Network members have questions about self-defense shootings that occur in and around cars. Late last summer, news reports about a spree shooter who killed seven people and injured more than 20 while driving around Odessa, TX, before he was shot by police gave rise to questions that we posed to our affiliated attorneys. We asked:
Setting aside the many tactical and marksmanship issues associated with shooting from vehicles, if an armed citizen faced a similar situation in your state, do laws that prohibit shooting from or across roads and from vehicles make an exception for self defense?
What legal issues could you envision arising from shooting back if caught in a moving attack?
We had so many responses that we carry the attorney responses forward to this month’s journal. If you missed last month’s edition, you may wish to return to https://armedcitizensnetwork.org/february-202-attorney-question. Here are the rest of the attorney comments:
Steve Wells
Attorney at Law
431 W. 7th Ave., Suite 107, Anchorage, AK 99501
907-279-3557
Alaska laws do not make an exception per se. Rather, Alaska allows the use of deadly force to prevent death, serious physical injury, kidnapping (except custodial interference), sexual assault in the first or second degree, sexual abuse of a minor in the first degree or robbery. Whether the use of force occurred from or across roads or from vehicles is not really an issue.
Having said that, the tactical and marksmanship issues would be the legal issues because even when using deadly force, a person has to be reasonable. Shooting across a roadway or from a moving vehicle would increase the chances of hitting a by-stander. The mens rea in my state is recklessness, which is defined as a conscious disregard for a substantial and unjustifiable risk. I represented a client who had a decent self-defense case but hit a by-stander because he fired into the dark. While the jury was sympathetic, and the court substantially reduced his sentence, jurors later said that he should have had better aim and his firing into the dark was reckless. He was convicted because while the jury thought he legitimately believed he was in life-threatening danger from someone approaching him with a pickaxe, he was found to have been reckless in not ensuring that his bullets went to their intended target. Fortunately, the person hit was not killed although his injuries were not minor, but it goes to show that jurors are not very sympathetic to bad aim.
It strikes me that if you are in a moving vehicle and see someone pull a firearm, use your vehicle to either get away or immobilize the threat, i.e., drive toward the bad guy and run over him, if at all possible. That is less likely to endanger by-standers and thus less likely to land you in trouble.
However, I remember the plumber (Stephen Willeford) who followed the guy in Texas that had just shot up the church. I expect that if something similar happened and a member was following a mass shooter, there would be some greater leeway, particularly if the bad guy was firing from a vehicle and a member fired shots to prevent further shootings.
This shows that context is key. Once you pull the trigger, you are never getting that bullet back. So, don’t pull that trigger unless you have to and you know where that bullet is going to go. Shooting over a roadway where cars can be coming by at any moment or firing from a moving vehicle are inherently risky and frequently not worth the potential legal issues. I would not do it unless someone was actively shooting at many people and there was absolutely no other way to stop the shooter.
Nabil Samaan
Law Office of Nabil Samaan
6110 Auburn Folsom Road, Granite Bay, CA 95746
916-300-8678
In Sacramento county there is a complete prohibition against discharging a firearm. In reality if you discharge your firearm for any reason, it will likely lead to the violation of several statutes including possibly shooting within 500 feet of residence, or 1000 feet of school. These typically are not felonies. While no lawyer advocates breaking the law, I do advocate weighing life choices. The balancing test is your safety and well-being on the one side and a misdemeanor on the other side. I advocate preservation.
We just had a case where there was a stabbing in Auburn, CA. There was an off-duty law enforcement officer in the area, but because he had traveled through a prohibited area, he had taken off his weapon and was unarmed.
John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
207-780-6500
In Maine, any violation of law is negated if “justified,” under section 101 of our criminal code https://legislature.maine.gov/statutes/17-A/title17-Asec101.html.
“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.”
The “recklessness” part of the analysis is where it gets complicated. The definition is, at one level, “Conscious disregard of a risk.” That would spell trouble for “shooting back” in an urban compact zone. However, the definition includes significant “weasel words.” See https://legislature.maine.gov/statutes/17-A/title17-Asec35.html.
“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.”
I have one opinion from a deputy attorney general that suggests the weasel words exempt shooting back in active shooter situations. Still, section 101 would seem to require some quick assessment of cover vs. danger to innocent persons of shooting back, vs. danger of NOT shooting. Probably a lot would depend on the actual result. If you kill an active shooter who has already been shooting at others, and you don't cause loss of innocent life, as a practical matter, the prosecutor will find it a waste of time to attempt prosecution of you. The more collateral damage you in-fact cause, the more the balance will swing in favor of prosecution based on the caveat in section 101.
Title 17-A, §35 Definitions of culpable states of mind. C. For purposes of this subsection, the failure to be aware 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...
Title 17-A, §101: General rules for defenses and affirmative defenses; justification. 1. The State is not required to negate any facts expressly designated as a “defense,” or any exception, exclusion or authorization that is set out in the statute defining the crime by proof at trial, unless the existence of the defense, exception, exclusion or authorization is in issue as a result of evidence admitted at the trial that is sufficient to raise a reasonable doubt on the issue.
Mike Ooley & Alex Ooley
Boehl Stopher & Graves
400 Pearl Street, Suite 204, New Albany, IN 47150
812-948-5053
Although our knowledge of the referenced event in Midland and Odessa, Texas last year is simply based upon press reports, we understand the scene of the murders and injuries stretched over 15 miles and occurred during an approximate one-hour time span.
Although recognized by the question, we believe it is important to re-emphasize that there are many safety, marksmanship and tactical considerations that must be considered before becoming voluntarily involved in such a chaotic situation. We can only address a small component of the potential legal considerations raised by the question. In Indiana, the most likely charge one might face for shooting across a roadway or from a car would be criminal recklessness. Specifically, Indiana Code 35-42-2-2 indicates, in part, that a person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness.
Also, we should mention Indiana Code 14-22-6-9, which prohibits shooting across, from, into, or upon a public highway at an animal or object. It's not likely that someone would be charged under this statute, given that it seems to primarily be meant to address hunting. However, it is possible that someone could be charged under this statute.
More importantly, our Indiana self-defense statute at Indiana Code 35-41-3-2 would have definite applicability and provide the best legal guidance to examine the situation. That Code section, in part, provides that:
A person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person: (1) is justified in using deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No 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, the primary question will be whether your conduct under the circumstances is consistent with what a reasonable and prudent person would do under the circumstances, knowing what you knew at the time. If justified under our statute, you should not be placed in any legal jeopardy. This protection would also extend to potential civil immunity in response to a civil lawsuit filed against you by the bad guy’s family or estate.
In 2019, Indiana adopted a civil immunity statute that provides, in part, that in no case shall any use of force justified under IC 35-41-3-2 give rise to any claim or action for damages or compensation against a person, employer, or estate of a person using such force by or on behalf of any person who was attempting to commit or committing a forcible felony at the time such force was used; or was attempting to cause or causing unlawful serious bodily injury to any other person at the time such force was used. Not only would you potentially be entitled to summary judgement, but you can also collect your attorney fees for defending a civil lawsuit - provided your use of force was justified under Indiana’s self-defense statute.
Another observation is that Indiana’s “castle doctrine” might also apply to the situation described in the question if the attack was directed at your occupied motor vehicle. Specifically, our “castle doctrine” statute indicates a person is justified in using reasonable force, including deadly force, against any other person; and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, curtilage, or occupied motor vehicle (note the statute says occupied - don’t use deadly force solely to protect your unoccupied car).
With respect to other legal issues that one could envision, we would refer you to the Attorney Question of the Month that was addressed in the August 2017 edition of the ACLDN Online Journal. That question addressed the likelihood of an armed citizen facing criminal charges for collateral damage, and/or incurring civil liability for a stray bullet. You can find that detailed discussion here: https://armedcitizensnetwork.org/august-2017-attorney-question.
Marc S. Russo
25 Plaza Street West Apt 1-K, Brooklyn, NY 11217
718-638-5452
I live in New York State. Although our gun laws are unconstitutionally restrictive, our self-defense law is more reasonable than in some other jurisdictions. In fact, we don't have a self-defense doctrine as such. We have a more expansive doctrine called “Justification” where conditions (including self defense) allow people to do what is ordinarily unlawful.
It would seem to me that in NY shooting back would be permissible if doing so would be truly defensive. Firing back at a nut in close proximity constituting an immediate danger would be permissible. But chasing him and starting a shooting drag race would not be; nor would taking potshots at his fleeing vehicle.
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A big “Thank You!” to our affiliated attorneys for their very detailed contributions to this interesting discussion. Please return next month when we ask our affiliated attorneys for their thoughts on a new topic.
To read more of this month's journal, please click here.