Yesterday, I blogged about the silent alarm case: A store was being robbed. The safe was set up to trigger a silent alarm to the police station when it was opened (supposedly contrary to company policy). The police came. There was a shootout with the criminals, in which a patron died. The patron's family sued the store for negligence, on the theory that the store shouldn't have risked patrons' lives by triggering the silent alarm. The trial court granted the store summary judgment. The appellate court reversed the grant of summary judgment, holding that it was for the jury to decide whether silently calling the police was negligent.
Some readers agreed with the appellate decision, and thus presumably thought that a reasonable jury might find such conduct negligent, even if other reasonable juries might reach the opposite conclusion. (If no reasonable jury could find such conduct negligent, or if the store lacked any duty to try to prevent injury caused by a police reaction, then the trial court was right to deny summary judgment.) I thought I'd test this broad view of negligence law with the following questions:
(1) Let's say that a store owner is being shaken down by the mafia. Instead of giving in, he calls the FBI. Foreseeably, the mafia learns of this, and, equally foreseeably, decides to retaliate by shooting the store owner. They miss, but hit a patron. The patron's family sues, claiming that the store owner took "action which served to increase the hazard" of mafia attack "and which in fact caused the injury."
(2) Let's say that a store owner sees a gang crime taking place outside the store. Instead of ignoring it, he calls 911. The same chain of events happens.
Would you also conclude that a reasonable jury could hold the store owner liable in such cases as well?
Or would you think that, as a matter of law, there should be no liability for calling the police to alert them to the crime (especially if one calls them without at the same time broadcasting the fact to the criminals, though realizing that the criminals might learn of the call, or might get into a gunfight with the police)?
Or do you think that there's a legally significant differences between my two hypotheticals and the silent alarm case? (I agree that there are factual differences, for instance related to whether the call happens while the criminals are there or after they leave but when it's foreseeable that they'll return with violence; but I don't see why those differences should be relevant to the legal analysis.)
UPDATE: I notice that some commenters are trying to distinguish the cases on foreseeability grounds, but I don't think that works. Just as it's foreseeable — though far from certain — that silently calling the police when a robbery is in progress will lead to a shootout in which a patron can get killed, it's foreseeable that calling the police about mafia or gang activity will lead to retaliation in which a patron can get killed. (Sure, it could lead to retaliation when the store is closed, or against the store owner when he's not at the store; but so a silent alarm could lead to no shootout, or a shootout when the robbers have gotten a few blocks away from the store.) And if you're not persuaded that this is usually so, just assume the quite plausible scenario in which this is indeed foreseeable, because similar criminals have made a habit of retaliating that way in the recent past.
Nor do I think that there's a legally significant distinction — of the sort that would make a difference between granting summary judgment and denying summary judgment — between the risk of a shootout right away and a risk of a shooting some time later, assuming that the later shooting is indeed foreseeable. Why would it be potentially negligent to risk today's batch of customers but not to risk next week's batch of customers? If anything, the silent alarm scenario at least involved some possibility that calling the police would diminish the risk to today's customers, perhaps more than it would increase the risk (though I doubt there's any reliable way of estimating and comparing these two effects). My hypotheticals, at least as I have cast them, only increase the risk to customers.
When the 911 call comes in from the shopkeeper, the police decide how to act. As numerous cases have established, the cops don't have to do anything in response to being alerted to a crime. If the police do nothing, the outcome is the same as if the shopkeeper had never called the police. If the police do respond in some way, they're doing so because they judge that the action they take - whatever it is - is safer to the innocent parties than all alternatives. If they are wrong, that is an error in their judgment. Thus, the decision of the police to respond to the call is a superseding cause of any harm that results from the shopkeeper's call.
The second case is more difficult regarding applying the same standard. The question might include whether the police were called during the crime or after its completion. If the latter, the same logic would apply. Even if during the crime, I think it woudl be reasonable for the court to rule that the event hadn't sufficiently unfolded at that time to place the patrons at risk.
I disagree with Kelly, but it is still a step to go from there to these scenarios.
I don't know if I'm ready to put myself in the group of people who think the appellate court made the right decision, but I do see legal distinctions. In each of your cases there is no patron in the store at the time of the call to the police (indeed there's no way of knowing whether the "foreseeable" shootout will occure when the store's open at all). Contrast that with the case here where the point of an alarm is to bring the police NOW...arguably endangering the folks who are also within the store NOW.
It is common among people to look back at time and think, if I did X differently Y would have turned out "better."
This is a HUGE falacy. Us attorney folk do it all the time in trial. If I had argued point X more I would have gotten the result I was seeking, if I pointed this out to the judge I would have won.
The problem is there is no way to know, and to consider such possibilities open up a can of worms, would have that great argument opened all sorts of questions in the jury's mind making your 8-4 Hang a Not Guilty or vice versa? Who knows. You can't. And yet we engage in this time bias all the time. In the example cited, it is just as possible that no silent alarm allows robbers to take all the patrons hostage and execute them to eliminate witnesses, but we don't know that that would have been the outcome because we don't know what would have happened.
We Assume that the choices we made could have been better, very very rarely do we realize that our choices could have been FAR FAR Worse.
Ecclesiastes 7:10 - Do not say "Why is is that the former days were better than these?" For it is not from wisdom that you ask about this.
The idjits on that appellate bench should be fired for gross incompetence.
Is that a categorical statement?
If during a robbery, I yell, "I'm gonna call the police" and run out of the building towards a public pay phone across the way, is that possibly negligent? How abut if I pull out my cell and dial 911 within earshot of the robbers? Suppose the robbers shoot at me (an employee), miss and hit a patron?
I would agree that calling the police in itself should not be the basis of a negligence claim. However, there could still be questions as to the manner in which the police were called. While I disagree with Kelly v. Kroger, I think it is quite possible to go too far the other way too.
Indeed. If you call the police, you're negligent. If you don't call the police, you're negligent. How do you decide whether to call or not?
EV: In light of the long historic trend in tort law of the downplaying/discouraging/banning-through-adverse-decision of "self-help," it cannot be maintained that calling the police can be negligence. One is practically required to so, and practically prohibited from not doing so.
I would agree that there should be no liability on the part of the person who alerted the police (just as we have Good Samaritan statutes) as a matter of public policy. On the other hand, the criminals should be held strictly liable for any injuries or other damages that resulted even if caused by the police or other rescuers.
My efforts to distinguish the cases came from your excerpt in Kelly, namely:
To me this suggests that mere potential dangers in the indefinite future would not be subject to the same standard, and that there is an element of immediate and specific danger present in Kelly which is not present in your hypotheticals. The fact that there might be retaliation at some point in the indefinite future seems to be outside the scope of the Kelly ruling. I don't know how the standard would be different, but Kelly suggests a different reasoning and perhaps weighing of interests would apply. I don't know how they would apply though.
This being said, in many ways, the Kelly decision strikes me as EVEN MORE unreasonable than either of your hypotheticals. In Kelly, the store manager basically did EXACTLY what the robbers told him to do at gunpoint, and in the process the alarm was triggered. IMO, such cooperation should NEVER be the basis of a negligence claim. In your examples, however, affirmative steps were taken on the part of the employee or owner to interfere with criminals' enterprises. Depending on specific facts alleged, it might be reasonable for a jury to consider the manner in which the police were notified and such. I would however be uncomfortable with the idea that jurors should consider IF notification to the police was unreasonable.
I assume the answer's "no" but I'm not sure it should be.
Certainly not on the basis of whether or not you'll be found negligent.
Of course there should be no liability for summoning the police to a crime in progress. Whatever duty a shop owner may owe to his customers, he also has a right to protect his own property and livelihood. That a customer-bystander got hurt in the shootout is tragic, but the responsibility for that lies with the robbers, not the shop owner.
I would hold that Kelly was wrongly decided because the public policy that it impliedly called for was not to do anything, even silently, to alert the police while a robbery was taking place. In both examples given by EV, the question is whether you want the public policy to be against calling the FBI or 911. That would be the consequence of a decision not to grant summary judgment to the defendant.
Would this take cases away from juries? Most certainly. But what is more important, giving free reign to a jury to decide public policy or having a sensible public policy?
Question for EV: If we were the students in your torts class, how would you rate us?
Idiotic court decisions such as this one can be explained by the fact that there is a plaintiff with serious injuries (or as here, a death), and somebody nearby with a big pot of insurance money. Courts basically have gotten out of the gate-keeping business--as long as some jury feels like redistributing a little wealth, the courts will not stand in the way.
We have reached a point in our world were we have rationalized allowing crime to happen on the grounds that to do something to end it would only escalate the violence. Even to have the perpetrator taken at a safe location could prompt a retaliatory attack by the perpetrators friends (such as in street gang).
Thus, we are now subjected to the possibility that we can be charged for not reporting a crime, sued for reporting the crime if there was a possibility of the situation escalating, sued if anyone is injured (including the criminal as in English law) for reporting the first crime and then causing a further confrontation, and then possibly being injured or killed in retaliation by the friends of the first criminal.
And just imagine what things will be like if the family of the witness can be held accountable for the consequences of the witness calling the Police. Think about it, if the street gang kills anyone else during the retaliation hit against the witness, the remaining family gets sued.
Or, since federal statute requires notification to the FBI "as soon as possible," does the statute leave enough discretion in the individual that he could be found liable based on being negligent in deciding that "during the course of the robbery" was "as soon as possible"?
I agree that it's a horrendous idea to allow liability against somebody for harm done by a criminal as a result of calling the police, in any circumstances. As another commenter noted, it is impossible to know what would have happened if another course had been taken. Presumably, if the silent alarm had NOT been sounded, and the criminal killed somebody anyway, then NOT sounding the alarm would have been the claimed act of negligence.
1) the law is wrong and needs to be fixed immediately to eliminate this possibility
2) the judge is wrong.
"The tree of liberty must be refreshed from time to time with the bills of plaintiffs" -not Thomas Jefferson
Has anyone considered that there can be no "reasonable man" to gauge negligence under these types of situations?
So suppose a family member went into a fast food joint and ordered a meal. As he was about to leave, one of the staff told him, "We are being robbed and they cut our phone lines. After you leave, call the police." The robbers hear this and shoot him dead.
Any negligence involved by the business?
I am saying that under SOME identifiable circumstances, it might be reasonable to hold some attempts to contact the police negligent on their facts. Is this inconsistent with what you re saying? Of is any attempt to contact the police, no matter the facts, to be excluded?
The only reason for allowing such suits in any circumstances is to find a deep pocket. Period.
That's the way I look at it. It is, or should be, public policy that crime should be fought. Criminals are the common enemy. There is a moral if not an enforceable legal duty to fight crime.
Mike S.:
What about the argument that, by calling the police, the citizen is acting as a member of the Militia, and performing one of the Militia's traditional roles, and is thus an immunized government agent.
If it were in my power (and thank God it is not) I would perpetually deny the plaintiff the protection of the police. Poetic justice and all that.
Bill Sommerfeld:
Barring malice toward the victim, any attempt to call the police should be considered a citizen's duty against the common enemy.
That sounds pretty implausible to me, and doesn't involve anyone actually calling the police anyway.
I tend to agree that public policy suggests that calling the police should not create a risk of liability. Do we want to discourage a passerby who sees something odd going through the store window from calling? I guess you can create wild scenarios where someone acts really stupid, but it's hard.
Also, there seems to be an implicit assumption that no one would have been shot had the police not been called. How do we know that? Employees and patrons do sometimes get shot in these robberies.
Noerr-Pennington doctrine in antitrust cases, that cuts off any liability for trying to contact the police to get them to enforce the law. Noerr-Pennington is rooted in a First Amendment right to petition government officials in an effort to influence "the passage or enforcement of laws." By calling the police, a store owner is requesting enforcement of the laws. A similar doctrine could/should be developed with respect to attempts to contact law enforcement personnel.
I have not heard anyone give an example where I thought the victim should be held liable for attempting to get help from the police. As PatHMV says, robberies in progress are inherently unpredictable situations. Calling the police to report a crime should be a protected activity. (Unless it is a false report, of course....)
How about this: Before September 10, 2001 U.S. airlines’ standard policy for a hijacking was “If he wants the plane, give him the plane. Otherwise someone might get hurt.”
Since September 12, 2001 the unofficial passenger/crew policy is, “If anyone hints he’s trying to take over an airliner, stomp him into the carpet.”
The legal system does respond to public perception. I would suggest that liability in your cases might easily be affected by recent events known to the jury pool, for instance witnesses being executed during a robbery, bystanders being killed by mafia, or street gangs killing inoffensive innocents.
Check out the citation in this comment.
In the hypotheticals, this was not the case.
Another possible distinction is that a silent alarm conveys little information that could be helpful to the responding agencies in determining how to deal with the situation. In the hypotheticals, calling the police (say via 911) seems to allow at least some interaction between the reporter and the law enforcement agency which gives police more information about how to approach a given situation safely.
(In some distant way, this line of reasoning parallels the difference between defending your home with a shotgun held and controlled by yourself vs. rigging up a shotgun to shoot anyone who opens the door without disarming the trigger via some sequence of actions.)
That said, I would hope that no "reasonable jury might find such conduct negligent". Sadly, my experience with jury duty and fellow jurors (who, I would have to assume, in general are mostly "reasonable" by definition - else they would be booted from the jury) leaves this view a hope rather than an expectation.
< /notalawyerorlawstudent>
A much more common situation where a robbery is expected, is to use a manually triggered silent alarm. You push the secret button while cooperating with the perp. This also provides no information to the police, other than the allegation that a robbery is in progress.
I can't imagine ever having the leisure to call the police personally, unless I was locked in the back room. Even then, I'd be recovering a weapon, conducting an estimate of the situation, and preparing to go rat hunting.
Patron's family wins large judgment from Store Owner. Lawyers take large sum from that.
Store Owner now sues Auto Shop Owner and Beauty Salon Owner for submitting to the mafia and paying them off without calling the cops. It is highly predictable that paying off the mafia will lead to the criminal syndicate being emboldened and funded sufficiently to use lethal force against those who do not comply. Auto Shop Owner and Beauty Salon owner were early contributors to the mafia, before they were sufficiently powerful to have a reasonable chance of success in their assassination attempts (as evidenced by their still-poor quality of assassins).
Lawyers take large sums from judgment.
You can do the same basic runthrough in Scenario 2, though the pockets may not be as deep.
In the end, this leads to more money for lawyers, which is surely a proper outcome. No citizens will face liability as long as their actions do not lead to the highly foreseeable result that something bad happens.
Citizens should therefore stay alert and recognize the potential benefits and harms causable by any criminal actor or organization, and act to maximize goodness both in the short- and long-term. Our new, alert citizenry will only call law enforcement when the end result will be better than not calling law enforcement.
--JRM, and yeah, I'm appalled by the idea of civil liability for calling the police on violent people.
Not totally implausible after all, I guess.
That increases the chance of the store clerks to be caught triggering the alarm, which would make violent retribution from the robbers quite likely. I'd prefer automatic ones unless they cause too many false alarms.
Upon the robbers departing the store owner calls the cops. In the process of the investigation the victims (clients) discover that the store owner had disabled the silent alarms.
Can you imagine if the robbers decided to kidnap a client and had all the time to accomplish that act? Imagine the jury response.
I propose that the lack of an alarm system is negligence.
Too true. American tort law is a complete and total disaster.
No argument, there. The best system is probably a mix of the two. One common technique is to "trap" the last bill in one of the cash slots. If the bill is withdrawn, it closes an alarm switch.
It's all a crapshoot.
Accidents like these happen when there is no respect for the law and little consequence. Heavy tort reform and fewer lawyers are the answer.
I was summer clerking for a local atty. Guy tried to rob tavern, owner (intoxicated) refused to hand over money, robber opened fire and killed him and several patrons. I advised odds of a court holding that there is a duty to give in to a criminal demand was about zero, but attorney took it up, and lost. Court ruled no duty to give in to a criminal demand, even if a the person was a landowner with some manner of duty to customers (I forget the details).
I also suggested a wild-arsed suit against the state board of pardons and paroles, which actually won on appeal (Grimm v. AZ Bd of Pardons and Paroles, something like that). Found they'd paroled a guy under unbelievable conditions, was serving time for attempted murder, five psychiatrists had testified he was extremely dangerous and at least one said it was a wonder he hadn't already killed someone, etc., etc..
I'm not so sure this hypothetical isn't already covered by Noerr-Pennington. The Supreme Court has explicitly applied the Noerr-Pennington Doctrine outside of the antitrust context in Bill Johnson's Restaurant v. NRLB and BE&K v. NRLB. Other courts, such as in White v. Lee, have specifically noted that the Noerr-Pennington Doctrine is applicable generally because of its First Amendment underpinnings.
In fact, the question of whether a call to the police is protected under the First Amendment's protection of the right to petition the government for redress of grievences was specifically considered in Venetian v. NLRB. In Venetian, the Court of Appeals for the D.C. Circuit remanded for consideration of whether summoning the police was protected petitioning activity - after dismissing claims of Noerr-Pennington privilege for two other activities. This suggests that legitimate "non-sham" summoning of the police is petitioning conduct protected under the First Amendment and Noerr-Pennington.
The upshot of this is that an attempt to base liability on the act of summoning the police is barred by the first amendment, just as basing liability on filing a lawsuit is similarly barred, based on the right to petition. Thus, regardless of whether a judge or jury may weigh negligence for or against a store owner for summoning the police in the face of a robbery, the First Amendment should serve to block the question of liability from being submitted to the trier of fact in the first instance (assuming of course that the petition - summoning the police - is "non-sham" petitioning).
It seems to me that in any case where the police are shielded from liability, it is completely wrong to hold a store owner liable for the actions of the police. The causal chain is: {silent alarm triggered => police respond => someone gets shot}. If the police do not respond, there is no {silent alarm triggered => someone gets shot} causation since the robbers would have no way of knowing the alarm was triggered.
I'll have to assume that in the Kroger case, the law did not protect the police department from liability. Otherwise, the decision is illogical as well as bad public policy.
There is certainly no duty to get up in the morning. But if you fail to get up in the morning and thereby breach some other duty, ...
In essence the plaintiff’s are asserting that the store owner has a duty to take no action in resisting the unlawful acts of the criminals which could result in the 3rd parties being injured. That is plaintiff’s assert a right to sit though the robbery of the store in as much safety as the store owner can provide.
This asserted right is contrary to the basic principals of the social contract. Above all members of the body politic agree to defend one another’s persons and property from harm. Thus while the store owner undoubtedly had a duty to protect his customers, his customers had a duty to help protect the store from robbery. Therefore the store owner can’t have a duty to do everything to cooperate with the robber to protect the customers. Yes if it can be shown he had not taken sufficient security precautions that might be a breach of a duty, but since the customers had a duty to help prevent the robbery they can’t complain that the store owner is doing what they have a duty to aid him in doing.
This asserted right is also contrary to law. Under the statue law, citizens/subjects have a legal duty to catch lawbreakers. Since they have such a duty they cannot claim a right to cower in safety instead. Thus the plaintiff’s can’t complain that the store owner is putting them in danger by resisting the robbery since he and they have a duty to resist the robber.
Last and most obviously it is contrary to public policy to discourage people from reporting a crime while it is in progress.
Now it will be argued that in negligence, the duty is a general duty of care, not a specific duty. This is true, but the fact is that the general duty of care has to be rightful. That is the courts cannot violate individual rights by means of negligence. If a court tried to impose negligence on a paper for printing the Mohamed cartoons for instance it would be violating the first amendment. If it tried to imply negligence in the very act of creating weapons per say it would violate the second amendment. The law is an integrated whole. The court should not violate natural right except by specific and explicit statue and arguably even then the Ninth Amendment should be interposed to rule the law unconstitutional.
Malice being defined how?
I think the inquiry should be limited to how the attempt to contact police was made, not if. I.e. in Kelly, the store employee cooperated with robbers, and in so doing triggered a silent alarm. This seems to me to be sufficiently nonintrusive to be within the right to contact law enforcement as a matter of law.
However, in one other case a commentor cited, a store employee said, in a loud voice, "When you leave, contact the police. We are being robbed." An individual about to leave the business was then beaten and stabbed to death while another was stabbed (but it wasn't clear from the citation whether the second victim survived). That strikes me as fairly clearly negligent or at least not something that should be decided as non-negligent in summary judgement proceedings.
I'm sure we could argue out a definition, given enough grain or grape based lubrication. I'm sure there would be a scenario where I could deliberately put you in danger by calling the police. It would probably be hard to prove.
I have no real argument with that. I would, however, make a broad exemption for tactical errors. In a tactical situation, one often has mere moments to estimate the situation and devise a course of action. It is easy, after the fact and without all the inputs available to the actor on the ground, to play Monday morning quarterback. I would want to rule most of that out, as it induces an institutional bias, enforced by financial penalties, to do nothing. That's why I mentioned actual malice, previously. It's kinda like the "no protection for gross negligence" rubric, which causes gross negligence to be widely alleged.
If the patron that was shot had been wearing a bright yellow shirt and happened to be the only one in the store wearing a yellow shirt that day and, once the police had arrived, inexplicably, the store owner had ran frantically out the front door screaming: "For the the love of God, shoot that bastard in the bright yellow shirt," and so the police shot him--
Would the police be negligent for not foreseeing this potential situation and would there be contributory negligence on the part of the shot patron for wearing a yellow shirt and perhaps not running fast enough?
It's truly despicable that you would want to hold that person liable in that situation. Would YOU want to be judged based on the snap, life-or-death decisions you made while you were being held by violent, armed criminals? Disgusting.
Thanks for the excellent response and analysis. Nice to know the argument can work. The idea just came to me as I was reading and wondered what someone else thought. Thank you for taking the time to respond.
Of course, I am sure anyone on the other side would try to argue that it was not the petitioning but the manner of petitioning, but I am not sure that works. In this case, it was the fact of summoning the police, not the manner, that is being targeted.
I like that.
Ummm... Am I the only one having trouble seeing the connection?
I would think that reckless disregard WOULD include something like saying in a loud voice "When you leave here, call the police, we are being robbed" but not a silent alarm.
We are talking about when it might be negligent to call the police. I'm saying it might be negligent if you recklessly or maliciously provide the police with false or inaccurate information. You are welcome to maliciously provide them accurate information, of course.
I don't follow how your comment relates to that. So long as you only provide the police information you believe is accurate, it's up to the police to respond appropriately. It is not foreseeable that providing the police accurate information will increase the danger level unless some benefit outweighs the increase in danger level at the police's judgment.
If you dial 911 on one of these phones it could be very likely that the criminals will hear the noise (or, at least, it is completely foreseeable that they will). Now, I'm not saying that the dialing of the phone is the negligent act, but surely Verizon, Motorola or the like should think this through and allow customers to turn this annoying feature off.
Another commentator cited a case where a customer was killed after an employee said in a loud voice "when you leave here, call the police. We are being robbed." The robbers, predictably, killed a customer about to leave and seriously wounded another.
I would argue that the MEANS used to try to contact the police might sometimes be negligent, and that the above should fall within the proposed standard of malice to the customer. In short if you ask a customer to contact the police that is negligent. If you contact the police in a flamboyant manner while customers are being threatened that might be negligent. If you contact the police through an unintrusive and invisible manner (silent alarm triggered in opening the safe, for example), that should NOT be.
I think you miss the examples where your rule would give results you might not be so happy with. For example, a robber tries to take me as a hostage. I point to a teenager and say "take him instead, I have a wife and children".
I think it's preferable to heavily restrict when one party can be held responsible for another party's criminal actions. Otherwise, we will chill people's ability to respond to criminals. I think it's also unreasonable to hold people responsible for the actions they perform while they are in serious physical danger due to the criminal actions of a third party. The criminal, and only the criminal, is responsible for how people react, in the heat of the moment, to his threats.
FWIW, I agree with you. Just trying to clarify what you meant. I would argue that malice towards the patrons is where the law should be drawn because it neatly divides between tactical errors (i.e. trying to protect patrons by cooperating or not) and reckless disregard.
For example, Helms v. Church's Fried Chicken, Inc might be over the malice/reckless disregard line while Kelly v. Kroger would not (I assume we would agree on that).
As you can see from Mt Schwartz's comments, he took your test in a different direction by restricting it to false information provided to police.
I think this is important. Particularly in something like the "calling the police" scenario, the citizen is acting as an agent of the State, as a member of the Militia. Those actions should receive the full value of government immunity.
In a tactical situation, I think that the greatest leeway should be given to the actor under duress, as it is always possible to Monday Morning Quarterback a tactical decision that the actor only had a second to make. Hell, there are whole industries of lawyers and historians who make their living second guessing decisions.
What results would that give exactly? I thought we were talking specifically about where the duty of businesses to protect their patrons begins and ends.
(*) for lack of a better term
Maybe it's the libertarian in me, but as far as I'm concerned, the only person who pulled the trigger or created the situation is the criminal with the gun (and his criminal accomplices). That should be the limit as to who can be held responsible.
It is absolutely absurd to argue that people are required to weigh competing duties under these circumstances. It is not negligent to react to that threat in any way one finds oneself responding. There is simply no reasonable concept of prudence to expect from ordinary civilians threatened with immediate criminal harm.
If a burglar comes into my store and points a gun at a customer's head and asks me to open the safe, I should be able to lie and tell him I don't know the combination and be absolutely immune from liability for what the criminal does. Or I should be able to say "no". Or open the safe.
I should be free to act however I want and absolutely immune from a negligence claim for how I react. Simply because it is unreasonable to expect people to rationally weight their options and their competing duties and the preservation of their own life under those circumstances.
I am arguing for a very high bar in holding people liable for the criminal actions of others when the crux of their liability comes from actions performed in specific response to that criminal activity after it has begun. People should be absolutely privileged to respond to force and threats in the heat of the moment as they see fit to preserve their own lives and property.
Reinforcing that, there is no civilian crime of Cowardice. You would be morally a coward in that situation. If you were in the military, you would arguably be subject to prosecution for cowardice. As a civilian (I don't think cowardice even applies to cops.) you are immune.
Predictably, I'm burgled. Equally predictably, the police have no luck finding the burglar.
Are you going to seriously argue that I can't hold the contractor liable for the damages from the burglary?
I'm arguing for ordinary negligence standards for the crimes of another when the actions that create the negligence occur outside the "heat of battle", before the criminal threat is visible. But I'm arguing for standards very close to those needed to hold someone criminally liable for actions taken "in the heat of battle" while the actor is under a direct criminal threat to the lives, safety, and property of himself and/or others.
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