem-solving at high speeds.” Whether an individual or a family group, we need to have a great deal of flexibility to be able to solve problems.

I think in our family, Doris has better de-escalation skills than I do. She is so much better at talking to people and bringing them down from a high level of stress than I am. I have to recognize that and let her use those skills.

Doris: When we talked about having confidence in other family members, a big part of that comes from training together. Training together is how you know what their level of competence is and when you train together, you can improve where there are weaknesses. You need to have conversations ahead of time, recognizing those things in each other.
Families need to agree to pay attention when one member says, “I think we need to step back and take a deep breath. Let’s not let things get out of hand.” Another concern would be if a family member just freaks out. They may not be able to handle stress at all, so they just scream. It is important to know the tendencies of your family members ahead of time.

Alex: This is a situation for which scenario-based training can be important. Working through scenarios with family members lets you figure out what each other’s skills are and how you might work as a team.

You can sit down and just watch a video of an incident, and then talk about how your family might work through that situation. That can go a long way, but also go beyond family discussions, actually do the training with Airsoft® guns or dummy guns. A huge component of training is communication and learning how to work together. Doing that kind of practice is highly effective.

Mike: I can’t tell you how much peace of mind it gives me to be around Doris and Alex and our other son, Ryan, who is not here with us right now. That is because all of us have had similar training. We have all gone through Massad Ayoob’s 40-hour course, and Alex and I took Massad’s Use of Deadly Force Instructor Course, where we met Network President Marty Hayes. It is so reassuring to know that Doris and my sons have that same depth of knowledge that was imparted as a result of completing that course. If you are ever in a self-defense situation, that knowledge really can lower the level of anxiety.

eJournal: Families can often avoid dangerous situations by trusting each other’s threat identification. If anyone in the family says, “This situation might turn violent, we need to get out of here!” your shared training eliminates any hesitation or dispute and everyone simply picks up and leaves before anything bad can happen.

Alex: The more training you have about the legal ramifications of these sorts of incidents, the more you realize how important de-escalation is. De-escalation, along with identification of pre-incident indicators are very important skills.

eJournal: Ironically, in training, students often want to get the right to fighting and are bored or disinterested in the so-called “soft skills” like avoidance or talking your way out of trouble.

Alex: That is probably the most important component! The way to win a self-defense encounter is to avoid it. There really is no “win” other than avoidance. Survival is important, but there will be legal implications after you have survived.

Mike: Avoidance is the only way to win. We should remember that the actual discharge of a firearm is very rare in a self-defense situation. Depending upon which statistics you give the most credence, there may be up to two and half million defensive gun uses every year in this country. Many of those are situations in which the gun is not discharged. Sometimes someone simply exposes a firearm in a holster and that ends the situation.

Alex: You can never fathom every possible scenario. We all have certain habits, and certain places that we go in which we might need to be more prepared, but more often there are too many variables in life for us to have practiced every scenario. Training through many different scenarios is important because it teaches you to adapt and how to work together.

Mike: I hesitate to say this because I realize we aren’t talking about a military setting, but first, no battle plan survives contact with the enemy. Although I don’t know to whom to attribute that quote, it is true for self-defense. Secondly, also from the military context, you have to understand the commander’s intent. When you are working with family members, they have to understand the basic concepts, and know that there are rules that apply. We don’t have to have the rules written out on an index card, but we do have to understand certain concepts.

For example, Massad Ayoob has taught us that there are certain things you may wish to tell the police, like establishing the active dynamic showing that you were the victim, pointing out witnesses and evidence and indicating your intent to cooperate fully after speaking to your attorney. Those are the sorts of rules everybody in the family has to know.

eJournal: How do parents determine how much of their adult defense training to share with their youngsters? What is age-appropriate?

Doris: For very young children, the understanding needs to be that if Daddy says, “Do X,” you need to do it. As a child, you must understand what you need to do, whether that is to be quiet, to stay close, or whatever it is you are told to do. Even young children need to understand that. In the same way, younger children need to know where the safe room is, and what to do if someone is trying to break into the house.

Mike: Children can understand what the cover is. If you are in public, like at a mall, I should think a 10- or 12-year-old and maybe younger than that should understand cover. Children need to know where to go to get help. If mom or dad is disabled, where do you go or who do you call to get help? Families really need to learn essential skills, based upon the age and maturity level of the child or children in the family.

eJournal: Perhaps we underestimate the abilities and maturity of children. These days, it seems like everyone wants subservient little lambs when we should probably be raising lion cubs instead.

Mike: We teach a five- or six-hour legal class, and I have been impressed with how quickly 15- to 17-year-olds can process, understand and absorb legal concepts. That being said, I would expect that a 10- or 12-year-old should know where the first aid kit is and be able to run and get a tourniquet for mom or dad if needed.

Alex: Let’s go back to the earlier question about at what point to start incorporating children into the training for a self-defense scenario. I think that you can start incorporating children into scenario training very early, but it may not be scenarios about self-defense per se but the same sorts of concepts apply to when you are responding to a fire in the home or a medical emergency. I think training in those concepts sets children up to be responsible members of the family when there is a self-defense scenario later on.

eJournal: If various family members are trained to call for help, guide EMTs to the wounded or meet responding law enforcement, I wonder how much children and spouses should communicate with responders–be that patrol officer or just concerned neighbors. Everyone who comes on the scene will inevitably seek information. You mentioned earlier that following rules as though reading what to do off an index card isn’t very practical. Without pre-scripted statements, what can family communicate that does not create legal issues?

Mike: Our family has trained and talked about it and we go back to Massad Ayoob and his three rings of safety. The first ring is the message. That message essentially is, “I had to protect myself. We need police and emergency medical aid here.”

The next ring is the welcoming committee. For instance, if that is Doris because we all understand that she is the person who can de-escalate and bring everyone’s blood pressure down, she needs to get our message out to the police and disseminate information about who are the actors on the scene.
Massad teaches that the third ring of safety is you. You need to have a calm demeanor, be non-threatening when the police come in, and not make any sudden movements.

Alex: Let’s go back to the 9-1-1 call. I think it is important for everyone in the family to understand that they want to say enough to establish what has happened, but say it generically, and without giving too much detail about aspects like time and distance that we know will be distorted if you are under high stress.

Instead, they need to state the active dynamic that I was attacked, or my dad was attacked, and that you used force in self-defense. Give the location. Identify who is the bad person and who is the good person and that he will be wearing a gray shirt and standing by a white truck because police arriving on the scene do not know what they will be addressing when they get there.

I think it is important for everyone in the family to understand that there are important things they need to convey both on the 9-1-1 call and if they are participating in the welcoming committee when the police arrive.

eJournal: This question is complicated if the person calling 9-1-1 is a teen or a terrified spouse. After you have given the necessary information to the 9-1-1 dispatcher, do you stay on the line as requested and let the dispatcher quiz you, or do you disconnect the call?

Mike: I think that ideally, you keep 9-1-1 on the line, but that you refuse to give any details, beyond the initial information that you gave them so they could respond to the scene.

eJournal: What would you say to avoid being further queried while remaining connected?

Alex: I would say, “I am going to keep you on the line and I will let you know if there are additional threats or information that will be useful for the responding officers. I am not going to hang up, but I cannot provide any more information until the police get here.”

Mike: We have debated about what the appropriate response is with respect to the dispatcher on the 9-1-1 call. If you are going to leave the line open, I think you have got to stress to the dispatcher that you have got to pay attention and safely attend to the situation that you are in, so you are not going to be able to answer questions right now.
You could ask, “Please let me know when law enforcement is on the scene, and then we can talk about, for instance, what door they are coming in, so I am ready for their entry.” I think we have got to leave the lines of communication open so there is not a tragic accident when law enforcement arrives on the scene. That can happen, unfortunately.
Most importantly, though, I believe I would stress to the dispatcher that I cannot answer questions because I have to focus all of my attention on the scenario that is right in front of me at this moment.

eJournal: While discussing the aftermath of a shooting, a home invasion survivor once told me that investigators questioned his minor children without his knowledge or consent. He was distressed, not because of anything the children said or might have said, but he worried it caused the children additional emotional trauma.

From the viewpoint of parental rights, can a parent invoke the right to silence or ask for a delay before questioning on behalf of their minor child? I doubt those youngsters knew they could decline to answer questions within mere hours of the incident. Should family members’ training include how to give witness statements to investigators?

Mike: My answer depends upon the age of the children, but I really believe it would be inappropriate for police to question the children, provided they had the opportunity to ask one of the parents for permission first. I don’t know what happened, but from a legal perspective, that is troubling to me.

eJournal: What if a child tells investigators factually incorrect details in the aftermath of deadly force? Should children not give witness statements?

Alex: That is a tough question and one that the three of us talked about at length while preparing for this interview. Is the alternative telling your children not to talk to the police? That is certainly advice we don’t want to give!

Mike: That could lead to paranoia. What if the child needs help because they’re lost?

Alex: A point that Massad has made in every class I have been in is, CYA–can you articulate? So, if a child gives inaccurate information, yes, you could be charged or arrested, but being able to articulate why you did what you did will ultimately affect the prosecution of your case, and whether you will be found guilty.

Mike: The police generally do a wonderful job, but if police questioned or inappropriately interrogated a minor, I think evidentiary rules may give some relief in whether those statements would be admissible or not. That is going to depend on the circumstances and that is going to depend on the jurisdiction.

With that said, I have been pretty impressed with 15- and 16-year-olds. I think you do need to start at some point introducing your children to the fact that immediately after an incident their memory is not going to be as good as it is going to be after they have had two or three sleep cycles. They need some time to decompress so they can give a more accurate statement down the road.

eJournal: If younger children gave statements that badly confused the facts surrounding a shooting, might a court acknowledge that young witnesses may not be competent to understand what has happened, even if they were eyewitnesses?

Alex: I think it goes simply to the weight of the evidence. If admissible, the jury may just not give that evidence much weight. I think there are arguments to be made about admissibility, but that is just a tough situation.

Mike: We need to make sure our children understand that we are interested in getting to the truth, but that the mechanism to get to the truth is not necessarily to immediately start talking endlessly.

eJournal: Unfortunately, for the children and any other witnesses, there exists a further necessity of not blathering about a family member’s use of force, not to police and not to people outside the immediate family, clergy, mental health professionals, or the family lawyer. But here’s the problem: social interaction is important and youths, it seems, are really defined by their social circle. Now, imagine the parent is telling teens not to talk about what they are going through? Really?

Mike: I am not, by any stretch of the imagination, a mental health professional. I am an attorney. The thing you have to understand is that if you have any doubt about whether it’s alright to talk about something, you shouldn’t talk about it. There may be people that you can speak to where privilege protects them–like a pastor, a counselor and folks like that–where whatever you say maybe protected, depending on the state you live in.

Doris: I think it is important that they understand that even if they have a best friend to whom they tell everything, they cannot talk to that best friend about a self-defense encounter. A best friend may not understand the circumstances, they may not understand why you did what you did, and although I am not the attorney in the house, if friends were questioned, they would have to tell what you said to them. It would not be privileged information.

Mike: We have got to ingrain in our children that prudence and keeping quiet when there is any question is the best thing to do. Much like family finances, there are things you just don’t talk about.

eJournal: How does privileged communication work if a family member says something injudicious to EMTs or in the hospital emergency room?

Mike: That is a concern we really preach about in the class we teach. It is amazing what gets put into medical records. People really believe that what is in medical records is the truth, despite the fact that medical records are sometimes just plain wrong. Doctors, nurse practitioners and nurses are very busy. They may think they heard something that was not really said, or they write something down in error. You need to be very, very careful with what you say to EMTs or folks in the emergency room. Depending on the state, you would have very significant concerns about admissibility. Be very, very concerned that medical records will be admissible. Assume the worst and hope for the best.

eJournal: If the circumstances surrounding the self-defense situation are unclear, investigators are likely to come back to interview anyone who may have insights into what happened. So, let’s say a latch key kid gets home before the parents. Should we worry the child might be grilled by police or a private investigator? How can parents protect their children?

Alex: I think the best thing to do would be to ask a judge for a protective order and to make a ruling about what investigators can and cannot discuss. If a child can accurately remember the events that occurred, then they may be a competent witness. There may be circumstances where children may be too immature, and so it would probably be best to have a hearing about the issue. I think that would be the appropriate avenue to explore.

eJournal: If an armed citizen is arrested, it sure would help to have made prior arrangements for whom takes over communications on behalf of the one in custody. Your mom? Your dad? Your wife? Who takes the lead on trying to get bail? Who reaches out to arrange for legal representation? For that matter, who handles the day-to-day problems of making sure the bills get paid and that the family’s needs are taken care of?

Mike: Do you have a power of attorney? That one thing is applicable to a self-defense scenario and also to a medical situation–if someone has a heart attack, or a stroke. I have been practicing law since 1993, and it is amazing to me how often families put off asking for a power of attorney until it is too late.

The same thing is applicable if, heaven forbid, you are arrested after a self-defense encounter. You are not going to be able to do a lot of things for yourself if you are in jail. A family member–or someone you designate–needs to have a power of attorney. That is incredibly important after a self-defense scenario, and it is important for a lot of other unfortunate situations in life.

Alex: It is also important to think about who you will be able to talk to while you are in jail. Even if you get charged with a misdemeanor or low level felony like criminal recklessness with a firearm, it may be a few days until they can have an initial hearing for bail, so it is important to have your affairs in order, and to have someone who can take care of things for you if you cannot.
You need someone who knows what bills to pay and who they need to talk to. For example, someone will need to call your employer. You should have those things figured out with that person ahead of time. You need to be prepared for those different scenarios.

eJournal: What happens to dependent children if a single parent of young children is in police custody? Would child protective services scoop up the kids and put them in foster care? Are there better alternatives?

Mike: It is possible the children might go to child protective services, but we want to do everything possible to be sure that doesn’t happen. The last thing I want is the government stepping in to take care of my kids. If there is no immediate family to look after the children, hopefully there is a friend or maybe a church member who can do it. I hope if there is some kind of trauma in our lives, that there is a person out there whom we trust and respect to nurture and take care of our kids.

Alex: In Indiana, typically in a situation where you do not have someone you trust to take care of your children, a judge will try to place the children with the closest relatives, but that does not always happen. Chances are, if you don’t have a trusted person to take your children, you may not have a close relative that is nearby either, so that might be a case in which the Department of Child Services would take custody of the children.

eJournal: If you preferred, as Mike suggested, to entrust your children to a church member or friend with whom you shared no blood relation, are there legally binding documents parents should create to indicate whom they want taking care of their children?

Mike: From the viewpoint of estate planning, the answer is yes, those would be the same people that you would want to be your children’s guardian, but that would only apply if you had passed away. Absent that, no, I am not aware of any legal mechanism, except you really should make that power of attorney and it might make sense that the person to whom you give the power of attorney should also be asked to take care of your kids, as well. Do anything you can to make it known if there is a particular individual you want to take care of your kids. If evidence could be produced to show a judge what you wanted, I think that your attorney would like to have that.

eJournal: This topic is so big that I feel like I am swimming in the middle of the ocean. Maybe that is one reason people do a poor job of planning, even failing to establish powers of attorney. It’s an awful lot to understand. As we close, I’d like to poll each one of you to ask what aspect of this you would like Network members to take to heart.

Doris: You have got to realize that conversations about these issues have got to take place now! Right now! There is no one pointing a gun at us, and there is no one threatening us, the house is not burning down at this moment, so now is the time to have planning conversations. Too many times, we only address problems when we are facing a problem. We fail to plan ahead.

Mike: We need to be aware of what happens to people who are in the local news and talk with our families about what we would do to react more effectively to the scenarios we read about. The real win would be if we discussed how to avoid them, but families also need to plan how to react to certain situations. The things we need to plan for may be a self-defense scenario, a medical emergency, an automobile accident, whatever it is, we need to discuss with our family how we would handle it.

We need to realistically evaluate the strengths and weaknesses of the persons composing our families. Which family member has which skills? How will we use those to handle different situations? If we have talked about things we have read in the news, then if we face a similar situation, we will be better equipped to react.

Alex: There may be people who are unwilling to talk about emergencies and these sorts of things. I am fortunate that does not apply to my family, but some people have family members who are unwilling to talk about these sorts of things, and who have little interest in these issues. I think it is important when introducing these topics to take a soft approach with people who are less interested and less educated. You might say, “Did you hear about this scenario? What do you think about it? How would you respond to it?” First, people need to educate themselves and then learn and understand that there are good ways and bad ways to introduce these topics to other people.

Doris: Your spouse or your child may or may not be interested in going to spend a whole week with Massad Ayoob…

Mike: …or they may not be able to afford to do it…

Alex: …exactly, but there is a vast amount of educational resources available and we can take advantage of the many other educational resources besides weeklong courses that cost thousands of dollars.

Mike: Sure, it would be best if everyone could take a week and go for a defensive handgun class with instructors like Massad or Marty, but not everyone can do that. People can get started and get training with local instructors when they can, even if it is just for a day, or an afternoon.

Alex: Inside most families are people who think they know things they do not know. The more good training you have, the more you realize what you do not know. As we were preparing for this interview, we learned things we did not know and we talked through some things we had not talked through before. The more training you have, the more you learn what you do not know, and then the better able you are to communicate with your family.

eJournal: With summer coming, hopefully there will be plenty of opportunities for families to go take training together. I’ll close with this hint: in the Midwest, you couldn’t do much better than to commit some time to getting to know Mike, Doris, Alex and Ryan Ooley. Check out https://www.o2gungroup.com. If you’re too far away, don’t let that stop you. Check our Network affiliated instructor listings or ask around your community, find a respected training organization, and get your family training together.

To read more of this month’s journal, please click here.