When in a Crowd

[Excaliber]

Playing devils advocate ......

In the midst of an active shooter situation where folks are being shot randomly and at a high rate which is worse......
You hitting an innocent accidentally but taking down the shooter or not taking the shot and allowing the carnage to continue?

Also playing devil's advocate, if you take the shot, miss and paralyze the president of the local chapter of Everytown for Gun Safety, you lose your guns, your home, and your freedom and play "what if I hadn't....." for the rest of your life.

If you allow the carnage to continue and you escape, you don't lose your guns, your home or your freedom, and play "what if I had...." for the rest of your life.

Real world. Tough choices.

OK, playing devil's devil's...devil's... (devil's-squared? cubed? ) advocate: Many cite conviction as a given for a missed shot. At least under sec 9.05, you have to be proved "reckless".

PC Sec 6.03:

(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Based on recent history and the general "atmosphere" of Texas, I don't think this would be a slam dunk to prove in Texas. Of course the long chorus of replies saying any missed shot is inherently reckless certainly will help the prosecution's case as to proving "standard of care".

It will help your case that if you miss with one of the shots, at least get the scumbag(s) with another one. At least in that case the prosecutor is going to have to try to convince the jury that it was better not take a shot and let Jihadi Bill or Psycho Phil expend the rest of his ammo on the crowd. (Would help to testify that you know about every actual mass killing/terrorist attack in the last 20 years, I think).

It is not a slam dunk that this argument will work either, but would be tough to read through one of these http://www.latimes.com/local/lanow/la-m ... story.html, know you had a doable if not guaranteed shot.

Neither conviction nor acquittal is ever a certainty before a jury verdict is announced.

However, the above post addresses only the criminal aspect. There is no civil immunity for such a situation, and the preponderance of evidence standard is virtually guaranteed to find you in the wrong if an innocent was shot. In that case, you don't lose your freedom, but you won't enjoy much freedom with what little of your assets and reputation you will have left.

[ELB]

... There is no civil immunity for such a situation, ...

Being devilish again:

CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 83. USE OF FORCE OR DEADLY FORCE

Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

Civil Immunity applies to justified use of deadly force, and it doesn't seem to restrict only the bad guy, the guy you intended to shoot, from suing you (which is what most people think about).

The immunity turns on whether one's use of force is justified. So the key is to convince the judge that the errant shot was still part of a justified use of force. This is another reason it would help, if you do hit a bystander, to also at least hit the "bad guy." Your opponents would no doubt argue that the two shots that hit the bad guy were the only ones justified, and the one that went past his head and hit Mary Sue was not, but I think a good argument can be made that a short string of fire can't be separated into good and bad shots, especially in a mass-shooting situation.

I do think it would turn heavily on the facts of the case. For example, in San Bernadino-like event in Texas, if you are on scene where Mr. & Mrs. Jihadi are busy killing several people and you shoot them both down with several rounds from your Glock, of which one or two rounds hit another person, I think it's going to be a big stretch for either a prosecutor or a civil attorney to argue that you were reckless, especially given the history of both terrorist-inspired and psycho-inspired mass shootings. (Of course doesn't mean one won't try).

Now, if you are in the back of 7-11, spot a run-of-the-mill robber at the cash register, and you hit the clerk instead of the robber...that's at the other end of the spectrum, and it's going to be much harder to argue your actions were reasonable self-defense or defense of third person.

[Excaliber]

... There is no civil immunity for such a situation, ...

Being devilish again:

CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
CHAPTER 83. USE OF FORCE OR DEADLY FORCE

Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

Civil Immunity applies to justified use of deadly force, and it doesn't seem to restrict only the bad guy, the guy you intended to shoot, from suing you (which is what most people think about).

The immunity turns on whether one's use of force is justified. So the key is to convince the judge that the errant shot was still part of a justified use of force. This is another reason it would help, if you do hit a bystander, to also at least hit the "bad guy." Your opponents would no doubt argue that the two shots that hit the bad guy were the only ones justified, and the one that went past his head and hit Mary Sue was not, but I think a good argument can be made that a short string of fire can't be separated into good and bad shots, especially in a mass-shooting situation.

I do think it would turn heavily on the facts of the case. For example, in San Bernadino-like event in Texas, if you are on scene where Mr. & Mrs. Jihadi are busy killing several people and you shoot them both down with several rounds from your Glock, of which one or two rounds hit another person, I think it's going to be a big stretch for either a prosecutor or a civil attorney to argue that you were reckless, especially given the history of both terrorist-inspired and psycho-inspired mass shootings. (Of course doesn't mean one won't try).

Now, if you are in the back of 7-11, spot a run-of-the-mill robber at the cash register, and you hit the clerk instead of the robber...that's at the other end of the spectrum, and it's going to be much harder to argue your actions were reasonable self-defense or defense of third person.

Being more devilish:

The force used against the BG is justified.

The force used against Mary Sue is not justified under Chapter 9, and thus immunity from civil liability does not apply.

Section 9.05 would almost certainly also be brought into play:

Sec. 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

You can argue about whether hitting Mary Sue was reckless or not, but I wouldn't count on winning that argument.

You're still responsible for where every round comes to rest, even if your intentions were good in a really bad situation.