Attorney Question of the Month
This month’s Attorney Question of the Month is drawn from a fairly common question that Network members often ask us. Questions about “good Samaritan” duties come up so often that we have asked our Network Affiliated Attorneys the following question to help members better understand where their responsibilities as armed citizens begin and end. We asked–
In your state, does the private armed citizen have any legal obligation to act in a situation where he/she observes and might be able to stop a violent attack against another person? Are you aware of any case in which a citizen has been held liable for injuries or harm to another to whom he or she had no prior obligation, as would be created between doctor and patient, for example.
The question received a good number of responses, some in considerable detail, such that the responses will comprise this column next month, as well. We hope you will enjoy and learn from the first half of the answers from our Affiliated Attorneys.
Law Office of John Freeman PLLC
3150 Livernois, Venture Plaza, Suite 270
Troy, MI 48083
Aiding another person that is outside the scope of people you are responsible for is an intensely personal decision. However, knowing the potential consequences before acting is essential when evaluating the risk and making the decision to assist or not.
Potential legal pitfalls in this scenario depend on the law of the jurisdiction where the event occurs. For example, in Michigan the legal standard for the justifiable use of lethal force is the same if you are defending yourself or a third person. The key question is whether the use of lethal force is justified.
To be justified in Michigan, the actor must have an honest and reasonable belief that the use of deadly force is necessary to prevent the imminent death, great bodily harm, or sexual assault to himself or herself or to another individual. MCL § 780.972. If the use of deadly force is not justified, and another person is killed, it is probable that the good Samaritan will be charged with murder, and if convicted, spend the rest of their life in prison.
Arthur R. Medley
Attorney At Law
P.O. Box 5544, Dothan, AL 36302
In Alabama our self-defense statute provides for the defense of others so, just as in a personal self-defense situation, the defense of another would be protected as long as the defense is on level with the attack. Deadly force can only be used in response to what reasonably appears to be imminent deadly force. Other pitfalls, however, could be civil liability where an assailant may file a civil damages suit against you for having injured him in your defense of the other person. The question will be was the level of force reasonable under the circumstances or was it excessive? I do not believe this would be a very likely win for the assailant but it has certainly happened and win or lose there is still the cost of defending such a case.
Emanuel Kapelsohn, Esq.
Lesavoy Butz & Seitz LLC
7535 Windsor Drive #200 Allentown, PA 18195
610-530-2700 - Home office 484-504-1345
Intervening with a gun as a “good Samaritan” on behalf of a third party – especially a third party not personally known to you – is very risky business. In my classes, including my police classes, I regularly use the example of the good Samaritan who is on his way back to his parked car after dark. Passing an alley, he hears a scuffle, and sees a greasy little guy with a ponytail, tattoos covering all of his exposed skin, and numerous body piercings, sticking a gun in the stomach of a middle-aged businessman in suit and tie. The businessman’s briefcase is lying on the ground, and the businessman is begging, “Please don’t shoot me!” Figuring he can make the shot with his new Trijicon® night sights, the Samaritan draws his gun and double-taps the mugger center mass. Now all that remains is to find out if he in fact killed a mugger, or killed a DEA agent arresting the biggest cocaine dealer on the East Coast! Remember, you can’t tell the players without a score card. Unless the “victim” on behalf of whom you’re going to intervene is your own loved one, or at least someone you know well, you’d better, at the very least, have seen the entire situation develop, from start to finish, before deciding to use deadly force.
Now let’s change the scenario: Instead of a gun, the tattooed little guy is threatening the businessman with a switchblade. You know cops don’t make arrests with switchblades, so this must clearly be a situation in which you can intervene with deadly force, right? Well, what if the little guy was a homeless man who lived in the alley, through which the businessman was taking a shortcut. Startled and frightened by the homeless man who asked if he had any spare change, the businessman produced his knife and threatened to stab the panhandler. You had the bad luck to arrive on scene just after the homeless man kicked the knife out of the businessman’s hand, and picked it up off the ground in his own self defense.
Are these situations extreme and unlikely? Yes, they are, and so are many, many other instances in which civilians use deadly force. Again, if the person you’re about to “rescue” isn’t one of your loved ones, or at the very least someone you know well, you may want to consider calling 911 instead of intervening with deadly force. If you feel you absolutely must intervene in some way, consider taking cover, drawing your gun, and issuing a verbal challenge, such as, “Drop the gun or I’ll shoot!” (For me, it’s “Police, don’t move!”) If the vagrant yells back, “You drop your gun – I’m a federal agent,” you’ll be like the little dog that chases the garbage truck down the street. What will he do if he someday catches it?
Many states have “good Samaritan” laws that provide protection from civil liability for individuals who render first aid, CPR, or similar life-saving efforts to accident victims. I know of no states that have similar good Samaritan laws protecting CCW holders who intervene in crimes in progress. If your state has such a law – seriously – please let us all know about it. Unless you caused the situation that has placed the third party in peril, I know of no state where you, as a civilian, have a legal (as opposed to moral) duty to intervene as a rescuer. As I have often stated in my police training classes, even if you are a police officer, there is little chance you will ever be successfully sued for deciding not to fire, or not to intervene in a crime in progress.
One of the greatest risks the armed citizen takes is that, if he does decide to intervene, he may be held legally liable for the mayhem that ensues, including even the shots the criminal fires at him that go astray and hit innocent bystanders – or even that hit the criminal’s intended victim. Imagine trying to intervene in a convenience store robbery, only to have the robber, after you have placed two ultimately fatal shots on his torso, respond with a barrage of wild shots, one of which hits and kills an expectant mother and her unborn child, and another of which hits the store manager, rendering him a quadriplegic for life. In their lawsuits against you, they claim their injuries were caused by your intervention, but for which the robber would, in all likelihood, have taken the $26.72 in the cash register and fled. You probably won’t feel like much of a hero at that point, if you ever did before that. A well-trained plainclothes police officer, placed in the same situation in which you found yourself, might very well decide to let the robber take the money and leave – if that seems likely to happen – rather than provoking a shooting in a crowded store. And all this presumes that none of your own shots go astray. If you think you’re far too good a shot to place rounds off target, just consider that about 75% of the shots fired by police fail to hit the suspect. You may believe you’re a better shot than the police are – and you may be – but shooting in a stress-charged, split-second incident in which every person present is moving in a different direction is not the same as target shooting at the range.
We can all feel moral and personal outrage at the thought of being robbed, or of having the sanctity of our home violated by a burglar. Some of us may feel a moral obligation to resist criminals, and even more of us a moral obligation to come to the aid of victims of violence in progress. But proceed with great caution, because if anything goes wrong – even something you couldn’t easily foresee, let alone prevent – you are likely to be sued civilly, and possibly prosecuted criminally. In the past 18 months, I’ve worked on the defense in two criminal prosecutions, one as an attorney and the other as an expert witness, on behalf of armed citizens who didn’t even fire their guns, but only used them to cover threatening individuals at gunpoint. One defendant was a retired police officer, the other a retired federal agent. One was even on his own property when he pointed a gun at two very suspicious intruders. Each “defender” found himself criminally charged with a list of offenses including aggravated assault (a felony carrying a significant prison term), terroristic threats, reckless endangerment, etc. One ultimately plea bargained to a minor offense, while the other was acquitted after a jury trial. Each one spent a small fortune before the ordeal was over.
A few years back I was a guest on a CNN TV show (I’ll never do that again, but that’s another story!) on the subject of whether one should attempt to intervene against armed criminals. I and the other guest – a recently-retired, high-ranking NYPD officer – were shown several recent videos of attempts by civilians to “fight back” against armed criminals. Some of the attempts were successful, others unsuccessful and with tragic results.
When asked our ultimate opinions on whether one should try to fight back against armed criminals, whether they are attacking you or a third party, the NYPD official and I were of the same mind. If only property is at stake, give it up; fight only when you believe you or someone else you know is innocent is about to be seriously hurt or killed. The way I expressed it was, “I know there’s nothing in my wallet, or anyone else’s, worth losing my life over. I also hope I never think there’s anything in my wallet, or anyone else’s, worth taking someone else’s life for.”
When we add to the taking of a life the possibility that you may also lose your own freedom, livelihood, and life savings, or cause an innocent person to be hurt in the exchange of shots, the act of intervening with deadly force when you aren’t absolutely positive that what you’re doing is not only justified, but immediately necessary, is something to which you should give serious thought now, before the situation arises.
My Family Lawyer, LLC
2425 Post Road, Ste. 202, Southport, CT
A person going to the defense of another MUST understand they only have the right that person does for defense.
Unless you are very certain of all the circumstances I recommend you call the police and stay out of the incident. Identify yourself to the police as an available aid to them, some police want the help, others do not. DO NOT EXCEED the authority granted you by the police as this can be grounds for other action as well. Further, working within their instructions may act as a defense for you; acting beyond them will almost certainly create problems for you.
A person coming to the aid of another stands only “in their shoes” i.e., they have only the right that the other person did. If the other person started the problem they transfer that to you as their right. If they are defending their property (in Connecticut) you would thus be defending their property and in this state there is no right to defense of property with physical force. Thus you can become the cause of the problem by trying to fix it.
Be careful! I have heard of people actually being sued by someone they helped when they later decide they didn’t really want your help.
We extend a big “Thank you!” to all of the Network Affiliated Attorneys who contributed to this interesting discussion. Please return next month when we’ll share the second half of the responses our Network Affiliated Attorneys gave this question.
To read more of this month's journal, please click here.