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Old November 13, 2021, 10:48 PM   #1
AlongCameJones
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America needs tort reform for lawful self-defense.

I get so sick of hearing about how a law-abiding person can get sued if he or she uses a gun for self-defense even by following every letter of the law to do so.

Who should really be held civilly liable if an innocent bystander gets hurt or property is damaged during a lawful defensive shooting? How about the perpetrator of the crime or would-be crime? What a wild and strange notion!! How about the bad person who brought on the need for a justifiable shooting to begin with? The same could be said for justifiably shooting a dangerous animal. The owner of the stray dog that attacked a person resulting in harm to others or property out of a defensive shooting situation should be held economically and legally fully accountable. Tort limitations for justifiable shootings should be for private armed citizens and law-enforcement officers alike. Employers should not ever be held civilly liable if an employee on duty uses a gun for lawful self defense as well.

Are there any US elected officals that are in favor of federal legislation that gives American gun owners such self-defense tort protection nationwide? Does your home state offer such protection against lawsuits for justifiable use of firearms? Do they shift the burden of tort damages to perpetrators of crimes or would-be crimes and owners of animals that were irresponsibly allowed to be a public danger?
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Old November 13, 2021, 11:54 PM   #2
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I'm probably not going to get the legal language close to correct, but there are states (KY is one) where the lawful use of deadly force cannot expose the victim (the person who used deadly force) to civil lawsuits.
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Old November 14, 2021, 02:11 AM   #3
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I suspect any "red" CC state, for instance, the likes of Oklahoma, where I live, pretty much protects people from lawful-self-defense-arising torts as well. Anti-gun states are naturally more sue-happy.

It's not likely the perpetrator or the justifiably-shot-dead perpetrator's estate would have much value to sue over anyway. Most criminals and would-be criminals don't have much to collect.

I'm always in favor of legislation that protects law-abiding gun owners and users from both criminal prosecution and lawsuits whenever a gun is justifiably used in fear of death or bodily harm.

Last edited by AlongCameJones; November 14, 2021 at 04:37 AM.
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Old November 14, 2021, 06:26 AM   #4
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I get so sick of hearing about how a law-abiding person can get sued if he or she uses a gun for self-defense even by following every letter of the law to do so.

Who should really be held civilly liable if an innocent bystander gets hurt or property is damaged during a lawful defensive shooting? How about the perpetrator of the crime or would-be crime? What a wild and strange notion!! How about the bad person who brought on the need for a justifiable shooting to begin with? The same could be said for justifiably shooting a dangerous animal. The owner of the stray dog that attacked a person resulting in harm to others or property out of a defensive shooting situation should be held economically and legally fully accountable. Tort limitations for justifiable shootings should be for private armed citizens and law-enforcement officers alike. Employers should not ever be held civilly liable if an employee on duty uses a gun for lawful self defense as well.

Are there any US elected officals that are in favor of federal legislation that gives American gun owners such self-defense tort protection nationwide? Does your home state offer such protection against lawsuits for justifiable use of firearms? Do they shift the burden of tort damages to perpetrators of crimes or would-be crimes and owners of animals that were irresponsibly allowed to be a public danger?
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In other words, in the act of shooting someone in a justifiable self-defense shooting--other innocent people that were not involved in the altercation that precipitated the shooting but end up getting shot by stray bullets that did not hit the intended target-- should be legally prevented from being able to file a lawsuit of any kind against the shooter?
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Old November 14, 2021, 07:55 AM   #5
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should be legally prevented from being able to file a lawsuit of any kind against the shooter?
Yes. If it was a lawful use of deadly force in the act of self defense. Exactly like a LEO
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Old November 14, 2021, 08:35 AM   #6
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Would that be exactly like a LEO?

There are circumstances in which individual POs can be sued even while on the clock.

To be clear, it effectively means that a person has no duty to refrain from shooting innocent bystanders if the person is immune from suit for doing that so long as he also is involved in a valid use of deadly force at the time.

If you are an innocent bystander hit by a bullet and injured by the act of someone engaged in self defense, who more justly should bear the burden of your injuries?

A. The person who shot you, or
B. You and your family
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Old November 14, 2021, 08:43 AM   #7
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"You are responsible for your actions" is the telling phrase.

If by your actions - however justified in isolation - you injure others
who are innocents... you must answer for those actions and be judged.

'Judged" doesn't automatically means condemned.
But you must be called to account.
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Old November 14, 2021, 08:53 AM   #8
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If the use of self defense is lawful, then the shooter is the victim of a crime. Any other people injured due to that crime can seek remedy from the perpetrator of the crime, not the victim.

That is essentially like saying if someone crashes into your car and causes your car to injure someone else, they sue you cause your car caused the injury.
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Old November 14, 2021, 09:04 AM   #9
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if someone crashes into your car and causes your car to injure
someone else, they sue you cause your car caused the injury.
Not quite the same, as it was the perpetrator who directed your car upon the crash, not you.
(They might sue, hope you "settle," but not win if taken to court.)

If on the other hand you used a vehicle to run down a perpetrator who was in the act of firing at you
-- and in so doing also ran over an innocent child -- then you have a parallel case for comparison.


.

Last edited by mehavey; November 14, 2021 at 10:26 AM.
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Old November 14, 2021, 09:31 AM   #10
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Quote:
Originally Posted by ghbucky
If the use of self defense is lawful, then the shooter is the victim of a crime.
Can the victim of a crime be negligent in his duties to others?

Quote:
Originally Posted by ghbucky
Any other people injured due to that crime can seek remedy from the perpetrator of the crime, not the victim.
Emphasis added. "Due to the crime" suggests no intervening event between the crime and the defender's acts. That the innocent bystander should not seek a remedy from the person who hurt him is a conclusion. Why should he not seek a remedy from the person who hurt him?

If the aggressor and his estate are insolvent, is it a greater injustice 1) to allow the innocent bystander to seek a remedy from the man who shot him, a defender who has had the benefit of his right of self-defense, or 2) to make the innocent bystander bear the full cost of the defender's act?

Quote:
Originally Posted by ghbucky
That is essentially like saying if someone crashes into your car and causes your car to injure someone else, they sue you cause your car caused the injury.
They can. I may have defenses, like I did what I could to avoid injuring others, but it doesn't keep me from being named as a defendant. I don't become immune from suit just because something bad happened to me.

Last edited by zukiphile; November 14, 2021 at 09:40 AM.
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Old November 14, 2021, 10:29 AM   #11
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Quote:
Originally Posted by zukiphile
Quote:
Originally Posted by ghbucky
Any other people injured due to that crime can seek remedy from the perpetrator of the crime, not the victim.
Emphasis added. "Due to the crime" suggests no intervening event between the crime and the defender's acts. That the innocent bystander should not seek a remedy from the person who hurt him is a conclusion. Why should he not seek a remedy from the person who hurt him?

If the aggressor and his estate are insolvent, is it a greater injustice 1) to allow the innocent bystander to seek a remedy from the man who shot him, a defender who has had the benefit of his right of self-defense, or 2) to make the innocent bystander bear the full cost of the defender's act?
That's an interesting question, and since it's a philosophical one as much as (or more than) a legal one, I expect there will be many answers, none of which are "right" or "wrong." I understand your point. I would note that, as an attorney, you work in a legal system that at least purports to try to make victims "whole." I have seen that work out in construction defects cases -- the party with the deepest pockets gets whacked. In a multi-party case, an entity that may bear 10% of the responsibility (as determined by a judge, at trial) ends up paying far more than 50% of the cost of "making the victim whole" simply because that party had the biggest insurance policy. That's nice for the victim, of course, but IMHO it's extremely unfair to the party who was only 10% responsible for the problem.

In many states, a criminal who is an accessory to a crime that results in loss of life can be charged with murder, even if the accessory party only drove the getaway car and never handled a weapon during the commission of the crime. So I don't think it is at all unreasonable to hold an assailant liable for any injuries suffered by innocent bystanders as a result of a crime victim's efforts to defend himself. However, as you point out, the assailant probably has few assets and so, in legal slang, he is "judgment proof."

Your only option is to ask the crime victim to be further victimized by being financially penalized -- perhaps even ruined -- because in defending himself against an assault he missed a shot and hit a bystander, or his shot in self defense passed through the assailant and also struck a bystander who was behind him. I understand your reasoning from a legal perspective, but I have to question if that represents a solid moral position or if it constitutes sound public policy.

I offer an alternative: why can't the states establish a fund from which innocent bystanders who are injured as a result of crimes be compensated if the actual perpetrator(s) of the crime is/are "judgment proof" by virtue of being insolvent? To me, that's preferable to further penalizing a person who was the victim of the assault.
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Old November 14, 2021, 11:04 AM   #12
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Quote:
If the aggressor and his estate are insolvent, is it a greater injustice 1) to allow the innocent bystander to seek a remedy from the man who shot him, a defender who has had the benefit of his right of self-defense, or 2) to make the innocent bystander bear the full cost of the defender's act?
This is not justice, this is simply the 'deep pockets' theory that is the delight of ambulance chasers everywhere. If the defender is insolvent as well, why not throw in the property owner into the mix as well? How about the local municipality?
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Old November 14, 2021, 11:12 AM   #13
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why can't the states establish a fund from which innocent bystanders
who are injured as a result of crimes be compensated
The "State" doesn't have any money (a fact often lost these days)
Drill down a bit as to who would actually pay into such a fund (vice the perpetrators who commit the crimes.)
Think about it.....
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Old November 14, 2021, 11:46 AM   #14
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Quote:
Originally Posted by ghbucky
This is not justice, this is simply the 'deep pockets' theory that is the delight of ambulance chasers everywhere.
That is incorrect. It is the theory that a person who causes a harm by failing to observe a duty toward others will be liable for the harm can be made to answer a complaint to that effect in court.

Quote:
Originally Posted by ghbucky
If the defender is insolvent as well, why not throw in the property owner into the mix as well? How about the local municipality?
If the property owner failed to observe a duty that resulted in harm, the insolvency of any other party shouldn't determine whether the owner owes a remedy. If the municipality hasn't immunity, it should also answer.
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Old November 14, 2021, 11:53 AM   #15
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Originally Posted by Aguila Blanca
So I don't think it is at all unreasonable to hold an assailant liable for any injuries suffered by innocent bystanders as a result of a crime victim's efforts to defend himself.
I don't either. Both the assailant/aggressor and self defender can be named if neither has immunity.

Quote:
I offer an alternative: why can't the states establish a fund from which innocent bystanders who are injured as a result of crimes be compensated if the actual perpetrator(s) of the crime is/are "judgment proof" by virtue of being insolvent? To me, that's preferable to further penalizing a person who was the victim of the assault.
As a public policy matter, do we want someone enduring an assault to owe any duty to bystanders? Or do we want the state to insure against every harm that individual may cause during the assault?
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Old November 14, 2021, 11:58 AM   #16
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I offer an alternative: why can't the states establish a fund from which innocent bystanders who are injured as a result of crimes be compensated if the actual perpetrator(s) of the crime is/are "judgment proof" by virtue of being insolvent? To me, that's preferable to further penalizing a person who was the victim of the assault.


Then taxpayers would be burdened. But they are tax burdened already since they have to pay police to go after lawbreakers anyway. In many jurdictions, less Texas, innocent property owners aren't compensated by the government if the police do damage while pursuing an outlaw in the process. There are cases where homes were destroyed by police because a fleeing bad guy took cover there by unwelcome intrusion into some strange innocent's house. The bad guy may have forced entry or just walked/climbed through the unlocked door or window. The police literally tore the home apart to get the suspect. It was the fleeing suspect who was liable for damages to the homeowner's property. But good luck collecting.

Last edited by AlongCameJones; November 14, 2021 at 12:04 PM.
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Old November 14, 2021, 01:06 PM   #17
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Originally Posted by mehavey
The "State" doesn't have any money (a fact often lost these days)
Drill down a bit as to who would actually pay into such a fund (vice the perpetrators who commit the crimes.)
Think about it.....
I have thought about it ... a great deal, in fact.

What happens now is that "the insurance company pays." Well ... who is "the insurance company"? It's a paper corporation whose assets are derived from premium dollars ... which means our dollars. But in a civil judgment where "the insurance company" pays, the dollars come from the customers of that company -- even though most of them had nothing to do with the particular case, and even the entity whose policy is getting dinged may have had only a tiny proportion of the actual liability.

Is that fair? No. Is it fair to spread the burden across a much broader spectrum of the populace by having "the state" pay rather than an insurance company? I don't know, but for the sake of discussion I'll throw it on the table for consideration. What's "fair" is a question without an answer if the party that was the proximate cause of the loss or harm -- the actual assailant, in the case of a self-defense shooting with a collateral injury to an innocent bystander. If the person who actually caused the situation to unfold has no assets, then we as a society are faced with a conundrum.

If we -- as a society -- agree that an innocent third party should be "made whole" for their injuries, then the money has to come from somewhere. Where is that? It's a pyramid of possibilities:
  • The person who fired the shot -- who is himself already a victim of the crime
  • The shooter's family -- who had nothing to do with the incident, but who may suffer significant financial burdens
  • The shooter's insurance company -- which is a subset of the populace
  • All the taxpayers in the state

Where do we draw the line?

Or should we -- as a society -- start requiring people to carry "no fault" personal injury insurance so their own insurance pays if they are injured as a third party bystander?

If we as a society are going to say that an injured third party should/must be
made whole," then we as a society have to wrestle with the messy question of what's the fairest way (or the least UNfair way) of coming up with the dollars.
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Old November 14, 2021, 01:10 PM   #18
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Originally Posted by zukiphile
As a public policy matter, do we want someone enduring an assault to owe any duty to bystanders? Or do we want the state to insure against every harm that individual may cause during the assault?
That's one of the fundamental questions. Especially if the third party injury is the result of a shoot-through rather than a wild miss.

And the wounding of the director in the recent Alec Baldwin shooting demonstrates that this is a very real possibility. There was only one shot fired. It went completely through the cinematographer and seriously wounded the director.

Quote:
Originally Posted by zukiphile
Quote:
Originally Posted by Aguila Blanca
So I don't think it is at all unreasonable to hold an assailant liable for any injuries suffered by innocent bystanders as a result of a crime victim's efforts to defend himself.
I don't either. Both the assailant/aggressor and self defender can be named if neither has immunity.
I think I lean in the direction of granting self defenders immunity.
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Old November 14, 2021, 01:18 PM   #19
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Originally Posted by AlongCameJones
I offer an alternative: why can't the states establish a fund from which innocent bystanders who are injured as a result of crimes be compensated if the actual perpetrator(s) of the crime is/are "judgment proof" by virtue of being insolvent? To me, that's preferable to further penalizing a person who was the victim of the assault.


Then taxpayers would be burdened.
I agree. I believe I stated that. But the burden would be spread out across the broadest portion of the populace as possible.

So what's your answer? Is it your position that, as a matter of public policy and law, innocent third parties who are injured by someone's justified act of self defense should NOT be entitled to compensation?

Make it personal:

You are at the mall. There's a stick-up, the victim fires three shots at his assailant. Two shots hit the bad guy, one of the shots hits you, resulting in a serious wound. As a result, you have significant medical expenses, you miss several months of work, and you lose the use of your left hand and arm.

Should you be compensated?

Should someone pay your medical bills? If so -- who?

Should someone compensate you for the wages you lost when you couldn't work? If so -- who?

If the loss of the use of your hand and arm means that you can no longer perform your old job, should you be compensated for future loss of income? If so -- who should pay that?

Assume the actual stick-up goon has no assets, so he is "judgment proof." Your original proposal, from your opening post, is to shift the liability to the crook. What good does that do if he's broke?
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Old November 14, 2021, 02:32 PM   #20
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Let me re-iterate a point I made early on that I think got lost..

Any person who lawfully uses self-defense should be granted identical protections that civil servants enjoy. A PO that shoots a bystander in the course of a shootout is protected from civil suits, while 'mere' citizens have no such protections.

This is 2 tiered justice and it is anathema to our justice system.

Personally, I think there needs to be legislation striking down qualified immunity. If I can end up a piggy bank to a lawyer looking for deep pockets, then guess what: civil servants should face the same exposure.

If you want to 'fix' our absurd tort system there is no faster way to make it happen then to expose politicians to the consequences of their decisions in the same way I face those consequences.
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Old November 14, 2021, 03:01 PM   #21
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I don't believe a person lawfully defending themselves should be liable for 3rd party damages. Socialized healthcare could pay for it all and would be a solution.
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Old November 14, 2021, 03:37 PM   #22
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I offer an alternative: why can't the states establish a fund from which innocent bystanders who are injured as a result of crimes be compensated if the actual perpetrator(s) of the crime is/are "judgment proof" by virtue of being insolvent? To me, that's preferable to further penalizing a person who was the victim of the assault.
Many states already have such a fund. My state does, for example. IIRC, it is funded through court fees assessed in criminal cases. Unfortunately, my state caps awards at $25,000 for unpaid medical expenses, emotional distress, and other kinds of damages. I know some states compensate victims at higher rates.

Turning to the suggestion that citizens should be given the same immunity as police officers---SCOTUS has interpreted the Constitution to allow qualified immunity for police officers. It is a substantial obstacle for plaintiffs to surmount. Yet, the police almost always have "free" legal counsel through insurance carried by their employers. These liability policies are written specifically with coverage of police liability in mind.

Some private citizens may have general liability insurance (e.g., homeowners insurance) which may provide legal counsel (under a reservation of rights) and might, in some circumstances, even pay damages. Yet, insurers can either (1) change coverage terms without most people being wise to the change or (2) charge higher premiums for the coverage.

Then, of course, there will be a great many people who might need to defend themselves who don't have any homeowners or renters insurance to potentially cover their liability. Legal fees alone may bankrupt many people who are guilty of nothing but exercising their right to life.

As others have mentioned, there is no easy answer of where to place ultimate responsibility in the situation we are discussing. Here's another scenario where there is no easy answer:

A steals a diamond from B. A then sells it to C, who has no reason to believe the diamond has been stolen. B finds out C has the diamond and A cannot be found or has died. Who bears the loss? The original owner B or the person in possession who paid fair market value for the diamond? The classic law school answer is that A cannot pass title to the goods to another because A never had legal title. C bears the risk of dealing with a shady character and comes out the looser.
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Old November 14, 2021, 03:52 PM   #23
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In each scenario, there at least three kinds of people.

1. an initial aggressor
2. a self defender, and
3. an innocent bystander

In most states as it stands now, 1 and 2 may have liability for the injuries of 3. The proposal is to grant 2 only immunity from suit.

2 knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and 2 acts within his right of self defense in employing deadly force against 1 also inadvertently but carelessly shooting seven other people of the #3 sort. It's an improvement on our current system to deny to those seven innocent bystanders the ability to file a civil complaint against 2?

Or would we prefer people to recognize that in addition to having a right of self defense, they still have duties to others in how they exercise it?

Last edited by zukiphile; November 14, 2021 at 04:00 PM.
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Old November 14, 2021, 04:22 PM   #24
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carelessly shooting seven other people
There is already legal remedies for reckless behavior.

Consider the case of Brionna Taylor.

The Louisville PD was seeking her because she had a relationship with a suspected drug dealer. They found that she was currently in another man's place. This guy had no record and was not sought by police.

So, they kicked in his door at 3AM while executing a no knock warrant. The boyfriend believed he was the victim of a home invasion and opened fire striking one of the officers in the leg. The LEO's returned fire and killed Brionna while she was in her boyfriend's bed.

The boyfriend (who was not injured) was not charged because KY is a castle doctrine state.

After an investigation into the murder of an innocent woman by what was clearly reckless behavior on the LPD part some (I believe 2) officers were fired. No charges were ever filed against those officers.

The family sued the only entity they could, the city and it was settled out of court. So who was punished for the reckless behavior of LPD? The Louisville taxpayer.

But the sentiment expressed here is the I better have SEAL gun handling skills because if a bullet gets astray my and my family are going to be financially ruined because I managed to come out of it alive.

If a cop doesn't face the consequences, than neither should you or I.
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Old November 14, 2021, 04:29 PM   #25
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A PO that shoots a bystander in the course of a shootout is protected from civil suits,
I think there's a point being missed here, and that is that while the individual may be protected from civil suit due to his "official" status, his umbrella organization is not. The officer doesn't get sued, but the Police Dept DOES.

And when successful, its the police dept's financier that pays any judgement. Cop wrongly shoots an innocent bystander, the individual cop doesn't pay the millions in damages, the CITY (or county or state) pays.

The OTHER operative point is that while you may be legally justified in shooting the bad guy, you are NEVER justified in shooting someone else, on purpose or by accident.

Now, the bad guy(s) absolutely have a share of the blame, they caused the shooting. But even then, each and every bullet you shoot "has a lawyer attached" and YOU ARE responsible for what they do.

In simple terms, as I see it, if you shoot at the bad guy and MISS, and hit someone else, YOU ARE RESPONSIBLE for that. So is the bad guy, but him causing the shooting does not absolve you who aimed and pulled the trigger from the results of hitting the wrong person.

You don't get off the hook because you missed your intended target any more than you get off the hook because you "didn't think it was loaded".

I think its really that simple, or should be. This is, however the USA in the 21st century and you can sue anyone for any reason. I don't consider the "deep pockets" idea of who is responsible for paying to be justice, either.
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