Montana Casework,
Self-Defense and Police Misconduct

Self-defense and firearms self-defense are about a decision to use force; police practices and police misconduct are about the conduct of the police and their agencies. Both halves are present in the Montana file, and each half has its own documents.

The record for a self-defense question comes from the police investigation into the incident: the investigating officers' reports, civilian witness statements and deposition transcripts, any surveillance or body-worn camera video, crime scene photos, and forensic evidence reports whose scientific questions go to experts qualified to answer them. The record for a police practices or misconduct question is the agency's own: its written policies and procedures, internal affairs and independent investigation reports, any body-worn or dash camera video, officer statements, and the involved officers' training and disciplinary files.

In both halves the police work is measured the same way: against national police standards and practices and against the agency's own policy, whether it is the investigation that followed a self-defense incident or conduct that is itself under challenge. A decision to use force in self-defense is read through the use-of-force framework in which officers are trained, on the totality of the facts and circumstances and on what was known at the time, never with hindsight. The elements of self-defense come from the law, not from police training. Whether a use of force was justified, or an officer's conduct lawful, is a legal question, and legal conclusions remain counsel's; Gilbertson's opinions stay within police practices.

Federal and state court matters sit side by side in the Montana file, the federal ones more numerous. In a Section 1983 civil rights claim, the analysis measures the named officers' conduct against their agency's policy, their training and generally accepted police practice. Where the claim is pleaded against the agency as well, the agency's own policy, training and supervision are measured against national standards and model policies. A state criminal case in which the accused claims self-defense draws on both halves at once: the investigation that produced the charge, and the accused's own decision to use force.

Professor Gilbertson's testimony has not been excluded at trial in any state or federal court. Admissibility in any particular matter remains retaining counsel's responsibility. The courts where testimony has been admitted are listed on the Library page on how many matters and where.

Retaining from Montana runs on the same terms as every engagement. It opens with a conflict check, and counsel hears about a conflict immediately. A first inquiry holds the case type and posture, the jurisdiction and case number, the governing deadlines, what the record contains so far, and the parties for the conflict check. Nothing privileged travels with a first inquiry, and privileged material is never exchanged by email.

After retention the record travels on physical media, a computer flash drive or an external hard drive by mail or courier; online sharing services are not used. Depositions are taken by Zoom or a similar platform, so a Montana deposition does not wait on a travel calendar. Expert reports require sixty days of advance notice, and a bullet-point outline of the report is approved with retaining counsel before writing begins.

The practice is based in Naples, Florida, and trial testimony is offered in Montana on the published travel terms. The fee schedule and the travel terms are set out in full on the For Counsel page, and the Library note on what to send with a first inquiry covers the first step item by item.