Indiana Burglar Sues Homeowner Who Shot Him

David Bailey There is an interesting case out of Indiana where a would-be burglar who was shot by an owner is suing over the wounding. David A. Bailey, 31, reportedly broke into the garage of David McLaughlin of Dunkirk, Ind., on April 21, 2014. McLaughlin, now 33, fired gunshots at the intruder as Bailey fled from his property — hitting him in the left arm.


The shooting was viewed as unjustified and McLaughlin was arrested. In September 2014, a Jay County Superior Court jury here found McLaughlin guilty of criminal recklessness in the shooting. he was sentenced McLaughlin to 60 days in jail and four months on home detention. Bailey received three years of home detention after pleading guilty to burglary.

He is now suing with he help of lawyers Jason Delk and Daniel Gibson of Muncie, Ind. They insist that, while he did plead guilty to a related burglary charge last year,” Bailey “had not entered (McLaughlin’s Dunkirk’s) garage” and “never entered the defendant’s garage for the purpose of stealing property.” The complaint states that he was in the alley behind McLaughlin’s home in this city of almost 2,500 residents when the alarm went off and McLaughlin “exited his residence and began firing his weapon into the air in response to a security alarm sound in his garage.” Despite Bailey fleeing, the complaint states that McLaughlin “continued to the public-right-of-way (and off his property) and continued firing his weapon down the dark alley.” Three shots were fired.

This falls into a long controversial area of torts. The common law does not allow the use of force calculated to cause serious bodily injury or death in protection of property. In famous cases like Bird v. Holbrook, 4 Bing. 628, 130 Eng. Rep. 911 (1825), courts have ruled that “[n]o man can do indirectly that which he is forbidden to do directly.” Not only are such devices viewed as immoral (because human life is more valuable than property), but dangerous because such devices cannot tell the difference between friend and foe. The case however also has been cited for the long-standing rule that no property is viewed as more valuable than a human life. That does not mean you cannot take steps to protect your property and a case of protection of property can become protection of self (with the right to use higher levels of force) when the suspect resists or attacks.

However, there are Castle Doctrine laws or Make My Day laws. I have been a long critic of Castle Doctrine laws. The title refers to the old adage that “a man’s home is his castle,” which is not a common law doctrine of criminal law or torts but rather an aspirational statement. The Castle Doctrine is a generally a reference to the modern trend of legislatively empowering homeowners to use lethal force solely on the basis of a home invasion.

Under the common law, there was not “fear of prosecution or civil action for acting in defense of themselves and others” so long as you acted in reasonable self-defense or even “reasonable mistaken self-defense.” In the case of Courvoisier v. Raymond, 23 Colo. 113 (1896), a man chased a group out of his home only to fire when a man approached him outside his home from the stone-throwing mob. It turned out to be a deputy sheriff but the court found that Courvoisier could rely on reasonable mistaken self-defense.

The common law has long offered ample protections even for reasonable mistakes. These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders. The laws have produced perverse results as in the infamous case of Tom Horn in Texas. Yet, the popularity of these laws have spawned “Make My Day Better” laws that extend the privilege of lethal force to businesses and cars. Montana’s law had been invoked in workplace shootings.

Indiana has a castle doctrine law but it is subject to greater restrictions when you are off your property. It allows you to “Stand Your Ground” but pursuit raises legal dangers as in this case:

Section 35-41-3-3
Ind. Code § 35-41-3-3

Use of force relating to arrest or escape

(a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person’s escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.
However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.
(b) A law enforcement officer is justified in using reasonable force if the officer reasonably believes that the force is necessary to effect a lawful arrest. However, an officer is justified in using deadly force only if the officer:
(1) has probable cause to believe that that deadly force is necessary:
(A) to prevent the commission of a forcible felony; or
(B) to effect an arrest of a person who the officer has probable cause to believe poses a threat of serious bodily
injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
(c) A law enforcement officer making an arrest under an invalid warrant is justified in using force as if the warrant was valid, unless the officer knows that the warrant is invalid.
(d) A law enforcement officer who has an arrested person in custody is justified in using the same force to prevent the escape of the arrested person from custody that the officer would be justified in using if the officer was arresting that person. However, an officer is justified in using deadly force only if the officer:
(1) has probable cause to believe that deadly force is necessary to prevent the escape from custody of a person who the officer has probable cause to believe poses a threat of serious bodily injury to the officer or a third person; and
(2) has given a warning, if feasible, to the person against whom the deadly force is to be used.
(e) A guard or other official in a penal facility or a law enforcement officer is justified in using reasonable force, including deadly force, if the officer has probable cause to believe that the force is necessary to prevent the escape of a person who is detained in the penal facility.
(f) Notwithstanding subsection (b), (d), or (e), a law enforcement officer who is a defendant in a criminal prosecution has the same right as a person who is not a law enforcement officer to assert self-defense under IC 35-41-3-2.
As added by Acts 1976, P.L.148, SEC.1. Amended by Acts 1977, P.L.340, SEC.9; Acts 1979, P.L.297, SEC.2; P.L.245-1993, SEC.1.

It was reckless to fire rounds into the dark in this way, but should there be civil liability by the burglar in such a case? This is the controversy in the famous case of Katko v. Briney, 183 N.W.2d 657 (Iowa 1971), where the defendant owned an unoccupied farmhouse left to him by his parents. It was repeatedly broken into despite no trespass signs and boards on the windows. Briney then wired the house with a snare gun and shot Katko. He was found liable. While this case also addresses the common law rule against man traps or snare guns, it was premised on the principle that that no property is worth more than a human life. The court held:

“The intentional infliction upon another of harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other’s intrusion upon the actor’s possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.”

One possibility is for McLaughlin to argue a type of assumption of the risk or plaintiffs’ conduct. However, the court may limit that defense if this response is prohibited by law, as indicated by the criminal conviction. Yet, if this is a jury decision, Bailey is likely to face a pretty hostile panel in seeking to recover for this injury even with an instruction on the prohibited use of firearms. Even given a force self-defense privilege defense, the jury may be willing to give him the benefit of any doubt.

What do you think? Should there be a bar on civil liability in this type of case?

Source: KENS5

77 thoughts on “Indiana Burglar Sues Homeowner Who Shot Him

  1. I think that the burglar got his just reward and nothing should be given him other than the lead slug he earned. The so called common law rule that no property is worth a life is absurd as it is stated. The FACT is that this rule is superseded by the LAW in Texas and other states. So I am getting tired of reading about the Horn case as being cited as something that goes outside the law. Horn did exactly as the LAW in Texas required, and went further since he gave the burglars a chance to surrender. Texas law would allow Horn to shoot them without any warning since they were absconding with the loot. Had the crooks dropped the loot, Horn WOULD have been legally in the wrong.It is also omitted in reports on this case that the two dead crooks were our hard working illegals. They were unfortunately working at criminal activities and they forgot that Texas is a whole different country than California. The case in New Orleans with the Japanese student is a FAR cry from what Horn did. Even in Texas, a person shooting a simple trespasser would have gone to trial as the homeowner did. He only got off with jury nullification since it was a Japanese student and the jury pool is home to the KKK.

    Then there was another shooting that was justified in Texas that disproves the idea that ALL liberals are opposed to guns or shooting crooks. A woman came home in Fort Worth at dusk and saw the lights on in her house where she lived by herself. She stayed in her car, and called 911. While waiting for the cops, she saw two burglars leaving by her front door with a lot of her stuff. She pulled out her legally concealed pistol, and shot and killed the first guy, shot the second who was able to still run off. A third dove out a side window, and she missed him with her shot. The cops later caught up with the pair at a local store trying to plug the hole in the second crook. The best part for me was a shot on TV of her OBAMA for President sign on her front lawn. I guess that those crooks thought that the homeowner would not be armed or shoot since she supported Obama. I also had an Obama sign out front, but I am like that woman too. I have guns and I will be happy to shoot any such crooks as well, thanks to our laws in Texas that allows us to winnow the crook gene pool.

    • randyjet – I know you like to throw crap at the wall and hope some sticks, but Baton Rouge, where the Japanese student was killed, is over 50% black. Considering a normal jury pool, chances are it would be about 50% black.
      The civil trial award the family $650,000 which they used for scholarships. Same jury base.

      Just can’t trust those Klansmen. They have been giving money to Hillary.

  2. Well if that would-be burglar was wearing a kinetic shield or bulletproof suit like we should all be wearing 100% of our lives due to the ever-popular presence of the lunatics/guns mix, there would be no bullet wound to the arm. I would have given them both maximum prison years for being so stupid and not wearing their shields, and would fully allow them both to sue the pants off of each other.

    • J – your chances of getting shot are predicated on where you live and how you live. Where I live is a low crime area and very low violent crime area. So low that a murder and an arson fire were big news. You are more likely to be run over by a drunk teenager than shot in my town. And the drunk teenagers are using designated drivers.

  3. KCFleming:

    Interesting point. If it were me, I would be on the phone with police, but I would not fire unless he tried to broach the inside of the house. I would not enter my garage because I would not know if he was armed. If he tried to get inside, I would assume he meant me harm. I have had a stalker before, and I have had my home broken into before. I was not seriously harmed through sheer dumb luck. And this was in a nice neighborhood. It was actually a cop whom I dated who bought me my first firearm. He said that in his experience, the cops are not in time to stop a violent crime from occurring. Once they’re in the house, they are going to do what they came there to do. It’s something to think about for those who are so vehemently set on disarming people, especially women. Not only can I defend me and mine, but I can take care of rattlers way too big for a shovel when they get in my backyard with my kid and my dogs. Those who are anti-2nd Amendment would have women be victimized. And since Liberals try to reduce prison sentences, emptying the prisons here in CA and increasing crime rates, they would increase those chances for victimization. Proper and lawful use of the 2nd Amendment is pro-woman, in my opinion, as it reduces victimization.

    I believe it varies from state to state whether attached garages are covered by Castle Laws. In TX, an attached garage is part of your castle, but a detached garage is not.

    I believe a really excellent deterrent to break-ins are those signs “this house protected by Smith and Wesson” or pick your manufacturer. I believe that most criminals have an instinct for self preservation. That’s why shooters choose soft targets. I would rather harden up those soft targets than expand their choice of the defenseless.

    randyjet – yes, I believe you that Democrats can be pro-2nd Amendment (many famous WWII snipers were from the South), although I’m not so sure how common it is among ultra left Liberals. I don’t think of you as ultra left, but more moderate. But you would know yourself better than I. Although I do think that you might be a tad biased against Texas. There really are not KKK behind every creosote bush.🙂

    And for gun owners in general, these cases are a good reminder to brush up on the self defense laws of your state. The NRA and many shooting ranges offer classes that specifically deal with compliance with the law. The law can change from time to time, so it pays to stay current.

  4. Karen, The jury I referred to was in Jefferson County, LA,that is Louisiana, NOT Los Angeles. That is the state where the GOP nominee for Guv was David Duke of the KKK. I used to live there too, so I know the area. At the time it happened, I thought of putting a sign on my lawn to warn trick or treaters that they risked being shot, more as a protest rather than a serious threat.

  5. Correction to my post about the Japanese student being shot in Jefferson county. The main point is that the shooting had NO basis in law, and the jury simply ignored it and acquitted the shooter with nullification by the jury. At least he had to go to trial, but we all lost with that miscarriage of justice.

  6. randyjet:

    I didn’t think you were referring to Los Angeles. I brought up CA as yet another example of where we’ve been burned by “well meaning” ultra Liberal policies. They’ve let criminals pour out of prisons and jails, with the predictable result that crime has skyrocketed. In one city auto theft went up 400%. This is why I’ve become embittered over ultra left wing Liberalism. It seems like every time they try to help, we all get severely burned. Seriously! Stop helping! I formed my opinion of less is more with government because of all the bungling.

    I am well acquainted with Louisiana. I don’t think I’ve ever had a bad meal in New Orleans. But they are a LOT more comfy with gators than I ever want to be. What the heck is that about, feeding baby gators like I feed ducks?

    Why did you say the jury pool was KKK? That’s a heck of an allegation. Do you have a breakdown of the race of jury members, and if they showed evidence of racism?

    I don’t think it’s fair to assume someone is racist because they are white and live in the South.

    • Karen – I told randyjet that Baton Rouge was over 50% black so the chances of the jury being all KKK members was very slim.

  7. It doesn’t surprise me that there are only a few “burglars OUGHT to be shot” types here, and a lot of folks arguing “lives are more important,” so shooting a burglar should be forbidden. That’s consistent with how the “civilized” world is more and more becoming an insane-asylum being run by the inmates. Burglars, armed robbers, and other violent criminals don’t think YOUR life is so important. All they care about is themselves, and most of them would blow away the common upstanding citizen if given the chance.

  8. IF you knew that the burglar was only ten years old and was only inside to steal some candy off the Xmas tree then it would be out of line to shoot the kid. But if you were home alone and some perp had broken in the garage which is attached to your house by virtue of a common wall and a single door with scant lock on it, and if the perp was merely going back to the alley to get his crow bar, and IF you shot him fearing he was coming in again, then you should get the Medal of Freedom from President Obama.

  9. If more burglars were killed in the act then there would be less burglaries, fewer armed robberies, fewer rapes, fewer murders.

    • Elmer, you get it. Get rid of the burglars (and armed robbers, and rapists, and . . . ) and there will quickly be less violent crimes committed. And Nick and Paul, I like your concepts.

  10. Earn residual cash weekly… It’s an awesome side work for anybody… Best thing about it is that you can do this job from your couch at home and earn 200-2000 bucks each week … Start todaay and have your first cash by the end of the week…

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  11. I still don’t know why we allow guns to the low IQ until the arrival of kinetic shields–the majority is trash out there, screw them like the poor. I still don’t know where the Jarts are at, really, I collect them because other people are too stupid to even keep them around. I still don’t understand why people put windows in their homes, but locks on their doors. I still don’t know why Paul S. would even think of arguing with me as I’m in the safest in the state according to FBI stats (therefore I’m best and know best), and yet there’s shots all around me. Fox hunters come out of nowhere into the yard and fire shotguns right where I walk and smoke and take pictures and have a game farm and play jarts and have cookouts and frequently. I still don’t know how city people can go a day without killing each other due to territoriality. I may just never know.

  12. “These laws are based on an urban legend that people are routinely prosecuted for defending their homes from intruders.”

    If someone breaks into my home or is threatening me from it’s environs,then I don’t want to be worrying about the legal consequences of protecting myself AND my property. It’s the invader who initiated the threat who deserves the blame for all that follows. In international law, the highest crime is one of illegal war of aggression because the act of starting an illegal war entails all the crimes that naturally follow. The same legal principle should hold here: if you invade someone’s home, then it’s the invader who is responsible for all that follows.

    I used to consider myself a liberal and a progressive, but the arguments made by liberals and progressives these days on issues such as this have made me a conservative.

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