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