Attorney Question of the Month
The Attorney Question of the Month currently under discussion is based on a fairly common question asked by Network members and non-members alike. Questions about “good Samaritan” duties come up so often that last month, we asked our Network Affiliated Attorneys the following question to help members better understand where their responsibilities as armed citizens begin and end. So many great answers came in that we carried half of the responses forward and wrap up the topic this month. Here is the question–
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?
Our affiliated attorneys responded–
1650 North First Avenue, Phoenix, AZ 85003
Thankfully, this situation is rarely encountered in the real world. We had an incident just a few weeks ago in the Phoenix area where a legally armed citizen came upon the scene of a fatal motor vehicle accident wherein a drug-crazed, illegal-immigrant driver, after rolling his vehicle and murdering his girlfriend (the exact order of those two acts remains unclear) then decided to open fire, ambush style, on the responding Arizona state trooper.
After wounding the trooper and (apparently) running out of ammunition, the bad guy was straddling the trooper and bashing his head against the pavement when the armed citizen arrived on scene, asked the trooper if he needed help, and after receiving an affirmative answer, ended the assault once and for all with a few carefully aimed rounds. Chalk one up for the good guys. The officer survived, and the armed citizen has received the appropriate praise and “attaboys” from local law enforcement.
Running up on the scene of an officer-involved shooting, however, especially when carrying a gun, is typically fraught with potentially fatal problems. Remember–YOU know you’re a good guy, but no one else does. The officer under attack may reasonably assume that you are yet another attacker, and you could find yourself the object of gunfire from the very officer (and/or his/her fellow officers) you are attempting to rescue. Extreme caution and good tactics must be employed (another reason to train?) to avoid a horrific outcome.
Leaving officer-involved shootings aside for a moment, it is important to remember that in ANY/EVERY third-party situation we insert ourselves into, we may very well have “missed the beginning of the movie,” so to speak. Do you REALLY know who the good guy is? Is he/she wearing a white hat? Doubtful. And even if they are, how do you know they didn’t just snatch it off of the head of the other guy seconds before you came around the corner?
Are you willing to pay the price if you make a mistake? Are you willing to give the rest of your life in prison, or worse yet, your life itself, to assist a stranger (that you might have correctly chosen as the good guy, or maybe not) in the often-misguided belief that they will actually be grateful? Ask any officer how many times he has pulled an abusive husband off of the wife he was pummeling only to have the wife turn on the officer and attempt to scratch out his eyes. It happens to the “good Samaritan” armed citizen more often than we’d care to admit. Not only the victim, but the system, will often turn against the well-meaning armed citizen. Sheep hate sheepdogs and often don’t see much difference between them and the wolves.
Third party involvement should only be undertaken when one is completely sure they correctly understand the situation and there is no other choice to prevent the imminent loss of innocent human life. The system too often fails to differentiate between a good Samaritan and a so-called vigilante. Be wary.
Randy L. Robinson, Esq.
Attorney at Law
P O Box 682, Augusta, ME 04332
If the citizen happens upon an altercation, it is helpful to know for certain which participant is the aggressor. The person being attacked is the one who has the right to defend himself.
Just to make things more complicated, if the aggressor clearly signals that he is stopping the attack, he then can become the victim if the other person keeps it going.
Also, the amount of force used in defense of the third party must be reasonable. You can’t kill or severely injure someone to prevent a minor fistfight. A person may be better jumping in without a weapon, at all, if he or she can determine who the good guy is.
Monte E. Kuligowski, Esq.
Legal Defense Center
3640 S. Plaza Trl., Suite 202, Virginia Beach, VA 23452
It is correctly stated that an armed citizen does not have a duty, but rather has the right to act. Citizens have the right to defend third parties from criminal attacks. But keep in mind, deadly force may not be used to stop a threat unless the criminal actor presents an imminent threat of death or serious bodily injury.
It is also important to know that the basic rule stated above applies equally to the police as well as the armed citizenry. There are not special rules of self defense for police officers. Although, in practice the police may receive a more liberal interpretation of what presents an imminent threat.
There are black and white situations such as walking in on a criminal actor robbing and waving a firearm at a salesclerk. But what if the actor has a knife instead? Suddenly, the context becomes gray, and facts matter. How close is the criminal to the salesclerk? Is there a counter-top separating the two? What if the actor turns towards you, pointing the knife at you? The distance between you and the knife becomes the relevant question. Is the criminal within striking distance?
You can only use deadly force to stop an imminent threat and the question will always come down to: Was your life or another’s in actual, imminent danger?
Jackson Kelly PLLC
310 West Burke Street, P.O. Box 1068, Martinsburg, WV 25402
In West Virginia, you can use deadly force to defend another if they would have the right to do so. If you choose to do so, however, there are several potential problems.
First, you may not have seen the whole series of events. Who was the initial aggressor? Did you have good vantage point to see the critical events? These are critical concerns.
Second, the encounter in which you may be involving yourself could be a domestic matter. Such matters add personal factors that may result in the person you just defended claiming she “loved” the attacker, and you just shot him. You may then face the situation in which the person you saved is the primary witness against you. Domestic disputed are almost always more factually complicated and perilous for the good Samaritan.
Louis C. La Pietra
La Pietra & Krieger PC
30 Glenn Street Suite 105, White Plains, NY 10603
The private citizen acts completely at his or her own risk. Depending on the circumstances, they could be exposed to both criminal and civil liability, for example, if they cause damage or injury to persons or property, even though their action(s) were taken in good faith, without malice.
In the event a local police department and/or prosecutors office deems the individual to have acted recklessly, the individual could be arrested and charged. Additionally, even if they are not charged criminally, or if they are ultimately acquitted of any criminal conduct, they could be sued civilly by the wrongdoer and/or any third parties collaterally involved/injured as a result of the action taken by the armed citizen.
Attorney At Law
3985 Airline Drive, Bossier City, LA 71111
As in all scenarios, the courts look to whether the conduct was “reasonable.” A person in this situation would be given more leeway since he is considered a good Samaritan. Most states have good Samaritan laws that protect people who come to the aid of imperiled individuals.
Stephen T. Sherer
Sherer & Wynkoop, LLP
730 N Main St., PO Box 31, Meridian, ID 83680
Depending on the arresting officer and the police department’s method of handling these issues, and depending on other factors (is it a 6' 6" linebacker who is defending others with a gun, or a 5' 0" grandmother), the protector may or may not be charged. Often an officer will err on the side of caution and make the arrest. If not dropped before trial, the defendant has an affirmative defense of defense of others, but of course that means paying an attorney to go to trial.
If the attack is with anything not considered dangerous or lethal (as those terms are defined in your jurisdiction) you can’t repel the attack with greater force than was threatened, so the gun should remain concealed.
We need to act with EXTREME caution in this area.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
Getting involved is tricky, because things are not always as they appear. But the same rule applies when defending others with force as with defending yourself: You may use only such physical force as is necessary to stop unjustified physical force being used against the victim, and may use deadly force only to oppose what you reasonably believe to be the use or imminent use of force which can cause death or serious physical harm to the victim. In some jurisdictions, there also is a limited privilege to use deadly force in other rare situations, such as to prevent arson, but this depends upon the jurisdiction.
Use of excessive force is criminal, as well as actionable in civil court. There also are other penalties for lesser uses of unjustified force. Offenses with names like brandishing, threatening, reckless endangerment, and the generic disorderly conduct, may be charged against the armed intervenor. Also, enhanced penalties may exist when any of those activities involves a gun.
Lastly, be alert to applicable insurance policy clauses that limit the scope of coverage. Your policy might well contain a provision disallowing coverage where your actions are found to be illegal. An insurance company may still be required to defend you in a civil action, perhaps, but they also might not be required to reimburse you for any damages won by the person(s) suing you, or for damages over a certain amount.
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
In Maine, the pitfalls fall into four categories: civil, criminal, administrative, and a more vague category that I call “reputational.”
You might be prosecuted for:
–unjustified use of force against the intended subject;
–reckless infliction of harm, or endangerment of bystanders
–unjustified THREAT against the subject;
–various laws, state or federal, against possession of firearm in a particular place
–if an official, and the target is some other race or national origin, prosecution under 18 USC 242 (the Rodney King statute).
You might be sued for assault, battery, intentional or negligent infliction of emotional distress, negligent infliction of harm, or a violation of Maine’s civil rights act. For harm intentionally caused, standard liability insurance policies will not defend or indemnify. Fortunately, if ANY count of a complaint is covered, the insurer must defend the whole thing.
Administratively, one might lose one’s concealed handgun permit, license to operate a group home, municipal cab license, liquor license for an establishment, Department of Health and Human Services group home or daycare operating license, or federal firearms license. One might also lose, or have restricted, a professional license (law, medicine, psychology, pharmacist), or a license to operate under DOT, FAA or maritime/Coast Guard.
Reputationally, one might be denied employment, lose customers, be denied a future license application, liquor license, business license or a zoning variance depending on the circumstances.
In Maine, the extent of criminal “justification” is statutory and based on the model penal code. Civil immunity and justification is common-law based, and not so clear. There is usually no remedy for a reputational injury where the action is based on a belief, even incorrect, based on a use of firearms. There are remedies for license denial in the public sector, but little or no remedy besides the marketplace in the private sector, for passive decision-making.
Each of these is worthy of an all-day seminar in its own right.
Duane A. Daiker
Shumaker, Loop& Kendrick, LLP
Bank of America Plaza, Suite 2800
101 East Kennedy Boulevard, Tampa, FL 33602
Armed citizens may understandably feel a moral duty to come to the aid of another person who appears to be a victim of a criminal attack. However, inserting oneself into a confrontation is fraught with potential legal peril. When you come to the aid of another person, you have essentially the same rights that person would have in that situation. If the person being attacked has a right to self defense, you can intervene on their behalf to the same extent.
The problem is that when you are a stranger to a rapidly developing situation, it can be difficult to discern exactly what is happening. Do you know for certain who is the aggressor? Did you see the situation develop? Is it possible the person trying to subdue the apparent victim is an undercover law enforcement officer? If you overstep the bounds of self defense because you misunderstood the situation, that is not a legal excuse. You can be subject to criminal prosecution, and a civil lawsuit. While we arguably have a moral duty to protect the innocent, that duty must be exercised with extreme caution.
Thomas C. Watts III
980 Montecito Suite 101, Corona, CA 92879
A private citizen coming to the defensive aid of another stands in the shoes of the person being assaulted. You had better fully appreciate the situation before stepping into the fray with deadly force. There is no pass to a citizen for having a good intention. If it turns out that deadly force was not appropriate, then another well-meaning citizen is now defending their own interest rather than somebody else’s.
Thus, threat recognition and assessment is crucial. If there is no apparent weapon, use a cell phone. Don’t be officious. If you are in a situation where there are weapons, you may yourself be in danger and have to decide based on your own safety.
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 have a new question to ask our Network Affiliated Attorneys.
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