By Karen L. MacNutt
"Wasn't that something about Goetz," said the Clerk
of Court as I filed a bundle of legal forms with him. "They
should have given him a medal. Not let that kid sue him."
"Or else," added the officer standing at the other end
of the filing desk displaying some gallows humor, "they should
limit the kid's damages to the amount of money Goetz had in his
pocket when they tried to rob him. The kid shouldn't be able to
make more on a bungled robbery than on a successful one."
"Oh come now," exclaimed the public defender behind
me, "you know poor Mr. Cabey was unarmed when that horrible
Mr. Goetz shot him. Those sharpened screw drivers his three pals
had was just so they could help some little old lady if they came
across one whose car had broken down."
"Gawd, the only reason Cabey ain't in jail or didn't help
his buddy rape that girl on the roof is its too hard to make a
getaway in a wheelchair," muttered the Assistant District
Attorney.
"Well," said the clerk, "they shouldn't allow people
to sue if they get hurt while committing a crime. The only reason
Cabey is a "victim" is he picked the wrong guy to mug."
In 1984 Bernard Goetz was riding the New York subway. Four "youths,"
each about 18-years-old, approached him and asked for money. Goetz
shot all four of them. One of the "youths," Darrell
Cabey was paralyzed. The prosecution claimed Goetz was carrying
a gun without a license and that he had shot the "youths"
without justification. The "youths," all of whom had
criminal records, said they were only asking the man if he had
five dollars and that they were not doing anything wrong. Three
of the "youths" were carrying screwdrivers. After shooting
the "youths" once, Goetz is supposed to have said to
Cabey who was laying on the floor bleeding, "You don't look
so bad, here's another," and shot him a second time.
Goetz was found not guilty of assault with intent to kill but
guilty of carrying a gun without a license. Later, Cabey admitted
to a reporter that he and his friends intended to rob Goetz that
day. With the exception of Cabey who was paralyzed, the other
three "youths" recovered and went on to a life of crime.
One is currently serving a lengthy sentence for rape.
On April 24, 1996 a civil jury awarded Cabey $43 million dollars
in damages against Goetz. The claim is probably uncollectible
based on the legal principle, "Non possetis obtinere sanguinem
ex lapide." (You can't get blood from a stone.) Goetz has
no assets from which the claim could be collected, and has filed
for bankrupcy.
Street-wise criminals often pick victims based on the criminal's
feeling that the victim is an easy mark. Goetz looked timid and
helpless. He was not.
One problem the honest citizen has with street confrontations
is that street-wise thugs use tactics designed to provide them
with a defense if they are confronted by the police. Often the
criminal's intentions are clear to their victim but will be ambiguous
to a jury.
The words, "Do you have five dollars?" are not threatening
by themselves. When uttered in a faltering voice by someone with
downcast eyes and a limp, upward extended palm, they are words
of pleading. When uttered with savage grins, by four men with
hidden hands who are surrounding you and towering over you, the
meaning is entirely different.
Chains, ice picks, screwdrivers, rolls of quarters, baseball bats,
and all the other ambiguous things street-wise people carry that
are capable of killing or causing serious injury, can be used
to extort money. Should the offender be arrested, there will be
a limp excuse as to why the object was not a weapon. Such people
know their trade. The street-wise thug will quickly shift attention
from himself by accusing the victim of some indiscretion.
The honest citizen, on the other hand, says all the wrong things
because he does not know how the game is played. He feels his
actions speak for themselves. He feels he will be vindicated because
he was the "good guy." Being a "good guy"
is not enough.
So what happened to Mr. Goetz? Why did one jury let Goetz off
and the other hit him with a large judgement? Was it the racial
makeup of the jury as some of the press implied? Not necessarily.
The two juries, the one that found Goetz not guilty of criminal
assault, and the one that found him liable for civil assault,
were looking at two different things.
An assault is an unjustified placing of another in fear. If you
are assaulted, you have the right to defend yourself. That is
not being a "vigilante." Your right to defend yourself
ends when the person attacking you either stops the attack, or
is incapable of continuing the attack.
To find someone guilty under the criminal law, a jury must find
beyond a reasonable doubt that the person charged, committed the
crime. When Goetz was prosecuted for the criminal charges of assault
and attempted murder, the District Attorney had to prove beyond
a reasonable doubt that a reasonable person in Goetz's position
would not have been in fear of being bodily injured by the "youths"
and that the amount of force Goetz used to defend himself was
not justified. That is, the state had to prove beyond a reasonable
doubt that Goetz was not defending his life when he shot the four
"youths." The prosecution failed to carry its "burden
of proof," and the jury found Goetz "not guilty."
A civil case is different. In a civil case, the Plaintiff has
to prove that:
a.) It was more likely than not that Goetz's acts placed the Plaintiff
in fear; and,
b.) If a battery is alleged, that Goetz touched the Plaintiff
without justification, and
c.) As a result, the Plaintiff was hurt.
The burden of proving self-defense was on Goetz, just the opposite
of what is done in a criminal case. The "more likely than
not" standard used in civil cases is easier to prove than
"beyond a reasonable doubt" used in criminal cases.
In many states civil juries are smaller than criminal juries and
they do not have to return a unanimous verdict. Each of those
factors can affect the outcome of a case. Another difference is
that in a criminal case, the state will pay for your lawyer if
you cannot afford one. In a civil case, you have to pay for your
own lawyer or go without. Your chances of winning a case without
a lawyer are slim. Unless the issues are minor, you should never
try to represent yourself.
Goetz made a number of mistakes which made him particularly vulnerable
to a civil suit. The biggest mistake was that he talked too much.
The right of self-defense does not extend to vengeance. It
does not permit you to shoot a fleeing assailant, one who has
surrendered to you, or one who is incapable of causing you injury.
If the jury believed Goetz shot Cabey a second time after Cabey
was on the ground and no threat to Goetz, they were correct in
awarding damages to Cabey. If Cabey knew Goetz was going to shoot
him a second time, Cabey could collect damages for both his injury,
which was severe, and for the intentional infliction of emotional
distress.
Goetz's alleged statement, "You don't look so bad, here's
another," drips of malice and, if the jury believed he said
that, makes it difficult for Goetz to argue that his second shot
into Cabey was in self-defense. But that was not the only statement
Goetz made. He made other controversial statements which made
him look bad. Lawyers do not like their clients to give statements
because the more statements a person gives, the greater chance
the person will give an inconsistent statement. Those inconsistent
statements will be presented to the jury to create the impression
that the person who gave the statement is lying. Juries do not
like to be lied to.
Clearly, a person in Goetz's position should say nothing. The
adrenaline flow and the anxiety produced in an emergency situations
makes people want to say something. Men in particular feel they
have to emulate some movie hero's machismo with a snide remark.
Such comments always make the speaker look bad and seem vicious
in retrospect.
Will you be sued if you injure someone who attacks you? You could
be. Even if you win the suit, the legal costs could bankrupt you.
It always pays to walk away from a dispute if you can. It always
pays to consider your personal safety in terms of avoidance first
and combat last.
There is a broader policy question to all this. At one time there
was a concept in civil law called "assumption of the risk."
In some places the concept is still applied. The thought was that
if you undertook a hazardous task, you should not be able to sue
someone because you were hurt. We have evolved into a society
where the law wants to protect people from their own stupidity.
Clearly we do not want a society where people settle disputes
with violence. Just as clearly we do not want a society where
the courts force the victim targeted by a criminal to pay for
the injuries sustained by the criminal if the criminal is hurt
during a robbery attempt. We do not want to establish a kind of
perverse "workmen's compensation" for criminals where,
if they rob you, they get your wallet but if you resist the robbery
they get your house.
The risks inherent in attempting to rob someone are obvious. If
a person is not willing to assume those risks, they should not
go around robbing people. If the robber is hurt in the course
of a robbery, and the injury is not caused by an act which is
itself criminal, the law should let the criminal suffer the consequences.
About the author: Karen MacNutt is a consulting attorney
for the Second Amendment Foundation, National Rifle Association
and Gun Owners Action League. She maintains a general law practice
in Boston, and is an active rifle and pistol competitor.