Firing In Pursuit of Fleeing Suspect Almost Always a Bad Idea

If I’ve said it once, I’ve said it a thousand times:

Firing shots in pursuit of a fleeing suspect, absent a deadly force threat, is a fool’s game.

In April of 2014 Indiana homeowner, 33-year-old David McLaughlin, heard the alarm on his home garage go off, suggesting that someone was breaking into the garage.

Sure enough, when McLaughlin armed himself and went to investigate, he found 31-year-old David Bailey. News reports state that police confirmed Bailey had, in fact, broken into McLaughlin’s garage, and Bailey would later plead guilty to burglary in a separate but similar case.

Confronted by Mclaughlin, Bailey fled down an alley. McLaughlin pursued, and fired three rounds at the fleeing Bailey. One of those rounds struck Bailey’s left arm and pierced an artery.  The other two rounds missed their intended target, instead speeding through the residential neighborhood.

Five months after these events a jury found homeowner McLaughlin guilty of criminal recklessness resulting in serious bodily injury, a felony under Indiana law. The trial judge was kind enough to reduce to conviction to simple criminal recklessness, a misdemeanor, and sentenced McLaughlin to 60 days in jail and four months of home detention.

In June 2015, nine months after McLaughlin was found guilty, gunshot victim Bailey would plead guilty to an unrelated burglary and be sentenced to three years of home detention.

Last week, 10 months after Bailey’s burglary sentencing, and a full two years after the events, Bailey has filed a civil suit against McLaughlin.

The amount of damages being sought is not specified, but Bailey seeks a “monetary award in an amount sufficient to compensate [Bailey] for all damages,” including what is claimed to be “serious and permanent damage” from the gun shot wound to his left arm.

It’ll be a lot of money, maybe all that McLaughlin has left. McLaughlin was not a wealthy man to begin with, being a USPS employee who was suspended from his job during the criminal trial, and who testified at sentencing that he’d already been forced to sell many of his personal possessions to get by. He won’t be an wealthier after this lawsuit.

The lawsuit’s success is all but guaranteed, given that Bailey has never confessed to breaking into McLaughlin’s garage and the fact that McLaughlin has already been found criminally reckless in his use of deadly force by a criminal court, where the standard of evidence is beyond a reasonable doubt, much greater than the mere preponderance of evidence required in a civil case.

About the Author

Andrew Branca
Andrew F. Branca, Esq. is currently in his third decade of practicing law, and is an internationally-recognized expert on the law of self-defense of the United States. Andrew is a Guest Lecturer at the Federal Bureau of Investigation’s National Academy, a former Guest Instructor at the Sig Sauer Academy, an NRA Life-Benefactor Member, and an NRA Certified Instructor. He also teaches lawyers how to argue self-defense cases as a certified instructor with the Continuing Legal Education (CLE) system in numerous states around the country. Andrew is also a host on the Outdoor Channel’s TV show “The Best Defense” and contributor to the National Review Online. Andrew has been quoted as a SME (subject-matter expert) on use-of-force law by the Wall Street Journal, the Chicago Tribune, the Washington Post, and many other mainstream media, including nationally syndicated broadcast media. Recently, Andrew won the UC Berkeley Law School debate on “Stand-Your-Ground,” and spoke at the NRA Annual Meeting Law Symposium on self-defense law. He is also a founding member of USCCA’s Legal Advisory Board. In addition to being a lawyer, Andrew is also a competitive handgun shooter, an IDPA Charter/Life member (IDPA #13), and a Master-class competitor in multiple IDPA divisions.

3 Comments on "Firing In Pursuit of Fleeing Suspect Almost Always a Bad Idea"

  1. My assumption is that so much as displaying a gun in the absence of the immediate need to fire it is an invitation to Big trouble, especially if one is walking around in public while carrying concealed.

    Does your book address this question? More specifically, do you make a reasoned recommendation about what one should do in the event that an armed citizen draws, in response to a clear, visible and articulable threat, but the threat immediately abates (a seemingly imminent assailant turns and exits) and the gun is reholstered unfired without additional incident? Or what if what looked at first like a clear threat becomes, in the half-seconds that follow a draw, a condition that does not merit deadly force?

    In both cases someone has seen your firearm in your hand(s). Whether they were intending to harm you (scene 1) or just sent mixed signals you at first interpreted as threat, then you revised that interpretation as additional information arrived (scene 2), either one could dial 9-1-1 and rain havoc all over your life. My understanding is that if you have had to visibly draw your weapon, as soon as the incident is no longer in play you want to call 9-1-1 yourself and report it somehow, without doing so, ON A RECORDING, in a way that amounts to an admission of guilt for the felony crime of menacing (or aggravated assault, or whatever statute happens to be invoked.) If you address this somewhere I’d be very interested in it.

    On that line of reasoning (prior to expert opinion on it, that is) I’m inclined to think the best approach is to possibly obtain a draw-grip on the holstered gun while in the first moments of evaluating a noticeable threat, and refrain from drawing until enough incontrovertible information is present to justify firing. As this sounds like “quick draw McGraw” to me, I’m a little queasy about it. I can think of many situations where it would be inadequate for what is undoubtedly highly reactive defense. Assuming there’s any time for deliberation, it’s challenging to know in what “condition” to spend it.

    • We talk in the book at some length about the types of circumstances under which defensive display–including the various stages, such as “hand on gun,” “gun at low ready,” “muzzle on target”–may be more or less legally defensible.

      We spend quite a bit of time on this during the live seminars, as well. It’s perhaps one of the most common areas around which people have questions.

      –Andrew, @LawSelfDefense

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