gavelEarlier in the summer, a member asked us what liability an armed citizen using deadly force in self defense would incur if the bullet either passed through or missed and hit an innocent bystander. For the purposes of this Attorney Question of the Month, we assumed no criminal charges were pressed against the citizen for the self-defense shooting and it was ruled justified by prosecutor/district attorney. We then asked–

Would the armed citizen likely face criminal charges for the collateral damage, and/or incur civil liability for that stray bullet?

So many of our affiliated attorneys responded that we carried half of the comments over to this month’s journal. 

Tim Evans
110 N. 3rd St., Hamilton, OH 45011
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In Ohio if you are negligent you could be held liable, however the jury could consider the emergency situation in deciding whether there was a lapse of ordinary care, which is the definition of negligence in Ohio.

John Freeman
3150 Livernois, Ste. 270, Troy, MI 48083
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In the words of my first criminal law professor, “It depends.” Police and prosecutors will look at the totality of the circumstances in deciding what, if any, charges to file as the result of a stray bullet. Factors that are likely to be considered include: the degree of care demonstrated by the actor, prior training, number of rounds fired, number of bystanders in the vicinity, less lethal options that were or were not available to the actor, political pressure, prosecutorial ideology, and a myriad of additional factors.

The single best way to avoid criminal liability is to train, train, and train some more. Document your training and be prepared for the financial commitment of retaining an experienced attorney. Stay safe.

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

I think the best answer to this question requires that it be broken down into two areas: first, an over penetrative hit on the bad guy that subsequently strikes a good guy, and, second, a missed shot at the bad guy which instead strikes a good guy.

Provided that the lawfully armed citizen used good common sense, defensible as such in court, in their weapon/cartridge selection, the over penetrating hit would be unlikely to incur liability. For instance, a 110 grain .38 special jacketed hollow point which solidly strikes the person who is trying to take a human life, which against all odds passes through the bad guy and strikes and wounds a good guy 20 yards down range would, most likely, not be prosecuted criminally.

On the other hand, if our “good guy” utilized a .500 Magnum Smith and Wesson loaded with 500 grain solid bullets, and the round blasted through the bad guy, four more good guys and a bull elk in the next 200 yards, that would be tough to defend as not having been reckless and, thereby, manslaughter. That would likely result in a lengthy stay in the Graybar Hotel.

Misses, though extremely common, are often harder to defend if they cause collateral damage. The infamous NYPD shooting near the Empire State building a few years ago was a good example. Multiple gunshots fired by police officers struck multiple bystanders, in addition to the miscreant. Don’t forget–our brothers and sisters in blue often get a bit more of a “pass” from the governmental prosecutors than most of us civilians are likely to see. I am not aware of any criminal charges that were filed in that case. I would bet the house that substantial civil payouts transpired, however.

We are all, simply put, responsible for every round that leaves the muzzle of our gun. It is assumed, by any jury that I have ever faced, that simply buying and carrying a gun is not enough. Reckless or even negligent use of a gun, due to lack of training and/or common sense will almost always wind you up in a great deal of trouble.

As far as civil liability, I believe it is anyone’s guess. Frankly, most of us are not very attractive targets for such suits unless there is a good, solid insurance policy behind us. For intentional acts, that is extremely rare. For negligent or reckless acts that occur in or near your home or vehicle, there may well be an insurance policy that is enough of an attraction to result in a suit.

Political/racial/cultural considerations, unfortunately, will often come into play in predicting any such outcome. See the recent case Florida vs. Zimmerman for a good lesson on that type of nonsense. Nonetheless, such considerations come into play.

Use the right gun, ammunition and as much common sense and ability as you can muster. That is the best advice to reducing such worries.

Terrence R. Rudes
Attorney at Law
216 Adams St., Port Clinton, OH 43452
419 732-3000

This question is more loaded than the gun used to shoot the bad guy. A lot would depend on the state law. If the state law provides both criminal and civil immunity on a shooting ruled justified by the prosecutor, then immunity would LIKELY prevent either criminal prosecution or civil suit. A personal injury lawyer could bring civil suit for the collateral damage alleging that the armed citizen was grossly negligent or acted with perverse disregard for the safety of others by not insuring that there were no innocent persons behind the criminal that may override the immunity statute. May not prevail, but could be enough to force a nuisance settlement. The good guy shooter knew or should have known that either a miss or over penetration was a likely result of his/her actions and disregarded that risk in shooting.

The prosecutor is the person to decide whether criminal charges would be filed and prosecuted. From the facts given, the prosecutor did not find fault with the actions of the armed citizen. So, criminal charges would be unlikely.

“We, as criminal defense lawyers, are forced to deal with some of the lowest people on earth, people who have no sense of right and wrong, people who will lie in court to get what they want, people who do not care who gets hurt in the process. It is our job–our sworn duty–as criminal defense lawyers, to protect our clients from those people.” —Cynthia Roseberry

Marc S. Russo
Attorney at Law
25 Plaza Street West #1-K, New York, NY 11238
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In most states, absolutely. The issue would be whether the injury resulted from recklessness or negligence. Since in most states recklessness would have resulted in a criminal charge, in this scenario negligence would more likely be the issue.

A case would be harder to prove if the bullet passed through the bad guy and hit a good guy. Choice of firearm might be an issue. Keeping a high-powered rifle for self defense might be found to have been negligent since a “reasonably prudent person” should have known of its power, range, and potential for over penetration. But, a civil defendant might beat that claim if the gun was a regular handgun loaded with expanding bullets. A miss would be more likely to pin liability on the owner, especially if he was chasing the perpetrator and shooting in a manner that could be found to have been careless or wild. This is especially so if the perp is no longer an immediate threat. It would also look worse for the gun owner if he was armed with a weapon with a larger than standard capacity magazine.

The bottom line is that it would be a question of fact for the jury. Different states have different standards of negligence. Another major factor is the composition of the jury pool. Jurors in pro-gun states where firearm ownership is common would certainly be better than jurors from anti-gun jurisdictions who think anyone who owns a gun belongs in a strait jacket. It would indeed make a world of difference being tried in Wyoming instead of New York City.

C. Dennis Brislawn, Jr., J.D.
Oseran Hahn, P.S.
1430 Skyline Tower, 10900 N.E. Fourth Street, Bellevue, WA 98004
425-455-3900 x 105
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What can go wrong when a bullet goes astray? Of course you can be sued if you are responsible for launching it. You own the unintended result of your action: harm to an innocent or to their property, depending on the law and the facts where this occurred.

Criminal liability generally arises from gross negligence or intentional acts spelled out in the law. Civil liability arises from simple to gross negligence, assuming a duty you did not have and causing injury, intentional acts, possibly from other theories such as contract!

I believe that surviving a physical threat and avoiding criminal liability is the tip of the iceberg. Civil lawsuits for negligence or strict liability can follow regardless of the outcome of a criminal investigation. And, sometimes a good guy does not survive the physical encounter, leaving the family and almost every bit of wealth exposed in a civil courtroom.

I am going to take an unusual tack with this question. A little over a year ago I was listening to a well-loved and respected Delta Force veteran, a Command Sergeant Major, speaking to 500 or so of us gun owners. He said something like, “if you haven’t got a will you are unprotected. You are leaving your family totally at risk since you may lose the gun fight.” About 7 of 10 Americans have no will, no trust, no plan according to conventional wisdom, leaving things to state law or chance to figure out.

He was right, but he didn’t really go far enough. First, you should consider Network membership benefits, maybe self-defense insurance, to have resources to draw upon to help. Map out the benefits you get and whether or not they are enough to protect yourself fully in criminal and/or civil court. But in a belt, suspenders, and duct tape world you should plan to protect yourself, everyone you own AND every THING you own and such benefits are NOT enough. You see your certain risk is not self defense… it is all risks including disability, death, and taxes.

What if you create an integrated estate and asset protection plan? There are some attorneys out there who know how to do this well. It is more than conventional estate planning since its part art, part science in a way. You have a budget and a tolerance for complexity, so there is no magic one-size fits all solution. But the goal is to put you in position to negotiate a solution to any actual or possible lawsuit with the fewest of your dollars on the table, and some resources to settle that hopefully do not come out of your personal savings account. The key is to use the law far in advance of any need to position your assets so that they are unreachable by third parties.

How? We map your likely risks, assess how likely, then consider your resources and how exposed they are. Then we armor you up. For example, the law sets forth some few statutory exemptions like retirement accounts, cash value life insurance, annuities…but after those we need to consider asset protection trusts, LLCs, retirement plans and certain kinds of investments, that can be combined into a plan to take care of you if you are disabled, should die, or are sued. This kind of planning can even lower your income and estate taxes… like getting the government to pay for your plan.

Protecting those you love and all you own requires an onion strategy: you plan in layers to make it impossible or difficult and expensive to go after your assets. This gives you leverage to settle at a more reasonable amount, and if you have coverage, you can use it. Peeling apart an onion results in tears, and not yours.

What’s the most likely threat? Disability, death, taxes…or a self-defense event? You can do yourself a favor and do a plan to cover all of them pretty cost-effectively.

Kevin L. Jamison
Jamison Associates
2614 NE 56th Terrace, Kansas City, MO 64119

There is a gentleman in Alaska who attempted to commit suicide, received only a moderate head wound and the bullet exited to kill his girlfriend. He is charged with second-degree murder. Another gentleman was outraged that his car was being stolen, fired a multitude of shots and killed a neighbor. He pled to manslaughter. Both suicide and shooting at fleeing felons are illegal and that may be a factor.

The Appellate Court for South Missouri found that shooting in violation of the safety rules supports a conviction of manslaughter.

Typically intent follows the bullet. A bullet fired in self defense is justified even if it hits an innocent person. Prosecutors cannot be expected to know this. Self defense was never mentioned in my criminal law class. However that is no excuse. A nearby organization can put the citizen in touch with a lawyer who can explain it in words of one syllable or less.

There will be a lawsuit. Poverty is a great defense. A lawyer will not take the case unless there is a chance of getting paid. Survivors may sue out of grief alone, without thought of getting paid. The usual suspects may encourage a lawsuit to discourage people from acting in self defense. Having access to a program which provides money for a lawyer is Good.

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
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Maine law already deals with this situation via two statutes, at least in terms of criminal liability. Section 101 says: “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 definition of “recklessness” is complicated. It imports concepts of the “reasonable person” standard, as well as current standards of care. Looking at the law, one would at first blush think that shooting around anyone would be problematic, precluding any self defense or “other defense” in a crowd. Section 35 says: “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” –which is modified by “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 requested and got an informal interpretation from a former head of homicide in the AG’s office, that the “weasel words” in section 35 allow shooting in typical “active shooter” situations, because of the dangers of NOT shooting.

The feds probably use the “willful intention to cause unrelated harm” standard for prison riots, for mass shooting situations, and it is probably constitutionally sustainable for such circumstances. Several federal agencies are trained to shoot for the bad guy as if the intervening innocents were not there! State actors probably cannot do this, unless operating as feds.

This leads us to the issue of the remaining CIVIL liability for harm to an innocent third party. While not definitively answered by the CRIMINAL code (section 101 makes the code’s justification provisions not specifically applicable to civil cases), the “emergency doctrine” might get us to the same place.

“The EMERGENCY DOCTRINE provides that a person confronted by an emergency that the person did not cause is not to be held to the same degree of care as an ordinary person with time to consider that person’s actions. See Hoch v. Doughty, 224 A.2d 54, 56 (Me. 1966). The test for reasonableness of the actions of a person confronted by an emergency is how a reasonably prudent person would have acted when confronted by the same or similar circumstances.”


We greatly appreciate our affiliated attorneys’ generous participation in this interesting and educational column! Please return next month when we will have a new question to ask our affiliated attorneys. 

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