Attorney Question of the Month
This month we asked our affiliated attorneys:
An armed citizen who carries a trauma kit justifiably shoots an assailant, then calls 9-1-1. From a legal defense viewpoint, what are the possible benefits and risks of treating the gunshot wound while waiting for the first responders?
Attorney at Law
Summers Compton Wells LLC
8909 Ladue Road, St. Louis, MO 63124
Treating the attacker’s gunshot wounds virtually guarantees a civil suit by the attacker, or his family if he dies. Staying on the phone with 9-1-1 while repeatedly stating that paramedics and an ambulance are needed ASAP will show enough concern for the attacker so the defender will not be viewed as cold and callous.
For most people, simply that he or she was concerned that any attempted treatment might cause more harm than good because of lack of training should be a sufficient explanation for not helping, if it ever becomes necessary to explain. The answer might be different if the defender is a physician or other medical professional, but even then it will probably be better to stay away in order to remain safe. The police will not let the paramedics or ambulance near the wounded attacker until they have cleared the scene and there is no reason a civilian should act sooner.
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
You have just survived the moment you had hoped you would never experience. You had to use deadly force to defend yourself or another innocent person against a violent attack.
Should you provide first aid to the person that just attacked you? The decision is not one to be taken lightly as there are a number of practical and legal considerations. From a practical standpoint, it will probably not be prudent or safe to render aid, but in a scenario where the scene is secure, and you can safely administer first aid, what legal ramifications might there be? For more discussion regarding the practical considerations, check out Massad Ayoob’s comments: https://www.youtube.com/watch?v=xRyhocMdJLM.
As is the case in most states, you have no legal duty to provide aid in Indiana (Ind. Code §34-30-12-1). However, some states do have an affirmative duty to provide aid. The duty may only require that you summon aid by calling 9-1-1. See, e.g., Minn. Stat. § 604A.01. This article has a breakdown of states that create an affirmative duty and states that do not: http://tmsnrt.rs/1Df3U7T.
If you decide it is safe and you are capable of rendering aid, most states have some type of “good Samaritan” law. These laws vary but generally provide civil immunity for someone who makes an error while rendering emergency medical care. That is, he or she cannot be held legally liable for damages in court. These statutes typically have three requirements:
- The aid must be given at the scene of the emergency,
- In good faith, and
- Gratuitously, without the expectation of monetary gain.
You will find those same three elements with slightly different wording in the Indiana “good Samaritan” statute which states:
“a person who comes upon the scene of an emergency or accident...or is summoned to the scene of an emergency or accident and, in good faith, gratuitously renders emergency care at the scene of the emergency or accident is immune from civil liability for any personal injury that results from: (1) any act or omission by the person in rendering the emergency care; or (2) any act or failure to act to provide or arrange for further medical treatment or care for the injured person; except for acts or omissions amounting to gross negligence or willful or wanton misconduct.” (Ind. Code § 34-30-12-1) (emphasis added).
In regards to the exceptions noted in the statute, if the aid is rendered in a way that constitutes gross negligence or willful or wanton misconduct, then there will be no immunity. Gross negligence as it originally appeared, was very great negligence. It has been described as a failure to exercise even that care which a careless person would use. Most courts consider that “gross negligence” falls short of a reckless disregard of the consequences, and differs from ordinary negligence only in degree, and not in kind. W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 34, at 211–12 (5th ed. 1984).
Indiana has no case law interpreting the application of the good Samaritan statute to a self-defense scenario. As a matter of fact, there is not much case law anywhere. However, while Indiana has little guidance on the good Samaritan statute in the self-defense context, our best guess is that as long as you satisfy the elements of the good Samaritan law in Indiana, the courts are likely to treat the person who defended oneself in self defense like they would treat an innocent bystander, making you immune from civil liability if you decide to render aid in a way that is not grossly negligent.
Nonetheless, there are some other considerations, particularly from a criminal law standpoint that one must consider. For instance, how will rendering aid look to a jury? Will it help your case or hurt your case? On one hand, some jurors will see rendering aid as the morally correct course of action. On the other hand, some jurors may see your attempt to render first aid as a sign of guilt. They might think you are trying to save the perpetrator because of some mistake you made when you decided to shoot.
Another important aspect to consider from a legal perspective is the preservation of evidence. A potential negative implication from rendering aid is that you will have directly participated in changing or eliminating evidence at the scene such as body position, wound condition, clothing damage or alteration, weapon location, or any myriad of other pieces of evidence that might be critical to the investigation of your self-defense act. Although this will likely occur when professional medical help arrives, at least your motivations will not be attacked as you will not be a direct participant in altering the evidence.
Whatever the situation, you need to be able to articulate why you did what you did to your defense team so that they can educate authorities and potentially a jury. Please remember that the laws will vary depending upon your jurisdiction (refer to http://tmsnrt.rs/1Df3U7T). The key is to visualize these scenarios ahead of time so that you will be more prepared to respond if you have to act in self defense.
Ralph D. Long, Sr.
Attorney and Retired Police Lieutenant
120 County Road 230, Florence, AL 35633
Compassion is commendable but one must consider whether a prosecutor will wonder if you shot someone to “play doctor.”
Know your state’s good Samaritan laws. It’s always wise to equip and train to help others but remember you have just had to shoot someone because of that person's willingness to hurt you for his own benefit.
Also, have access to handcuffs or flex ties. Always restrain any downed suspect’s hands behind his/her back before rendering medical aid. Never approach to apply restraints unless you have someone to cover the attacker. Downed suspects have “come to” and attacked those rendering them aid or “played possum” until their prey closed to striking distance.
John I. Harris III
501 Union Street, 7th Floor
PO Box 190676, Nashville, TN 37219
In the context of how rendering aid to someone that has been shot or injured in a perceived self-defense scenario might impact a case, the question can arise in at least two types of cases. First, would be a potential criminal case in which the person using deadly force is charged with the commission of a crime of violence. The second context might be a separate civil action for personal injury damages related to the use of deadly force.
In the criminal case, the first consideration is that in Tennessee and other states, the concept of self defense is a matter that is raised as a justification for doing what might otherwise constitute a criminal act. In Tennessee, the inquiry in the criminal case is whether the elements of the self-defense statute (Tenn. Code Ann. Section 39-11-611) have been met to justify the use of deadly force.
Typically, these elements require that the individual reasonably, both objectively and subjectively, be in imminent fear of death or serious bodily injury. If the imminent fear element is established, then the question becomes whether more force than was justified was used. Thus, there have been cases in which the court examined a claimed self-defense shooting and determine that some number, perhaps three, of the shots were justified to avert the threat but that additional shots, shots arising once the threat no longer reasonably existed, were unjustified and that self defense was therefore not established as to those additional shots.
What is not typically addressed in the criminal case during the guilt phase is the issue of whether there was a duty to render aid to the attacker who might be shot or otherwise injured in self defense.
However, the second phase of criminal case will often involve the sentencing phase. In that phase, the issue of rendering aid could become an issue in terms of whether the defendant, if not entitled to rely on a claim of self defense, was remorseful or otherwise took actions to reduce the extent of harm. Thus, efforts to render aid, call emergency services, etc., could potentially be relevant in a sentencing phase.
The second kind of case is the civil action where the injured attacker (or his family) claims that the person resorting to self defense, used illegal or even excessive force. In Tennessee and many other states, the Tennessee Supreme Court has stated that “a stranger owes no duty to render aid to another in peril.” See, Lindsey v. Miami Dev. Corp., 689 S.W.2d 856, 859 (Tenn. 1985). However, there are some exceptions to that general rule. One exception is if there exists some kind of special relationship between the parties such as passengers on common carriers, employees, customers, social guests, and others. In such instances, the duty to render aid is not a duty to cure or fix.
Generally, the duty that exists, if at all, is to use reasonable care under the circumstances. In Tennessee, the Court has said that the person “will seldom be required to do more than give such first aid as he reasonably can, and take reasonable steps to turn the sick person over to a doctor or to those who will look after him until one can be brought.” Lindsey v. Miami Dev. Corp., 689 S.W.2d at 859. Thus, in the civil case, the issue of what duty might exist turns heavily on the facts of each case and the relationships between and among the parties. The duty could range from no duty to a duty to render some aid. In the civil context, it is also important to realize that if a person attempts to render aid that such actions must be done reasonably, that is, in such a manner as to not make the situation worse.
What would and would not constitute reasonable aid, whether required by law or not, depends heavily on the facts of each case including the capacity of the attacker to do additional harm. Along those lines, juries likely will not hold anyone in a bad light as to this issue if they act with priority to their own safety, the safety of others and then in such a fashion as would provide safe, but reasonable aid to the person who was shot so long as it can be done without being exposed to more risk of harm.
Thomas C. Watts III
980 Montecito Suite 101, Corona, CA 92879
The risk that you take is that you might make things worse by moving or treating the assailant. What if the assailant is still armed or makes an attempt to disarm or injure you. You did the right thing and all that you should in order to protect yourself and by calling 9-1-1 to get some pros rolling to the scene.
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 more of their responses to this question.
To read more of this month's journal, please click here.