Suing if shot as a bystander

[Glenn E. Meyer]

http://www.nytimes.com/2013/11/11/ny...egion&_r=0

After bystanders were hit in NYC, several sued. The city decided not to settle but vigorously defend itself if it was felt that the shoot at the BG was justified. The article reviews past actions and those of other cities and when they did settle.

Let's avoid the typical claim that police can't shoot but you can and other bashing. It is an interesting issue - I wonder if the precedent would be useful for a civilian in a 'good' shoot. Of course, that's another definitional problem.

GEM

[RX-79G]

Not a police basher, but I do think that police culture puts police safety ahead of public safety. What sort of potential crime of this fugitive makes shooting innocents worthwhile?

Police are equipped and paid to take risks and go in harm's way. The officers should have held their fire until they could put themselves close enough to insure hits or a decent backstop. That would be my argument in the civil suit.

I don't think we need this sort of "protection".

[CowTowner]

I seem to recall being told as a young lad, that if a LEO had to use his weapon, rounds fired from it become the legal responsibility of the BG that forced the situation. Now this came from a LEO neighbor in California in the 60's. But that has always stuck in my mind.

[Frank Ettin]

An interesting subject.

Remember that a bystander might not, under established legal principles, be automatically entitled to compensation. A threshold question is whether or not any liability, whether the shooter is an LEO or private citizen, will be based on negligence or strict liability. Thus far it seems that the standard is negligence, so compensation won't be automatic.

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.

[4runnerman]

Cowtowner-- You know as lame as that sounds,,I got to believe it. I can just see that being law.

I think it has it's place if by not taking the shot someone is in immediate danger of being killed at that moment. I heard that police in hot pursuit will abandon the chase if it enters a populated place to avoid innocent people from being hit. That should be the case in a situation like this too.

Now Glen I know you said to keep ( can't shoot for ??? ) out of it, But it comes into the picture. Consideration that one can shoot good enough to make the shot must play a part.
When hunting you can take a chance,when it comes to human life- Never. I do not envy the police for that aspect of their job. One also has to know-They have to live with it afterwards. Shot placement should be theirs as well as our first and most important responsibility.

It's a hard call.Shoot and hit a bystander,your in trouble,Don't shoot and BG kills someone else-Your in trouble.

[TXAZ]

If its good for the goose, it's good for the gander.

We have a system that works well without special classes. Same for federal tort exemption: Let the chips fall where they may.

[Frank Ettin]

Originally Posted by 4runnerman

...That should be the case in a situation like this too...

In a situation like what? Do you really know enough about the situation to make that call?

Originally Posted by TXAZ

...Same for federal tort exemption: Let the chips fall where they may.

If you're referring to the Federal Tort Claims Act, what does that have to do with this state case?

In any case, the FTCA doesn't guarantee recovery. You must still first file an administrative claim. If that's denied, you may pursue a tort action against the federal government. But you still need to establish the factual and legal bases for recovery, and you can still lose.

It looks like the process is very similar in New York State.

[Gary L. Griffiths]

I've trained law enforcement officers in the judgmental use of force for more than 18 years. Often the question comes up about shooting at a gunman (on a simulator) with citizens in the background.

I have always taught that the officer should fire if there is an imminent threat, regardless of whether the background is clear. If possible, of course, (s)he should maneuver to clear the background, but my precept has always been, "What's behind you? If there's a schoolbus full of kids behind you, do you think the perpetrator is going to hold his fire for fear of hitting them?" The perpetrator may shoot anyone he perceives as being in the way, or even shoot into the crowd to cause confusion and aid in his escape. The officer is trained in marksmanship, and trained to shoot only when absolutely necessary. From the big picture, from the Public Safety Standpoint, the quicker the officer stops the threat, the safer everyone in the community is, even if the officer's actions endanger others.

FWIW.

[Tennessee Gentleman]

In my state I think a private citizen would be sued if we shoot an innocent bystander, even if the shoot on the BG was justified. At least that is what I was told by three different CCW instructors I have trained with said.

Now, Frank is right, I could try to defend it but in my case I think I would let my homeowner's and umbrella take over and defend me which would mean it would be up to the insurance company and I suspect they would settle.

So, unless I had a LOT of money (which I don't) I think I would be sued and the insurance company would settle.

[Frank Ettin]

Originally Posted by Gary L. Griffiths

...I have always taught that the officer should fire if there is an imminent threat, regardless of whether the background is clear. If possible, of course, (s)he should maneuver to clear the background, but my precept has always been, "What's behind you? If there's a schoolbus full of kids behind you, do you think the perpetrator is going to hold his fire for fear of hitting them?" The perpetrator may shoot anyone he perceives as being in the way, or even shoot into the crowd to cause confusion and aid in his escape...

Exactly. That is all part of considering what is reasonable and prudent in light of all the circumstances.

Originally Posted by Tennessee Gentleman

...I think a private citizen would be sued if we shoot an innocent bystander, even if the shoot on the BG was justified. At least that is what I was told by three different CCW instructors I have trained with said...

True. And of course whether or not you'd ultimately have any legal liability would still be determined based on a negligence standard.

Originally Posted by Tennessee Gentleman

...it would be up to the insurance company and I suspect they would settle...

Probably. That's just an economic/business decision.

[44 AMP]

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?

We all recognize that misses are going to happen. But I have to ask, where does one set the level between the acceptable cost of doing business, and officer safety?

[pax]

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

pax

[Salmoneye]

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

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

[Frank Ettin]

Originally Posted by 44 AMP

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?...

That's a good question, but in general whether or not something is negligent is finally a jury question. It will be up to the jury to evaluate the evidence with regard to the circumstances and make a judgment, based on what the judge has instructed them about the law, as to whether the defendant met the standard of care appropriate under those circumstances.

Originally Posted by Salmoneye

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

Let's see some documentation to support that claim.

[Fishing_Cabin]

Thanks Gary L Griffiths. That's what I was taught as well.

[zincwarrior]

If I were the bystander I'd sue the bejebus out of everyone involved. Here I am eating my ice cream and blamo! Talk about rude.

[Ed Bernay]

I think the limit should be anything more than 7 rounds being shot by the police at a BG in NY state is excessive and 5 rounds in NYC since that is the limit politicans think is appropriate for citizens to deal with a threat.

[Tom Servo]

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?

That's the part that gets subjective in a court proceeding. It's probably why, until recently, New York City has chosen to quietly settle rather than fight.

Washington DC has a similar policy.

[4runnerman]

In a situation like what? Do you really know enough about the situation to make that call?

Frank- What I meant is that Unless they know they can make the shot with out someone else possably getting shot-Don't take the shot. Now if BG is shooting up a storm,thay have to make the call. But a lot of times.If police let the guy run and he thinks he is getting away,He will stop shooting and police can grab him in a safer situation. You don't need to know about the situation-You are in it. If any one knows at that time the police involved know. The situation is


A- He is shooting wild
B- He is not shooting and just trying to flee.

[Wreck-n-Crew]

Interesting subject x2.

I seem to recall being told as a young lad, that if a LEO had to use his weapon, rounds fired from it become the legal responsibility of the BG that forced the situation. Now this came from a LEO neighbor in California in the 60's. But that has always stuck in my mind.

Good point. As far as who is liable for the death or injury of an innocent person while committing a crime is on the offender in most states that I know of as it should be.

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?

I read there were 16 shots fired. He was fleeing the scene of a murder and drew his gun.

Outside the Empire State Building in Midtown one mild morning in the summer of 2012, the crowd consisted of tourists and office workers — and a solitary gunman who was fleeing the site of a murder. As the police closed in, the gunman drew his .45-caliber handgun, and two officers opened fire, discharging 16 shots in all.

from the NYT here: http://www.nytimes.com/2013/11/11/ny...uits.html?_r=0

[Frank Ettin]

Originally Posted by 4runnerman

In a situation like what? Do you really know enough about the situation to make that call?

Frank- What I meant is that Unless they know they can make the shot with out someone else possably getting shot-Don't take the shot. Now if BG is shooting up a storm,thay have to make the call....

First, you're essentially assuming facts to support your position. Second, what the exact nature of the situation is core since reasonableness of conduct is measured against the exact and all the circumstances.

It's all about the judgment call under the exact circumstances of the incident.

Originally Posted by Wreck-n-Crew

Good point. As far as who is liable for the death or injury of an innocent person while committing a crime is on the offender in most states that I know of as it should be...

Except the offender most likely doesn't have any money with which to pay compensation.

[4runnerman]

Frank- I am not assuming anything. If they can make the shot,take it,If not dont. The exact situation is know by Police officers there. Don't twist my meaning ito something you are interpeting wrong . I don't think that because BG is Bg that it gives Police or anyone else the green light to shoot and if I hit a bystander Oh well. I am covered under some law that say's it's not my fault.
That's BS.

[Crankgrinder]

I cannot take away from good officers or what they do, and let me make it known that I know nothing of police procedures and it is not and should not be up to me what they should be, but if one thing has become clear to me all of my life its that governmet (yes police work for the local government) hold themselves to be more equal. I don't know how this one will work out for the bystanders but where I live I don't know of anyone who has sued the city for anything and fared well.

[Frank Ettin]

Originally Posted by 4runnerman

Frank- I am not assuming anything. If they can make the shot,take it,If not dont. The exact situation is know by Police officers there. Don't twist my meaning ito something you are interpeting wrong . I don't think that because BG is Bg that it gives Police or anyone else the green light to shoot and if I hit a bystander Oh well. I am covered under some law that say's it's not my fault...

I sorry, but you apparently don't understand the legal bases for liability under a negligence standard.

Your apparent notions about how the police should conduct themselves is really not terrible relevant to the issue of the negligence standard.

[4runnerman]

That you are very correct on Frank- I do not know the law for squat. I only know what I feel.