Can you use your weapon?

Doug, It is not only negligence alone . . .

Doug,

First, the scenario you outline is not the most typical “defending yourself against a deadly felon” situation. As I am sure you will agree, it would be more usual for the incident to take place other than in a crowded public place; but, the principles to be discussed are universally applicable.

Second, the jury -- in a civil suit -- will be the final evaluator of reasonableness and especially of responsibility. That then suggests that community values will come into play, with the local standards in (for example) Dallas likely being somewhat different than in Boston.

However, third, juries are VERY likely to find tort accountability when an innocent individual is seriously hurt or killed by ANYONE firing a weapon. Please note this even applies to local/state governments, who are found liable when a police officer injures an innocent, notwithstanding the fact that the officer does everything within the law. Incidentally, this precept applies to far more than shooting, also including such tragedies as traffic accidents (by school bus drivers or garbage truck operators, not just law enforcement).

While I can appreciate your beliefs focusing on a “larger good” (my term, but I trust accurately summarizing your concept), without civil/tort liability how will that innocent (and/or his family) receive, for example:
a) Lifetime medical treatment, if he is totally paralyzed due to the bullet striking his spine?
b) Lifetime living expenses, when the family’s main source of income is killed and there are several infants in the home?

"If I become paralyzed, then in that situation I should trust in a sovereign Almight God that my situation has been permitted to happen and I have to live with it just the same as if I had been struck by lightning."
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Lightning is clearly an act of God (and defined as such by the law). However, a bullet fired is a man’s act (also defined as such by the law), not an act of God. The shooter, after all, is not God; rather, he is a man who is capable of errors -- AND WHO MUST BE HELD ACCOUNTABLE FOR THOSE ERRORS EVEN WHEN DONE WITH THE BEST MOTIVES.

The upshot is simple: when any individual fires a weapon -- regardless of how pure his motives -- he is responsible for the outcome. No one forces him to fire at that time, even if that might (you can never be truly certain) result in the criminal killing and/or seriously injuring other innocents. Those who are harmed by the shot may reasonably require compensation, and there is only one source for that recompense: the individual/institution (such as the police department/city government) that fired the round.
 
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http://www.michiganprosecutor.org/Define.htm
SELF DEFENSE:
A legally-justified use of force to protect one's self, another person, or property against some injury attempted by another person ... the right to repel force with force ... the defendant
(i) must have honestly and reasonably believed that he had to use force for protection,
(ii) may use only the type and degree of force that seems necessary for protection at the time based on the circumstances known to him,
(iii) must not have acted wrongfully and brought on the assault (i.e., provoked the attack) ...
In Michigan, a Prosecutor has the burden of disproving a defendant's self-defense claim beyond a reasonable doubt.
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Y'all got me curious, look what I found.... sounds simple, clear and reasonable to me!
 
Sw40F . . .

However, while self-defense may preclude CRIMINAL prosecution, it does not prevent civil/tort liability; they are entirely different, within the law.
 
RWK said:
However, while self-defense may preclude CRIMINAL prosecution, it does not prevent civil/tort liability.
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Yes, there is that second hammer... responsibility for one's actions!
 
wow. Very surprising.... (MN)

609.065 Justifiable taking of life.

The intentional taking of the life of another is not authorized by section 609.06, except when necessary in resisting or preventing an offense which the actor reasonably believes exposes the actor or another to great bodily harm or death, or preventing the commission of a felony in the actor's place of abode.

*******

I found this very odd, as MN is a "flight not fight" state.
Threrefore, it seems case law would prevail over this law on the books.
Need to do some checking.

Might be a good relevant website to keep an eye on:
http://www.claytoncramer.com/gundefenseblog/blogger.html

After reading some of the articles...it seems the media decides not to report on the SUCCESSFUL USE OF SELF DEFENSE that happens everyday. There is an article on the website for almost everyday of the year! And sometimes multiple a day! Once again, we see that mainstream media (tv) is for the sheeple only.
 
The good news is: In 98.5% of situations where a CCW carrier draws and presents their weapon, the encounter ends with no shots being fired. So if a given person ever does have to draw and present, the chance that they will have to shoot their attacker is very slim indeed.

As a sidebar, what does that 98.5% figure mean? It means either thugs are cowards, are not stupid, or both! More good news!! :D
 
AS my CHL instructor said:


"When you fire a bullet it has your name on it"

what he was saying that when you decide to pull the trigger there are consequences.....
 
Doug,
How are you not negligent when you shoot me by mistake? When you shoot the wrong person, an innocent 3rd party, you become a poster child for negligene.

I am sorry, but if you do not better understand the law and responsibility pertaining to self defense issues in Texas, I sincerely hope that you are not carrying a gun.

How are you negligent? You don't have the right to shoot me as a byproduct of your well intentioned attempt at stopping a bad guy (not me) via your gunfire. Why could you not shoot better? Why could you not better choose your ammo? I personally do not care. All I know is that you violated my rights when you attacked me. I know, I know, you don't think you attacked me. You attacked the other guy but managed to shoot me in the process. Since I don't know the guy with the AR15 hosing down folks in the mall and since I don't know you, once you opened up and shot me is when I identified you as bad guy #2 and returned fire on your position and I will be 100% legally justified here in Texas as I was in fear of my life from you AFTER you shot me! From my perspective, you were acting in concert with the guy with the AR15 and were attempting to cover his 6 by shooting threats to him that were behind him, like me.

There is a reason for basic gun rules like knowing your target, backstop, and beyond. Your acting for the greater good and shooting me unintentionally doesn't hold water for your defense as specifically noted in part 9.05 of the Texas Penal Code.

If you were still alive, I would definitely be pursuing criminal negligence for your blunder of shooting me and filing a civil suit as well. You or your estate will most definitely lose the civil suit. If you are alive to face crimimal prosection and the DA takes the case, you will lose that as well as you will have zero justification for shooting me by accident.

Do you not realize who is responsible when a police sniper shoots a hostage by mistake? The sniper is acting for the greater good, but violates the rights of the hostage by shooting the hostage even though the sniper had no intention to shoot the hostage and only wished to shoot the bad guy. His well-intentioned errant shot makes the shooting negligent.

It is not the intent that determines negligence. Obviously if you intended to shoot me then you would be up for attempted murder or for murder, but you were trying to shoot a bad guy and blundered badly and shot me as a person not a threat to you (before you shot me, that is). That is what makes it negligence as you didn't intend to shoot me, and yet you did.

Your rights to self defense are valid so long as you do not deny my rights. You have no legal justification to deny my rights even when you are acting in self defense against a bad guy.

I, again, respectfully submit that your CHL class was lacking some manner, maybe by the fact that material was not presented in a manner that you understood. Go back and read the passage on 9.05 of the penal code. Your actions will be considered reckless if in acting in self defense that you end up shooting an innocent 3rd party. As such, you will have no legal 'self defense' protection for shooting that innocent 3rd party. You may be justified in your use of lethal force against the guy hosing down folks in the mall, but as an innocent 3rd party that you managed to shoot, you had no right to use lethal force on me.

It will most definitely suck to be you if you end up in that sort of situation. Actually, this goes for all of us. 3rd party injury is a self defense horror that will undoubtedly ruin the lives of those who act in good faith and yet manage to shoot an innocent 3rd party person. That is why it is so darned critical that people who carry guns know how to use them, when to use them, when not to use them, for legal reasons and in regard to the laws of physics. You can't, I can't, and most people here cannot afford shooting an innocent 3rd party during self defense.
 
In any armed robbery situation, I would feel justified in protecting myself. Shots fired or not, the presentation of a gun by the perp means he just declared open season.
 
Doug,

Double Naught and I (as well as some others) are attempting to provide sound advice, based on many decades of experience and a decent understanding of the law. I certainly understand that our thoughts go against your “moral grain”, and I appreciate the fundamental decency of your moral underpinnings.

However, the law is not about “your morality”. Rather, it is largely about holding individuals responsible for their actions. That is why intent and motivation does not generally apply, especially in civil/tort liability matters. If, for example, you are racing a badly injured person to the hospital from the scene of a vehicular accident and your car skids killing a pedestrian, the fact that you were at high speed to help someone is not going to preclude a civil liability judgment (and it may not prevent criminal sanctions for manslaughter, vehicular homicide, etc.). The obvious irony is you could receive the “Governor’s Good Citizen Medal” while serving some years in the penitentiary.

You may believe that illustration – as well as several firearms examples – is unfair and/or immoral. That is your right, but your perception of ethics and values is ONLY that: your view. It is NOT society’s general position, which is the foundation of the law.

I strongly endorse Double Nougat’s suggestion that you thoroughly understand both the essential precepts of firearms safety and the your potential civil and criminal liabilities before you even consider firing in self-defense.

I am not trying to preach or to be condescending. In fact, in my heart I appreciate your morality. However, that is not the law and – please believe us – you would be in profound criminal and civil legal problems if, for example, your “mall scenario” ever became reality.
 
On the original topic of this thread, my response to walking in on a robbery would depend on how the badguy was armed, and his apparant state of mind. If he had a firearm, I would shoot immediately to stop the threat. If he had a contact weapon and had a counter between him and the clerk and nobody in nearby vacinity, then I would draw and command him to leave (I'm not a cop, so I'm not going to detain anybody at gunpoint).

As for the question of criminal and civil liability for hitting the wrong person, it varies widely by jurisdiction. Some jurisdictions have felony murder statutes that place the sole responsability for deaths that result out of a commission of a felony on the person who committed the felony, regardless of whether they directly caused the deaths. There are also jurisdictions that offer protections from civil action based on conduct that was ruled justifiable. Currently there's no definitive federal caselaw that I'm aware of on the matter of liability for injuring a third person in self defense.

Anyways, the only sure fire way to not hit an inoccent third party is to not carry a gun at all. After all, even trained professionals miss a surprising number of times in gun fights.
 
Doublenaught Spy, RWK,

It's not really what the law says that I question, it's the fact that it says it that scares me. I maintain that these are frivilous charges (and I don't deny that they happen and are on the books, I understand that) based on subjective law and frivilous civil cases.

1) As I define negligence, it is a negative consequence of an action resulting from CARELESSNESS. The senario I describe is not carelessness, it is simply a matter of having to take the shot. In other words, the shot has to be taken, there is not choice, there is good and reasonable chance of taking him down at close range. It's either me (or you or other people in the area) or the mass murderer. He has to be stopped. This is a critical situation. There is no choice. In fact (and I don't know how much truth there is to this since the law these days is so subjective in case to case situations rather than objective), I have also been told that if I chose to run away and it was found out later that I had a gun I could be civily and maybe even criminally charged for NOT taking action. I had a gun and I could have stopped the guy, I didn't and a lot of people are dead.

Negligence, as I understand the defininition, would for example be the case I cited in pulling my .38 at 100 yards away from a woman being mugged and "spraying" the area with all six shots hoping to drive off the mugger or shoot him and accidentally hitting the woman. That is careless and foolish which is by definition negligence. That's just common sense.

2) What you two are describing the law to be saying (and excuse my language) is: that your "d--nd if you do and d--nd if you don't."

In other words, if I take the shot and accidently hit someone I get sued or jailtime, if I don't take the shot, me and a lot more people are dead or, (if this is currently accurate in the law) if I live, get sued because I had a gun and refused to use it.

3) Yes I do carry a gun. I do practice safety. These things do bother me. I try not to worry about the above described problems because self-defense like driving a car or going to work is just part of life (granted you will likely NEVER have to use your gun or even display it, but self defense (and of others) is a funamental right and responsibility.) I could worry about the same things in driving a car down the highway but I don't. I turn the keys in the ignition, walk down the street, carry a gun and leave the rest to Providence.

4) Well Double Naught Spy, I hope you don't carry a gun either for your own sake. In fact, I would hate to be a cop. If you think justice is served with the law written as it is then you, every LEO, and every CHLer out there is in the same boat as I am. Because there is ALWAYS the possiblity of accidentally hitting an innocent person in ANY gunfight no matter how good a shot you are or how good a chance you have of hitting the perpetraitor.

What this all should come down to is common sense. There ought to be some understanding in the law that you can't right ever wrong or problem.

A) The bad guy who started the gunfight should be held responsible for all pain and suffering that occurs both in criminal and civil cases. Not the police or gun owner that stopped him or the mall that "didn't have good enough security" or the "gun store that sold him the AR-15."

B) As far as negligence goes, as stated above, there is a differences between negligence and an unavoidable accident. In the law there should be some leeway for you to act reasonably and not be punished if it doesn't all turn out as it's supposed to. As far as civil cases go, it's not so much a law that's on the book it's a judge that just doesn't have any common sense to say to the attorney representing (and often finding) the client "this is an unreasonable case and has no place on my docket, now get out of my courtroom you bloodthirsty ambulance chaser."

Also, DoubleNaught Spy,
a final question to you: In your responses, you seem to bitter (in the senario not real life) towards me as the guy with the gun who took the AR15 guy down because my bullet happen to pass through and hit you. You seem to have a desire to get blood vengance on me (again in the senario not real life). Why are you not bitter towards the shooter who caused those shots from my gun to have to be fired. I didn't come into the mall to pass a bullet through some crazy loon into you (he did), I came there to have lunch and do some shopping. HE is the one that came there with intent to kill people and ruin their lives (including yours).

If the tables were turned and say I was hit by a police bullet from a 9mm that passed through a gunman into me. I would not blame the cop. He did what he had to do to save himself and a good many other people and may have saved my life (if I am paralyzed and not dead). If I am dead, my family, in mourning my passing, should feel the same way. The blame should be placed on the criminal.

Again, I am not debating what the law says so much as I am debating what it ought to do or rather not do or say.

If my "Mall senario" ever became a reality then I like to think I would just do what I had to. Take care not to hit anyone. Take the Bad Guy down if I can. And leave the results to Almighty God. Bottom line: carry my gun, practice common sense safety, and use it righteously and responsibly if I have to.
 
”If the tables were turned and say I was hit by a police bullet from a 9mm that passed through a gunman into me. I would not blame the cop. He did what he had to do to save himself and a good many other people and may have saved my life (if I am paralyzed and not dead). If I am dead, my family, in mourning my passing, should feel the same way. The blame should be placed on the criminal.”
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Doug,

I will be brief and, I trust, respectful and non-argumentative. I understand your concept and I am very glad you recognize that our exchange has been about what you believe the law should be, not what it – in fact – is. Referring to the aforecited quote – as an excellent synopsis of all that you have said throughout this thread – it is fine if you feel that way, obviously recognizing that others do not or cannot.

I would like to spend a moment on the “cannot” element of those who might disagree with your statement. Perhaps you are so wealthy that your death (in the quoted scenario) would not severely and adversely influence your family’s life-style and their future. If so, that’s wonderful; however, most people are not that affluent or that fortunate. For most individuals, the death of a family’s principal source of income has extremely unfavorable ramifications in both the short- and long-terms: mortgages are foreclosed, college plans are discarded, good medical care becomes unaffordable, retirement years turn into a nightmare instead of a blessing, and so forth.

Should innocent children have major, life-long objectives (such as higher education) compromised because of what you have repeated indicated is “an accident”? No one suggest the cop is evil or the felon is not the initiator of the tragedy, but the hard fact is the cop’s shot led to the family’s reasonable goals (again, like university educations) becoming an impossibility. Civil tort liability litigation is designed to address precisely this type of matter.

I can tell you are an ethical person. Would you want your son’s or your daughter’s whole future to be degraded because there was no legal redresses to resolve this sort of tragedy?
 
Progunner1957.....You state that.........

The good news is: In 98.5% of situations where a CCW carrier draws and presents their weapon, the encounter ends with no shots being fired. So if a given person ever does have to draw and present, the chance that they will have to shoot their attacker is very slim indeed.
Click to expand...

Can you please document the source of the statistics that you presented.
 
As for deadly physical force, if you can remember the word BARKERS, you won't go wrong. It is justified when a person commits:

B- Burglary
A- Arson
R- Rape
K- Kidnapping
E- Escape (In flight, not after the fact)
R- Robbery
S- Sodomy
 
MEDDAC19.....

What I am about to tell you only applies to New York. I don't know what other states say.

" If you have "reasonable cause to believe" that your life, or the life of another, is in imminent danger of serious physical injury or death, deadly physical force can be used.
 
when to pull out you gun

in minnesota if your in reasonable fear for your life, such as someone in your home that you do not know in the middle of the night and or has a weapon even a club , then you have reasonable cause to shoot however your suppose to make every effort not to shoot such as a warning shot and make a 911 call to the police , in any circumstance its best to try to give warning shot or call 911,its good for your defense if you would have to go to court over a good shooting.
 
zzrig,

Yeah, basically I was told, "Your back has to be against a wall with no way out". We must flight instead of fight. Utterly unbelievable. We must run from our own homes, probably to someone outside with a gun.
 
In defense of my family and myself, especially if someone has already broken into my home, day or night, warnings come last. I have an old saying that I live by, " I'd rather be tried by 12, then carried by 6".
 
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