Would the armed citizen likely face criminal charges for the collateral damage, and/or incur civil liability for that stray bullet?

Even with no criminal prosecution of a citizen for a self-defense shooting, that would not preclude a civil action against the citizen by a purportedly innocent bystander. Given the understandable focus on potential criminal prosecution and the citizen’s loss of freedom, the issue of civil liability is sometimes overlooked. In a civil case, the party bringing the suit (the plaintiff) will focus on attempting to recover monetary damages from the citizen who used deadly force in self-defense.

Although I understand some states have varying forms of self-defense immunity statutes that provide a defined process within the criminal procedure context that might entitle the citizen to immunity from criminal prosecution and from civil liability, Indiana has no such statute that would be characterized as a self-defense immunity statute. Indiana Code 35-41-3-2, entitled “Use of Force to Protect Person or Property,” would apply. The Indiana statute is replete with the use of the term “reasonable force” and “what the person reasonably believes.” The statute states specifically that “[n]o person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.”

Hence, although there are few cases analyzing our statute from the perspective of civil liability, it would seem safe to conclude that for a plaintiff to prevail in a civil case, they would have to prove that the person acting in self-defense did not act reasonably. Unlike a criminal case requiring proof beyond a reasonable doubt, the plaintiff would simply have to prove, by a preponderance of evidence, that the armed citizen did not act reasonably.

Case law interpreting the Indiana statute seems to contemplate that a person acting in self-defense, as described in the hypothetical, should not be placed in any sort of legal jeopardy, to include payment of civil damages, if the citizen was protecting himself or another innocent person by reasonable means from an immediate threat of death or grave bodily harm. Obviously, what is reasonable and what is not reasonable is subject to a great deal of interpretation, and the question would likely be answered by a jury.

Ultimately, although the burden of proof would be on the plaintiff, it would be helpful for the citizen to be able to articulate why he acted as he did under the circumstances to assist a potential jury in concluding that his actions were reasonable and proportional to the threat presented to him and that he acted as a reasonably prudent person would act in a similar situation. In addition to a MAG 40 class taught by Massad Ayoob, an ACLDN membership and the DVDs provided to Network members furnish a wealth of educational information that may help one articulate why your actions were reasonable and prudent.

Originally published at https://armedcitizensnetwork.org/en/august-2017-attorney-question