It’s Halloween night. Earlier that afternoon, your wife and daughter told you they surprised some young punk nosing around the side yard, who ran off as they drove in from the store. Now, hours later, puttering in your detached garage, you hear a loud thump against the back wall, as if someone lost his footing climbing over your fence. You tense and freeze, listening. Suddenly, a dark shape lopes past the side window towards the house and your vulnerable wife and daughter. The garage’s well-lit interior casts a yellow square of light through the window onto the lawn, and as the shape passes through it your brief view of the mass of scraggly hair, the torn clothes, and above all the near seven-foot height tells you one thing for certain: he’s nobody we know. Instantly you move to the side door and step out into the dark yard, one hand on your firearm, the other on the outside light switch, your lungs filling with air to call out “Who’s there!” as you scan towards the house, expecting to see the intruder silhouetted against the lighted windows.
In the next second, before you can speak a word, three things happen:
You flick the switch for the outside light. It doesn’t work.
With a snarling bellow less than five feet away, the darkened, massive shape of the intruder leaps at you from his hiding place in a pitch-black alcove next to the door.
Startled, in shock, and fearing for your life, you pull the trigger, and the muzzle flash illuminates — a tall kid in a huge fright wig, dressed as a burglar for Halloween.
Shooter broke Rule #4, didn’t he? Absolutely, but it ain’t so simple, folks. That shooter was me, ten years ago this October 31st. I shot my daughter’s boyfriend, and both he and I were thoroughgoing fools (for different reasons), but a Thank-God failure of a .45ACP Glaser Blue out of a two-inch barrel to upset or do anything other than act like a slow FMJ saved his life and his shoulder.
Was that a Righteous Shooting? Of course not. I was wrong to pull that trigger. But was it defensible in the eyes of the law? You bet. I’m a lawyer, and I knew What To Say To The Investigating Officer, and the district attorney didn’t prosecute, and the kid’s family didn’t sue. California has a weak variant of Castle Doctrine (burden of proof is on the prosecution where deadly force is used against an intruder into the home or environs). I was arguably within the boundaries of the law in pulling that trigger, so I certainly didn’t need anything so esoteric as CCW insurance, right?
1. YOU CAN MAKE A MISTAKE.
Let’s get something out of the way first. You very well may be thinking, “of course this fool says CCW insurance is a good idea — he’s the one who shot a harmless kid!” Yeah, a kid who deliberately acted to make me think he was an intruder so he could jump me and give me a good scare. Look, I’m thankful every day that he’s living a healthy, happy life. I made my peace with what I did long ago, and I learned my lessons from it and changed my behavior accordingly. The lesson you should take from my mistake is that … mistakes can happen. I like to think I’m a level-headed fellow, and I made a bad one. You could make one. Others can make them too. Maybe a witness saw things a little differently than you did. Any combination could result in a defensive action being less of a righteous shoot than you thought when you pulled the trigger. That opens you up to liability. Enough said about that.
Now, I’m an attorney, but I’m not your attorney, and like everything else I post on RNS, not one word I write here constitutes legal advice to anyone. But let’s look at the kinds of legal trouble I was in after that shot.
First, criminal. Yes, I had a good argument that I was not criminally liable. But I was not in a gun-friendly town, and had the kid’s injuries been more severe, the prosecutor might well have decided to file charges.
Second, and really most importantly, civil. Remember OJ Simpson? Maybe I wasn’t criminally liable, but that had little to do with whether or not I spent the next year of my life fighting civil charges, or found myself paying off a six- or seven-digit fine, settlement, or attorney’s bill for the next decade. At the time, I would have defended myself, or hired the cheapest lawyer I could find — I couldn’t afford anything more. Well, I’ve seen enough litigation now to understand how vulnerable that made me, and it’s scary.
Big deal, doesn’t matter, you say — you’ve got homeowner’s liability insurance. That’ll cover it!
2. YOUR EXISTING INSURANCE WON’T COVER YOU
Wanna know how I know your homeowner’s or renter’s policy won’t cover defensive shootings? I asked my insurer. It’s one of the best companies in the world IMO, not to mention one of the best insurance companies period. Customer service without peer. Claims adjustment and payment without peer. (Rates are okay.) Let’s just say that if you’re active-duty military, you’ve heard of it. Anyway, long after everything had been resolved with the shooting, out of curiosity I called up the claims department, told them my story, and asked them if I had been sued and had made a claim, would I have been covered? My question went up the chain a bit before I got an answer, but eventually they said, quite emphatically, no. And if my Unquestionably Superb And Awesome insurance company won’t cover it, I doubt yours will either.
I deal with an exact analogue to this in my job every day. In this country, most small corporations’ owners have corporate business owners’ policies to cover general liability. They think those policies will cover them in a lawsuit, and they’re mistaken. When I set up corporations, the first thing I do is secure Directors’ and Officers’ Liability insurance, because your General Liability business policy simply won’t cover the officers and directors if they’re sued. And in any business litigation, they will be sued. It’s on the first page of every corporate lawsuit I’ve ever seen.
3. CASTLE DOCTRINE DOESN’T KEEP YOU OUT OF COURT
Okay, David, you say, your Directors’ and Officers’ insurance example is flawed. The whole point of a corporation is to keep directors and officers from being liable for the acts of the corporation, you say. Directors and officers don’t need insurance under the law — they’re immune! Heard that in one of those “Incorporate in Nevada” talk radio ads, did you? Well, yeah, that might be a winning argument, but I guarantee you if you’re sued you will have to go to court to prove it. And whether you win the case, or just settle to make it go away, that costs a lot of money. Enough to put small businesses out of business, in some cases. That’s why they buy insurance. The insurance company has a duty to defend you. It will hire the lawyers, pay their bills, and generally pay the settlement if you settle, or the loss if you lose. I’ve been through lots of corporate litigation with and without D&O insurance. Trust me: you don’t want to go through any kind of legal battle without insurance backing you up.
See the parallel yet? Here, let me spell it out for you. Your state’s Castle Doctrine, especially the part that bars any civil liability for lawful defensive shootings, is like the statutes that say corporate officers and directors aren’t personally liable. If you want to win under those statutes, you are very likely going to need to go to court to prove it — or at least, hire a lawyer before court to make threatening noises so the other side runs away in the face of the argument you would make in court.
Look, the act of carrying a concealed weapon is an exceptional measure. Only a tiny fraction of the population does so.
Similarly, only a tiny fraction of people will face the threat of violence in their lifetimes.
So if you have gone to the trouble to obtain a CCW permit, by definition you’re willing to take exceptional measures daily against what’s probably a once-in-a-lifetime threat.
Why, then, wouldn’t you take that extra step to protect yourself in the aftermath of a defensive shooting?
Maybe you’re lucky enough to have a robust Castle Doctrine, gun-friendly prosecutors, and sympathetic juries in your town, so the odds are in a defensive shooting you’d not have any legal issues at all. Well, let’s think about that logic. If you were so willing to play the odds, you wouldn’t have a CCW in the first place, right?
4. PUT AS MUCH THOUGHT INTO YOUR INSURANCE AS YOU DID IN GETTING YOUR CCW PERMIT.
If you’re willing to take all the steps to be a responsible CCW permittee, you should be willing to take the last step and make sure you’re insured. And when you determine (and I believe you will) that your homeowner’s or your renter’s or even your umbrella personal liability policies won’t cover intentional acts like a defensive shooting, you should start looking for an insurance policy that will cover you.
Here’s the only one I know of. Again, I’m not your attorney, so this isn’t legal advice, and I’m certainly not an insurance expert, but I’ve read this policy and in my humble opinion it looks pretty good. If they offered it in California I’d buy it right now. If they don’t offer it yet in your state, let them know you’re interested so they can move your state up the priority list.
(Hey, I just read MMD’s Facts page, and it has many of my points above, but expressed much more succinctly and/or eloquently. They even have blurbs from the august Dave Hardy, whose legal acumen in the 2nd Amendment realm is far greater than mine.)
Comments welcome, folks. This is an issue of importance to all of us.