Suing if shot as a bystander

[.22lr]

Would I sue if I felt that my injury resulted from the negligent actions of the shooter?

If my competent lawyer felt the case had merit, then yes. Good guy, bad guy, whatever. I have a family I adore that I need to provide for.

But I would heed the advice of my lawyer.

[ClydeFrog]

A few anti-gun & political activists in Florida want to modify a few laws to include holding license holders(W/armed citizens) if they use a firearm & a round/rounds hit a bystander or on-looker.
As it stands, a private citizen can not be sued or face civil action(s) if the use of force shooting who's considered justified.

I'm not against a license holder being held liable for any "collaterial damage" but it's a tough call.
Gun owners or license holders need to be prudent & cognizant of the gun/use of force laws but they shouldn't be risk adverse.

CF

[Salmoneye]

Let's see some documentation to support that claim.

I "claimed" nothing

I asked Pax a question...

His post made it sound like it was 'fine' that people were injured by LEO's indirect fire...

Keep in mind that in this particular case, none of the bystanders were hit directly. They were all hit with ricochets or fragments.

I was simply asking if in his opinion it was OK because they were LEO's, or if 'civilians' would be held to a different standard...

[Frank Ettin]

Originally Posted by Salmoneye

I "claimed" nothing

I asked Pax a question...

His post made it sound like it was 'fine' that people were injured by LEO's indirect fire...

I was simply asking if in his opinion it was OK because they were LEO's, or if 'civilians' would be held to a different standard...

1. Note the signature on pax' post. Her name is Kathy Jackson. So it's "her post...."
   
   
2. I don't see how you got from her statement that she thinks it's "fine" that people were injured by indirect fire. However, the fact was that the injuries in that incident arose from indirect fire, and that fact would be a factor in deciding if the police acted in accordance with the standard of care.
   
   
3. I don't see how from her post you get that she was suggesting that a private citizen would be held to a higher standard.
   
   
4. Your question in context appeared to be a rhetorical question, i. e., a figure of speech in the form of a question asked in order to make a point. Therefore, it was effectively a claim.

[Frank Ettin]

Originally Posted by ClydeFrog

A few anti-gun & political activists in Florida want to modify a few laws to include holding license holders(W/armed citizens) if they use a firearm & a round/rounds hit a bystander or on-looker.
As it stands, a private citizen can not be sued or face civil action(s) if the use of force shooting who's considered justified...

Florida's civil immunity law clearly insulates a private citizen against civil liability to the assailant (see this discussion of civil immunity generally).

But there's no reason to conclude that the civil immunity law will be applied by the courts to insulate a private citizen from liability to bystanders if injured by his negligence in his use of force in self defense. That is unless you have a Florida appeals court ruling so providing.

[Salmoneye]

Note the signature on pax' post. Her name is Kathy Jackson. So it's "her post...."

I apologize to PAX for not reading every single sig line on an internet forum...

I don't see how you got from her statement that she thinks it's "fine" that people were injured by indirect fire. However, the fact was that the injuries in that incident arose from indirect fire, and that fact would be a factor in deciding if the police acted in accordance with the standard of care.

I did not say that she thinks it is fine...I said in my opinion she made it 'sound' that she was 'fine' with it; hence my question...By saying that we should remember that it was indirect fire 'only' that injured bystanders, IMO it comes across as giving a pass to the officers involved...

If I misinterpreted that, I apologize to PAX for that also

I don't see how from her post you get that she was suggesting that a private citizen would be held to a higher standard.

See above...

Your question in context appeared to be a rhetorical question, i. e., a figure of speech in the form of a question asked in order to make a point. Therefore, it was effectively a claim.

I suppose in retrospect I should have worded it differently:

Yet as 'civilians' are we to be held to a higher standard and should we be held responsible, whether it is direct or indirect fire that causes the harm?

As I have stated...IMO it sounded like PAX was saying that it was OK for bystanders to have been injured, as it was only "ricochets or fragments"...

My (apparently) poorly worded question was trying to clarify her stance...

Again, I apologize to PAX...

[pax]

Salmoneye,

Thanks.

I expressed no opinion about this case, simply pointed out that the details here include the fact that no innocent person was shot directly. Those who were harmed were hit with ricochets and fragments, not by direct hits from unaimed or wild shots. The material details do matter in cases like this, and that particular detail is an important one.

As for how the negligence standards differ for non-LEOs, the one really critical factor is that law enforcement officers do have a duty to act -- to intervene -- in some situations where a non-LEO can simply walk away and let people die. That factor does change the rules at a very foundational level, but it does not mean that either the LEO or the non-LEO are held to a "higher" standard of care when they do act. It simply means that the LEO must act in some circumstances where the non-LEO has a choice not to do so.

In this particular case, there were innocent civilians in the criminal's line of fire behind the officers as well as in front of them. That, too, may be a critical factor when the claim gets to court. Did the officers have any other way to protect the innocents behind them, other than to fire in this crowded environment? Were the innocents behind them at more risk from the criminal's deliberately murderous fire than the innocents in front of them would be from splatter and ricochet?

Again and to be clear: I do not know the answers to these questions. I am not suggesting answers to these questions. I haven't expressed any opinions here. I'm simply pointing out some of the factors the court will consider.

For those who would like to understand more about how LEO and non-LEO uses of force differ, or who want to understand more about the decision tree used by law enforcement officers, I can recommend no better reference than Rory Miller's excellent Force Decisions: A Citizen's Guide. It might help people avoid saying things like, "I don't know what the law is, I only know how I feel..."

Hope this helps.

pax

PS You don't have to read every signature, but when you directly address someone in a thread, it's courteous to read theirs. But don't worry about it; after more than a decade on this forum, I'm used to people thinking I'm a guy. You're hardly the first!

[Frank Ettin]

Originally Posted by Salmoneye

...IMO it sounded like PAX was saying that it was OK for bystanders to have been injured, as it was only "ricochets or fragments"...

I won't presume to speak for pax, but I will add my view from a "standard of care" perspective.

The fact that the injuries to bystanders arose from ricochets and fragments suggests that the bystanders were not directly in the line of fire and that the LEOs managed to avoid shooting at the bystanders. However, the trajectories of ricochets and fragments are unpredictable. That goes against a finding that the LEOs were negligent in their use of lethal force, as long as a use of lethal force was justified.

In general, I would expect that a similar standard would apply to a private citizen appropriately using lethal force in self defense.

[Salmoneye]

Thank you for the response PAX, and also for letting me off the proverbial hook as pertaining to your gender...

You write:

As for how the negligence standards differ for non-LEOs, the one really critical factor is that law enforcement officers do have a duty to act -- to intervene -- in some situations where a non-LEO can simply walk away and let people die.

It is my understanding that this is not the case...I thought this was settled in DeShaney v. Winnebago County, and Castle Rock v. Gonzales...

No police or protective service has a 'duty' to protect anyone ('constitutionally' speaking)...

Is my interpretation of this incorrect?

http://www.nytimes.com/2005/06/28/po...otus.html?_r=0

[Salmoneye]

In general, I would expect that a similar standard would apply to a private citizen appropriately using lethal force in self defense.

I would hope that the standards would be the same for law enforcement, and everyone else...

Thanks for the reply...

[Frank Ettin]

Originally Posted by Salmoneye

It is my understanding that this is not the case...I thought this was settled in DeShaney v. Winnebago County, and Castle Rock v. Gonzales...

No police or protective service has a 'duty' to protect anyone ('constitutionally' speaking)...

It's perhaps a fine distinction, but an LEO might have a duty to act under agency policy and general law. It is, after all, his job.

What the courts have ruled, and some statutes provide, is that an LEO and/or his/her agency has no duty to a particular person to act for the benefit of that particular person's safety. As a result, an LEO and/or his agency has no liability to that particular person if that person is injured as a result of the LEO's or his agency's failure to take some particular action.

[Salmoneye]

I am going to have to ruminate on this for a bit...

[pax]

Frank nailed it.

pax

[Fishing_Cabin]

Originally Posted by Frank Ettin

It's perhaps a fine distinction, but an LEO might have a duty to act under agency policy and general law. It is, after all, his job.

What the courts have ruled, and some statutes provide, is that an LEO and/or his/her agency has no duty to a particular person to act for the benefit of that particular person's safety. As a result, an LEO and/or his agency has no liability to that particular person if that person is injured as a result of the LEO's or his agency's failure to take some particular action.

The issue of a "duty to act", has been and will be a topic for debate. As you mentioned a agency policy or law may define that duty, but also one could look at how the duty to act and training has changed in reference to mass shootings with most departments. Going from surround and contain pre-Columbine, to now where it is immediately go in and confront (some agencies may have different policies as well). Yes I know this case is dealing with a fleeing murder suspect, but using the above to show a shift in focus.

Even if you do everything right by doing nothing as a LEO in a legal sense, you may be in for a real case of dereliction of duty by the employing department and loose job, be open to suits personally due to loss of qualified immunity (operating outside of policy due to failing to or attempt to apprehend), etc. I just don't see a great, solid, "bright line type" answer either way for these types of cases. So one could possibly argue a duty to act in part due to discipline for inaction, even if policy doesn't specifically state needed actions or limits on those actions.

Also, typically the classes I have been were about protecting society as a whole, meaning protecting the majority of society, instead of protecting society as a whole down to the individual person level.

[Bartholomew Roberts]

Originally Posted by 44AMP

How, in the legal sense, is it measured when police fire 37 shots in 3 seconds (or less) and hit the suspect 6 times, how it that not negligent?

Going from memory; but I think the average hit rate for NYPD shooting incidents is 28% (including dogs and officer suicides); so they are on the low side of average with six hits but not dramatically so.

On another note, one big difference is that even if CHLs got the exact same legal standards applied to them that are applied to police officers in terms of innocent bystanders, they still won't have the taxpayers to bankroll their legal fees in order to defeat the suit. From that perspective, a CHL is always going to have a disadvantage in that regard; though if you are in a life or death situation, that is the least of your problems.

[RX-79G]

The duty to act is not identical to the duty to shoot.


Failing to shoot does not mean going on break or heading home.

[Frank Ettin]

Originally Posted by RX-79G

The duty to act is not identical to the duty to shoot.


Failing to shoot does not mean going on break or heading home.

What will satisfy the LEO's duty to act in a particular situation will be first decided by his employer and his department's policy (if applicable).

[Spats McGee]

There's one other HUGE wrinkle that needs to be brought up. Even if the NY officers, or other police officers, were negligent in firing shots that struck bystanders, they may well be entitled to some form of immunity. I don't know about NY law, but under Arkansas law, municipalities and their officers are entitled to tort immunity, except to the extent that they have some kind of risk management or insurance coverage therefor.

21-9-301. Tort liability -- Immunity declared.

(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.

(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.

Ark. Code Ann. 21-9-301

[Frank Ettin]

Based on this report of a prior case in New York any statutory immunity might not be as broad as Arkansas'. I don't have time right now to do the research, but it's worth looking into.

[Salmoneye]

Even if the NY officers, or other police officers, were negligent in firing shots that struck bystanders, they may well be entitled to some form of immunity.

And this is exactly what prompted my questions earlier...

Will a 'civilian' be accorded by law the same leeway if a person fires in a so called 'good shoot' self defence situation, if one or more of their bullets injure a bystander either directly, or indirectly?

How does one's job title entitle them to more protection under the law?

[Fishing_Cabin]

Originally Posted by Salmoneye

How does one's job title entitle them to more protection under the law?

Its not job title, its the fact that law enforcement are acting on behalf of the government (be it city/county/state/fed), and within regulations set forth by policy or law, be it wrote out "do this" or by discipline "don't do this and be subject to 'X'." They are not acting as an individual specifically.

[TimSr]

"Negligence" and "Reasonable" have always been the standards, and there is no way to write black and white rules to define either, especially when different standards can be applied to different people. If you are a police officer you will likely be judged to a higher standard because of your training, and a jury will be less forgiving of your mistakes. My CCW instructor said "I cannot give you permission to shoot under any circumstances. If you do shoot, you will have the legal burden of obtaining permission to shoot after the fact. Your first objective is to survive in order to obtain that permission." In most cases, and in most states, deadly force is one of those few issues in which you are presumed guilty until proven innocent. Many of the "castle laws" and "stand your ground" laws are about shifting the burden of proof upon the state and to restore a presumption of innocence until proven guilty.
Anybody can sue for anything. A jury will decide if you were negligent or if your actions were "reasonable" under the circumstances. Sometimes taking shots that injure or kill bystanders are more reasonable than not taking that shot. I always think of those who opposed arming pilots because "they might hit innocent passengers", and thought it foolsih that the risk was not weighed against that of bad guys taking down an entire plane. Anybody can be sued. The outcome will be decided by a jury based on the circumstances of that case as presented in the courtroom.

[Frank Ettin]

Originally Posted by Salmoneye

And this is exactly what prompted my questions earlier...

Will a 'civilian' be accorded by law the same leeway if a person fires in a so called 'good shoot' self defence situation, if one or more of their bullets injure a bystander either directly, or indirectly?

And some quick research suggests that the Arkansas immunity law cited by Spats McGee is uncommonly broad. For example, the government immunity law in Illinois (745 ILCS 10) is lengthy and described narrowly and in detail where immunity applies; and appears to leave open suits of ordinary negligence in most cases.

[Spats McGee]

Frank,
I haven't had time to research the issue of immunity across state statutes, but my hunch is that you are right in calling Arkansas' tort immunity statute "uncommonly broad." We're finally getting some help in our office, so I might be able to scrape some time together to take a look at NY and see what its statutes say.

Originally Posted by Fishing_Cabin

Its not job title, its the fact that law enforcement are acting on behalf of the government (be it city/county/state/fed), . . . .

Bingo.

[aarondhgraham]

When my mother-in-law's car was hit by a cop car,,,
Who was in active pursuit of a fleeing car,,,
The town of Paradise, California said,,,
"We have no responsibility to her".

The courts backed the town,,,
My M-I-L got nothing.

This isn't right,,,
But it's the way it is.

My question is,,,
Are the same laws in play here?

Aarond

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