Attorney Question of the Month
Recently, a member asked us what liability an armed citizen using deadly force in self defense would incur if the bullet either passed through or missed and hit an innocent bystander. For the purposes of this Attorney Question of the Month, we assumed no criminal charges were pressed against the citizen for the self-defense shooting and it was ruled justified by prosecutor/district attorney. We then asked our affiliates:
Would the armed citizen likely face criminal charges for the collateral damage, and/or incur civil liability for that stray bullet?
The question may have been overly broad, because our affiliated attorney in Kansas City, MO, Kevin Regan, simply replied, “Yes, of course. Next question.” Another commented that people want “definite” answers to “what if” questions, but those definite answers are not available. Read our affiliated attorneys’ responses in this and next month’s journals.
Benjamin M. Blatt
P.O. Box 221, South Bend, IN 46601
In Indiana, they might.
Indiana does have a provision for immunity from “legal jeopardy,” but Indiana has not adopted transferred intent in self-defense cases, nor is it clear to the courts here that transferred intent, even if adopted by them, would absolve a criminal defendant either criminally or civilly, even if the defendant succeeds in his or her defense by way of a self-defense claim.
So a person might in theory not have charges filed for defending themselves from an attacker but still be charged for the stray bullet resulting from that defense, though I do not personally believe that would ever be a likely outcome.
What is more likely is that a person might find themselves being sued successfully by the victim of the stray bullet, since the “legal jeopardy” immunity would not necessarily protect them from the consequences of their unintended target.
Randy L. Robinson, Esq.
Attorney at Law
P.O. Box 682, Augusta, ME 04330
I suspect criminal charges would not be brought, especially if the bullet hit the intended target and passed through, but you can bet there would be a huge civil lawsuit.
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
Even with no criminal prosecution of a citizen for a self-defense shooting, that would not preclude a civil action against the citizen by a purportedly innocent bystander. Given the understandable focus on potential criminal prosecution and the citizen’s loss of freedom, the issue of civil liability is sometimes overlooked. 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 I understand some states have varying forms of self-defense immunity statutes that provide a defined process within the criminal procedure context that might entitle the citizen to immunity from criminal prosecution and from civil liability, Indiana has no such statute that would be characterized as a self-defense immunity statute. Indiana Code 35-41-3-2, entitled “Use of Force to Protect Person or Property,” would apply. The Indiana statute is replete with the use of the term “reasonable force” and “what the person reasonably believes.” The statute states specifically that “[n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.”
Hence, although there are few cases analyzing our statute from the perspective of civil liability, it would seem safe to conclude that for a plaintiff to prevail in a civil case, they 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.
Case law interpreting the Indiana statute seems to contemplate that a person acting in self defense, as described in the hypothetical, should not be placed in any sort of legal jeopardy, to include payment of civil damages, if the citizen was protecting himself or another innocent person by reasonable means from an immediate threat of death or grave bodily harm. Obviously, what is reasonable and what is not reasonable is subject to a great deal of interpretation, and the question would likely be answered by a jury.
Ultimately, although the burden of proof would be on the plaintiff, it would be helpful for the citizen to 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. In addition to a MAG 40 class taught by Massad Ayoob, an ACLDN membership and the DVDs provided to Network members furnish a wealth of educational information that may help one articulate why your actions were reasonable and prudent.
Thomas C. Watts
Thomas C. Watts Law Corporation
980 Montecito, Suite 101, Corona, CA 92879
The standards of proof and the defenses that apply to a criminal prosecution are not generally available in a civil suit for damages. The issue is whether the reasonable person can foresee a risk of harm that resulted in the damages claimed.
Let’s make the question even more interesting. What about a wild ricochet that glances off some object and then hits an innocent? The same analysis and I am afraid the same civil liability would result. They may not be able to prove the intentional tort of civil battery, but they are certainly going to collect damages for negligence.
Talking about criminal negligence takes us back into the “beyond a reasonable doubt” standard of proof. It is quite clear based on the apparent prosecutorial disposition in this state that charges would be filed. The more remote the injury to a bystander, the greater, but not absolute, the likelihood of acquittal.
I am reminded of a law school case where somebody was shooting a rifle at a moving train. When somebody on the train was killed, the attempted defense was that the shooter was shooting at the train rather than the people inside. He was convicted, of course. While the storied Justice Oliver Wendell Holmes stated that “Detached reflection cannot be demanded in the presence of an uplifted knife.” But, that was back in 1921. Regrettably, times have changed.
N. Brian Hallaq
BTA Lawgroup PLLC
31811 Pacific Hwy. S., B-101, Federal Way, WA 98003
Well, unfortunately we did have this situation take place in 2013 in Renton, Washington. The facts of how the altercation took place are not completely clear from the news reporting, but what we know is that an armed citizen drew his firearm in response to an armed opponent. The setting was a crowded park, in which gunfire broke out, and one of the armed citizen’s rounds struck and killed an innocent bystander. The armed citizen was not charged with a crime, while the other armed man was arrested and charged with second degree assault (against the armed citizen) and unlawful possession of a firearm. There were no charges related to the armed citizen who shot and killed the innocent bystander. (See details at: http://komonews.com/news/local/father-of-shooting-victim-wants-justice-for-his-daughter)
The politics of Seattle are murky at best when it comes to firearms related topics and I would not use this particular incident as evidence of how all prosecutors would act. In many ways, by not charging the armed citizen the local prosecutor is (in effect) making a political statement about how he believes the current state of firearms laws are ineffective.
My belief is that accidentally shooting an innocent bystander lends itself to several potential theories of criminal prosecution and civil liability, and these will be exclusively fact driven cases. The armed citizen who has a well developed résumé of responsible gun ownership and well documented training places himself or herself in a position of lodging the event squarely into the category of “accident,” as opposed to the neophyte gun owner who will be viewed as negligent. Even accidents can result in civil or criminal prosecutions but they are much harder cases to prove liability. Negligence, on the other hand, is almost a win from the outset to the side playing offense.
Consequently, every action by an armed citizen must appear to be one that was done with good judgment, thus making tragic outcomes justified under the circumstances.
Ralph D. Long, Sr.
Attorney at Law
120 County Road 230, Florence, AL 35633
It is noteworthy that Alabama is one of a dozen or so States that grant immunity to those who legitimately act in self-defense. The law does not protect those who brought on the altercation by provocative acts before shooting “in self defense.” In other words, Alabama law removes the legal defense of self-defense if you are deemed to have started the fight.
Alabama Code 13A-3-23 (d) states “A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action (emphasis my own) for the use of such force, unless the force was determined to be unlawful.” I believe this was originally intended to be applied primarily against the claims of a criminal who is injured, though the law appears to give blanket protection against all subjects struck by the fire of the defender.
While a grand jury is said to be able to “indict a ham sandwich” in a criminal case, plaintiffs’ lawyers will file a suit against anyone who might be shown to have acted unreasonably or with gross negligence any time there is injury (spelled “money” damages), especially where an innocent party is injured. The criminal actor who was the target of the self-defense fire will likely have no money; so, an effort will be made to get money from a person who has money or insurance-like our members.
So, carry a reliable handgun (or other weapon) you have trained with extensively. Use expanding ammunition that will limit pass-through shots. Show restraint where possible and avoid the use of deadly force if you can. Finally, stay out of other people's fights unless you are certain who the “bad guys” are and are driven by conscience to act on behalf of the innocent.
Greystone Legal Associates, P.C.
1712 East Carson Street, Pittsburgh, PA 15203
The Supreme Court of Pennsylvania has held that a person who unintentionally injures a third party bystander while using justifiable force in self-defense may not be criminally liable for his injury to the bystander.
The case involved a shooting in a crowded nightclub. The defense shooter was accosted by three armed individuals, one of whom blinded the defensive shooter with mace in apparent anticipation of his being shot by the others. In response, the shooter, blind, drew a pistol and fired multiple shots in the general direction of his attackers, hitting none of them, but injuring a number of bystanders. He was charged with reckless endangerment and aggravated assault, and convicted. On appeal to the Pennsylvania Supreme Court, it was held that one may not be held criminally liable for unintentional injury to third parties while using justifiable force in self defense. Writing for the Court, Chief Justice Flaherty said:
“… the law of Pennsylvania does not require one to stand by helplessly while he is injured or killed by an assailant. And as [a lower court Judge] aptly points out, when one is the victim of an attack, the assailant, not the victim, picks the time, the place, the manner, and the circumstances of the attack. Leisurely assessment of the circumstances and the danger to others is almost never a feature of such an assault, and most often, the best the victim can do is to mount a defense which hopefully will preserve his life. In many cases, the victim has only seconds to act in order to avoid injury or death. In this case, [the Defendant] was accosted by three men who assaulted him with pepper spray and simultaneously drew a handgun. [The Defendant] assumed, with reason, that they intended to kill or seriously injure him. He acted instinctively and within our law in defending himself.
“Any victim of crime who justifiably exercises his right of self-preservation may inadvertently injure a bystander. Admittedly, this court could fashion a rule of law which holds the defender criminally liable, but in doing so, we would have furthered no policy of the criminal law. Instead, we would have punished a person who was acting within his instinct for self-preservation and, in an appropriate case, within the boundaries of our law.”
Commonwealth vs. Fowlin, 551 Pa. 414, 420 - 421 710 A.2d 1130, 1133-1134 (1998).
We greatly appreciate our affiliated attorneys’ generous participation in this interesting and educational column! So many responded to this question that we carry half of the comments over to our September online journal. Please return next month for the completion of this discussion.
To read more of this month's journal, please click here.