Civil liability and survival

[Kleanbore]

Let's see if we can summarize the salient points that have been discussed so far:

• Yes, there is substantial risk of civil liability whenever one person harms another, willfully or through negligence; the issues will likely be decided in court; whether a suit would go to trial will depend upon court rulings and the laws of the jurisdiction; but an out of court settlement may be reached.
• No one in his right mind would base a decision on whether to defend himself on the liability issue.
• There are things that a prudent person can do to mitigate the risk; these include training; avoiding trouble in the first place (including our old "school solution", ADEE); and avoiding the creation of evidence (such as making statements, posting messages, putting up signs, etc.) that could work to a defendant's disadvantage in court.
• Not having much in the way of material assets does not represent a viable mitigation strategy.
• Some states have laws intended to reduce the risk of civil liability in a self defense case; such laws do not completely eliminate that risk; they are largely untested; we have a sticky on the subject, and we need not rehash the details here.
• The likelihood of an adverse civil judgement, or of a compelling need for agreeing to pay civil damages, would be increased substantially in the event of a guilty verdict in a criminal trial or of an agreement to plead guilty, even to lesser charges; this too is covered in the sticky, in a post by Cosmoline.
• Arizona has a constitutional provision that prevents persons from recovering damages associated with injuries or other losses sustained in the commission of felonies, or attempts at same; this prohibition extends beyond injuries associated with the justified use of force; by definition, it can only apply when the person who would otherwise file suit has been adjudged to have sustained the loss through involvement in felonious activity, and it therefore most probably does not come into play unless and until the state has successfully prosecuted the injured party, either with a conviction, an agreement to plead guilty, or a plea of nolo contendere.

The laws we have been discussing are relatively new and not all of them have been tested.

Have I omitted anything?

 

[Old Fuff]

As an "interested" resident of Arizona with some modest experience with its statutes, I wonder if any case law has come about where the various positions discussed during this thread were tested?

It would seem strange (but not unbelievable) that a person who defended themselves or others from a clearly felonious attack would be expected to do so in a manner that would preserve the aggressor’s life so that he or she could be convicted for committing a potentially fatal assault before the victim would have any protection from a civil action.

 

[Frank Ettin]

...I wonder if any case law has come about where the various positions discussed during this thread were tested?...

These civil immunity laws are in general too new to have generated much case law. But the issues related to standards of proof which Kleanbore and I have been discussing reflect basic legal principle that are deeply imbedded in the system.

There are all kinds of laws dealing with all kinds of issues that will yield a particular result if one thing or another is true. The purpose of litigation is to establish whether that thing is true if there's any dispute about it.

With civil immunity, how else would you expect it to work? Say you just shot and killed someone. Do you expect that it should sufficiently resolve the homicide for you to proclaim, "He was committing a felony and I shot him in self defense." and then just go home? What if there is evidence that could reasonably cast doubt on your claim?

So Arizona law provides that if you are injured in the course of committing a felony against someone, you can't recover civil damages. Fine, but you still only lose your claim for damages if you were committing a felony when you were injured. That is a fact that must be true for you to be barred from making a civil claim. If the answer to the question isn't clear, the fact must in some way be decided. Our legal system has well established procedures for deciding facts.

So Arizona law provides that if you injure an assailant using justified force in self defense you can't be held liable for civil damages. Fine, but you are off the hook only if your use of force was justified. That is a fact that must be true for you to be relieved of liability for damages. If the answer to the question isn't clear, the fact must in some way be decided. Our legal system has well established procedures for deciding facts.

And while there appears to at present be a dearth of case law on these civil immunity statutes, there is considerable case law on the issue of an LEO's qualified immunity for damages under 42 USC 1983 when his use of force meets established standard of reasonableness. The reality is that the availability of qualified immunity does not prevent LEOs, and their agencies, from being sued.

They are indeed regularly sued when they use force, and they therefore need to establish as true the facts which under the law create the entitlement to immunity. They most often are able to resolve the matter and establish their entitlement to immunity by means of summary judgment or other summary procedures. Such summary procedures will also be available to private citizens claiming immunity under a civil immunity law.

But still a civil immunity law can not guarantee you won't have to be in court, even if it's only for the purpose of establishing the facts giving raise to your entitlement to immunity.

 

[Kleanbore]

Posted by Old Fuff: It would seem strange (but not unbelievable) that a person who defended themselves or others from a clearly felonious attack would be expected to do so in a manner that would preserve the aggressor’s life so that he or she could be convicted for committing a potentially fatal assault before the victim would have any protection from a civil action.

Do not confuse the provisions of the Arizona Crime Victims Protection Act Amendment with the section of the law that provides civil immunity for justified conduct. It is a horse of a different color.

The latter provides protection in civil court against claims by a person against whom force has been used in the case of any use of force that is properly deemed to have been lawfully justified. The former prevents someone who was engaged in felonious conduct from recovering damages, even if he is injured in tripping on a loose tile while trying to flee.

In the latter, it is not necessary for the person against whom lawful force was used to be determined to have been guilty of a crime. The only issue is that of justification on the part of the defender. Evidence supporting a reasonable belief of immediate necessity is sufficient for lawful justification, regardless of what the person against whom force was used was actually doing.

 

[Cosmoline]

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.

Proven how, and when? In what court? Let's say someone breaks into your house and you shoot and injure him. He sues, and you raise this defense. He claims he was not engaging in a felony, but trying to solicit for aluminum siding when you invited him in and shot him. Absent a criminal conviction that you can use collaterally, you will still have to take the matter to a civil trial with all the expense that entails.

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

I think this is where you may be getting confused. "Declared justified" by whom exactly? If you aren't prosecuted, the lack of prosecution means nothing to a subsequent civil proceeding. It's actually inadmissible. The investigative findings of the police also mean nothing.

 

[Kleanbore]

^^^^

That's my layman's understanding.

Thanks.

 

[bdickens]

Your mileage may vary, according to the law in your state.


In Texas, you are immune from civil liability if you were justified in using force.

CIVIL PRACTICE AND REMEDIES CODE
CPRC CH. 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON
CPRC § 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.

http://www.txdps.state.tx.us/internetforms/forms/chl-16.pdf

 

[Kleanbore]

Posted by bdickens: In Texas, you are immune from civil liability if you were justified in using force.

True in many states.

But what does "immune" mean?

It is a whole lot easier for a plaintiff to prove that you were not justified than it is for the state to so prove, and the failure of the state to do so does not help you on the civil side.

We do have a sticky on the subject. You might find it enlightening.