You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an alternative browser.
You should upgrade or use an alternative browser.
Suing if shot as a bystander
- Thread starter Glenn E. Meyer
- Start date
Frank Ettin
Administrator
Suing if shoot as a bystander
What will satisfy the LEO's duty to act in a particular situation will be first decided by his employer and his department's policy (if applicable).
The duty to act is not identical to the duty to shoot.
Failing to shoot does not mean going on break or heading home.
What will satisfy the LEO's duty to act in a particular situation will be first decided by his employer and his department's policy (if applicable).
Spats McGee
Administrator
There's one other HUGE wrinkle that needs to be brought up. Even if the NY officers, or other police officers, were negligent in firing shots that struck bystanders, they may well be entitled to some form of immunity. I don't know about NY law, but under Arkansas law, municipalities and their officers are entitled to tort immunity, except to the extent that they have some kind of risk management or insurance coverage therefor.
Ark. Code Ann. 21-9-30121-9-301. Tort liability -- Immunity declared.
(a) It is declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, public charter schools, special improvement districts, and all other political subdivisions of the state and any of their boards, commissions, agencies, authorities, or other governing bodies shall be immune from liability and from suit for damages except to the extent that they may be covered by liability insurance.
(b) No tort action shall lie against any such political subdivision because of the acts of its agents and employees.
Frank Ettin
Administrator
Based on this report of a prior case in New York any statutory immunity might not be as broad as Arkansas'. I don't have time right now to do the research, but it's worth looking into.
Even if the NY officers, or other police officers, were negligent in firing shots that struck bystanders, they may well be entitled to some form of immunity.
And this is exactly what prompted my questions earlier...
Will a 'civilian' be accorded by law the same leeway if a person fires in a so called 'good shoot' self defence situation, if one or more of their bullets injure a bystander either directly, or indirectly?
How does one's job title entitle them to more protection under the law?
Fishing_Cabin
New member
Salmoneye said:How does one's job title entitle them to more protection under the law?
Its not job title, its the fact that law enforcement are acting on behalf of the government (be it city/county/state/fed), and within regulations set forth by policy or law, be it wrote out "do this" or by discipline "don't do this and be subject to 'X'." They are not acting as an individual specifically.
"Negligence" and "Reasonable" have always been the standards, and there is no way to write black and white rules to define either, especially when different standards can be applied to different people. If you are a police officer you will likely be judged to a higher standard because of your training, and a jury will be less forgiving of your mistakes. My CCW instructor said "I cannot give you permission to shoot under any circumstances. If you do shoot, you will have the legal burden of obtaining permission to shoot after the fact. Your first objective is to survive in order to obtain that permission." In most cases, and in most states, deadly force is one of those few issues in which you are presumed guilty until proven innocent. Many of the "castle laws" and "stand your ground" laws are about shifting the burden of proof upon the state and to restore a presumption of innocence until proven guilty.
Anybody can sue for anything. A jury will decide if you were negligent or if your actions were "reasonable" under the circumstances. Sometimes taking shots that injure or kill bystanders are more reasonable than not taking that shot. I always think of those who opposed arming pilots because "they might hit innocent passengers", and thought it foolsih that the risk was not weighed against that of bad guys taking down an entire plane. Anybody can be sued. The outcome will be decided by a jury based on the circumstances of that case as presented in the courtroom.
Anybody can sue for anything. A jury will decide if you were negligent or if your actions were "reasonable" under the circumstances. Sometimes taking shots that injure or kill bystanders are more reasonable than not taking that shot. I always think of those who opposed arming pilots because "they might hit innocent passengers", and thought it foolsih that the risk was not weighed against that of bad guys taking down an entire plane. Anybody can be sued. The outcome will be decided by a jury based on the circumstances of that case as presented in the courtroom.
Frank Ettin
Administrator
And some quick research suggests that the Arkansas immunity law cited by Spats McGee is uncommonly broad. For example, the government immunity law in Illinois (745 ILCS 10) is lengthy and described narrowly and in detail where immunity applies; and appears to leave open suits of ordinary negligence in most cases.Salmoneye said:Even if the NY officers, or other police officers, were negligent in firing shots that struck bystanders, they may well be entitled to some form of immunity.
And this is exactly what prompted my questions earlier...
Will a 'civilian' be accorded by law the same leeway if a person fires in a so called 'good shoot' self defence situation, if one or more of their bullets injure a bystander either directly, or indirectly?
Spats McGee
Administrator
Frank,
I haven't had time to research the issue of immunity across state statutes, but my hunch is that you are right in calling Arkansas' tort immunity statute "uncommonly broad." We're finally getting some help in our office, so I might be able to scrape some time together to take a look at NY and see what its statutes say.
I haven't had time to research the issue of immunity across state statutes, but my hunch is that you are right in calling Arkansas' tort immunity statute "uncommonly broad." We're finally getting some help in our office, so I might be able to scrape some time together to take a look at NY and see what its statutes say.
Bingo.Fishing_Cabin said:Salmoneye said:How does one's job title entitle them to more protection under the law?
Its not job title, its the fact that law enforcement are acting on behalf of the government (be it city/county/state/fed), . . . .
aarondhgraham
New member
Wouldn't the liability be the same as for car chases?
When my mother-in-law's car was hit by a cop car,,,
Who was in active pursuit of a fleeing car,,,
The town of Paradise, California said,,,
"We have no responsibility to her".
The courts backed the town,,,
My M-I-L got nothing.
This isn't right,,,
But it's the way it is.
My question is,,,
Are the same laws in play here?
Aarond
.
When my mother-in-law's car was hit by a cop car,,,
Who was in active pursuit of a fleeing car,,,
The town of Paradise, California said,,,
"We have no responsibility to her".
The courts backed the town,,,
My M-I-L got nothing.
This isn't right,,,
But it's the way it is.
My question is,,,
Are the same laws in play here?
Aarond
.
NJgunowner
New member
If bystanders were only hit with ricochets and fragments they are innocent and will be proven as such in court.
There, problem solved.
There, problem solved.
Spats McGee
Administrator
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.aarondhgraham said:My question is,,,
Are the same laws in play here?
Make sense?
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.
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.
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
Administrator
It's not that it's an antiquated notion. It is, in some ways, a basis for the rules.Salmoneye said:....Its not job title, its the fact that law enforcement are acting on behalf of the government (be it city/county/state/fed),
I guess I am still suffering under an antiquated notion that We are the government...
If an LEO/agency is found liable, we, as the taxpayers, wind up paying.
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.
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
Administrator
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:Salmoneye said: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...
- Federal government: sovereign immunity
- State government: sovereign immunity
- Judge: Judicial immunity
- Municipal police: qualified immunity
- Prosecutors: prosecutorial immunity
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
New member
Hello Spats,,,
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
.
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
.
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...