Updated: Social media has been busy since Wednesday’s revelation by several news agencies around the country, including WXIN in Indianapolis, that a convicted Indiana burglar is now suing the homeowner who shot him just over two years ago.
This is not the first time such a lawsuit has been mounted. About four years ago in California, a burglar who was shot four times by a 90-year-old homeowner also filed a lawsuit. The good news in that case was that the burglar, described as a drug-addicted felon with prior offenses, pulled a life sentence for attempted murder because he shot the homeowner once and then tried to shoot him again with the homeowner’s empty gun.
The Indiana case involves a man identified as David A. Bailey, 31. Published reports say he pleaded guilty to “a related burglary charge last year,” but now is contending that he never entered the property of David McLaughlin, the homeowner who shot him.
According to a piece by Jonathan Turley that is a worthy read, “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.”
Making this case even stranger is that McLaughlin was convicted of criminal recklessness in September 2014. He was sentenced to 60 days in jail and four months of home detention, according to KTLA News.
“My client thinks it’s outrageous and I tend to agree. You don’t ordinarily expect someone to burglarize you and turn around and sue you for damages.”—Defense attorney Brian Pierce
This case could open a can of worms for lawmakers across the country if the public starts demanding changes in state laws to prevent such lawsuits. The argument in favor of such legislation would seem to be pretty straightforward: If a burglar was in a place where he should not have been he would not get shot.
Millions of law-abiding American citizens own firearms for home and personal defense. Do these citizens not have the right to protect their property from theft? One of the most popular decals ever marketed by the Second Amendment Foundation reads: “The owner of this property is armed and prepared to protect life, liberty and property from criminal attack. There is nothing inside worth risking your life for!”
McLaughlin’s attorney, Brian Pierce, is quoted in various stories observing, “My client thinks it’s outrageous and I tend to agree. You don’t ordinarily expect someone to burglarize you and turn around and sue you for damages.”
The attorney was quote by KTLA adding, “I think the claim is absurd. In Indiana, every homeowner has a right to defend their property and that may include using a firearm.”
According to the Muncie Star Press yesterday, the lawsuit contends that Bailey was in the alley behind McLaughlin’s home. McLaughlin allegedly “exited his residence and began firing his weapon into the air in response to a security alarm sound in his garage.” It was as Bailey was running down the alley that he was hit in the left arm, resulting in “serious and permanent damage.”
Many might argue that Bailey is lucky he didn’t suffer even more permanent damage. Being shot dead is rather permanent. Still, burglary is not a capitol offense, and Turley noted that Bailey’s lawsuit claims he “never entered the defendant’s garage for the purpose of stealing property.”
In his column, Turley wrote, “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.” The column provided statute language to explain this.
Apart from the reported history of this case, is it wise or acceptable to fire at someone who is apparently fleeing from the sound of an alarm, as Turley’s column discusses? Remember Vice President Joe Biden’s advice about firing a shotgun in the air to frighten burglars? At least one Washington man who used the “Biden defense” lost in court.
Several years ago, Colorado became infamous for its so-called “Make My Day” law. It’s also known as the “Castle Doctrine.” State laws vary considerably. Some states have a “duty to retreat.” Other states have “stand your ground” laws. Washington really has neither, instead relying on a string of court rulings that have held there is no “duty to retreat” if someone is attacked in a place he or she has a right to be.
If the question were put up to a public vote, which way would it go? Disregarding the merits of the Indiana case, should homeowners be immune from civil liability if they shoot burglars?
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