Does a claim of self-defense indemnify you if you hit innocent bystanders?

[mljdeckard]

So, speaking of reasons I am easing away from Facebook and back to THR,

There's a guy (who says he is a lawyer) arguing that legally, you are safe if you hit an innocent bystander in a self-defense shooting, because as long as you were correctly acting in self-defense, it cannot be said you were acting with negligence. I (and several others) are saying, it is foolish to advise someone; "Oh no, it's totally ok if you were acting in self-defense. You can't get in trouble for hitting someone else." He challenged us to come up with a single case where someone got sued for this, and I said it is mostly unlikely because actual events of innocent bystanders getting hit are extremely rare.

Am I missing something here? I am going to continue to advice my CCW students that they are responsible for everything their bullet hits.

(If the mods think this is too suppositional or inflammatory and yank it, I understand.)

 

[JohnKSa]

He challenged us to come up with a single case where someone got sued for this...

Anyone can be sued for anything. Anyone who tries to convince you differently is either just screwing with you or too stupid/ignorant for you to waste your time on.

Even civil immunity clauses, when they do exist, don't prevent a suit from being brought or prevent the defendant from having to mount a defense--although they may simplify things considerably depending on the circumstances.

 

[armoredman]

Even Arizona only prevents the criminal/extended from suing for justified conduct. Frankly, if you hit Grandma crossing the street even though the REST of the shooting is ruled 100% justified, you might have some serious legal issues. I would hate to test the law that far.

 

[Spats McGee]

. . . .There's a guy (who says he is a lawyer) arguing that legally, you are safe if you hit an innocent bystander in a self-defense shooting, because as long as you were correctly acting in self-defense, it cannot be said you were acting with negligence. I (and several others) are saying, it is foolish to advise someone; "Oh no, it's totally ok if you were acting in self-defense. You can't get in trouble for hitting someone else." He challenged us to come up with a single case where someone got sued for this, and I said it is mostly unlikely because actual events of innocent bystanders getting hit are extremely rare.

Am I missing something here? I am going to continue to advice my CCW students that they are responsible for everything their bullet hits.

(If the mods think this is too suppositional or inflammatory and yank it, I understand.)

Hogwash. That's a ridiculously narrow interpretation of "intentional" and "negligent," legally speaking. Not that I've looked at all of the civil immunity statutes, but none of them of which I am aware would protect a SD shooter from liability for (arguably negligently) hitting a bystander. The ones of which I am aware protect the shooter from a lawsuit by the assailant, under limited circumstances.

As for his "show me the case" position, there are a lot of moving parts to the machine that generates legal opinions. I haven't done a search, but I'm going to guess that there just haven't been many such cases that went to trial and then up on appeal, both of which are necessary to generate an appellate opinion.

As has been pointed out, there's still a cost of defense to consider. Even if the SD shooter wins his or her case, she could still wind up owing legal fees.

 

[Art Eatman]

As I recall it from Texas CHL class, hitting an uninvolved innocent person during a self-defense shooting means that you're in deep doo-doo. Either negligent aggravated assault or negligent homicide.

 

[steve4102]

arguing that legally, you are safe if you hit an innocent bystander in a self-defense shooting

Safe from what?
Civil suit, criminal prosecution or both?

 

[Bad Ninja]

I think you own every bullet.
You would be open to civil liability at the very least.
I wouldn't want to test the waters.

 

[Schwing]

Unless you are a police officer in NY, this is not true (and I am only half kidding about the NY LEOs). While I believe that you have a high probability of being cleared of criminal wrong doing, I can't even begin to imagine the civil suites you would be hit with.

 

[mljdeckard]

We were discussing specifically civil consequences.

His rationale is; that the bad actor in such a case would have been the criminal, not the defender, and there the only one who would be liable is the criminal. I think this is wishful thinking at best.

 

[westy39]

Just my two cents worth as a former Police Officer, we were told over and over that we WERE responsible for every shot we took. The Department assured us that IF we were following our Department policies then the Department would back us up and provide legal aid. I was there for over 22 years and I will say the Department did back up every shooting that was in line with our Department policies, but you can bet you sweet a## that had anyone shot a innocent bystander the Department would have thrown them under the bus so fast without another thought as to his or her service to the Department. I once had a wise LT tell me that 1 "oh sh** easily erased several years of ataboys. I did see this happen a few times, thankfully no one was hurt badly. No I would NOT trust the advise given by some internet lawyer type who may in fact just be trolling for business. Be safe all and be very careful with every round as real life isn't at all like TV.

 

[Frank Ettin]

We were discussing specifically civil consequences.

His rationale is; that the bad actor in such a case would have been the criminal, not the defender, and there the only one who would be liable is the criminal. I think this is wishful thinking at best.

His reasoning is far too simplistic.

Any potential liability to a bystander will be, no doubt, bases on a negligence theory

A decent, broad definition of negligence is:

...The omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do. or doing something which a prudent and reasonable man would not do. It must be determined in all cases by reference to the situation and knowledge of the parties and all the attendant circumstances...

A recovery based on negligence of a shooter justifiably using lethal force to protect himself or someone else requires establishing that the shooter failed to exercise the appropriate level of care. Deciding that question can lead to a fairly complicated calculus considering the exigency of the situation, the risk to the shooter, and the reasonableness of his decisions and actions in light of the emergency nature of the event, his reasonably perceived need to act quickly and decisively, stress levels and other factors. So while a defender could be justified in responding to a threat using lethal force, he could still have liability to injured, innocent bystanders if he goes about thing in a sloppy way.

To get a sense of the complexity of the issue, see this article from the New York Times. The article looks at some lawsuits against the NYPD by bystanders for injuries sustained when officers justifiably resorted to lethal force. The article notes that the New York practice is to defend such suits vigorously. But nonetheless, the article notess that New York, and other cities, have also paid some substantial settlements.

 

[Deaf Smith]

As I recall it from Texas CHL class, hitting an uninvolved innocent person during a self-defense shooting means that you're in deep doo-doo. Either negligent aggravated assault or negligent homicide.

Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

So that is that... I am pretty sure most other states have similar wording. If you injure or kill a third party, yep you are in deep doo-doo.

Deaf

 

[Glock Doctor]

....... Am I missing something here? I am going to continue to advice my CCW students that they are responsible for everything their bullet hits.

That's a very good idea because they will be, and are. Then, again, you got this outstanding legal advice on the internet; (Facebook, right!) so ....... it must be true!

 

[Kleanbore]

Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

So that is that... I am pretty sure most other states have similar wording. If you injure or kill a third party, yep you are in deep doo-doo.

Deaf

I do not think that the code in many states actually contain similar wording, but effect of the common law is surely the same.

The key word is recklessly.

The law cited pertains to criminal prosecution.

Frank discussed civil liability. I suggest that everyone read his post, re-read it, think about it, and read it again.

If I recall correctly, the subject is addressed by Andrew Branca in The Law of Self Defense.

 

[Deaf Smith]

The law cited pertains to criminal prosecution.

Frank discussed civil liability.

Well yes...

Chapter 9. Justifications Excluding Criminal Responsibility

Subchapter A. General Provisions

Sec. 9.06. CIVIL REMEDIES UNAFFECTED.

The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.

Deaf

 

[Kleanbore]

Well yes...

Chapter 9. Justifications Excluding Criminal Responsibility

Subchapter A. General Provisions

Sec. 9.06. CIVIL REMEDIES UNAFFECTED.

The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.

Deaf

The words "civil remedies unaffected" or similar words are not at all uncommon in state codes--even those that provide for mechanisms designed to stop civil suits if the conduct is justified under civil (common) law or to require plaintiffs or to bear the expenses if unsuccessful.

What the codes and case law relative to third person injury have in common is that one or the other or both hold that "reckless" conduct does involve exposure to criminal and civil liability.

Where they may differ is that different courts, different rules (maybe even including different rules of evidence), and different standards of proof apply in civil vs criminal cases.

They are not directly affected by the usual defense of justification, because the actor did not indeed to shoot a third person, but by the legal constructs outlined in Frank's post and in Branca's book.

I hope this helps.

 

[ClickClickD'oh]

There's a guy (who says he is a lawyer) arguing that legally, you are safe if you hit an innocent bystander in a self-defense shooting, because as long as you were correctly acting in self-defense, it cannot be said you were acting with negligence.

Ah, intellectual property lawyers... so cute... so funny. Tell him thanks for the laugh, but leave the criminal law to the other guys.

 

[ATLDave]

NOT LEGAL ADVICE

That's preposterous. One can do a thing which one is legally entitled to do (such as drive your car down the street), but do so in a negligent manner, and be held liable for resultant injuries to others.

Thus, someone may be entitled to use lethal force to defend themselves, but if they do it in a negligent way (closing their eyes and firing wildly), there would likely be liability for injuries to innocent bystanders.

 

[Deanimator]

Not in Ohio. If it's ruled justifiable, your assailant (or assailants) can sue you all day long, but BY LAW are barred from collecting a penny from you.

If on the other hand, you miss, or foolishly fire a warning shot, or use FMJs, and get a through and through and hit an innocent person, you OWN that. Barring evidence of negligence or recklessness (which the warning shot will probably be found to be), you probably won't be prosecuted. You WILL however be sued, and in all likelihood, lose your behind in civil court.

 

[Kleanbore]

If it's ruled justifiable, your assailant (or assailants) can sue you all day long, but BY LAW are barred from collecting a penny from you.

The subject at hand here is about innocent bystanders,

 

[Deanimator]

The subject at hand here is about innocent bystanders,

Which is why I drew the contrast BETWEEN the law regarding assailants and bystanders.

 

[HexHead]

Remember, every bullet has a lawyer attached to it.

 

[Torian]

So, speaking of reasons I am easing away from Facebook and back to THR,

There's a guy (who says he is a lawyer) arguing that legally, you are safe if you hit an innocent bystander in a self-defense shooting, because as long as you were correctly acting in self-defense, it cannot be said you were acting with negligence. I (and several others) are saying, it is foolish to advise someone; "Oh no, it's totally ok if you were acting in self-defense. You can't get in trouble for hitting someone else." He challenged us to come up with a single case where someone got sued for this, and I said it is mostly unlikely because actual events of innocent bystanders getting hit are extremely rare.

Am I missing something here? I am going to continue to advice my CCW students that they are responsible for everything their bullet hits.

(If the mods think this is too suppositional or inflammatory and yank it, I understand.)

Not sure if it passes the smell test for me as a responsible gun owner. Anyone with a lick of sense knows they should clear the area behind their target before firing. If a group of people are obviously standing behind your target, and you shoot anyways, hitting them as well as your target, I have a hard time fathoming you are not liable.

 

[stoky]

You are legally, morally and ethically responsible for any and all bullets that leave the muzzle of a weapon you're holding, from when it leaves the muzzle to where it comes to a stop.
Period

 

[grampajack]

The only cases I've heard of that involve bystanders getting shot were police officers doing the shooting. Just because you can't find a case where a civilian has been prosecuted for hitting bystanders doesn't mean it wouldn't happen. I personally think it would happen, and with a swiftness you've never thought possible from our justice system, followed by a summary civil suit to strip you of whatever pennies you had left after the criminal trial.

The one exception I could think of is if it were a mass shooting and by necessarily hitting a few bystanders you undoubtedly saved an untold number of lives. I've heard police departments argue the same theory, that the cost of not shooting was greater than that of shooting, making the collateral damage justified.

However, if you initiate a gunfight that didn't absolutely have to happen then I think you're liable for everything that follows. Just my personal opinion. I think the best policy is to never shoot unless you believe with all your heart that you or some innocent person is going to die unless you do.