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 § 35-41-3-3Use 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
I forgot to add that the other aspect that negated Castle Law is that the suspect had fled the house. He was no longer inside and was moving away.
The mistake was firing at a fleeing man. You are not in danger of your life if his back was toward you.
That is why Castle Laws typically expressly forbid it.
I support Castle Doctrine Laws because the alternative means you have to hope that an intruder, who broke in knowing you were home, won’t hurt you. You have to wait until they make a move to react, which can be very difficult to do. If you raise your weapon and he flees, or surrenders, it’s a win for both parties. Such as when my father got a man to stop trying to break our door down by chambering a round. Got a nice apology too.
If someone breaks into your home at night when families are typically home, it is safe to assume they mean to do you harm. Women have almost no hope of defending themselves without a firearm. If they break into your garage one would assume they are just there for property.
Castle Doctrine did not provide a defense, so this case is inapplicable for those who oppose such laws.
Observant Duck: In the following scenario, are you arguing estoppel by conduct would preclude judgment against the homeowner because dude stole an apple from the tree?
Dude comes onto the property to get a drink of water from the garden hose, and he notices an apple on a tree on the property. He takes it, and as he’s taking it homeowner shoots him.
No homeowner liability for tortious assault/battery?
steve – rock salt is used for apple theft.
Issacbasonkavich ~> You must think guns have brains. It’s the criminals that are the threat, not the gun.
Don’t you understand that when you outlaw guns with law abiding citizens, that the bad guys will still have them and now the good law abiding citizens are unarmed sitting ducks.
Wow, this post is all over the place. Interesting discussion, but un-germane to the topic. The alleged burglar was FLEEING! No threat, thus “Castle Doctrine” and “Stand Your Ground” discussions are irrelevant. The penalty for burglary is not to be shot in the arm while fleeing the scene anyway, is it?
LawyerChuck – one of the hazards of being a burglar is being shot in the arm while escaping, I would call it assumption of risk.
Steve, thanks.
Much more clear to me now.
Perhaps a court in a pirate territory might entertain this civil suit for damages.
A thief is uncivil and is estopped from making a claim in civil court.
estoppel
n. a bar or impediment (obstruction) which precludes a person from asserting a fact or a right, or prevents one from denying a fact. Such a hindrance is due to a person’s actions, conduct, statements, admissions, failure to act, or judgment against the person in an identical legal case. Estoppel includes being barred by false representation or concealment (equitable estoppel), failure to take legal action until the other party is prejudiced by the delay (estoppel by laches), and a court ruling against the party on the same matter in a different case (collateral estoppel). (See: collateral estoppel, equitable estoppel, estop, laches)
Can I sue Bailey for breaking and entering, and then his frivolous filing of a civil suit against McLaughlin? Just reading this story causes me distress and anxiety that I will not be permitted to defend myself if someone attempts to steal from me. Bailey has caused reckless endangerment of my normal state of equanimity.
Estoppel by conduct. The burglar is estopped to sue and use the civil courts against the person whom he just tried to rob. Make this defense in a motion to dismiss.
Observant Duck writes, “Estoppel by conduct. The burglar is estopped to sue and use the civil courts against the person whom he just tried to rob. Make this defense in a motion to dismiss.”
I hadn’t thought of this. It would be a sensible outcome if this is the law.
Good point, Paul.
same with banks having armed guards.
What Dave137 said. A defense of property and person has to be reasonable. The law should not allow you to blow someone away just because you feel violated that they were in your home earlier but they are now in the street hightailing it away from your house at the time you shoot them. I get that it is very upsetting to have someone enter your home. And if there is a reasonable perception of danger by the homeowner at the time of the shooting, the fact that the burglar has left the home should not result in civil or criminal liability for the homeowner. But I’m not in favor of giving a pass to the homeowner where the use of the weapon is unreasonable.
This appears to be a case where the burglar may have a valid cause of action but is unlikely to recover much in the way of damages. Regardless of what the law says in theory, in real life the burglar is unlikely to recover anything meaningful. In fact, if the burglar gets more than $1 in damages, I may have to sue him for inflicting emotional distress on me as the result of me having to read about him winning damages against the homeowner.
Non coitus interruptis. Is that not the defense? The shooter was having sex with wife when the burglary occurred.
Regarding shooting the guy in the alley and not the backyard: do not buy property with an alley behind you or on the side. Make your backyard a minefield which you can turn on with a switch up at your hand held device you keep with you like a phone. If the burglar runs off the back porch across the yard he is done. The minefield can be spikes which will just shoot up threw the feet. He won’t repeat.
Paul, I chuckle @ self loathing Americans who think the US is the worst when it comes to violence. You should see how heavily armed the workers in armored trucks in Mexico and Colombia are. I have watched them operate in several cities. Firstly, there are usually 4 men. Before any money is taken out of the truck, 2 men exit quickly. They are heavily armed and do a professional survey of the area. They then signal the bag man and they escort him w/ guns ready. In the US, we have lightly armed, pot bellied, guys working trucks and they aren’t armed anything like our neighbors to the south.
Progressives are fond of saying we’re evolving to a better society. I believe we jumped he shark on that idea some time during the Johnson administration.
When I was in the Philippines in the 80’s I heard about a law where the bus drivers that take people from village to village would have the right to sue the passengers in the event the bus got into an accident and injured the driver. I don’t know if that law is real but the principle is interesting.The theory was the bus driver would never have been in a wreck had the passengers not wanted or needed the ride.
This homeowner would never have shot this man had he never triggered the homeowner’s alarm system. The inmates truly have taken over the asylum.
If the guy is running away, there’s no threat. If I turn a corner, in my house, and find someone I don’t know to be standing there, looking at me, in my house, he’s not leaving on his feet.
And for the boring partisans here, I’m far more liberal than conservative.
What Dave137 wrote, although he’s probably better at working hallways and corners than I am. I’ll be hiding in the closet with my select-fire Glock 17 with 50-round drum (just kidding) pointing toward the door.
What is that legal doctrine out there which bars claims made by bad people? No, not “The thing speaks for itself”. It begins with the latin word: res.
Nicely written, Steve.
Re: “If dude comes onto the property and only wants to steal the television in the playroom…
How exactly is it determined, what he “only wants”, at the time he is in your house and you are home?
“Was he leaving and the force used then became excessive or did the shooting occur prior to or during the assault?”
Sexual assault and I am supposed to know he’s leaving and presents no further threat exactly how?
Since there is almost no worse assault than sexual, as it can mess you up for decades thereafter, what is the ‘proportional’ response?
Shouldn’t “excessive” response” be expected for deterrence to be effective?
KC: Good questions. Disclaimer: none of this is legal advice.
“How exactly is it determined, what he ‘only wants’ at the time he is in your house and you are home?”
In California at least, there’s a legal presumption that if he’s broken in then he’s in the residence to do great bodily harm. So, common sense would dictate you shoot him, and make sure you kill him, or he may be able to argue persuasively he was there to steal the Renoir. (Not that I think it’s proper legal advice, I was actually advised to do that by San Diego PD at a handgun training course three decades ago.) Unfortunately, there are many instances where the breaking and entering is innocent, and if his girlfriend and his running buddies argue all he was there to do was steal the painting to make his Mercedes’ loan payment, you may face liability in civil court. That’s why I think the burden should be on him to prove by clear and convincing evidence, not just by a preponderance of the evidence, that he was there to do something other than great bodily harm. Such proof is hard to make when he’s dead. Contrary to Prof. Turley, I do believe in Castle Doctrine when it’s appropriately refined and not an absolute defense for shooting anyone who enters a residence, There are too many circumstances that should require the resident to think before shooting.
“’Was he leaving and the force used then became excessive or did the shooting occur prior to or during the assault?’”
The law’s pretty clear in most states (but don’t take my word for it – consult a lawyer who practices in your state) that if he’s leaving and you shoot him, you’re the aggressor because you’re not in danger of great bodily harm. This makes sense to me. What you’re having difficulty with is private “in the heat of passion” retribution, not self-defense, while dude’s on his way off the property which the law rightfully assigns to the judiciary to mete out. Think Rodney King being batoned into a sponge or Southern lynch mobs, and you’ll know why the aggressor may transition from intruder to homeowner and why the aggressor is usually liable.
“Sexual assault and I am supposed to know he’s leaving and presents no further threat exactly how?”
True enough, but that’s why you have to be very careful using deadly force and decide before triggering your finger when his aggression stops. That’s got to be the most important and at the same time most difficult decision. If after a burglary and sexual assault, he’s running out the front door when you shoot him, you’ll no doubt be in civil court, and you may just be anyway if you pull the trigger.
steve – if he is taking the Renoir, I am shooting, but shooting below the level of the painting. 😉 We can always fix the frame.
This is a good example of partisan politics in nutshell lawmaking. The social liberals say no property should be given the same value as human life. The social conservatives say, “That’s my property, and the dude deserved to die for trying to take it from me.”
The common law got it right: property is not worth a life. Let ’em have it, the property, that is, and not the lead. Life’s not fair, but death is?
If it is proven in a tort case that dude was on the property without invitation and a tort occurs, liability should be available, and comparative fault should be the measure of damages.
If, for instance, dude comes onto the property to get a drink of water from the garden hose, and he notices an apple on the tree, takes it, and as he’s taking it homeowner shoots him, then liability and a big-time damage award in dude’s favor because by his trespass and petty theft he was much less at fault than landowner who used lethal force to protect his property.
If dude comes onto the property and only wants to steal the television in the playroom, liability and comparative fault probably reduces damages because of the amount of force used. And, if by the same token, dude, on the way out, sees homeowner’s wife and thinks one slice out of the loaf won’t be noticed and decides to get his money’s worth, then zero damages his way and big-time damages in the cross-claim for assault and battery. emotional distress, etc., in favor of homeowner for shooting him depending on where he was when he was shot. Was he leaving and the force used then became excessive or did the shooting occur prior to or during the assault?
Another issue is a legal presumption. If dude enters the residence (not the stable, the lawnmower storage shed, or the root cellar), there should be a legal presumption shifting the burden of proof to him that he prove he was not in the house to harm anyone before a damage award is available, The standard of proof should be not by a “preponderance of the evidence,” i.e., the weight of the evidence tilts in dude’s favor, but by “clear and convincing evidence,” which is the civil-suit equivalent of criminal law’s proof beyond a reasonable doubt. (That’s where I part with California’s current homeowner’s bill of rights – the legal presumption here must be overcome by only a preponderance of the evidence. I think it should be higher.) We need to make clear to people entering residences that they do so at their own peril, even the Saturday night drunk who thinks the apartment is his but he is on the wrong floor when he breaks in having lost his keys at the sports bar.
People have a right to defend themselves with lethal force if harm is likely, but not their property.
IT IS SO ORDERED.
steve – according to you armored car drivers should not be armed and the trucks should not be armored, because it is only property they are taking. Are you really saying that?
Paul, interesting issue. I assume armored-car employees carry weapons for self defense only. Don’t they? You’ll have to research that one. There may be specific laws pertaining to that job description which permit use of deadly force to protect valuables. I don’t know. I don’t think there should be, by the way. Lethal force should be used only in self-defense or defense of others.
steve – I come from Montana. Cattle are more valuable than people. Rustlers are strung up on sight. First we hang them, then we give them a trial.