This month we wrap up last month’s question with our Network affiliated attorneys in which we asked:

Can a person who shoots in self defense be held criminally or civilly liable for injuries to an innocent third person, in spite of being justified in the use of deadly force against the attacker?

John I. Harris III
501 Union Street, 7th Floor
PO Box 190676, Nashville, TN 37219
615-244 6670

Under Tennessee law and perhaps generally in other states, the answer is yes.

If someone uses deadly force but in the course of doing so injures or kills a bystander or innocent third person, that person could be held criminally liable for the injuries to these innocent third parties.

Tennessee law expressly provides that “Even though a person is justified under this part in threatening or using force or deadly force against another, the justification afforded by this part is unavailable in a prosecution for harm to an innocent third person who is recklessly injured or recklessly killed by the use of such force.” See, Tennessee Code Annotated § 39-11-604.

There is also the issue of civil liability. Quite frequently, some think that innocent or acquittal in a criminal case should be a defense in a civil case arising out of the same facts. That doctrine is referred to in some cases as “defensive collateral estoppel.” However, it seldom applies successfully as a defense in a civil case. Some of the reasons why that is the case is that the legal issues in a civil case are different, the burden of proof are different between civil and criminal cases (“preponderance” versus “beyond a reasonable doubt”) and the cases are typically tried by different attorneys to different judges and heard by different juries.

Indeed, Tennessee law makes clear that the justifiable use of force, including deadly force, as a matter of criminal law is not an absolute defense in a civil action arising out of the same facts. Tennessee Code Annotated § 39-11-605 provides “The fact that conduct is justified under this part does not abolish or impair any remedy for the conduct that is or may be available in a civil suit.”

Thus, a person in Tennessee using force or deadly force to protect herself or a third party could still be criminally charged for recklessly injuring or killing a bystander even if the use of force against an attacker was deemed justified. Similarly, even the justifiable use of force against an attacker or the injury of an innocent bystander or property could give rise to civil claims of recklessness, gross negligence, negligence or even excessive force under the circumstances.

Gary True
Summers Compton Wells LLC
1254 University Drive, Suite 302, Edwardsville, IL 62025

Many states have immunity statutes that will prevent any civil or criminal liability if the defendant is found to have acted in lawful self defense. The rules vary greatly from state to state. Some of those states, such as Illinois, limit the immunity from civil suits to actions brought by the aggressor, his family, or his estate. An innocent bystander is not prevented from bringing a civil suit in Illinois, regardless of whether the defendant’s acts (shooting at the aggressor) were justifiable self defense. Moreover, in Illinois, there is an exception to the immunity from suits by the aggressor, his estate, and his family, even if the shots were fired in lawful self defense, if the defendant’s actions constituted willful and wanton conduct, which can be whatever the judge in the civil trial believes it means, at least up to a point or when an appellate court rules otherwise.

The innocent bystander who is injured in Illinois, not being subject to the immunity statute, need only prove the elements of negligence by a preponderance (majority) of the evidence, which is a much lower standard than the prosecutor’s burden of disproving the elements of self defense beyond a reasonable doubt. A jury will decide if the plaintiff met his or her burden. A defendant who is not charged or even one who wins the criminal trial will therefore be required to defeat a suit by an innocent bystander in a civil case. The plaintiff will allege the defendant owed a duty of care to the innocent bystander, could reasonably foresee that an innocent bystander might be injured, did not use reasonable care when shooting at the aggressor, and caused injury to the bystander.

The crucial element in most civil cases will be whether the defendant used reasonable care when shooting, given the surrounding circumstances. A defendant who sprays bullets all around the area might have a more difficult case to win than a defendant who fired a shot that ricocheted, for example. Expert witness testimony may be required, although the judge might or might not allow it, depending on the facts of the case. If there is any evidence supporting the plaintiff’s claim, the issues will be decided by the jury, which means high risk for the defendant.

Mike Ooley
Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
This email address is being protected from spambots. You need JavaScript enabled to view it.

From the outset, it is important to note that the person who justifiably shoots an attacker in self defense could still possibly be charged with a criminal offense for injuries to an innocent third party–depending upon the facts of the situation. It is always difficult to say one would never be prosecuted when a prosecutor applies his or her judgment to what could be an infinite number of factual scenarios. However, the chances are probably slim assuming the actions where deemed reasonable under the circumstances, and you were justified in the use of deadly force against the attacker. The more likely scenario is where the person is sued civilly for injuries to an innocent third party. It is important to emphasize that even if the prosecution or civil suit for damages is ultimately unsuccessful, the armed citizen will still suffer the consequences of having to mount a successful defense, which involves significant time and cost.

This question could be answered differently, depending on the exact factual circumstances of the deadly force encounter. For instance, a purported negligent or reckless discharge in the course of an extended self-defense encounter could occur where the armed citizen does not hit the attacker and hits an innocent third-party. Under this circumstance, the armed citizen could conceivably be liable to the third-party for civil damages or even charged criminally with something like criminal recklessness–while at the same time being justified in his use of self defense against the attacker.

Discussion of potential civil liability might be the most useful analysis. Even if there is no criminal prosecution of a citizen for a self-defense shooting, that would not preclude a civil action against the citizen by an innocent bystander. In a civil case, the party bringing the suit (the plaintiff) will focus on attempting to recover monetary damages from the citizen who used deadly force in self defense. Although there are few cases, analyzing our Indiana statute from the perspective of civil liability, it would seem safe to conclude that for a plaintiff to prevail in a civil case, he would have to prove that the person acting in self defense did not act reasonably. Unlike a criminal case requiring proof beyond a reasonable doubt, the plaintiff would simply have to prove, by a preponderance of evidence, that the armed citizen did not act reasonably.

Ultimately, the armed citizen should be able to articulate why he acted as he did under the circumstances to assist a potential jury in concluding that his actions were reasonable and proportional to the threat presented to him and that he acted as a reasonably prudent person would act in a similar situation.

A MAG 40 class taught by Massad Ayoob, a Network membership and the DVDs as well as monthly newsletters provided to Network members furnish a wealth of educational information that may help one articulate why your actions were reasonable and prudent.
A big "Thank You!" to our affiliated attorneys for their contributions to this interesting and educational discussion. Please return next month when we have a new topic of discussion for our affiliated attorneys.

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