This month we started a new discussion with our Network affiliated attorneys when 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?

The responses were many and varied, so we will run the first half of our affiliated attorneys' comments this month and wrap it up next month with the rest of their answers.

Kevin E. J. Regan
The Regan Law Firm, L.L.C.
1821 Wyandotte, Suite 200, Kansas City, MO 64108

In the States of Kansas and Missouri where I practice, the answer would be a resounding yes, in certain circumstances.

A self-defense situation does not give an individual the right to disregard the rights of other innocent victims in the vicinity of the wrongdoer.

Many rules of firearm safety include the rule “Always be sure of your target and what’s beyond it.” If an individual using deadly force in a legally verifiable case of self defense is negligent in how that force is applied and shoots an innocent bystander who was not a threat to the individual claiming self defense, then the individual could be sued for damages by the injured party or the family of the deceased party, in the event of a death.

If criminal negligence were used by the defending party, that individual could face criminal sanctions as well, depending on the facts of the case, perhaps for criminally negligent assault, battery or manslaughter if someone is killed.

I have seen very good firearms instructors tell their students that they are legally responsible for every bullet they fire and that extreme caution should be used when using a firearm in self defense especially when there are innocent individuals nearby.

I believe this issue relates back to the importance of training necessary to seek qualified instruction for proficiency and good judgment with a firearm, and in selecting the correct firearm for self defense in the environment in which one lives.

For instance, it would not seem to be a safe decision for an individual living in a multi-dwelling apartment building to use a high powered rifle for self defense due to the risks of over-penetration of the target and nearby walls with innocent individuals certain to be nearby.

Shooting towards a threatening individual who is surrounded by a backdrop of innocent individuals could also cause undue risks to those spectators.

Extreme caution should always be used when considering the use of deadly force.

Timothy A. Forshey
1650 North First Ave., Phoenix, AZ 85003

Before tackling this particular question, this might be a great time to point out one of the most difficult and pervading problems with the legal system in general: the almost complete inability to give an accurate answer to such a simple question. There are very few “black and white” answers truly available in the legal arena. If the question begins “Can a…” the answer is probably going to be “yep.” “Can a bullet hit the moon?” “Yep.” The actual and better answer is almost always “it depends.” The answer will usually depend upon dozens of factors, but it will always depend on the perspective and inclination of the investigating officer(s) and the assigned prosecutor.

Here, the short answer is “yes.” As in most cases, the better, and more illustrative, answer is, “it depends.” Did the shooter, held to be in reasonable fear of imminent risk to human life (and thereby justified in responding with deadly force) then proceed to act recklessly? The difference between negligence and recklessness is about a year of law school, but it boils down to “recklessness is REALLY, REALLY negligent negligence.” Spraying 32 rounds “north” towards the advancing armed mugger with your MAC 10 when the mugger is standing in front of a school bus is reckless. Firing three shots, two of which go a foot wide and hit a shopper across the street may be just negligent. It’s a judgment call on the part of the aforementioned officials. If the shooting is deemed “reckless,” a manslaughter (or similar) charge is highly likely. Even mere negligence here can lead to charges (in Arizona, Negligent Homicide—a Class 4 Felony, punishable by a presumptive prison term of 2.5-6 years).

In short, just like Slim Pickens riding that nuke to the ground slapping his hat in glee in Dr. Strangelove, remember there is a lawyer riding each bullet that leaves the barrel of your gun. Practice a lot with good training to reinforce good habits rather than bad, and THINK, as much as possible, before you shoot.

Nabil Samaan
Law Office of Nabil Samaan
4324 “A” Illinois Ave., Fair Oaks, CA 95628
This email address is being protected from spambots. You need JavaScript enabled to view it.

An innocent bystander would most definitely at a minimum bring a lawsuit for negligent firing/aiming of the gun. There are numerous issues to be considered. For example, it is clear that the gun was fired with intent but the round did not hit the intended target. The analysis to determine negligence: defendant owed a duty of care to the plaintiff; defendant breached that duty; plaintiff was harmed; defendant’s breach was a substantial factor in causing the plaintiff’s harm. To determine if defendant breached the duty you would use the Rowland factors:

  1. The foreseeability of harm to the plaintiff;
  2. The degree of certainty that the plaintiff suffered injury;
  3. The closeness of the connection between the defendant’s conduct and the plaintiff’s injury;
  4. The moral blame attached to the defendant’s conduct;
  5. The policy of preventing future harm;
  6. The extent of the burden to the defendant;
  7. The consequences to the community of imposing a duty to exercise care with resulting liability for breach; and
  8. The availability, cost, and prevalence of insurance for the risk involved.

The standard test and the level of proof would be “preponderance of evidence.” This is often explained by saying if you put a feather on the scales of justice that slight bit of proof is enough to prove liability.

So if the plaintiff can, in the slightest, prove the above, he collects. The reality is you better have insurance, because a jury will find the shooter negligent and have to pay for the damages, including pain and suffering. This is regardless if your shooting was justified.

John Chapman
Kelly & Chapman
P.O. Box 168, Portland, ME 04101
This email address is being protected from spambots. You need JavaScript enabled to view it.

Under Maine law, a person justifiably using deadly force may be criminally liable if he/she recklessly causes, or causes risk of harm, to innocent third persons. See title 17-A MRSA section 101:

“3. Conduct that is justifiable under this chapter constitutes a defense to any crime; except that, if a person is justified in using force against another, but the person recklessly injures or creates a risk of injury to 3rd persons, the justification afforded by this chapter is unavailable in a prosecution for such recklessness.”

There are, however, some “weasel words” regarding the definition of “recklessness” which probably mitigate the otherwise awful prospect of going to jail for successfully defending a schoolyard full of kids from the active shooter in their midst.

“For purposes of this subsection, the disregard of the risk, when viewed in light of the nature and purpose of the person’s conduct and the circumstances known to the person, must involve a gross deviation from the standard of conduct that a reasonable and prudent person would observe in the same situation.”

In the case of an active shooter, at least one Deputy AG has said he believes it would exempt one who attempted to take such a person out. It would be more problematic in the case of the seven or so other situations where deadly force might be justified.

In a civil case, the so-called “emergency doctrine” would likely apply. One could be liable if the jury, taking into account the exigencies of the situation, still believed that the actor failed to exercise ordinary care (the justification provisions of the code are not necessarily equivalent to civil justification).
A big "Thank You!" to our affiliated attorneys for their contributions to this interesting and educational discussion. Please return next month when we conclude this question with the second half of our affiliated attorneys’ responses to this question.

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