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Old July 28, 2010, 06:48 PM   #1
Glenn E. Meyer
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A legal question on limited liability from Castle and other similar laws

Not being a legal expert I ask this of those who might be and have referenced all those laws.

The issue of liability and responsibility is under hot debate in T and T.

So, my naive take is that if you shoot in self-defense or legally defined protection of property/mischief at night, etc - the perpetrator of that action cannot sue you.

But do the laws explicitly shield you from prosecutions if your round harms an innocent?

Anybody know that from specific laws? Some seem to think so.
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Old July 28, 2010, 06:57 PM   #2
Wildalaska
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But do the laws explicitly shield you from prosecutions if your round harms an innocent?
I know of no jurisdiction that would have that rule embodied in statute or case law.

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Old July 28, 2010, 07:13 PM   #3
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I know of no jurisdiction that would have that rule embodied in statute or case law.
I agree. The issue would be negligence of the shooter.
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Old July 28, 2010, 07:25 PM   #4
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That's what I thought but in some of our debates, some imply that such is covered - and quote passages.

Thanks.

Glenn
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Old July 28, 2010, 08:35 PM   #5
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I brought up a case where this happened in MI in the original thread. The shooter was carjacked and robbed at gun point. The carjacker then drove off with the shooter's car, hit a tree, exited the vehicle, and started to run away. The shooter fired two shots, one missed and one entered a house and killed a woman. At first only the carjacker was charged (with carjacking, robbery, and felony murder for the death of the woman). A few weeks later the shooter was charged with manslaughter. As of now, they are both being charged for the death of the woman.

Now I cannot prove this, but I am of the opinion that had the robbery not been been running away and still threatening the life of the shooter (ie: driving the vehicle at the shooter in an apparent attempt to run them down) and the round had entered the woman's house and killed her that the DA would have tried only the carjacker with the crime. I think this because of a few points. The biggest is that the shooter admitted to shooting at the carjacker as the carjacker was fleeing when questioned by the police immediately after the incident and he was no charged with manslaughter until a few weeks later (possible public outcry?). The second point is that the police never said that the shooter lied about his story. His story matches completely with their version of the events. The third point is just the time frame of happenings; the shooter was charged so much further after-the-fact that it seemed to me that the initial reaction of the DA was to not charge the shooter and that the DA thought this was a case of self defense (which is obviously was not) and that the carjacker was solely responsible.

But that decision is up to the DA because there is really no law about this. I'm sure that the family of the dead woman would still have been able to sue (and probably win) a civil case against the shooter in my hypothetical. As far as I know there are no laws in MI specifically covering the death of non-actors in a Castle Law case.

As an aside, and to keep this thread on topic, in the case that I am describing I thought that the shooter should have been charged with manslaughter and whatever firearms crime fits; I am not defending the actions of the shooter. So let's not talk about that
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Old July 29, 2010, 06:39 AM   #6
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Quote:
Originally Posted by Glenn E. Meyer
So, my naive take is that if you shoot in self-defense or legally defined protection of property/mischief at night, etc - the perpetrator of that action cannot sue you.
First, the ONLY state that allows the use of deadly force to protect property (at night ONLY) is Texas. No other state allows the use of deadly force to protect property or to prevent its theft.

Second, not all states even have a clearly enunciated "castle doctrine" law, and of those that do have one not all include a safe haven that protects the homeowner from civil lawsuits by the perpetrator in the event of a "good shoot."

Third, even those states whose castle doctrine law does protect you in the event of a "good shoot," none provide any indemnity if your shot(s) injure innocent third parties.
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Old July 29, 2010, 08:51 AM   #7
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Looking at the Texas Castle Doctrine changes for civil immunity, the law says:

"Texas Civil Practice and Remedies Code Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9 Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable."

So the first question for anyone who shoots an innocent person in the course of self-defense is "Was that particular use of deadly force justified under Chapter 9 of the Penal Code?" because if it was not, you do not have immunity from civil liability.

So my interpretation of that law would be that the chances you would be immune from civil liability under Texas Castle Doctrine for shooting an innocent third party would be zero. You might escape criminal charges;but you are going to remain exposed on civil liability.

Quote:
Originally Posted by Aguila Blanca
First, the ONLY state that allows the use of deadly force to protect property (at night ONLY) is Texas. No other state allows the use of deadly force to protect property or to prevent its theft.
This is a misstatement of Texas law. You are confusing two different legal issues (Deadly force to prevent criminal mischief at night and Deadly force to protect property). Under very limited circumstances, Texas allows the use of deadly force to protect property regardless of whether it is day or night (See Texas Penal Code Subchapter 9.41 - 9.43 for more detail).

I don't want to sidetrack this thread from its original direction; but this is already an area of Texas law that is poorly understood by many Texas gunowners, so I wanted to clarify that.
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Old July 29, 2010, 10:19 AM   #8
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Quote:
So my interpretation of that law would be that the chances you would be immune from civil liability under Texas Castle Doctrine for shooting an innocent third party would be zero. You might escape criminal charges;but you are going to remain exposed on civil liability.
I don't see how you came to that conclusion. The language of the statute says "immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force". It's not limited with respect to whom is injured or killed.

Florida has a similar statute:

776.032 Immunity from criminal prosecution and civil action for justifiable use of force.--

(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term "criminal prosecution" includes arresting, detaining in custody, and charging or prosecuting the defendant.
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Old July 29, 2010, 10:38 AM   #9
Bartholomew Roberts
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I don't see how you came to that conclusion. The language of the statute says "immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force". It's not limited with respect to whom is injured or killed.
It is however limited to circumstances of "deadly force that is justified under Chapter 9 Penal Code." Looking through Chapter 9 of the Penal Code, we have 9.05 which says:

"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 not only is he not going to get civil immunity, he isn't going to be able to claim self-defense for that shooting either. So in that regard, you are correct that I reached the wrong conclusion regarding possibly evading criminal charges.

Also note that the"mens rea" for such an action is "reckless". This means that even if you sincerely believe that what you did was the best course of action in that given circumstance, you can still be convicted if the jury believes the mythical "reasonable person" would have acted differently.

Frankly, the whole argument strikes me as pretty much a moot point. Any scenario where you could conceivably use Castle Doctrine to avoid civil liability to a third party is going to result in legal fees that will bankrupt 99.9% of the people reading this long before you get to have that particular legal fight.
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Old July 29, 2010, 10:41 AM   #10
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Quote:
I don't see how you came to that conclusion. The language of the statute says "immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force". It's not limited with respect to whom is injured or killed.
Yes - who is injured *does* matter, because you have to re-do the justification checklist for each person you shoot.

Just because you met the legal requirements to shoot John, that doesn't mean that your stray bullet that hits Jane is justified as well, because Jane is a separate case and a separate victim.

Could you have satisfied the justification requirements for shooting Jane directly in the first place? If not, then your shooting of Jane was not justified and you aren't entitled to civil immunity.

The only purpose for the civil immunity laws is to formalize the common-sense rule that "if you're acting in such a way that I can legally shoot you, then you can't sue me for doing so." Obviously, this doesn't apply in the case of an innocent victim.
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Old July 29, 2010, 11:51 AM   #11
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Quote:
It is however limited to circumstances of "deadly force that is justified under Chapter 9 Penal Code." Looking through Chapter 9 of the Penal Code, we have 9.05 which says:

"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."
Aha! That makes sense. I knew I must be missing something.

I wonder if Florida's statutes have a similar provision--I haven't been able to find one. Indeed, could this vary from state to state? Perhaps Texas has a more-restrictive immunity than other states?
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Old July 29, 2010, 11:57 AM   #12
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No state is going to grant you civil immunity (not under the self-defense law, at least) for accidentally shooting someone that you couldn't have intentionally shot in the first place. At least you won't find it formalized in the statutes. You might be able to find a similar example in prior case law, but that's about it.
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Old July 29, 2010, 12:36 PM   #13
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That does make perfect sense, Scott, but I find it curious that while the Texas legislature explicitly spelled that out in their statutes, the Florida legislature did not. It would seem that if the intention was that immunity apply only as to any civil action brought by the one against whom deadly force was used, it would have been quite simple to make that explicit in the law, as Texas did.

So I still wonder whether Florida's immunity may be broader.
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Old July 29, 2010, 01:01 PM   #14
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(1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force
Regarding Florida law, the question would seem to be whether shooting an innocent third party is using justifiable force in a way permitted under 776.012, 776.013, or 776.031. Because if it is not, then you are not immune.
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Old July 31, 2010, 07:20 PM   #15
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Quote:
Originally Posted by Bartholomew Roberts
Regarding Florida law, the question would seem to be whether shooting an innocent third party is using justifiable force in a way permitted under 776.012, 776.013, or 776.031. Because if it is not, then you are not immune.
I think Bart is correct.

I can't see a judge concluding that the Florida Legislature intended to immunize from civil liability the person who may have negligently injured an innocent third party in the course of justifiably using lethal force against another person.
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Old August 5, 2010, 05:27 PM   #16
Glenn E. Meyer
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Hot off the presses - a CHL who doesn't understand the Castle doctrine.

http://weareaustin.com/fulltext/?nxd_id=81415

The guy gets into a road altercation with someone (who seems mentally challenged from the description). The latter seems to harass him and perhaps threaten him with his car.

The former shoots at him. He claims he didn't exit as he didn't think of it and the Castle doctrine protected him.

But - was he really shooting at the tires - Geez.

Let's say he did shoot the guy - where was that vehicle going, into Grandma's old Buick, or a car full of school kids?

Would the castel doctrine protect him? Makes you think about giving permits without some training - uh?
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Old August 5, 2010, 05:48 PM   #17
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Quote:
Originally Posted by Aguila Blanca
First, the ONLY state that allows the use of deadly force to protect property (at night ONLY) is Texas. No other state allows the use of deadly force to protect property or to prevent its theft.
This is not true. NY law allows for deadly force to be used to prevent or stop a robbery or to prevent or terminate arson.

Neither stipulation requires immediate lethal threats from the perpetrator.

NY Penal Code 35.20 Par. 1-3

S 35.20 Justification; use of physical force in defense of premises and
in defense of a person in the course of burglary.
1. Any person may use physical force upon another person when he or
she reasonably believes such to be necessary to prevent or terminate
what he or she reasonably believes to be the commission or attempted
commission by such other person of a crime involving damage to premises.

Such person may use any degree of physical force, other than deadly
physical force, which he or she reasonably believes to be necessary for
such purpose, and may use deadly physical force if he or she reasonably
believes such to be necessary to prevent or terminate the commission or
attempted commission of arson.

2. A person in possession or control of any premises, or a person
licensed or privileged to be thereon or therein, may use physical force
upon another person when he or she reasonably believes such to be
necessary to prevent or terminate what he or she reasonably believes to
be the commission or attempted commission by such other person of a
criminal trespass upon such premises. Such person may use any degree of
physical force, other than deadly physical force, which he or she
reasonably believes to be necessary for such purpose, and may use deadly
physical force in order to prevent or terminate the commission or
attempted commission of arson, as prescribed in subdivision one, or in
the course of a burglary or attempted burglary, as prescribed in
subdivision three.

3. A person in possession or control of, or licensed or privileged to
be in, a dwelling or an occupied building, who reasonably believes that
another person is committing or attempting to commit a burglary of such
dwelling or building, may use deadly physical force upon such other
person when he or she reasonably believes such to be necessary to
prevent or terminate the commission or attempted commission of such
burglary.
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Old August 5, 2010, 06:01 PM   #18
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Is the arson component based on property or the potential lethal nature of arson? TX has an arson provision.

We once has a thread that I started that if you saw a guy tied a dog to fence, pouring gasoline on it and going to torch it - would you shoot him?

We had the usual discussion, till Capt. Charlie shut me down.

A dog isn't worth a life, call the law, etc. I thought the hook for the shoot was that it was arson and could start a bigger fire.
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Old August 5, 2010, 06:52 PM   #19
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Utah's laws:
Quote:
76-2-405. Force in defense of habitation.
(1) A person is justified in using force against another when and to the extent that he reasonably believes that the force is necessary to prevent or terminate the other's unlawful entry into or attack upon his habitation; however, he is justified in the use of force which is intended or likely to cause death or serious bodily injury only if:
(a) the entry is made or attempted in a violent and tumultuous manner, surreptitiously, or by stealth, and he reasonably believes that the entry is attempted or made for the purpose of assaulting or offering personal violence to any person, dwelling, or being in the habitation and he reasonably believes that the force is necessary to prevent the assault or offer of personal violence; or
(b) he reasonably believes that the entry is made or attempted for the purpose of committing a felony in the habitation and that the force is necessary to prevent the commission of the felony.
(2) The person using force or deadly force in defense of habitation is presumed for the purpose of both civil and criminal cases to have acted reasonably and had a reasonable fear of imminent peril of death or serious bodily injury if the entry or attempted entry is unlawful and is made or attempted by use of force, or in a violent and tumultuous manner, or surreptitiously or by stealth, or for the purpose of committing a felony.
76-2-405(b) allows one to use deadly force if a habitation is entered in order to commit a felony and section (c) indemnifies the shooter. Note the definition 'burglary' in the following code section:
Quote:
76-6-202. Burglary.
(1) An actor is guilty of burglary if he enters or remains unlawfully in a building or any portion of a building with intent to commit:
(a) a felony;
(b) theft;
(c) an assault on any person;
(d) lewdness, a violation of Subsection 76-9-702(1);
(e) sexual battery, a violation of Subsection 76-9-702(3);
(f) lewdness involving a child, in violation of Section 76-9-702.5; or
(g) voyeurism against a child under Subsection 76-9-702.7(2) or (5).
(2) Burglary is a felony of the third degree unless it was committed in a dwelling, in which event it is a felony of the second degree.
(3) A violation of this section is a separate offense from any of the offenses listed in Subsections (1)(a) through (g), and which may be committed by the actor while he is in the building.
It appears to me that if someone were to break into my home and was in the process of stealing my property (a felony), the use of deadly force would be legally justified; whether it would be morally justified is a whole 'nother question.
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Old August 5, 2010, 07:01 PM   #20
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Quote:
Originally Posted by Glenn E. Meyer
Hot off the presses - a CHL who doesn't understand the Castle doctrine.
What's interesting about this is that although he doesn't understand the Castle Doctrine, he does have some notion, albeit misguided in this situation, about the law on deadly force.

According to the linked article, Mr. Smith told investigators that he hit the tires by mistake, and that he was trying to hit the driver and not the vehicle. So it looks like he did "get" that firing warning shots, or deliberately shooting to disable the vehicle, might be taken as an indication that he didn't really think deadly force was warranted, and that would work against him.

Isn't there some cliché about a little knowledge being a dangerous thing?

(And aren't we just being good about not quoting from a copyrighted work?)
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Old August 5, 2010, 07:40 PM   #21
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According to my firearms instructor, who is personal friends with and a client of the attorney who authored the MS CCW law, the castle doctrine protects people from liability when they use deadly force against a person who it putting life and limb in jeopardy. However, if you miss the bad guy and kill the little girl riding her bicycle across the street, you can and will be charged with a crime, and will go to jail. Each of us in taking it upon ourselves to carry a deadly weapon are taking the responsibility for each and every bullet that exits our weapon. The castle doctrine only protects us when we kill/injure the bad guy, not when we miss and kill somebody else.
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Old August 6, 2010, 03:04 AM   #22
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Quote:
Hot off the presses - a CHL who doesn't understand the Castle doctrine.

http://weareaustin.com/fulltext/?nxd_id=81415
Yes, that guy is in trouble and rightfully so... even if he tries to claim Castle Doctrine, he is going to have the problem that while Castle Doctrine may not require you to retreat, it certainly doesn't authorize you to follow someone off a highway exit and start shooting at them.

Apparently the guy was in FRONT of him and exited the highway, meaning that Smith had an easy way to avoid the confrontation but continued it. This sounds more to me like someone taking actions he knew were criminal and trying to justify it after the fact.

Now he is looking at a first degree felony - if convicted, not only will he lose his CHl, he'll lose his right to ever own a firearm again and he is going to end up in a place where there are going to be much more serious threats than an ADD guy with a car being a jerk.
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Old August 6, 2010, 08:21 PM   #23
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Quote:
Originally Posted by Glenn E Meyer
Is the arson component based on property or the potential lethal nature of arson?

I don't know. I've never seen a clarifying statement of any kind. My assumption, possibly entirely unwarranted, is that if it were based on the possibility of arson being deadly then it would include some sort of language like "if such person reasonably believes that the targeted structure is occupied."

This was BRIEFLY mentioned in the required CCW class and there was no clarification. The ADA said that lethal force is authorized to stop or prevent arson and then moved on to the next topic.
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Old August 6, 2010, 09:14 PM   #24
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In the CHP course in Texas I seem to remember the instructor who was also a LEO and a LEO firearms instructor and use of force trainer with a long career saying you are responsible for where that bullet goes. If you miss or hit the bad guy and an innocent bystander takes the round. You are neck deep in the stuff that the fan has flung.

I would say that that this also applies in the Castle Doctrine if you shoot a third party who is an innocent bystander. The only party that can not sue you is the perpetrator of the crime you shot. If you shoot the neighbor through his wall you are in neck deep and sinking again. If I think I see the perpetrator in my house in the shadows and take a shot and hit the neighbor next door who is in the bathroom TCBing then I have a legal problem.

Which means that no shot might be the best solution sometimes unless you are in really great danger of being killed or a grievous wound which will leave you maimed or crippled for life.

Just because you have a CHP and a gun in hand does not mean you should disengage the brain or you have Carte Blanche to send massive amounts of lead downrange.

Your rights ends where someone else's begins if they are doing you no harm.

The purpose of having a CHP is to keep yourself or some one else from coming to harm not to be harming innocent bystanders.
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