The source of this month’s discussion with our Network Affiliated Attorneys is Network members expressing concern about their best course of action if, despite their best efforts to avoid violence-ridden areas, they are caught in traffic during a riot and threatened while in their car. To help our members strategize and act in legally defensible ways, we greatly appreciated our Affiliated Attorneys’ comments on these questions–
What legal repercussions would result if an innocent motorist, threatened by a mob they see harming motorists pulled from cars or threatened directly by a violent attempt to break into their car while they are inside, drives deliberately through the area with flashers and horn active but hits and injures a person as they attempt to drive to safety?
How does the motorist’s responsibility change if the person hit is actively involved in the rioting or if it is another innocent person also attempting to get out of the danger area?
Does the motorist’s responsibility change if they hit a protestor blocking an onramp, offramp or city street who is not immediately threatening violence against them or other drivers? What, if any, role does fear of being blocked in and later harmed contribute to justifying a motorist endangering the lives of pedestrians blocking roads or freeway ramps during violent protests?
Kelly & Chapman
P.O. Box 168, Portland, ME 04101
The answer to this question is contained in three sections of Maine’s criminal code - sections 108, 101 and 35. Section 108.
Section 108 permits a person to use deadly force to protect an innocent third person from imminent use of unlawful deadly force, on a “reasonable belief” basis. Section 101 cautions that use of deadly force that “recklessly” harms or creates a risk of harm to innocent third persons is not justified, as to prosecution for that harm or risk to others.
Section 35 defines “recklessly.” It includes many limitations on its otherwise straightforward admonition.
“A. A person acts recklessly with respect to a result of the person’s conduct when the person consciously disregards a risk that the person’s conduct will cause such a result. [PL 2007, c. 173, §8 (AMD).]
“B. A person acts recklessly with respect to attendant circumstances when the person consciously disregards a risk that such circumstances exist.
“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.”
Thus, the factfinder would be instructed about, and the jury would consider, details about the number of persons threatened, the ease of identification of those threatened and threatening, the likelihood of serious injury (given the driving attributes of the defendant), the nature of the harm, if any, that had already occurred and the foreseeability of significant harm to innocents.
Ultimately, the justification, or not, for deadly force would require lots more facts than those provided here.
Alex M. Ooley
E. Michael Ooley
P.O. Box 70, Borden, Indiana 47106
The first and most obvious point to make is that avoidance of these situations is the ultimate goal. So, if possible, change directions to avoid the situation. Keep in mind, hitting a person with your car (even a slight bump or nudge) to simply clear a traffic obstruction is not recommended and could result in charges to include battery, aggravated battery, criminal recklessness, or even much worse, if your actions arguably result in the death of an individual. However, things change when there is an attack on your occupied motor vehicle.
Unfortunately, we cannot predict how all prosecutors or juries will view every possible scenario. However, we can give you some guideposts to keep in mind. With respect to the law in Indiana, our “Castle Doctrine” would be applicable to many scenarios involving a person’s occupied motor vehicle. Although many people understand Indiana’s castle doctrine to be applicable to your home, it also has application to your occupied motor vehicle. Indiana’s “Castle Doctrine” is at IC 35-41-3-2(d), and indicates, in part, that 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...
Also, Indiana’s general self-defense statute at IC 35-41-3-2 should be another guidepost to keep in mind. It provides, in part, 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 is justified in using deadly force, and 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.
Indiana law does provide for the lawful use of reasonable force, and in some circumstances deadly force might be considered reasonable. Ultimately, your actions may be judged by a jury as to whether they were reasonable under the circumstances. If you have to use your car to move through a crowd, use the least amount of force necessary to clear the scene. Greg Ellifritz has an excellent article we would suggest you review that may help you visualize various scenarios and appropriate responses. His advice can be found here: https://www.activeresponsetraining.net/surviving-mob-attacks-on-your-vehicle.
Derek M. Smith
Partner, Law Offices of Smith and White, PLLC
717 Tacoma Ave. S., Suite C, Tacoma 98402
What legal repercussions would result if an innocent motorist…drives deliberately through the crowd with flashers and horn active but hits and injures a person while attempting to drive to safety?
As always, a lot depends on the circumstances, but based on my experience there would almost certainly be an arrest of the driver (on charges that might vary but would likely be assault with a deadly weapon or vehicular assault or the specific state equivalent) and a long and very excruciating process where the criminal culpability of the driver is examined by lots of investigating entities, from social media, to the local and state and national media to the local police to the state police to the local prosecutor to the state prosecutor to the federal prosecutor and all the executive branches in between. In short, it would be a hellacious circus that would hinge on a very detailed and specific factual analysis and process.
How does the motorist’s responsibility change if the person hit is actively involved in the rioting or if it is another innocent person also trying to get out of the danger area?
The specific details would obviously matter as I explained above, but so would the number of other people in the riot, the number of people in the car, the reason the car was where it was, the reason the rioters are where they were, where did the specific accident take place (in the intersection, as a turn was being made, as the car was thrown in reverse attempting to back up) and many others, each having an effect on the calculus of who is being charged with what crime, if any.
Does the motorist’s responsibility change if they hit a protester blocking a roadway who is not immediately threatening violence against them or other drivers? Does fear of being blocked in and later harmed justify driving through and endangering persons blocking roads or freeway ramps during protests?
Absolutely. A pedestrian almost always has the right of way vs. a car. And no one has the right to use force against someone who is not a justifiably imminent threat to that person or others. Every use of force must be justified not just by subjective fear but by reasonably subjective fear. If you were afraid under X circumstances, but a reasonable person would not be in fear, there is no lawful basis for self defense. Motive of the motorist will also be examined, as well, for example a driver going to a dental appointment who takes a path unknowingly through an out of control street protest has a different perspective on fear than a person driving to a protest to counter protest and it just got out of hand.
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.