Is there any indemnity?

November 24, 2008 12:53 PM

What happens when a bodyguard shoots and kills someone while protecting their client?

A discussion over dim sum lead to the preceding question. Would the bodyguard be brought up on murder charges? Could it be considered acting in self-defense, even if he/she wasn't the primary target of the attackers attempt?

And yes I know lethal force is the last resort, and hopefully the situation would never come to it, but this is a "what if" scenario.

posted by zap rowsdower to law & government (15 answers total)

In many reasonable states with a concealed carry permit you can also use deadly force if another life is in imminent danger so something similar must apply
posted by evilelvis at 12:58 PM on November 24, 2008

Wikipedia.
posted by iknowizbirfmark at 1:07 PM on November 24, 2008

It's acting in defense of the client, so it's legit if the threat was real. That said, however, the bodyguard would probably spend many hours talking to the cops before being cleared, just as a person acting in self defense would.
posted by beagle at 1:17 PM on November 24, 2008

A person is allowed to use deadly deadly force to protect another person when that person would be allowed to use deadly force to protect himself...which is when they reasonably fear death or serious bodily harm.

Example:
A is trying to stab B in the chest. C shoots A to stop the stabbing. No murder charge.
posted by unreasonable at 1:21 PM on November 24, 2008

If they're properly licensed to carry that weapon and act as a bodyguard then they probably won't go to jail as long as they can show they had a reasonable expectation that their actions were necessary to prevent death or serious injury of themselves or their clients. However, weapons permit or not, your gun will get taken away for a while and you will most certainly be going back to the station with the police.
posted by BrandonAbell at 1:23 PM on November 24, 2008

To clarify some statements above regarding permits: in most states whose laws I'm familiar with, not having a permit doesn't negate a self-defense or defense of others defense... it is just another crime.

That is to say... a shooting which would otherwise be legitimate self-defense is not suddenly murder on account of the lack of permit. I doubt the police or prosecutor are would be too thrilled about it, though.
posted by toomuchpete at 1:33 PM on November 24, 2008

In some states, concealed carry without a license is a felony. In some states, concealed carry without registration is also a felony. Depending on how broad the state's felony murder rule is, a bodyguard that shoots an attacker with an unlicensed weapon might trigger the felony murder rule without recourse to the defense of another defense.

As others have noted, the defense of others defense would almost certainly take care of the actual murder (shooting the assailant). It might or might not take care of the felony murder charge, however. This is highly dependent upon the state law at issue.

As an example that may be more clear, consider the case with two bodyguards, A and B. Both are feloniously carrying unlicensed, unregistered weapons that A provided B. Their client is attacked and B fatally shoots the attacker. B is absolved of murder via defense of others. But A conspired with B to commit the felony of carrying w/o a permit. The fact that a murder occurred as a result of and during the commission of that felony may expose A to a felony murder charge. A will find it much harder to claim defense of others because he provided the weapons long before anyone knew of the threat against the client (for the sake of argument, before the client hired them).
posted by jedicus at 1:57 PM on November 24, 2008

Ask Snoop (Doggy Dogg). In the late 90's his bodyguard shot a dude but there was indeed a murder charge. Snoop (and said bodyguard) were found innocent.
posted by cashman at 1:59 PM on November 24, 2008

My understanding is to expect murder charges. If a person kills someone, the onus is on them to show that they had sufficient reason (self-defense or defense of others), and the forum for that discussion is the courtroom.
You might get away without charges, but killing someone is serious enough that you generally have to satisfy a court that it was justified and necessary.
posted by -harlequin- at 2:16 PM on November 24, 2008

Something very similar to this happened in LA yesterday. The cops are closely questioning the two guards, but are very unlikely to bring charges. Turns out there is video-tape from a security camera showing the event, and there's no doubt at all that the use of force was justified. The perp had two swords and was swinging them, and charged one of the guards.

My understanding is to expect murder charges. Not necessarily. There are a lot of shootings in this country which the cops or prosecutors eventually decide are justified, or for which grand juries refuse to indict. That's quite common, for instance, in cases where store owners use lethal force to stop armed robbers.

And yes, in most states a citizen who has a concealed-carry license can use lethal force to protect a stranger, not just for self-protection.
posted by Class Goat at 2:59 PM on November 24, 2008

I might also take issue with jedicus' discussion of the felony murder rule. While, he's got it mostly right, it is not a separate charge that can be brought. It is merely a rationale for first degree murder (in addition, or in place of, second degree murder). If a defendant can convince a jury that the murder in question was in self-defense (as is likely the case in this hypothetical) the fact that gun possession was a felony will not make this felony murder. Self-defense negates the murder charge and without a murder charge, there can be no felony murder.
In addition, felony murder charges are usually (though not always) only given by statute for certain enumerated felonies. Those felonies are usually burglary, robbery, escape (from imprisonment), arson, kidnapping and rape. These vary from state to state, but I'd be surprised if mere possession without a license was on the enumerated felony list in any state.
posted by Inkoate at 3:24 PM on November 24, 2008

I appreciate Inkoate's correction on some of the details, but I still stand by my second hypothetical.

First, the enumerated felonies make felony murder equivalent to first degree murder. Unenumerated felonies can still give rise to a second degree murder charge.

Second, the hypothetical with two bodyguards could, I think, still result in the bodyguard who merely illegally supplied the weapons (but did not actually shoot the attacker) being charged with second degree murder under the felony murder rule.

I do now agree with Inkoate that in the case with only one bodyguard that the felony murder rule would not create a new, separate offense. As a result, the one bodyguard would be able to use defense of others as a complete defense.
posted by jedicus at 4:45 PM on November 24, 2008

Worth perhaps mentioning that the word "Homicide" does not mean "murder". Homicide is someone killing someone else. There has to be an investigation and some kind of court hearing every time a homicide occurs, one of the purposes of which is to determine what kind of homicide it was: a murder, self-defence, manslaughter and so on. From that point you proceed to charges if necessary.
posted by AmbroseChapel at 5:05 PM on November 24, 2008

Your original question has been well and truly answered. As to the felony murder twist, though...

First, the enumerated felonies make felony murder equivalent to first degree murder. Unenumerated felonies can still give rise to a second degree murder charge.

This is untrue for many states. California, Massachusetts, New York, for example, require the underlying crime to be an enumerated/inherently dangerous felony to qualify as second-degree murder. Colorado, North Carolina, Rhode Island, Vermont, and New Jersey require an enumerated underlying crime to qualify as felony murder. All felony murders in these states are first-degree. Maine and Wisconsin define felony murder as its own crime, and it requires an underlying, enumerated felony. Connecticut requires an enumerated crime for its felony murder provisions, but the degree depends on the specific underlying crime.

Florida requires enumerated underlying felonies for both first- and second-degree murder, the distinction being that it's second-degree when somebody other than the felon causes the death. Deaths caused during the commission of any other felony is third-degree murder.

You might be out of luck in Georgia, though, which places no limitations on the underlying felony. They do not play around. God help you if you try to sell someone an onion of the Vidalia variety that was not grown in the Vidalia onion production area (Seriously. § 2-14-134(a). Seriously.) and you accidentally kill someone in doing so.

Second, the hypothetical with two bodyguards could, I think, still result in the bodyguard who merely illegally supplied the weapons (but did not actually shoot the attacker) being charged with second degree murder under the felony murder rule.

I think you're wrong here. I think conspiracy to commit possession of a concealed firearm is a stretch to begin with, for one. Even if that were the case, the first time they stopped carrying a concealed firearm to, you know, go to bed, that particular crime ended, and so did any conspiracy that you might try to argue.

There's also the matter of prosecutorial discretion. A DA may have no desire to pursue a felony murder charge in that instance, and perhaps not even a weapons charge.
posted by averyoldworld at 12:11 PM on November 25, 2008

My understanding is to expect murder charges. If a person kills someone, the onus is on them to show that they had sufficient reason (self-defense or defense of others), and the forum for that discussion is the courtroom.
You might get away without charges, but killing someone is serious enough that you generally have to satisfy a court that it was justified and necessary.

While I'm sure this was clear already, I just wanted to add that the onus is first on the prosecution to prove that the accused satisfied the mens rea (guilty mind) and actus reus components of murder.

Once, or if, this is established beyond reasonable doubt than the accused would raise there defence (well, it's slightly more complicated and depends on various evidentiary laws in different jurisdiction, but this is the basic criminal dance.)

It would be necessary to satisfy the director of public prosecutions first, and then the courts. The courts themselves do not generally bring actions.
posted by oxford blue at 4:13 AM on November 26, 2008