If armed intruders are on your doorstep, do you have to wait for them to enter?

[Kleanbore]

Posted by denton: Black letter law or case law doesn't prevent a lawsuit. It just very strongly biases the outcome in your favor, as long as you have not acted recklessly. That is consistent with how the law generally works.

Well, based on the evidence, the jury will decide whether or not you acted with unnecessary danger.

Standards vary, but I have never heard anyone responsibly contend that, in a civil trial involving a suit filed by an innocent against someone who has clearly injured that innocent, the law "heavily biases the outcome" in favor of the defendant. Never.

In fact, among former LEO shooters I know who are no longer indemnified by the community and who have been involved in civil proceedings, liability for injury to third parties is invariably among their greatest concerns.

I don't think there is anything the least bit irresponsible about what I've posted.

I do not want to appear to be abusive, but I really cannot find any other way to characterize this:

You are justified in using deadly force to protect a third party against a forcible felony. You are not liable if, in so doing, one of your shots goes astray and causes death or damage.

I've cited Utah law, and Utah lawyers to support every point. Within the bounds of assumptions people normally make in ordinary discourse, I've concealed or glossed over exactly nothing. I have given credible references for everything I've said.

You have cited the Utah Criminal Code, which is not relevant to the discussion at hand, and you have taken one quotation from one lawyer and drawn from it conclusions that are not supportable.

If it doesn't match your notions of what Utah laws are, well, that's just something you need to deal with on a personal level, instead of making reckless and irresponsible statements.

Utah laws do not affect personal liability cases of the kind we have been discussing, except (1) in terms of court procedure and (2) to establish that the conditions for justification for the use of force in a civil case brought by a criminal actor are the same as the conditions for justification in a criminal case involving the use of force in the defense of habitation.

 

[denton]

Allowing inaccurate, incomplete or misleading information to go unchallenged is inconsistent with that mission.

It doesn't bother me in the least to have any of my statements challenged. That's fair. In fact, it's the basis for good learning.

I have carefully cited credible sources for all my statements.

You have not done the same, nor, apparently, have you carefully read what I have posted. If your view of Utah law is correct, you should have no difficulty citing cases to support your opinion. We haven't seen those. Where are they?

So, I have made my statements, and you have challenged them. Fair enough. Readers can decide for themselves which, if either, they regard as correct. All's right with the world.

But if you take your mission seriously, there are rather a lot of incomplete or misleading statements still unchallenged on this board. Getting that straightened out to your complete satisfaction should keep you busy for quite a while.

 

[jrdolall]

No, not quite. How you "feel" is not the operative threshold.

The requirement is for the actor to have a reasonable belief that deadly force is immediately necessary for the defense of person against the use of deadly force, or against non-deadly physical force during a burglary, or to prevent kidnapping, burglary, robbery, or a forcible sexual assault.

Gonna have to say that a "reasonable BELIEF" and a "feeling" are similar in legal terms. If I "feel" threatened then I probably have a "reasonable belief" that I am in danger and if I have a reasonable belief that I am in danger then I probably feel threatened. I wasn't quoting state law so I may not have use the correct terminology. " I feared for my life" is standard terminology I believe.

I in no way condone shooting through a door even though I live well away from any roads or houses where I might accidentally hit an innocent person. If I shoot through my front door the bullet will have to travel 1.54 miles to my the nearest road. Cows however could be innocent victims.

Take all my legal advice and $1 and you can get a small coffee at Mcdonalds.

 

[Kleanbore]

Posted by denton: It doesn't bother me in the least to have any of my statements challenged. That's fair. In fact, it's the basis for good learning.

Good. That's the spirit.

I have carefully cited credible sources for all my statements.

Well, yeah but only one was germane to the question of liability to bystanders, and you drew an incorrect conclusion from that one.

You [Frank Ettin] have not done the same, nor, apparently, have you carefully read what I have posted.

I am certain that Frank has carefully read all of what you have posted, as have I.

I do not think it is incumbent upon Frank or upon any of the other attorneys here on THR to undertake to provide an exhaustive discourse on the principles and complexities of tort law, which involve voluminous judgments and opinions that go back for centuries, and which involve a tremendous amount of judgment.

The fact is, these attorneys know something about the subject, and they gained that knowledge through education, including continuing legal education, and practical experience, including experience with juries. We can either choose to learn from them, or to believe that we somehow know more than they do.

 

[denton]

You have cited the Utah Criminal Code, which is not relevant to the discussion at hand, and you have taken one quotation from one lawyer and drawn from it conclusions that are not supportable.

You are really grasping at straws.

It's not the Utah Criminal Code. It is just the Utah Code. The Utah Code is exactly the most applicable code. To what else would you refer?

Mitch Vilos is the author of six texts that I know of in the field. I have cited him, quoting black letter law. That black letter law says that as long as you are not reckless, you are not liable for damage or death caused by a stray shot fired in lawful self-defense. It thoroughly supports what I have said. If you disagree, then surely you can cite Utah Code or Utah case law to support your position. I haven't seen anything like that from you.

Fair rules of discussion require that you submit more than just your personal opinion.

The fact is, these attorneys know something about the subject, and they gained that knowledge through education, including continuing legal education, and practical experience, including experience with juries. We can either choose to learn from them, or to believe that we somehow know more than they do.

I accept your argument completely.

If you accept it too, then you should take the lesson that Mitch Vilos has presented. He is not only one of those attorneys who know something about the subject, and who gained that knowledge through education, including legal education, and practical experience, including experience with juries, he is also preeminent in the field.

 

[Kleanbore]

Posted by jrdolall: Gonna have to say that a "reasonable BELIEF" and a "feeling" are similar in legal terms.

Yes, they are similar, and they are sometimes used interchangeably, but there are nuances of difference.

A reasonable belief that imminent danger exists is a more objective standard. Being "afraid" is not objectively described, and one can be quite fearful without being justified in the use of force.

I much prefer "reasonable belief".

I feared for my life" is standard terminology I believe.

It is quite common, but in one course I took in use of force law it was recommended to never say that.

 

[runes]

I would suggest that you turn out the lights. You know your way around your own home and they will have outside light behind them making for a good target.

 

[zxcvbob]

It ["I feared for my life"] is quite common, but in one course I took in use of force law it was recommended to never say that.

Why not, does it sound too "rehearsed" or "copspeak"?

 

[Kleanbore]

Posted by denton: It's not the Utah Criminal Code. It is just the Utah Code. The Utah Code is exactly the most applicable code. To what else would you refer?

Alrighty then, but the only Utah law that you cited was part of Title 76, which is the Utah Criminal Code.

Mitch Vilos is the author of six texts that I know of in the field. I have cited him, quoting black letter law. That black letter law says that as long as you are not reckless, you are not liable for damage or death caused by a stray shot fired in lawful self-defense.

What you quoted from Mr. Vilos was a single statement, taken out of context, that pertains to a series of legal treatises published by the American Law Institute.

While it is most certainly considered authoritative, the Restatement of Torts is in fact a treatise covering elements of the common law. It is not by any means limited to, nor identified with, Utah.

By the way, "as long as you are not reckless" probably won't cut it. You must exercise whatever reasonable care that the circumstances may allow. If you are in fact reckless, you will probably face charges of criminal negligence, also. That probably bears repeating for anyone who may be skimming this: If you are in fact reckless, you will probably face charges of criminal negligence, also.

It thoroughly supports what I have said.

There you go again! What you said was

You are justified in using deadly force to protect a third party against a forcible felony. You are not liable if, in so doing, one of your shots goes astray and causes death or damage.

What you quoted from Mr. Vilos was

B is not liable to C unless, taking into account the exigency which A's act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous to C.

The difference (between "if in so doing" and "taking into account the exigency which A's act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous [as determined by a jury] to C") is very important indeed.

It comes down to whether the jury would agree, on the basis of the evidence, that the defender could have not have saved himself while exercising care to avoid injuring others. And one more time, in a civil proceeding, the plaintiff has a comparatively relaxed burden of proof, and the defendant cannot withhold evidence or refuse to testify at any point in the civil proceedings.

I do not want to appear argumentative, and I certainly do not discount the opinions of Mr. Vilos. But the idea that a defender really enjoys much in the way of effective protection against suits filed by third parties does not find much support among most experts.

It is in that context that some of us consider your statement "you are not liable if, in so doing, one of your shots goes astray and causes death or damage" to be wrong.

That is not to say that a defender will necessarily not be afforded protection from liability, but even an out of court settlement, which may be indicated as the ony viable means to limit exposure, could be financially devastating.

What to do to mitigate the risk?

Think BACKSTOP.

And practice, practice, practice with your firearm.

Back to the OP: it will depend in large part on where it happens. Bet not to shoot, of you can avoid it.

 

[denton]

a single statement, taken out of context,

Out of context? Certainly not. It is exactly in context and exactly relevant to the situation under discussion.

Again, you have made an unsupported assertion. Cite your references, please.

By the way, "as long as you are not reckless" probably won't cut it. You must exercise whatever reasonable care that the circumstances may allow. If you are in fact reckless, you will probably face charges of criminal negligence, also.

Again, an unsupported assertion. If you are correct, you should have no trouble producing Utah case law to support your position.

I certainly do not discount the opinions of Mr. Vilos.

And then in the next breath you do.

But the idea that a defender really enjoys much in the way of effective protection against suits filed by third parties does not find much support among most experts.

And, in the process, set yourself up as more of an authority than the authority on the subject. Which I pretty clearly read your earlier post as indicating we shouldn't do.

This fairly drips irony.

What to do to mitigate the risk?

Think BACKSTOP.

And practice, practice, practice with your firearm.

Back to the OP: it will depend in large part on where it happens. Bet not to shoot, of you can avoid it.

Absolutely sound advice, which all should heed.

 

[bikerdoc]

Back to the original question. PLEASE

If armed intruders are on your doorstep, do you have to wait for them to enter?

I know my state laws. I also have a layered defense that minimizes
the chances of getting to the threshold.

 

[Kleanbore]

Denton, I don't know whether you actually believe what you have been saying or whether you are just arguing for the sake of argument, but it is clear that you could learn some things.

You say that

"As long as you are not reckless" probably won't cut it. You must exercise whatever reasonable care that the circumstances may allow. If you are in fact reckless, you will probably face charges of criminal negligence, also.

is an "unsupported assertion" Come now!

The first part--

You must exercise whatever reasonable care that the circumstances may allow

is exactly the same as saying

"B is not liable to C unless, taking into account the exigency which A's act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous to C".

Regarding the second part, the fact that reckless use of a firearm (or of anything else, for that matter) can result in the charges of criminal negligence must be new to you. You want "Utah case law"? How about the relevant part of the criminal code itself.

Title 76 Utah Criminal Code
Chapter 2 Principles of Criminal Responsibility
Section 103 Definitions.


A person engages in conduct:

(3) Recklessly with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.
(4) With criminal negligence or is criminally negligent with respect to circumstances surrounding his conduct or the result of his conduct when he ought to be aware of a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of a nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that an ordinary person would exercise in all the circumstances as viewed from the actor's standpoint.

That, by the way, is very similar to the law in almost all states.

To cite one example, the Arizona concealed carry website training page, which is quite lengthy and detailed, actually includes an example in which it is explained how a defender who fires recklessly and injures others can be charged criminally.

It distinguishes between that scenario and the inadvertent injury of a bystander by a shooter who had exercised reasonable care under the circumstances.

There really should be anything new in this.

And saying "But the idea that a defender really enjoys much in the way of effective protection against suits filed by third parties does not find much support among most experts" in no way discounts the opinion given by Mr. Vilos. Mr. Vilos has properly related a legal principle that defines how and why a defendant should be shielded against liability if and when the evidence supports a finding that he did not unnecessarily endanger the injured party, taking into account the circumstances forced upon him by the attacker.

Great stuff, to be sure. But it should be crystal clear that the defendant will have to prevent the plaintiff from convincing a majority of the jurors that it was just a little more likely than it was unlikely, that he had in fact put the injured party at unnecessary risk under circumstances created by the attacker. If he wants to take the chance on letting it go to trial. It isn't a matter of "innocent until proven guilty".

Do you really consider that to be an effective protection against civil suits?

Do you still contend "You are not liable if, in so doing, one of your shots goes astray and causes death or damage."?

Do you now understand the issue of potential charges of criminal negligence in the event of reckless actions?

And back to the OP: do you have to wait for them to enter?

The above discussion is quite relevant to the extent that it may relate to the possibility of injuries sustained by innocent third parties as a result of the defender's gunshots. To the extent that shooting before "they" had entered may create unnecessary risk, it is a concern.

Also, one more time, it will depend upon the jurisdiction.

But I have to ask, why would you want to shoot them if they are still outside?

 

[mr.trooper]

Maybe i'm loosing the faith.

So many internet threads with untrained or barely trained civilians looking to shoot somebody...

Perhaps they are frustrated with society, and looking to take it out on the "bad" people ... perhaps its some kind of dark fantasy, maybe its a disease.


Read your state code. If you graduated highschool, then your level or reading comprehension sould be well and above what is needed to undestand the words. Maybe thats not helpfull, but I'm tired of giving advice, and tired of seeing people get armchair legal advice (enablement?) that obviously are not prepared for the subject at hand.

 

[Kleanbore]

Posted by mr. trooper: So many internet threads with untrained or barely trained civilians looking to shoot somebody...

We do try to help with that issue.

I like this post. Kinda sums it up.

 

[denton]

is an "unsupported assertion" Come now!

He said, making yet another unsupported assertion.

I'm glad to see you finally quoting at least one primary source. That's progress. But there is nothing in your citation from Title 76 that in any way contradicts my claim under Restatement of Torts. Even while shooting in self-defense, you can't do things that are unnecessarily dangerous. I have never asserted otherwise. I have said that the general rule is that if you are shooting in self-defense, you are protected from liability, and that is true. The default condition is "not liable". A person filing suit then has the burden of resetting the condition to "liable" by showing unnecessarily dangerous action.

Further, the rule bans "unnecessarily dangerous" actions. That does not ban all dangerous actions, just the unnecessarily dangerous ones. That implicitly permits necessarily dangerous actions.

Mitch has a whole chapter in this topic, with summaries of cases. The most relevant involves a woman who discovered a peeping Tom looking into her window. Infuriated, she grabbed a firearm and went after him. As he fled, she literally fired a shot in the dark, fatally striking an uninvolved woman. The shooter was sued, and the court dismissed the case, applying the doctrine that, "a person using a firearm in the exercise of his self-defense is not liable for any injury unintentionally inflicted on a bystander unless he is guilty of some negligence or folly in the use of the weapon." (There's that Restatement of Torts again. By a judge. Lawyers, and all their years of training and experience...)

An appeals court sent the decision back for reconsideration. They did not seem to have disagreed with the legal doctrine, but based their decision on the question of whether it was up to a judge to determine whether negligence was involved, or if that question needed to be decided by a jury.

In the end the shooter was liable. There was no evidence to show that the intruder was armed, and the peeping Tom was, at most guilty of criminal trespass. Quoting Mitch, "Under these circumstances a person is not privileged to use deadly force and may be liable for injuring innocent bystanders." In other words, the shooter was not acting in self-defense, and not entitled to the protection of the self-defense doctrine. Mitch's statement would be very odd if there were no refuge for legitimate self-defense.

I think that perfectly illustrates my understanding of the law. The broad presumption is that if you are lawfully shooting in self-defense, you are not liable for unintended injury or death to innocent bystanders. That presumption can be rebutted if your actions were unnecessarily dangerous, but the default condition is "not liable".

I don't find anything in that case that is in any way at odds with anything I have said. In fact, I agree with it completely. The shooter ought to be liable. BTW, there is no mention of any criminal charges in connection with the incident.

In any case, shooting another human being is a really bad alternative. It's just that sometimes life presents even worse alternatives.

 

[Sheepdog1968]

The other thing going through my mind would be who is going to kick in the back door at the same time.

 

[Kleanbore]

Posted by denton: But there is nothing in your citation from Title 76 that in any way contradicts my claim under Restatement of Torts.

Of course not! Title 76 relates to criminal culpability for reckless actions, and your 'claim' under Restatement of Torts has to do with civil liability, for which the gross negligence standard does not apply. Two entirely different things, tried in different courts under different rules for different purposes.

Even while shooting in self-defense, you can't do things that are unnecessarily dangerous.

True fact! And "unnecessarily dangerous" and"reckless" are not the same thing.

I have never asserted otherwise.

Funny, you sure seemed to be saying that one who shot someone in self defense was not liable for death or injury, should one of his shots go astray and injure someone.

A person filing suit then has the burden of resetting the condition to "liable" by showing unnecessarily dangerous action.

Yes. But all it takes is one straw of more evidence on the "unnecessarily dangerous" side of the scale than on the other, as seen, in most places, by a majority of the jurors.

It is for that reason that many attorneys will advice making an offer in an attempt to settle out of court.

 

[Kleanbore]

Back to the OP

Maybe, maybe not, but the operative words always include reasonable belief and immediate necessity, and regardless of any legal presumptions that may be afforded under the circumstances, it is rarely a good idea to shoot anyone who has not entered your occupied habitation.

 

[denton]

Funny, you sure seemed to be saying that one who shot someone in self defense was not liable for death or injury, should one of his shots go astray and injure someone.

Please read more carefully. I have correctly stated a general rule: If you are lawfully shooting in self-defense, you are not liable for damage or death from stray bullets. I have cited a legal source and a court case to illustrate my point. I have never said that the protection from liability was absolute. Neither are any other protections I can think of.

In common discourse, there are assumptions that are not stated. I do not go to the trouble of specifying chicken eggs when I order scrambled eggs at a restaurant.

Under the circumstances, I think it's a perfectly fair assumption that readers understand that shooting in self-defense does not give liberty to do unnecessarily wild and dangerous things. However, it seems necessarily dangerous actions are protected.

 

[Frank Ettin]

...the court dismissed the case, applying the doctrine that, "a person using a firearm in the exercise of his self-defense is not liable for any injury unintentionally inflicted on a bystander unless he is guilty of some negligence or folly in the use of the weapon."...

Yes of course. But that is still different from (post 45):

...if you shoot at someone committing a violent felony, miss, and hit a bystander, you're off the hook...

You are indeed "on the hook" if you were negligent in shooting at someone committing a violent felony.

...The broad presumption is that if you are lawfully shooting in self-defense, you are not liable for unintended injury or death to innocent bystanders...

Quite obviously you don't understand what a presumption is. In fact, the term "presumption" has a very specific meaning in the law. It is a concept that affects burden of proof, and your so called presumption does not in fact exist. A presumption in the law of evidence is:

...a rule of law which permits a court to assume a fact is true until such time as there is a preponderance (greater weight) of evidence which disproves or outweighs (rebuts) the presumption. Each presumption is based upon a particular set of apparent facts paired with established laws, logic, reasoning or individual rights. A presumption is rebuttable in that it can be refuted by factual evidence...

Or as I have described a presumption:

A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.

Presumptions do not magically appear. They only apply when explicitly recognized in statute or by judicial decision. Can you cite some legal authority that a presumption that:

...if you are lawfully shooting in self-defense, you are not liable for unintended injury or death to innocent bystanders...

is recognized in applicable statute or case law?

...If you are lawfully shooting in self-defense, you are not liable for damage or death from stray bullets....

And that is not true. You most assuredly can be liable for damages or death arising from stray bullets if you lawfully defended yourself in a manner unnecessarily dangerous to innocent bystanders or you were negligent. That is exactly what lawyer Vilos said, as you quoted him in post 61 (emphasis added):

...B is not liable to C unless, taking into account the exigency which A's act placed B, B fired his self-defensive shot in a manner unnecessarily dangerous to C...

That is exactly was what the judge said as you quoted in post 90 (emphasis added):

...a person using a firearm in the exercise of his self-defense is not liable for any injury unintentionally inflicted on a bystander unless he is guilty of some negligence or folly in the use of the weapon....

...I have never said that the protection from liability was absolute...

In fact you did, in post 45:

...if you shoot at someone committing a violent felony, miss, and hit a bystander, you're off the hook....

The bottom line is --

1. In post 45 you made some claims about what the law is.
   
   
2. In post 46 I asked for evidence supporting your claims.
   
   
3. In posts 53 and 61 you offered what you asserted was evidence supporting those claims.
   
   
4. In posts 59 and 65 I showed that your so-called evidence really did not support your positions.
   
   
5. Since then you seem to have been trying to convince us that you didn't write what you in fact wrote or that your words don't really mean what they appear to mean or that it's somehow okay that you left important information out.

 

[Kleanbore]

Posted by denton: I have correctly stated a general rule: If you are lawfully shooting in self-defense, you are not liable for damage or death from stray bullets.

As Frank Ettin and I have pointed out, absent the condition relating to unnecessary danger existing under the circumstances caused by the violent criminal actor, your statement is not correct at all.

In common discourse, there are assumptions that are not stated.

And there are some that make all the difference.

Under the circumstances, I think it's a perfectly fair assumption that readers understand that shooting in self-defense does not give liberty to do unnecessarily wild and dangerous things.

I do not, and when you add "wild" it makes me think that your may be still thinking of "reckless", which is far beyond the threshold for protection against civil liability.

Let's end this here. You are getting nowhere.

 

[rockhopper46038]

In Indiana, no.

 

[bikerdoc]

We have wasted many electrons straying from the original topic.