Lawyers: VP can be held liable for shot

BY JOHN RILEY | STAFF WRITER

February 16, 2006

Vice President Dick Cheney's admission yesterday that he was at fault in the shooting of lawyer Harry Whittington during a weekend Texas quail hunt, after days of silence and White House attempts to blame Whittington, reflected the consensus of hunting safety experts.

"It's always incumbent on the shooter to make sure that he's shooting into a safe area," said Mark Birkhauser, a New Mexico hunting safety official and head of the International Hunter Education Association.

Accounts of the incident indicate that Whittington left Cheney and another hunter to retrieve a downed bird. As he returned, Cheney wheeled and fired on a flushed bird. Whittington, about 30 yards away, was peppered with shotgun pellets. On Monday, White House press secretary Scott McClellan suggested Whittington violated "protocol" by not announcing his return.

However the key problems, according to Birkhauser and other experts, were that Cheney and the other hunter should have stopped hunting when Whittington broke out of the line, and Cheney should have had the discipline to only fire into the zone in front of him, instead of shooting quickly as he turned.

Lawyers said that if Whittington wanted to sue his friend Cheney for negligence, he would probably win. "It's got negligence and it's got good injuries, good damages. I'd love this case," said Scott Gottlieb, a lawyer in upstate Binghamton who specializes in hunting cases. "If you've got the gun, you have a very high standard of care because it's a lethal weapon."

In fact, according to some Texas legal experts, Cheney could theoretically face a criminally negligent homicide charge if Whittington died and a grand jury concluded the vice president should have known he was creating a "substantial and unjustifiable risk" of shooting another hunter.

"The risk must be of such a nature and degree that it got to be pretty outrageous," said Dallas lawyer David Finn, a former state and federal prosecutor. " ... A reasonable person would have to say, 'I am not pulling the trigger because this other guy might be in front of me.'"

This story was supplemented with wire service reports.