» Plaintiffs’ bar opposes use of force homeowner immunity bill

Plaintiffs’ bar opposes use of force homeowner immunity bill

Posted: 7:40 pm Wed, February 3, 2010
By Steve Lash
Daily Record Legal Affairs Writer

ANNAPOLIS – Plaintiffs’ lawyers assailed legislation Wednesday that would largely immunize from civil liability people who injure or kill a burglar in their home or office, saying the bill could sanction violence by homeowners.

“Burglars don’t want confrontation; they want valuables,” trial attorney Wayne M. Willoughby told the House Judiciary Committee. “Do you want to encourage protection of property at the expense of life?”

But representatives for gun and home owners hailed the measure, House Bill 207, as enabling Marylanders to protect their homes and businesses from invasion without fear of having to compensate the invaders for their injuries or death.

Under the legislation, people who use force against a home or office burglar would be immune from liability unless they acted “with malice or gross negligence.” Del. William J. Frank, R-Baltimore County, the bill’s chief sponsor, said that limitation ensures people do not escape liability if they take the law into their own hands.

But Willoughby said malice and gross negligence are not clearly defined in the bill. Homeowners could escape liability even if they shot a fleeing burglar in the back or a child who had entered their house for a petty theft, he added.

A homeowner, for example, could argue in court that he or she was not acting with malice or gross negligence but “under the stress of the situation,” Willoughby said on behalf of the Maryland Association for Justice Inc., a plaintiffs’ lawyers group.

He added that homeowners have sufficient liability protection under the “Castle Doctrine.” The doctrine, recognized in Maryland, permits homeowners to repel attackers in their house with force if necessary.

“You’re not allowed to be judge and jury and execute the guy because he entered into your house,” said Willoughby, of Gershon, Willoughby, Getz & Smith LLC in Baltimore.

But Paul Dembowski, president of the citizens’ group Maryland Shall Issue, urged committee members to ignore “sensationalist” rhetoric that the bill would lead to lawless homeowners having “shootouts in the street” with burglars.

“This bill demonstrates that the premise of a citizen’s right to be safe and secure within the confines of their home is of paramount interest to the House of Delegates and, hence, the people of Maryland,” Dembowski wrote in a statement to the committee. “The lack of a homeowner’s protection from civil action after defending their family within their home is a glaring loophole in Maryland law and leaves those homeowners vulnerable to litigation that may indeed bankrupt them.”

John H. Josselyn, of the Associated Gun Clubs of Baltimore Inc., echoed Dembowski in written testimony.

“Far too many attorneys are willing to initiate a civil action on behalf of criminals who allege that the victim, who was acting legally in self-defense, did something that violated the rights of the attacker,” Josselyn wrote. “Defending a civil action, even when it is a frivolous lawsuit, involves great expense.”

The Maryland State Bar Association, in written comments to the committee, defended the right of people to defend themselves and their family from intruders but called the measure’s grant of immunity inappropriate.

“The bill does not address the question of how one determines whether the intruder enters the dwelling or business with ‘the intent to commit a crime of violence or burglary in the first, second, or third degree,’” MSBA stated, quoting from the legislation.

Comments

Peter Davis says:

This leglislation in some form makes sense. Any opposition issues can be clarified in a compromise to this Bill which obviously attempts to define a home owners status in a very unfortunate situation. The evolution of \Breaking & Entering\ to \Home Invasion\ should not go without notice particularly with our senior citizen & elder population. To be \scared to death\.. \mouths taped\ \spouses or children molested\ and or being \pistol whipped\ are all life altering dynamics for homeowners. We should not be sympathetic to the \intruders\

Posted on 02/04/10 at 8:37 am
Bald Bull says:

IF you come into my house, you’re getting blasted…no questions asked…I’ll frame the intruder afterwards with a giant knife from my kitchen…he wont have any ability to tell his side of the story.

Posted on 02/04/10 at 1:41 pm
Cathy says:

How does Harry or Harriet Homeowner know what this intruder has in mind? Just theft of property, or rape, or “hey it’s Friday night, let’s pistol whip someone”, or some combination of the above? Should I wait until he rips off my clothes?

Posted on 02/04/10 at 2:27 pm
OCGuy says:

The plaintiff’s bar is risking the lives and property of the citizens of Maryland to boost their bottom line. They are a despicable bunch.

Posted on 02/04/10 at 8:24 pm
Carol Ott says:

As Cathy says above, how would the homeowner know what the intruder is going to do? Is there a mandatory question-and-answer period between homeowner and potential rapist/murderer built into the bill?

This is insane — it’s not my job to determine the “intentions” of someone who entered my home without permission — it’s my job to protect myself and my child, which I will do at all costs, with whatever is handy at the time.

Sorry, but anyone who has enough chutzpah to break into my home while I’m there isn’t using good sense from the get-go. I’m supposed to trust that they’ll leave me or my child unharmed?

Shame on these lawyers — God forbid anything should ever happen to them or their families, perhaps they’d feel differently.

Posted on 02/05/10 at 7:53 am
Wayne Willoughby says:

The full testimony of the Maryland Association for Justice (MAJ) offered at the hearing is as follows: Current Maryland common law already establishes the right of homeowners to repel a burglary and even kill the burglar in doing so–MAJ supports current law.

The bill in question would expand common law protection to permit homeowners to kill a fleeing burglar–MAJ opposes this expansion for the following reasons:

1) Once the burglar is fleeing, or has fled the residence, homeowner safety is no longer at issue;

2) Using deadly force to bring down the fleeing burglar can result in harmful collateral damage… for example, when the homeowner attempts to shoot the fleeing burglar as he exits the doorway (or flees down the street) but misses his target, the bullet or bullets do not just fall to the ground next to the intended target; they continue on and can hit innocent people;

3) Therefore, society should not encourage use of firearms in situations where the danger to the homeowner’s life has ended because the burglary has been abandoned or already successfully repelled.

To allow use of deadly force in such circumstances elevates protection of property over protection of human life– both the lives of the neighbors and the fleeing burglar — and ti converts failed burglary into a death penalty crime with the homeowner acting as the judge, jury and executioner.

MAJ also opposes the bill on the same lack of clarity issue identified by the Maryland State Bar Association as a basis for opposing the bill.

Finally, an amendment to the bill to address MAJ’s concerns was suggested by a Delegate who supports the bill. MAJ is considering the same and will report back to the committee next week.

Posted on 02/05/10 at 10:17 am
Tyrone Brown says:

This is common sense protection for Marylanders. I thought this law was passed last year unanimously? What happened. Did Governor O’Malley veto a unanimous bill? That can’t be very democratic.

Posted on 02/05/10 at 1:07 pm
Tyrone Brown says:

Mr Willoughby doesn’t seem to understand the difference between “CIVIL” immunity and “CRIMINAL” immunity.

If one shoots an intruder in the back as he’s exiting you can be DAMNED sure he or she will be criminally liable.

If one is found NOT to be criminally liable for defending themselves, shouldn’t they be protected from dollar sign chasing parasites who wish to bleed them dry?

Posted on 02/05/10 at 1:27 pm
Henry Bowman says:

Mr. Wllloughby completely ignores the well-established case law regarding the use of self-defense within one’s home. There is absolutely nothing in HB207 that is not already practiced in criminal law. HB207 clearly establishes that, if one is cleared of criminal charges, you can not be sued in civil court. That is it. Period.

There is nothing at all in the bill at all that says that a homeowner can pursue a burglar. Nothing at all. If is fallacious to say otherwise.

Mr. Willoughby’s organization is nothing more than a trial lawyers’ advocacy group. HB207 would affect his group’s livelihood because it would limit lawsuits.

Posted on 02/07/10 at 3:17 pm
Tom says:

Mr. Brown, this bill was supposed to be heard in by the senate judiciary committe last year, but senator frosh wouldn’t allow it to be heard, which is not very democratic.

Posted on 02/07/10 at 4:10 pm
Bob Annis says:

Trial lawyers stating that “Burglars don’t want confrontation, they want valuables” begs the question that trial lawyers don’t want dead burglars, they want some of the burglar’s valuables. A piece of the action, so to speak.

Sending the message that the legislature is in favor of burglars over honest citizens, while perhaps true of some subset of legislators, whose income as trial lawyers is dependent on a heightened level of criminal behavior, is not exactly the sort of thing that will bring joy to the voters in November. But perhaps it will encourage those same voters to permit more trial lawyers to have more time for the practice of law, and waste less time in Annapolis.

Posted on 02/07/10 at 5:17 pm
Tyler says:

The legislature seems to have forgotten the required conditions required to use deadly force. you must be in immediate fear of your life or the lives of others, and we have to warn the intruder and give them the opportunity to leave the way they entered. NOBODY is going to shoot a burglar in the back who is unarmed running from a house or office. Let’s be realistic people. If a burglar does not leave after being warned, and is armed, why should he have the right to sue me, after I shoot him? Oh wait. Deceased burglars/rapists/home invaders can not seek legal relief.

Posted on 02/07/10 at 9:16 pm