Legal issues for a justified shoot in a "gun free store"

[Shytheed Dumas]

I've seen lots of discussion on THR about whether people would or wouldn't carry into a store with anti CCW signs. It seems most people say they do carry in "gun free" stores in states where carrying past these signs is only an issue of trespassing if the gun is seen and they refuse to leave after being asked. Kentucky is one of these states and carrying in such a place is one thing, but I got wondering what legal issues one would face if they actually used one in a justifiable self defense shoot... Would they be in violation of any laws that wouldn't otherwise come into play in a store without a sign? Also, would they have any additional civil liabilities from the store owner or even from the bad guy or his family?

 

[MedWheeler]

Guilty of a crime? Generally, no. You're not considered "trespassing" if you have not been asked to leave, or have entered after being denied entry.
Sure, some lawyer will try to open any can of worms he can. He may not prevail, but the defense will be costly. Still beats getting dead, though.

 

[Art Eatman]

Florida law is irrelevant, as is Texas law. I guess I'd ask a Kentucky attorney about it.

 

[Aaron Baker]

Art is right!

But I just happen to be a Kentucky lawyer, so I'll give you my opinion. It's not advice, though. I'm not your lawyer, and if you end up in trouble, you can't blame me. Okay? Okay.

My opinion is that you wouldn't be in any additional trouble. If the state of the law in Kentucky is that you can carry past a no-carry sign, but must leave if asked by management before it becomes trespassing, then you haven't actually committed the crime of trespassing if you haven't been asked to leave. (I'm actually taking your word for this--I haven't researched it recently, and I'm not going to. We're working from your starting assumption.)

In short, I am not aware of any provision of law that would make it more of a hassle if your justified shoot was in a pro-gun store versus an anti-gun store. A trespassing charge wouldn't stick because you hadn't been asked to leave. Can't imagine any other possible charges either. Nor can I imagine a viable civil suit arising from it. Hell, in my book, they ought to be grateful, as long as innocent bystanders weren't hurt.

Aaron

 

[Shytheed Dumas]

I figured it would be hard for prosecutor/lawyer to make a criminal or civil case against such a shooting given the fact that the law only makes carry in certain specific areas (schools, courthouses, etc) a criminal offense, but in a world of $2 million burnt coffee crotches, it's definitely worth asking. Either way as MedWheeler points out, better to end up broke paying a lawyer to set things straight than to end up in a coffin in any case. Much appreciated.

BTW, here is the final paragraph from the Kentucky State Police website regarding restrictions on carrying by qualified license holders...

"In addition, Kentucky law does not prohibit the owners of private premises from excluding persons carrying firearms. Failure to vacate private premises when asked to do so could result in a criminal trespass charge." http://www.kentuckystatepolice.org/conceal.htm

 

[Frank Ettin]

First, it's important to realize that any particular course of conduct can involve multiple legal issues. Bernie Goetz was acquitted of assault because his jury concluded that his use of lethal force against some robbers was justified self defense. But the jury still found him guilty of unlawfully carrying an unregistered gun, and he went to prison for that.

So --

[1] It is entirely possible that if you are carrying your gun on private property that has been posted "no guns", and if you use your gun in self defense, you can be exonerated on any criminal charges flowing from the use of lethal force if it is concluded that such use was justified.

[2] It is then possible that you might still have some civil or criminal liability for having entered property with a gun when that property had been posted to the effect that guns were prohibited or unwelcome.

[3] But what that liability, if any, could be is speculative and very much dependent on (1) exactly what the local law is; (2) exactly how the premises was posted and the legal effect under local law of posting in that manner; and (3) exactly what happened.

[4] If criminal trespass only arises when one is asked to leave and doesn't, that might not be a concern. But I don't claim to be an expert on Kentucky law.

[5] Even if you can avoid criminal trespass charges, you might have some civil liability for any damage caused. I don't know for sure, but it's a possibility.

 

[Aaron Baker]

fiddletown raises a valid point about civil liability, in that you never know what someone is going to try to sue you for.

I suppose, theoretically, you could be sued for negligently damaging their carpet by spilling blood on it. Damages might be the cost of new carpet.

Or they could suggest that you negligently inflicted severe emotional distress on them. You should have known that shooting your gun at a bad guy in their store would upset them so much that they spend a week in the hospital recovering from their psychological trauma.

Listen: I don't think a jury is gonna award a lot of money in that type of civil suit. In the second scenario, how do you isolate the possible causes of trauma? Maybe the bad guy robbing them at gunpoint caused the trauma just as much as you coming to the rescue with your gun.

I doubt you'd ever have to take a case like that to the jury. It would be dismissed on summary judgment or settled for some tiny pittance to make it go away.

My real point is that I cannot see how you would face any greater liability because you ignored the sign. They might try to argue negligence per se based on your violation of their posted policy. (That means if you break a rule, you're assumed to have been negligent--they don't have to prove that element.) However, negligence per se normally applies to breaking a law or regulation, and as we've already discussed, there's no law against carrying in a place where they've posted a sign--you just have to leave if they ask you to.

Lots of bad things can happen to you if you're ever unfortunate enough to have to use your firearm in self-defense or defense of others. But that's what lawyers and courts are for--sorting that all out once you're still alive to deal with it.

Aaron

P.S. Funny that you note that you can't carry in courthouses in Kentucky. That's true for concealed carry. The attorney general's office also takes the position that it's true for open carry, but I've always wanted to test that. Section 1, Seventh of the Kentucky Constitution says it is an inherent and inalienable "[...] right to bear arms in defense of themselves and of the State, subject to the power of the General Assembly to enact laws to prevent persons from carrying concealed weapons." Sounds pretty clear that the state government can't prevent open carry in their buildings. But like I said, the attorney general disagreed in OAG 97-9.

 

[Jframe.38]

Beware of the Magical Word - Felony Murder

Even in gun friendly Texas it is a felony for anyone, even a CHL license holder, to carry a firearm into a drinking establishment licensed to derive over 51% of its revenue from the on premises consumption of alcohol.

This is part of the reason that I do not drink or go to 51% bars.

Bottom line is be very careful. If your carrying of a firearm constitutes a felony in the place to be prohibited, you do not have justification. In fact even if it is 100% clearly self-defense, you are still guilty of felony murder. Even in a gun friendly jurisdiction such as Texas.

 

[Aaron Baker]

We're discussing Kentucky law, and specifically the situation where one ignores a no guns sign. Ignoring the sign is not a crime in itself. And even if you're asked to leave and refuse, it's still a misdemeanor charge of trespassing, AFAIK.

No felonies here.

Also, the felony murder rule doesn't generally cover ALL felonies. It will depend on the jurisdiction, but using the Model Penal Code as an example, only deaths that occur during the commission of robbery, rape, arson, burglary or escape qualify for the felony murder rule. Most states will specify which crimes that felony murder applies to.

I really doubt that it applies in any state to non-violent felonies, such as carrying a gun into a bar. But I'm not a Texas lawyer, so I may be wrong about Texas.

Also, I see no reason why the affirmative defense of self-defense wouldn't be available in that particular scenario of felony murder. Maybe not if you commit a murder during a a robbery, but during a felonious weapon-carrying? There's a good argument for allowing the defense.

Aaron

 

[jonmerritt]

What sign, where??