Attorney Question of the Month
This month we asked our affiliated attorneys:
For the last few months this column has focused on questions of the law and the armed citizen’s responsibilities to his fellow man. Several months ago we hashed out questions about intervening to save a stranger from violent crime. In June, we introduced this question:
An armed citizen who carries a trauma kit justifiably shoots an assailant, then calls 9-1-1. From a legal viewpoint, what are the possible benefits and risks of treating the gunshot wound while waiting for the first responders?
The following answers, carried forward from the many received in June, wrap up this question.
Jerold E. Levine
Law Offices of Jerold E. Levine
5 Sunrise Plaza, Ste. 102, Valley Stream, NY 11580
The civil risk is a lawsuit. The traditional rule is that a person has no duty to intervene, but if they do, then they are liable for any damage they cause. So even if one does his best in rendering medical aid, if he makes a medical mistake he becomes liable for damages.
The criminal risk is nearly zero, whether or not you give medical aid. There is no criminal penalty for trying to save someone's life, and there are very few places that require you to do anything at all. The few jurisdictions which require giving any kind of assistance to persons at risk of serious physical danger require it if: (1) aid is not being given already, (2) doing so would not endanger you or anyone else, and (3) giving aid would not interfere with important duties that you owe to other people. Vermont is such a jurisdiction.
However, there is one risk that comes from doing nothing, and that is of making a bad impression on the jury...depending on the circumstances. If the medical aid needed is very slight, and clearly within the armed citizen's capabilities, and, if the failure to give that aid results in some kind of lasting physical impairment to the criminal, then a jury might view the armed citizen as heartless and cruel. So the armed citizen might ask himself, “What would a jury of ordinary people think about my doing absolutely nothing right now? What would they think was the right thing to do, given my level of medical knowledge?”
Shawn A. Kollie
DeKalb & Associates
40 NW Greenwood Ave. Suite 100, Bend, OR 97703
In Oregon, assisting the assailant with medical needs would not hinder anyone’s lawful use of force under the law. Under Oregon law it is certainly important to have a justified use of force, but after that, it is not entirely relevant what the individual does. If anything, it would probably look better to a judge or jury for the individual after a lawful use of force, and identifying that a threat no longer exists, to assist the assailant with any medical necessities.
Gregory J. Miller, Esq.
Miller Law Group
P.O. Box 680, W. Redding CT 06896
Laws vary from state to state; it is my understanding that all 50 states have some form of good Samaritan law. So, if you are going to medically intervene you need to review your local good Samaritan law and do so in a manner where you are shielded from liability.
The question posed also raises the non-legal issue of that in the real world when people are shot they do not just lay down quietly. Unless you strike the central nervous system they thrash and may continue to fight. And sometimes they lose consciousness and come to and are very combative. So, what do you do with your firearm while administering first aid? Really want to be in that close to a person who has already put you in imminent peril of serious bodily harm? Tactically, I ask the question of whether this is wise.
So do I carry a trauma kit? The answer is yes. But, only because at a range accidents can happen and my other hat is as a first responder.
If you asked me how would a jury respond to rendering first aid: I think before a jury it is in your favor that you were trying to save a life. But if you have a trauma kit and do not use it, that could be seen negatively.
I have been handling firearms cases for over 30 years and have been involved in several legal matters where a client lawfully used a firearm in self defense. In general, I find that after an incident people are so full of adrenaline that they really need to stand down and let the professionals do their jobs. If you are an EMT or a doctor, maybe it makes sense if it is your normal daily practice to have a kit. In the real world, I think this would be difficult.
Bottom line is I think as defense counsel it would be in your favor to treat. But, I have serious reservations as to whether having just survived an encounter, you would be well advised to get that close to a wounded assailant.
John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
Treating the wound benignly or successfully would help dispel any accusation that you set out to kill the assailant. There is some risk, however, associated with treating the wound negligently. An argument could then be made that you only made the appearance of treating the wound when in fact you used the ostensible treatment to further injure the assailant.
Kelly & Chapman
PO Box 168, Portland, ME 04112-0168
The issue of legal liability for poor treatment is first in mind. Many (if not all) states have some form of good Samaritan law. Maine does. However, there is no liability for doing nothing at all. The dicey part comes if your efforts are not successful. "He wanted my client dead, and finished the job with a tourniquet."
Another downside is that it ARGUABLY shows lack of fear, and where there is no weapon or a blunt-force weapon involved, MIGHT tend to show you never were afraid of the person.
The upside is that it shows lack of malice, or “tends to.” In a very close case, “intent to cause death” may be negated by your own efforts to prevent death. That already presumes an unjustified shooting–accidental or “heat of passion.” This question assumes that the shooting is “justified.”
One additional note: it MIGHT make a difference in insurance coverage, depending on your state’s interpretation of the “expected or intended harm” in the standard homeowners policy.
Tactically, of course, it is a risk to approach a downed subject. I have had at least one case where a subject feigned unconsciousness to lure a police officer closer, and then smashed the officer in the face with a log. Weapons are often concealed under clothes, under the person, or even, with very small knives or derringers, within the hand itself.
HERE’S one VERY strange aside: Maine has a law intended to address hunting accidents. However, the legislature did NOT limit the language to hunting.
§11223. Aid to injured person and reporting hunting accident
- Duty. A person who knows or has reason to know that that person has inflicted injury or may have inflicted injury on another person by the use of a firearm, bow and arrow or crossbow shall:
a. Make that person known to the victim;
b. Render first aid and assistance as that person is capable of rendering under the circumstances; and
c. Give notice of the event by the quickest means to a game warden or, in the event that a game warden can not be contacted, to the law enforcement officer nearest the place where the event occurred.
Marc S. Russo
Attorney at Law
25 Plaza St., W. #1-K, Brooklyn, NY 11217
From a practical standpoint, the wounded assailant could grab the shooter/Samaritan, grab his/her gun, and turn the tables. He’s also more likely to survive and give the police an incriminating account of the shooter’s actions.
Also, on the legal side, many states do not protect good Samaritans from negligence (or in this case malpractice) claims if the help does more harm than good. A distinct possibility, especially if the shooter is not a trained doctor, nurse, or paramedic. And, in general, in terms of assessing the dollar amount of damages, a serious, disabling injury typically brings a higher award than a death. The only possible advantage I can see to helping him might be to gain brownie points with vengeful family or gang members. Unlikely if he ends up in a wheelchair.
3150 Livernois, Ste. 270, Troy, MI 48083
From a legal defense perspective, benefits include that it may be considered evidence that the intent was not to kill, but rather to stop the threat. This bolsters a self-defense claim. Risks include physical danger from being in close proximity to your attacker, and if aid is rendered incorrectly, the possibility of an allegation that you were not rendering aid, but rather your intent by “helping” was to really cause more harm.
Ronald J. Davis, II, Esquire
La'Rae H. Hendrix, P.A.
165 Wells Road, Suite 104, Orange Park, FL 32073
From my perspective there are no legal benefits from treating the gunshot wound while waiting for the first responders–so do not. Morally, preserving life or limb, might be something that many responsible gun owners feel compelled to do, even though the assailant has committed a crime justifying an armed response.
There are great many risks associated with treating the gunshot wound while waiting for first responders. In this particular instance, in Florida, having called 911, the armed citizen would have no duty to provide or render aid to the assailant. Should the armed citizen decide to render aid from a moral perspective, the armed citizen would need to make sure that the care is done so in a reasonable manner. Florida Statutes 768.13.
Florida Statutes Section 768.13 is known as the Good Samaritan Act and provides immunity from civil liability to anyone “who gratuitously and good faith renders emergency care and treatment.” However, in order to be protected under this immunity, the armed citizen must have rendered aid without objection by the assailant and must “act as a ordinary reasonably prudent person would have acted under the same or similar circumstances.” Id.
In rendering medical aid, the armed citizen would be exposing himself or herself to a situation where the assailant could claim that the treatment was not consented to. Or the assailant (or the assailant’s estate or even the state) could argue that the armed citizen purposefully made the injury worse or caused death. Finally, (and maybe most importantly) an incident has just occurred requiring the armed citizen to make the very tough decision to pull and use their firearm. Putting the assailant and the armed citizen into even closer proximity creates likelihood for the situation to escalate even further.
I would be concerned about whether or not the decision to render aid and treatment would possibly open the door to potential claims of spoliation of or tampering with evidence. From a civil perspective, the elements of spoliation of evidence are:
- existence of a potential civil action;
- a legal or contractual duty to preserve evidence which is relevant to the potential civil action;
- destruction of that evidence;
- significant impairment in the ability to prove the lawsuit;
- a causal relationship between the evidence destruction and the inability to prove the lawsuit; and,
- damages. Royal & Sunalliance v. Lauderdale Marine Center, 877 So.2d 843 (Fla. 4th DCA 2004).
The armed citizen would be touching the person and potentially the belongings of the assailant, which could inadvertently alter the scene, and the alterations could be subject of speculation as to motive.
The shooting site would be subject to police investigation. Providing aid to the assailant, which might include moving the assailant, could change the scene and possible destroy or inadvertently affect evidence that could exonerate the armed citizen or aid in their civil defense. Conversely, should the armed citizen become the subject matter of any criminal investigation, there could be concerns about the motives behind the rendering of aid should the assailant die or his or her condition worsen. If the armed citizen’s rendering of medical aid was called into question because, for instance, the assailant was moved or clothing or effects were removed, the state could consider charges of tampering with evidence. In Florida, to establish a violation of evidence, the State must prove a defendant had knowledge of an impending investigation and destroyed evidence in order to impair its availability for the investigation. Clearly, the entire situation would put the armed citizen on notice that there would be an investigation. Therefore, we would not want there to be any concerns as to any of the evidence on the scene.
Thus, from my legal defense perspective, the legal risks of rendering aid outweigh any legal benefit.
We extend a big “Thank you!” to all of the Network Affiliated Attorneys who contributed to this interesting discussion. Please return next month for the start of a new question for our affiliated attorneys.
To read more of this month's journal, please click here.