Civil liability and survival

[gamestalker]

I've heard this time and time again over the years, that if you should ever need to justifiably use lethal force, that even so LE may agree with such, you still face the repercussions of civil liability. I though I understand this can impact an individuals financial future, and very possibly severely, I still refuse to consider this aspect when I'm facing a deadly situation, life and death as it may be. In fact, at a time like that, the very last thing on my mind is financial repercussions that may arise from defending my life, or that of a loved one.

And as for me personally, my disadvantaged financial status rather protects me from a money hungry criminal with a crafty lawyer. As in, you can't squeeze blood from a turnip. Take me to civil court, get your judgement, destroy my credit, but in the end you'll get nothing from me except for a piece of paper. I have a family member who has actually been confronted with this scenario. Once the contingency lawyer discovered he had nothing to go after, the case was dropped.

GS

 

[45_auto]

I still refuse to consider this aspect when I'm facing a deadly situation, life and death as it may be.

Exactly what other aspects do you think that you'll have time to consider when facing a life or death situation?

As a general rule, if you're really facing a life or death situation, there isn't time to stop and consider either the criminal or civil liabilities at the moment. That's the kind of stuff you have to do BEFORE you put yourself in that situation.

As in, you can't squeeze blood from a turnip.

Nope, but I can make darn sure that turnip gives up the vast majority of everything that it earns for the rest of it's life.

 

[hso]

Are you suggesting that everyone that might use a firearm to defend themselves take a vow of poverty as protection against civil liability lawsuits resulting from a defensive shooting? I expect not, since that's not going to happen for most people.

 

[Kleanbore]

Posted by gamestalker: I've heard this time and time again over the years, that if you should ever need to justifiably use lethal force, that even so LE may agree with such, you still face the repercussions of civil liability.

True fact. Here's something on the subject.

I though I understand this can impact an individuals financial future, and very possibly severely, I still refuse to consider this aspect when I'm facing a deadly situation, life and death as it may be. In fact, at a time like that, the very last thing on my mind is financial repercussions that may arise from defending my life, or that of a loved one.

I have never heard anyone recommend allowing oneself to be killed or to suffer crippling injury as a means of avoiding financial loss, not to mention criminal prosecution.

Rather, one should focus on the following:

• Refraining from saying, writing, or posting statements, or wearing clothing or putting up signs, that could later prove disadvantageous to a defendant in court.
• Avoiding danger in the first place, whenever possible.
• Gettiing the heck out whanever one can, when trouble starts.
• Keeping one's mouth completely closed forever, even after criminal proceedings have ceased.

And as for me personally, my disadvantaged financial status rather protects me from a money hungry criminal with a crafty lawyer. As in, you can't squeeze blood from a turnip.

I wouldn't count on it. We have seen numerous cases in which defenders have been impoverished by loss of income and by the expense of one or maybe two criminal trials and who still have to face civil suits.

 

[Frank Ettin]

...if you should ever need to justifiably use lethal force, .... you still face the repercussions of civil liability... I understand this can impact an individuals financial future, and very possibly severely, I still refuse to consider this aspect when I'm facing a deadly situation...

Of course you don't consider such things when facing a deadly situation. You consider such things before an emergency.

Now, when you're not involved in a violent encounter, is when:

1. you consider your possible need to study the applicable law of self defense so that you understand when a use of force would, or would not, be justified;
   
   
2. you consider the importance of avoidance, escape, evasion and de-escalation;
   
   
3. you mentally prepare to be aware of and assess situations and take appropriate action -- including avoidance, escape, evasion and de-escalation when possible;
   
   
4. you train and practice to increase your proficiency so that your focus can be assessing situation and deciding on the best course of action -- instead of having to focus on using your tools.

 

[SleazyRider]

Rather, one should focus on the following:

• Refraining from saying, writing, or posting statements, or wearing clothing or putting up signs, that could later prove disadvantageous to a defendant in court.
• Avoiding danger in the first place, whenever possible.
• Gettiing the heck out whanever one can, when trouble starts.
• Keeping one's mouth completely closed forever, even after criminal proceedings have ceased.

Given the recent attention to self-defense by the media, would you also think it advantageous to carry a caliber that a jury would not consider "overkill"? For example, carrying a .38 special vs. a .44 magnum? During the recent trial, I seem to recall the issue of caliber being bandied about with a healthy dose of hyperbole and half-truths. It led me to believe that carrying a large caliber weapon---not to mention a spare magazine, backup gun, and knife---could become problematic for the defense.

 

[armoredman]

Long have I stated that there are three parts to a self defense firearms use,
1) Purchase of the firearm, training, target practice, etc.
2) The actual shooting
3) the court battle

Now I enjoy one protection most do not have, shown here in Arizona State Constitution, Section 31 http://www.azleg.gov/FormatDocument.asp?inDoc=/const/2/31.htm

31. Damages for death or personal injuries
Section 31. No law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person, except that a crime victim is not subject to a claim for damages by a person who is harmed while the person is attempting to engage in, engaging in or fleeing after having engaged in or attempted to engage in conduct that is classified as a felony offense.

The family recently bereaved due to criminal actions by the deceased would have no standing under this section as the shooting was declared justified.

 

[Yo Mama]

This is why there is a need for strong state laws supporting the use of force when justified.

 

[Kleanbore]

Posted by armoredman: Now I enjoy one protection most do not have, shown here in Arizona State Constitution, Section 31 http://www.azleg.gov/FormatDocument....const/2/31.htm

What that part of the Arizona constitution does is prevent the legislature from passing laws that would limit the damages you may recover from someone who has injured you, as long as you are not convicted of certain types of crime. In and of itself, it places no limits on damages.

The family recently bereaved due to criminal actions by the deceased would have no standing under this section as the shooting was declared justified.

If the defender's actions are deemed justified in civil court by a preponderance of the evidence, he or she is immune from cvil liability.
Acquittal in criminal court won't cut it.

The relevant Arizona laws are covered at quite some length here, along with many other things that Arizona citizens should study and remember.

 

[armoredman]

Thank you for the link, however, it was written over a year BEFORE the amendment I refer to was passed, therefore it can be considered to be somewhat out of date. I assure you, sir, that the bill was expressly passed and sent to the people for consideration to protect from civil actions by criminals against victims. The original law that purported to give protection from civil liability, to wit, this one,
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00413.htm&Title=13&DocType=ARS

13-413. No civil liability for justified conduct
No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.

was, in fact held to be powerless without this express modification of the Constitution, which specifically disallowed any limits on liabilities claims. As AZCDL and a number of other pro-rights organizations presented at the time of its passage, and eventual approval by Arizona voters, it was indeed placed to stop any criminal suing a victim in civil court for any justified action. Perhaps the lawyers and such who crafted the whole thing went astray, but to my very non attorney eyes, it seems to be rather plain, though as all new laws are, untested in the fires of our adversarial system.

 

[armoredman]

I'm sorry, Kleenbore, I had to laugh when I re-read your post - were you intending to be humorous? if so, touche, well done...please let me point out this,

...a crime victim is not subject to a claim for damages by a person who is harmed while the person is attempting to engage in, engaging in or fleeing after having engaged in or attempted to engage in conduct that is classified as a felony offense.

What that part of the Arizona constitution does is prevent the legislature from passing laws that would limit the damages you may recover from someone who has injured you, as long as you are not convicted of certain types of crime.

That almost sounds like the "persons" committing the "felony offense" would have to be the LEGISLATURE! Fine irony, indeed, and subtle as well, however I think our good Arizona Legislature is nowhere near the class of felons in possession as the Federal Administration at present.

 

[Frank Ettin]

....I assure you, sir, that the bill was expressly passed and sent to the people for consideration to protect from civil actions by criminals against victims. The original law that purported to give protection from civil liability, to wit, this one,
http://www.azleg.gov/FormatDocument.asp?inDoc=/ars/13/00413.htm&Title=13&DocType=ARS

13-413. No civil liability for justified conduct
No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.

...

But you are still missing the point. While the statute does provide protection is does not prevent a civil suit. The protection attaches only to:

...conduct otherwise justified pursuant to the provisions of this chapter...

If there is a dispute regarding whether the civil defendant's conduct was "justified under this chapter...", he will be in court and will need to establish the threshold condition entitling him to protection. An acquittal on a criminal charge will be insufficient.

See this thread for a more complete discussion. Note post 3:

...a criminal acquittal is typically not going to have collateral impact on a civil litigation...

1. A verdict of "not guilty" is not an affirmative finding that the theory of the defense was correct. It is only a determination that the State did not meet its burden of proof.
   
   
2. A verdict of "not guilty" can not, as a matter of law, be used in other proceedings to establish the truth of claims of the defense.

 

[Kleanbore]

Armoredman, the phrase "No law shall be enacted in this state" applies to the legislature, and only to the legislature. Only the legislature can enact a law.

One thing it does is prevent the legislature from passing laws limiting the amount that you can recover in a suit for medical malpractice.

Another is to place an obstacle before any plaintiff arguing against the constitutionality of 13.113. Section 13.113 is the type of civil immunity legislation discussed in the sticky here in ST&T. In the link I provided above, Arizona attorney Michael P. Anthony illustrates a very key point that was also made in that sticky.

If Sam Shooter uses or threatens the use of deadly force and the county prosecutor decides there is no criminal case or Sam is acquitted, the victim or the victim'a family can still sue Sam for civil damages.

It is not necessarily likely that he will win, but the risk is there. As pointed out in the sticky, acquittal means that the state did not prove guilt beyond a reasonable doubt; the civil plaintiff must only demonstrate fault to the level of a preponderance of the evidence. That's much easier to do.

In the case of Larry Hickey, the state was unable to convict Hickey of a crime in two grueling trials, but Hickey did choose to settle our of court on the civil case. That happened in Arizona in 2008.

Arizona is nowhere near unique in terms of having a civil immunity provision in the law. The whole point of the sticky was to explain what it means and what it does not mean.

So, just what is it that the cited section of the Arizona statute law does do for you? Read the sticky. That's why we wrote it.

That takes us to your statement, "it was indeed placed to stop any criminal suing a victim in civil court for any justified action." That's exactly right, but in that context, "justified" means that the defender has and can present at least as much evidence supporting justification as exists against it, or the suit will proceed. That's much, much more than it takes to get a not guilty verdict in Arizona.

 

[Spats McGee]

Going back to the OP, I don't think anyone is recommending doing an in-depth risk-reward analysis in the middle of a firefight. The time to do that analysis is long before the firefight begins.

 

[Cosmoline]

Are assets a factor? Yes, as is liability insurance. And it is possible to have so much insurance that you risk becoming a target. That's why it's important to talk with your agent or broker to decide the right amount given you risks and circumstances.

But having no money and no insurance is not a defense against claims. And if you shoot someone, they or their survivors often have emotional drivers apart from any interest in assets. If you don't have any money and lose your case, you will be living the rest of your life under a potentially enormous civil judgment. It can be sold off to collection agencies who will continue to pursue you for decades. Judgments can last a long, long time. Unlike a mere *claim* like a credit card debt, they don't become stale after x years. And all that time an aggressive creditor can garnish wages, seize assets, do bank sweeps and generally make your life miserable.

Plus you never know what your future may hold. Years back I had a case where a person had signed papers with her spouse agreeing to be on the hook for a half million dollar loan. It wasn't paid and suit ended in judgment. Fast forward 15 years, long after the divorce and agreement by the husband to take care of it. Well he didn't, and her new husband was loaded. So guess who showed up at the wedding reception? That old judgment, in its best tuxedo. The agreement with husband 1 to "take care of it" meant nothing to the creditor.

 

[gamestalker]

Regarding civil judgements following you for decades, this depends on the state, and how one handles them. For instance, in AZ. and numerous other states as well, if a judgement is 7 yrs. old, and the collection entity can not make confirmed contact with you during that period, the judgement must be removed. Also, the ability to garnish wages for a civil judgement is non existent in Az.. The only real exception is child support and student loans, which can follow you around for like ever.

GS

 

[Kleanbore]

I don't want to appear critical about the helpful add-on of information here, but lest anyone add to a mistake of wishful thinking, trying to stay out of sight for seven years is not a viable way to avoid civil judgements.

 

[Cosmoline]

It's a confusing topic. Most lay people don't understand the difference between claims, debts and judgments. Judgments can grow stale, but they're also pretty easy to renew in most states. So don't assume because X years have gone by that you are safe from a judgment. Unlike a debt or claim, there is no statute of limitations on judgments. And the expiration of a judgment under execution law is not at all the same as running past the SOL on an unliquidated claim.

For instance, in AZ. and numerous other states as well, if a judgement is 7 yrs. old, and the collection entity can not make confirmed contact with you during that period, the judgement must be removed.

Got a cite for that? You may be thinking about some credit rating rule. Judgments are extremely difficult to remove.

 

[Frank Ettin]

...in AZ. and numerous other states as well, if a judgement is 7 yrs. old, and the collection entity can not make confirmed contact with you during that period, the judgement must be removed. Also, the ability to garnish wages for a civil judgement is non existent in Az....

Since I've reviewed some of your posts and noted that you tend to be incorrect about the law, please provide legal authority for your claims.

According to information I have, judgments in Arizona are good for five years but are renewable; and wages may be garnished.

 

[armoredman]

Mr. Ettin, Mr. Kleenbore, if I may attempt to clarify one last time? My information comes from more than one source, including the Arizona Citizens Defense League, which lists this accomplishment on it's wall,

Passage of the Crime Victims Protection Act of 2012, that amends the Arizona Constitution to protect victims from being sued by their attackers.

http://azcdl.org/html/accomplishments.html

Listed here,
http://ballotpedia.org/wiki/index.p...otection_Act_Amendment,_Proposition_114_(2012)

The Arizona Crime Victims Protection Act Amendment, also known as Proposition 114, was on the November 6, 2012 general election ballot in the state of Arizona as a legislatively-referred constitutional amendment, where it was approved. The measure prohibited crime victims from being subject to a claim for damages for causing harm to a person if that person is killed or injured when engaging in, or fleeing after, a felony crime. It was introduced during 2011 state legislative session, where its formal title was SCR 1020.[1][2]

However, perhaps if you read the SECOND half of the disputed amendment, all things will become clearer,(I failed to post it, and you didn't look it up, sorry),

Article XVIII, Section 6
The right of action to recover damages for injuries shall never be abrogated, and the amount recovered shall not be subject to any statutory limitation, except that a crime victim is not subject to a claim for damages by a person who is harmed while the person is attempting to engage in, engaging in or fleeing after having engaged in or attempted to engage in conduct that is classified as a felony offense.

Also found here, http://azsos.gov/election/2012/Info/PubPamphlet/Sun_Sounds/english/prop114.htm
http://morrisoninstitute.asu.edu/20...114-arizona-crime-victims-protection-act/view
http://blog.novakazlaw.com/2012/11/arizona-proposition-14-the-crime-victims-protection-act-of-2012/
http://www.azcdl.org/AzCDL201211web.pdf

..because for some strange reason, azleg.gov seems to be down right now.
Now perhaps you will see what I was saying. I highly doubt the dedicated men and women who worked tirelessly to pass this amending act labored under any illusions of what it could or could not do. Please understand I have been active in AZ gun rights for a few days, and was very curious about this one myself when it was proposed. I am quite happy we have it.
As stated before, I am not an attorney admitted to the bar in Arizona or any other State of the Union, nor do I play one on TV.

 

[Frank Ettin]

Mr. Ettin, Mr. Kleenbore, if I may attempt to clarify one last time? My information comes from more than one source, including the Arizona Citizens Defense League, which lists this accomplishment on it's wall,...

Your information is coming from sources generally describing for laypersons the overall intent of the law. Kleanbore and I are describing the actual, technical details of how things actually work in the legal system.

He and I are providing more in depth information about the actual mechanics. As I point pointed out in post 12, the plain language of the civil immunity statute will requires that a particular fact exist (i. e., that the use of force was legally justified) in order for one to be entitled to civil immunity. And it might be necessary for someone claiming that immunity to establish the predicate fact by way of defending a lawsuit.

The sources you cite provide only a high level, "birds-eye" view of the law. Kleanbore and I are looking at things "where the rubber meets the road."

And to be blunt, I am and lawyer and Kleanbore has an extensive background working on legal matters. We have good reason from years of personal, professional experience understand mechanically how things actually work.

 

[Kleanbore]

Armoredman, you raise an interesting point. It would seem clear on the face of it that the Amendment that you cite here could only come into play after the state has proven beyond a reasonable doubt that someone has in fact attempted or committed a felony offense--vs. simply having presented a reason, which must not be judged by the state in a civil matter, for the defender's belief that an imminent threat existed. That means the state must act first before that provision can come into play.

And, of course, should the perpetrator expire before having been tried and convicted, that part of the law means nothing.

The Hernandez, case which led to the ballot issue that you cite, did not test the existing Arizona civil immunity clause. Injured while stealing a bottle of lotion? The security guard did not claim immunity under §13-413. Rather, the claim was made under A.R.S. § 12-712(B), which absolves a defendant from liability to a plaintiff who is injured while involved in a criminal act. The court ruled that law unconstitutional.

The new constitutional provision protects citizens from liability to convicted criminals. The immunity provided for in §13-413 addresses actions in which the defender's actions were justified under the law, and it would also cover suits filed by the estate of a decedent attacker.

Will it survive a constitutional challenge? Maybe. The only real question is whether the suit would be stopped before being tried. And that happens all the time anyway.

 

[armoredman]

And to be blunt, I am and lawyer and Kleanbore has an extensive background working on legal matters.

And this guy, who IS an Arizona admitted lawyer and former prosecutor says,
http://blog.novakazlaw.com/2012/11/arizona-proposition-14-the-crime-victims-protection-act-of-2012/
I'm sorry, sir, but I will take the legal opinions of AZ admitted attorneys who tend to agree what the intent of the Amendments are.
Thank you, Kleenbore, for seeing what I posted with a more open mind. That, indeed, is exactly what the Amendments were intended to do, that after a defendant is judged not guilty, as Mr Zimmerman was, that individual would not face civil lawsuits from the felon in question.
This will, of course, be my last post on this subject, as tempers seem to be flaring and minds are closing - lawyers HATE when non-lawyers try to dispute things that we know some tiny amount about, but that's OK, I'll just go back to being a Neanderthal knuckle dragging prison guard who can speak only in grunts.
In closing, ugh.

 

[Kleanbore]

Posted by Armoredman: That, indeed, is exactly what the Amendments were intended to do, that after a defendant is judged not guilty, ... that individual would not face civil lawsuits from the felon in question.

You completely misunderstand what Mr. Novak said.

Acquittal of the defender does not trigger immunity under the Amendment, because it does not estabish the guilt of the attacker.

The new amendment prevents suits only after after the conviction of the criminal--which, of course will not happen if the attacker expires.

 

[Frank Ettin]

And this guy, who IS an Arizona admitted lawyer and former prosecutor says,
http://blog.novakazlaw.com/2012/11/arizona-proposition-14-the-crime-victims-protection-act-of-2012/
I'm sorry, sir, but I will take the legal opinions of AZ admitted attorneys who tend to agree what the intent of the Amendments are.

First, that is not a legal opinion, and in fact it is included in the website the attorney uses to promote his business. It is another "bird's-eye" look at the law in general terms. It is a superficial overview.

He is correct about the intent of the law. But Kleanbore or I have been writing about the details of the mechanism by which the law operates.