Suing if shot as a bystander

[NJgunowner]

If bystanders were only hit with ricochets and fragments they are innocent and will be proven as such in court.

There, problem solved.

[Spats McGee]

Originally Posted by aarondhgraham

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

Most likely, yes. I say "most likely," because it depends in part on how the issue is framed. If a Bystander B is shot while Officer O is trying to apprehend Suspect S, then the claim is likely to be one that sounds in negligence, like a car wreck. On the other hand, if Suspect S is shot while Officer O is attempting to apprehend him, then the claim (by S) will likely be one that the seizure of S's person was unreasonable under the Fourth Amendment (and possibly under state constitutional law, as well). In the latter case, the officers may still claim immunity, but it's going to be a little different in terms of the contours of the immunity & the case law backing it up.

Make sense?

[Skans]

We, the public, hire cops to do a dangerous job for us. We acknowledge that they may need to use deadly force to stop bad guys. This means that innocents may sometimes get injured and killed by cops trying to do their job. That's part of the danger we all accept by living in the same world with criminals.

I have no problem with compensating victims, but absolutely think they should be barred from suing cops who are in the pursuit of criminals. Of course, as long as the cops are acting within the scope of their pursuit guidelines.

Punish the guilty! For example, if an innocent gets shot by a cop who is pursuing someone who just held up a convenience store, then let the criminal pay whatever compensation that can be extracted from the criminal. That means, if one of his organs can be used to save the victim, then give the victim the criminal's life saving organ. If the organs of the criminal can be sold off to compensate the victim's family for the wrongful death of their beloved father, then put the criminal down and part him out. We as a society need to stop being so squeamish about extracting compensation for victims from criminals who committed harm; not from cops or governments.

[Salmoneye]

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

To me this just seems like an attempt at justification for:

"All animals are equal, but some animals are more equal than others"

I guess I am still suffering under an antiquated notion that We are the government...

[Frank Ettin]

Originally Posted by Salmoneye

....

I guess I am still suffering under an antiquated notion that We are the government...

It's not that it's an antiquated notion. It is, in some ways, a basis for the rules.

If an LEO/agency is found liable, we, as the taxpayers, wind up paying.

[btmj]

Salmoneye - you are still pushing this job title thing.

One could make the argument that a Federal Judge is just a job title, but that judge is able to order that certain things be done, or not done... and his/her directive carries a lot more effect than if I made the same proclaimation.

A Fireman at the scene of a fire has a tremendous amount of discretion regarding the destruction of private property. Is he "more equal" than me? I can't order an undamaged structure to be knocked down so that a raging fire can be contained... but a fireman can. Is being a Fireman just a job title?

A LEO has a duty to pursue criminals, a duty which does not apply to me as a private citizen, even though I may be armed. A LEO has a duty to intervene and interrupt a crime in progress, again a duty which does not apply to me. Please note that this duty does not equate to an obligation to prevent all crime. This duty does not mean the LEO or the state is liable for failing to protect me from a criminal.

We the people have given the LEO arrest powers which enable him to do his duty. We also provide some immunity from civil liability... in the same way that judges and firemen have some immunity from civil liability.

It is true that the legal justification for acting (shooting) in self defense is the same for the LEO as it is for me. There is, however, a difference in that I am not required to chase down armed criminals, and thus I am far far less likely to find myself in a self defense situation. In my mind, this is why the LEO has civil immunities which I do not have.

Honestly I don't understand why this is so hard to comprehend.

[Spats McGee]

Originally Posted by Salmoneye

To me this just seems like an attempt at justification for:

"All animals are equal, but some animals are more equal than others"

I guess I am still suffering under an antiquated notion that We are the government...

Unless I'm mistaken (I don't think I am), most of the immunity doctrines are "descended" from the concept of sovereign immunity ("you can't sue the king"). The exact nature of the immunity depends on the role the actor plays in the course of events giving rise to (possible) liability. As examples:

• Federal government: sovereign immunity
• State government: sovereign immunity
• Judge: Judicial immunity
• Municipal police: qualified immunity
• Prosecutors: prosecutorial immunity

As a practical matter, police officers are called upon to make split-second life and death decisions that many of us will never have to do in the course of our jobs. I don't think we really want LEOs to second-guess themselves in that split second out of a fear of being sued.

[Salmoneye]

Honestly I don't understand why this is so hard to comprehend.

Maybe I am not making my point succinctly enough...

The power emanates from the people...

We 'employ' certain people with discretionary powers (be it police, fire, judge, etc.)...

If in the use of these powers these individuals can simply say:

"I was just doing my job, so I do not have to take responsibility for my actions...The 'People' will pay the bill for me if I am negligent";

Then I see that as a bad message to be sending to the 'employees' we are entrusting...

I can see where in certain circumstances this may encourage people to act hastily, or not in the most prudent manner for a given situation...

[aarondhgraham]

I don't think we really want LEOs to second-guess themselves in that split second out of a fear of being sued.

You are absolutely correct in this sentiment.

But on the other hand,,,
No one wants to be hurt by a cop with an attitude of,,,
I can be as reckless as I care to be because I have immunity from litigation.

I doubt if it is ever a conscious choice to be reckless,,,
But way too often I have been told by cops,,,
"Doing their job" trumps all other concerns.

I have had quite a few conversations about this with California cops from three different departments,,,
My ex was a police dispatcher for the last 14 years of our marriage,,,
I was a CSO for the University of Riverside PD for a while,,,
I had good long-term relationships with lots of cops.

A large percentage of them made statements that supported their attitudes,,,
"I'm going to do my job no matter what the collateral damage is." was a common thread in those talks.

So if a person is hit by stray police bullets or even ricochets,,,
Shouldn't the state/county/city take some responsibility?

I'm not talking about a deep pocket lawsuit,,,
But at least take care of the medical expenses/property damages.

The statement from the Town of Paradise still rankles me,,,
"We have no responsibility to her".

Aarond

.

[Salmoneye]

As a practical matter, police officers are called upon to make split-second life and death decisions that many of us will never have to do in the course of our jobs. I don't think we really want LEOs to second-guess themselves in that split second out of a fear of being sued.

Yet from every SD class to most forums, we as 'civilians' are bombarded with the notion that we must second guess everything from when we are allowed to discharge our weapons, to not using certain kinds of ammo, or we will indeed be sued...

My only point is that I see this as somewhat of a double standard...

[Spats McGee]

In some respects, it is a double standard. In and of itself, that's not necessarily a problem.

LEOs have arrest authority.
I do not.
Double standard.

LEO's are expected to intervene in a violent encounter between two other private citizens.
I am not.
Double standard.

Under certain conditions, LEOs are allowed to ignore speed limits.
I am not.
Double standard.

As a policy matter, we as a society must look at what trades we're willing to make. If immunity doctrines have gone too far, you can always call your legislators and ask that statutes be re-written. There's not a thing in the world wrong with that.

Originally Posted by aarondhgraham

No one wants to be hurt by a cop with an attitude of,,,
I can be as reckless as I care to be because I have immunity from litigation.

Agreed, but as a general rule, LEO immunity is "qualified," meaning "within certain limits." If the LEO steps beyond those limits, then he can be stripped of immunity and held liable.

qualified immunity : immunity from civil liability that is conditioned or limited (as by a requirement of good faith or due care) ;specif : official immunity from damages for acts that violate another's civil rights that is granted if it can be shown that the acts do not violate clearly established statutory or constitutional rights of which a reasonable person would be aware see also Civil Rights Act in the Important Laws section - See more at: http://dictionary.findlaw.com/defini....AE7CH7JK.dpuf

Source: http://dictionary.findlaw.com/definition/immunity.html

[Frank Ettin]

Originally Posted by Salmoneye

...The power emanates from the people...

We 'employ' certain people with discretionary powers (be it police, fire, judge, etc.)...

If in the use of these powers these individuals can simply say:

"I was just doing my job, so I do not have to take responsibility for my actions...The 'People' will pay the bill for me if I am negligent";...

And since we do employ, we are the ones who pay. You might think it would be satisfying to punish the LEO or firefighter or government clerk by making him personally liable; but since he doesn't have much that won't adequately compensate the person harmed.

Originally Posted by Salmoneye

...Then I see that as a bad message to be sending to the 'employees' we are entrusting......

And as with any employer - employee arrangement, the employer's remedy for an employee who messes up is an employment action -- right up to firing the employee in some cases.

Originally Posted by Salmoneye

Yet from every SD class to most forums, we as 'civilians' are bombarded with the notion that we must second guess everything from when we are allowed to discharge our weapons, to not using certain kinds of ammo, or we will indeed be sued...

My only point is that I see this as somewhat of a double standard...

Certain forms of inequality are just inherent. The LEO has the backing of his department, as long as he stays within policy. The guy who designs the brakes for GM has the backing of GM, even if those brakes wind up defective in use and folks get injured. But the one-man auto repair shop is on his own if he messes up a customer's job.

In fact, the standards applicable are pretty much the same. But the capacity to absorb the adverse consequences of a failure to meet those standards can vary.

[Fishing_Cabin]

Just curious as some may know better then I do...I know this case was a hot topic when it happened and we have had a good debate so far on this lawsuit, but has NYC changed something in that they are going to started fighting lawsuits now and in the future? Or is this just an isolated case? I don't follow a huge amount of NY news, so I do apologize.

As a side note on this topic. There has been some push by officers for departments to fight the majority of cases that come up, because even if a LEO acted legally and within policy doing the correct thing(s) the department giving a cash settlement instead of defending the case may show a perception of wrongdoing or guilt to the public.

Skans, I would have no problem supporting legislation to place both criminal and civil liability on a violent criminal for the greater results of his crime. Call it the violent felons' rule; be committing a violent felony and anyone is injured or killed be it intentionally or otherwise as a result of the commission of the crime, or the response or defense to the crime, be it by the victim or public safety personnel, and the charges greatly increase, as well as straight civil liability is placed on the violent felon for the civil cost of deaths, injuries, etc. It would be like putting the felony murder rule/doctrine on massive steroids perhaps! I doubt this would pass though, as the majority of the felons have no assets, and the hope for a quick settlement from the public agencies have gone on for too long. Plus it would probably be ruled as too broad since the results were not foreseen or intentional.

[JimDandy]

Some interesting reading on the subject:

First, to support Spat's mention of police shooting Subject S as a Fourth Amendment claim, not a negligence claim: TENNESSEE v. GARNER, 471 U.S. 1 (1985)
471 U.S. 1

Secondly I found this scholarly article that provided a fairly interesting school of thought, so to speak, on the issue. "Accidental" Shootings as Fourth Amendment
Seizures
Kathryn R. Urbonya
William & Mary Law School

I have to admit this idea intrigues me, and I'm not sure why/if it didn't get traction.

When the police transpose house numbers on a no-knock warrant, they're still liable for damages are they not? Assuming you're not even home, and pull up to the door while they're packing up, so no one gets shot thinking it was a robbery, they frisk you, detain you, etc. Find out they had the wrong house. They've still got to pay for your door, any walls they destroy, smoke damage etc?

How is this any different? They meant to search House A, instead searched House B. They meant to shoot Suspect A, instead shot Bystander B.

[grizz223]

Salmoneye

I don't understand your hostility towards my profession. I don't know you and life experience but. I risk my life for people like you every day. I go where you did not want to go to do things you do not want to do. If you think that I do that for a paycheck you are wrong I could make more money doing other things. I want to help people and make a difference. Now having said all that if you think that we as law enforcement officers are not held to a higher standard you are very wrong. The Officers of the NYPD are very lucky that they have a very strong union. By comparison if that same thing happened in Florida. I can guarantee you that even though the Officer would be found not guilty of negligence. Most departments down here would fire him or her because of liability. I have seen Deputy's get hurt or fired because they are more afraid of getting fired than doing what is necessary when the time comes. I just want you to know that it is necessary for us to have some peace of mind that if I'm doing my job to the best of my ability that I won't end up broke or in jail because of a decision I made in a split second. As stated by several other posters I have a duty to act if I do not I will be fired and then I am liable for dereliction of duty. I do not want to have any issues with you but just wanted you to understand the other side of this from my point of view.

[Hitthespot]

I'm completely confused. I always see things in black and white even when there as complicated as this issue.

I was told in my CCW class (taught by a range officer and now police chief) that Police Officers are held to the same standard that civilians are in a shooting. It should be clear that any reasonable person would believe their life was in danger and was justified in shooting.

If the above condition is clearly met, then the shooting is not negligent and the officers should not be held accountable in any way. Wether or not the innocent bystandards were injured as a result of the shooting are intitled to compensation, seems to be a completely different issue. To me this is an accident not negligence.

[Frank Ettin]

Originally Posted by Hitthespot

I'm completely confused. I always see things in black and white even when there as complicated as this issue....

That's really your difficulty. This is not, and can not be, seen in black and white.

Originally Posted by Hitthespot

...I was told in my CCW class (taught by a range officer and now police chief) that Police Officers are held to the same standard that civilians are in a shooting. It should be clear that any reasonable person would believe their life was in danger and was justified in shooting.

If the above condition is clearly met, then the shooting is not negligent and the officers should not be held accountable in any way. Wether or not the innocent bystandards were injured as a result of the shooting are intitled to compensation, seems to be a completely different issue. To me this is an accident not negligence....

Often what we in casual conversation call an "accident" in fact legally involves some form of legal fault (e. g., negligence). So we call a collision between to cars an "accident", but one involved party may be found to be the legal cause and be financially responsible for the damage.

And one might be justified in using lethal force in self defense against a particular person and still have failed to have used reasonable care with regard to uninvolved innocents. And example was discussed on THR recently.

A hypothetical situation was discussed. Someone was violently trying to breakdown the front door of your home. The question was whether one would be justified in shooting through the door without necessarily waiting to be able to see the target.

Under such circumstances, one could be justified using lethal force to defend against the violent, unlawful entry. But shooting without being able to see the target could be found at least negligent, and perhaps reckless, making one liable to any innocent hit by a stray bullet.

But the bottom line is that if you insist on seeing things in black and white you will not be able to understand this subject.

[JimDandy]

Further, the way things officially are, and the way they REALLY are in practice certainly may not be the same.

The legislative notes for one of my State's deadly force laws makes it clear legislators were intent on being MORE restrictive of law enforcement in the state. In practice, and often just because of human nature, this is not the case. We assume police act lawfully, and certainly don't arrest them until an investigation strenuously suggests otherwise. Some states, I think Texas for one, presumes a civilian shooting was unlawful and automatically arrests the shooter. Now I'm mixing States here, but still in my State it would not be entirely presumed a good shoot, and the civilian would have to engage a lawyer with sizable set of fees.

[Salmoneye]

Salmoneye

I don't understand your hostility towards my profession. I don't know you and life experience but. I risk my life for people like you every day. I go where you did not want to go to do things you do not want to do. If you think that I do that for a paycheck you are wrong I could make more money doing other things. I want to help people and make a difference. Now having said all that if you think that we as law enforcement officers are not held to a higher standard you are very wrong. The Officers of the NYPD are very lucky that they have a very strong union. By comparison if that same thing happened in Florida. I can guarantee you that even though the Officer would be found not guilty of negligence. Most departments down here would fire him or her because of liability. I have seen Deputy's get hurt or fired because they are more afraid of getting fired than doing what is necessary when the time comes. I just want you to know that it is necessary for us to have some peace of mind that if I'm doing my job to the best of my ability that I won't end up broke or in jail because of a decision I made in a split second. As stated by several other posters I have a duty to act if I do not I will be fired and then I am liable for dereliction of duty. I do not want to have any issues with you but just wanted you to understand the other side of this from my point of view.

I have no idea where you are getting anything about "hostility"...

I simply have an issue with what I see as an unequal protection under the law...Why my opinion seems to rankle you, I have no idea ...

As to this line:

"I go where you did not want to go to do things you do not want to do."

It's this "We're better than the civvies" attitude that seems to be fueling the backlash in public sentiment that LEO's everywhere are getting lately...

You know nothing about me, yet you think you have been somewhere I have not...

[Hitthespot]

And one might be justified in using lethal force in self defense against a particular person and still have failed to have used reasonable care with regard to uninvolved innocents. And example was discussed on THR recently.

Mr Ettin,

Of course I understand what your saying. However how someone can be justified in their actions and negligent at the same time somehow doesn't seem right. ( and maybe I should have said it seems a little clearer in my mind instead of black and white.) If you can show that the police officers life were not in danger, or they could have waited before acting, then they were not justifed in shooting when they did and therfor negligent.

In a car accident if you run a redlight or a stop sign you are negligent but your not justified.........am I making any sense, or just being too simple minded? I understand an accident, an accident with negligence, but justifed and negligent, I don't know? It sure seems like things become quickly overly complicated.

[Spats McGee]

It may seem illogical, Hitthespot, but Frank Ettin is dead on. Whether a shooting is justified or not, and whehter the officers were negligent, may depend on "who's asking," as it were. I mentioned this briefly in an earlier post. Consider the following example:

Mikey Methhead, a convicted and violent felon, decides to rob a convenience store, using a stolen semiautomatic pistol. While he's in the process of robbing it, two police officers show up, and a gunfight ensues. One of the officers, Paul Patrol, fires one lone shot, which strikes Mikey, killing him. The bullet passes through Mikey and then strikes Carrie Cashier who works at the Quickie-Mart (as you might have guessed).

1) If Mikey's estate attempts to sue Paul, it will likely bring the case under 42 U.S.C. 1983, claiming excessive force. Put another way, Mikey's estate will claim that Paul violated Mikey's right to be free from unreasonable search and seizure in that Paul's attempt to seize Mikey was unreasonable in that the force he used was excessive.

2) Carol, on the other hand, might sue Paul, claiming that he was negligent. Paul wasn't trying to seize Carol, so she will likely not make a Fourth Amendment claim.

Accordingly, even if Paul is found justified as to Mikey, he could still be found negligent as to Carol.

As an alternative, consider if Paul had to fire several shots. He might still be justified as to Mikey, but might still be considered negligent as to Carol.

[Hitthespot]

Mr Mcgee,

Yea your saying the same thing Frank is. I think your both attorneys is what I think. (sorry just being funny). I understand that even with a justfied shooting there can be other circumstances. I guess an exaggerated example would be an officer clearly needs to defend himself and throws a hand grenade that hurts many, when a single shot would have sufficed. However I still say an officer who must defend his life and is cleared as a "justified shooting" in most cases should not be held accountable as negligent.


Let me also say as a side note since you and Frank are both staff members, that I have really enjoyed reading and very occasionally participating in the law section of the Firing Line, and I have also enjoyed both you and Franks participation and point of views on such a wide diversity of topics. I have found it educational and very informative. Even if you have to put up with simple minded people like me.

[Frank Ettin]

Originally Posted by Hitthespot

... Even if you have to put up with simple minded people like me.

Oh, you're okay. What I really found annoying before I retired was putting up with simple minded judges, regulators and politicians.

[Spats McGee]

Originally Posted by Hitthespot

I think your both attorneys is what I think.

Then you'd be right!

[OuTcAsT]

grizz223 Wrote:

Now having said all that if you think that we as law enforcement officers are not held to a higher standard you are very wrong.

Really ? Then please explain this :

I just want you to know that it is necessary for us to have some peace of mind that if I'm doing my job to the best of my ability that I won't end up broke or in jail because of a decision I made in a split second.

If I, as a "civilian" am involved in a defensive shooting situation, that is exactly the risk I face. Yet, you say:

I can guarantee you that even though the Officer would be found not guilty of negligence. Most departments down here would fire him or her because of liability.

So, If I make any mistake during a defensive shooting, I can face financial ruin, prison, or both. If you make a mistake, you face a "disciplinary" action or, possibly get fired ?

If that is the case, then how can you possibly assert that LEOs are "held to a higher standard" ? You point out the many protections you have in place to give you "peace of mind" yet, fail to acknowledge that the average citizen has no such safety net in place, our fate lies with the criminal courts.

The Officers of the NYPD are very lucky that they have a very strong union.

Too bad we, as civilians don't have that kind of representation, It would be nice to have our defensive shooting situations critiqued by an arbitration board rather than a trial jury.