Introduction
In this forum, we continually address some of the key legal aspects of the use of force in self defense. Subjects that we have covered include the basics of use of force law; some more specific things, such as the duty to retreat, "stand-your-ground" laws, and the castle doctrine; and some aspects of how the criminal justice system works, from the reporting of an incident through interaction with arriving officers and through the investigation and trial stages.
We have concentrated on the criminal law aspects of the justification of the use of deadly force. There is another side that is also of great importance: civil liability.
The Short Version
We have discussed at great length in this forum about how citizens who are involved in the use of either non-deadly physical force, deadly force, or even the threat of force against other persons are likely to find it necessary to show that their actions were lawfully justified from the criminal standpoint.
No one should lose sight of the fact that there is also a risk of suits in which the other party may seek significant monetary damages.
Some states have enacted laws intended to limit the risk of frivolous civil suits. To the layman, a casual reading of those laws may give the impression that they virtually eliminate the risk of civil suits in situations in which the use of force is deemed justified in the criminal justice system.
No one should ever rely on such an impression. There are significant differences between the criminal justice system and the civil court system. These differences involve evidentiary rules; the fact that in criminal trials a defendant is entitled to certain constitutional protections, such as that involving self incrimination, that are not afforded to defendants in civil cases; and issues having to do with the different burdens of proof.
In the following discussion, we will touch primarily on the last of these differences, which is probably the most important.
In order to provide our members with a better understanding of this important subject, I have consulted with attorneys Frank Ettin, Spats McGee, and Bartholomew Roberts to put together a brief outline of the pertinent principles.
Discussion and Overview
When one person harms another for whatever reason, the injured party, or his surviving family, can be expected to seek to recover damages in the court system. When a shooting involves a sworn officer properly acting in the line of duty, there is always the possibility that the person who has been shot, or his surviving family members, will file suit against the police department, the officer involved, and perhaps even the supervisors of the officers involved. However, as long as the officer acted responsibly and in accordance with approved policy, he or she can count on the support of the state, county, or municipality in his or her defense. Except in cases involving particularly egregious actions on the part of the officer, it is highly unlikely that he or she will be held personally responsible for damages assessed by the court or agreed upon between the parties.
That is not true when a private citizen uses force against someone else. The citizen is on his own.
Anyone who has followed a sufficient number of self defense trials is no doubt aware of cases in which armed citizens who have had to defend themselves have been acquitted in criminal court and found themselves facing the threat of a civil lawsuit, perhaps from the surviving families of the persons shot in self defense. That is not uncommon.
In our litigious society, there have been some rather extreme outcomes that have appeared to many people to far exceed reasonable justice for the injured persons or their estates. In order to try to establish an equitable balance, a number of state legislatures have enacted laws intended to protect lawful defenders from unreasonable civil liability.
Such laws usually something read something like " A person who uses force as permitted in [Sections…..] is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless….". In at least one state, the law reads "such fact [(that the use of force was justified under the criminal code)] shall be an absolute defense to criminal prosecution or civil liability."
To the layman, such wording may seem to indicate that such laws effectively eliminate the risk of civil judgments in self defense shootings, at least when the defender acts in a lawful manner. However, that is not the case at all.
It is very important that no one misunderstand what such laws mean and what they do not. One occasionally hears such statements as “in my state, if I shoot in self defense in my home, I cannot be sued”. That is not what the laws mean, or what they were intended to mean.
This is necessarily a very general discussion that does not address details that could be very important in individual cases.
Justification and the Burden of Proof
It is extremely important to understand that the fact that a defender is not charged in the criminal justice system does not mean that he or she has met the standard for justification to prevent civil liability. Nor does an acquittal in criminal court automatically establish civil immunity; and depending upon the laws of the jurisdiction, acquittal in criminal court may indeed fall far short of protecting a defendant from civil liability.
On the criminal side, the burden of proof for justifying the use of force varies among jurisdictions. In some states, such as New York, to cite only one example, a defendant who clams self defense must convince the triers of fact that the act was lawfully justified by showing by a preponderance of the evidence that all of the elements of lawful self defense had been present. In others, such as Arizona, Florida, and West Virginia, the state must prove beyond a reasonable doubt that the defender’s act was not justified. Thus, a prosecutor who believes that he or she would be unlikely to meet the BARD threshold may choose to not charge a suspect. Or if charges are filed, the state may fail to get a conviction.
The first outcome would not meet the standard for civil immunity--nothing has been proven. Nor would the second, in a state in a jurisdiction in which the state would be required to prove beyond a reasonable doubt that the defendant had not acted in lawful self defense. In a civil trial, only a preponderance of the evidence is necessary to support a judgment against a defendant. Put another way, unless more of the evidence supports justification than liability, the judgment will go against the defendant. In some jurisdictions, the burden of proof for the state in a criminal trial involving a claim of justified self defense is much greater than that for a plaintiff in a civil trial.
There’s nothing new there. That’s the way it has been for centuries. What is new, in those states that have enacted civil immunity laws, is outlined as follows:
Immunity for Civil Liability for the Justified Use of Force
The kinds of laws we are discussing do a couple of things:
In some states, the laws go farther:
These last two items are intended to mitigate against the filing of frivolous suits, but it is important to understand that many of the persons who may end up filing such suits have little or no money with which to reimburse a defendant.
Where such laws have been enacted, they have generally resulted in a significant reduction in the number of frivolous lawsuits.
Pursuing Civil Immunity under the Law
As indicated in the aforementioned example, in some states, but not all, the section of the law that covers civil immunity is grouped with wording that is intended to also prevent criminal prosecution in the event of an act of force is justified under the law.
That is the case in Florida, to cite one example. The appellate courts have established that one who has been charged with having committed a use of force crime and who intends to pursue a defense of justification may ask the courts to stop the prosecution process. To do so, the defendant would present evidence of justification and to persuade a judge that a preponderance of the evidence supports the lawful justification of the act in question.
A claim of entitlement to civil immunity might be handled in that way, but there's still no clear law on that. In any case, every civil immunity law sets out various requirements that need to be satisfied in order for there to be immunity. There may be dispute about whether those requirements had been satisfied. Perhaps a dispute on that issue could be dealt with in some summary proceeding. But sometimes perhaps not. In any case, it will be a matter for a court.
So while someone might be in theory entitled to immunity, if there's any dispute about that he'll be in court and paying a lawyer anyway.
Separate Trials, Different Legal Processes
In case it is not now clear, a criminal defense and a defense against civil proceedings will entail entirely different processes--different courts, different judges, different juries, and different rules. Transcripts of testimony in the criminal trial will not be used in a civil trial. The defendant will face an attorney who represents the plaintiff rather than a prosecutor who represents the state. The defendant will most likely employ different attorneys. Incidentally, the defendant is not entitled to a public defender in a civil case.
While there have been some high profile cases in which wrongful death suits have followed the criminal case, it will not necessarily happen that way. It is not unlikely that a defendant will choose to settle a civil suit before the criminal case has been concluded.
Untested Law
The intersection of state codes and tort law includes some uncharted territory. Tort law has traditionally been the province of the courts. Not every attempt by state legislatures to limit the rights of citizens to seek redress in civil court has withstood the test of the judicial process.
Some of what we have discussing remains untested. Some legislatures have attempted to provide for civil immunity in cases in which criminal prosecution is simply not pursued. Such provisions represent a very significant departure from long-standing legal tradition, and it would not be prudent to rely on them or to be the test case.
The Scope of This Discussion
The above applies to civil liability associated with justified, necessary, and intentional acts of self-defense that result in harm to a criminal aggressor.
The subject of civil liability associated with acts of negligence and with injuries incurred by third parties is beyond our scope.
We will, however, touch on one limited but very important aspect of the inherent intentional nature of a self defense shooting: unless other wise specified, home-owners insurance policies cover damages resulting only from unintentional acts. Liability associated with the sooting of an assailant in self defense shooting is almost always excluded. The home owner is almost always on his own.
Summary and Take-Away Points
To recap, (1) some states have passed laws that have effectively tended to dissuade the proverbial “ambulance chasers” among attorneys from pursuing frivolous lawsuits involving acts of self defense; (2) everyone should be aware that there is a very significant difference between what it takes to establish criminal guilt and what it takes to prevail in a civil suit; and (3) for that reason, civil liability remains a potentially substantial risk for one who harms another, even in a necessary act of self preservation.
This further underscores the reason for our always repeating the admonition that the use of deadly force should always be regarded as a last resort, to be used only when no other means of protection are unavailable or all have been exhausted.
In this forum, we continually address some of the key legal aspects of the use of force in self defense. Subjects that we have covered include the basics of use of force law; some more specific things, such as the duty to retreat, "stand-your-ground" laws, and the castle doctrine; and some aspects of how the criminal justice system works, from the reporting of an incident through interaction with arriving officers and through the investigation and trial stages.
We have concentrated on the criminal law aspects of the justification of the use of deadly force. There is another side that is also of great importance: civil liability.
The Short Version
We have discussed at great length in this forum about how citizens who are involved in the use of either non-deadly physical force, deadly force, or even the threat of force against other persons are likely to find it necessary to show that their actions were lawfully justified from the criminal standpoint.
No one should lose sight of the fact that there is also a risk of suits in which the other party may seek significant monetary damages.
Some states have enacted laws intended to limit the risk of frivolous civil suits. To the layman, a casual reading of those laws may give the impression that they virtually eliminate the risk of civil suits in situations in which the use of force is deemed justified in the criminal justice system.
No one should ever rely on such an impression. There are significant differences between the criminal justice system and the civil court system. These differences involve evidentiary rules; the fact that in criminal trials a defendant is entitled to certain constitutional protections, such as that involving self incrimination, that are not afforded to defendants in civil cases; and issues having to do with the different burdens of proof.
In the following discussion, we will touch primarily on the last of these differences, which is probably the most important.
In order to provide our members with a better understanding of this important subject, I have consulted with attorneys Frank Ettin, Spats McGee, and Bartholomew Roberts to put together a brief outline of the pertinent principles.
Discussion and Overview
When one person harms another for whatever reason, the injured party, or his surviving family, can be expected to seek to recover damages in the court system. When a shooting involves a sworn officer properly acting in the line of duty, there is always the possibility that the person who has been shot, or his surviving family members, will file suit against the police department, the officer involved, and perhaps even the supervisors of the officers involved. However, as long as the officer acted responsibly and in accordance with approved policy, he or she can count on the support of the state, county, or municipality in his or her defense. Except in cases involving particularly egregious actions on the part of the officer, it is highly unlikely that he or she will be held personally responsible for damages assessed by the court or agreed upon between the parties.
That is not true when a private citizen uses force against someone else. The citizen is on his own.
Anyone who has followed a sufficient number of self defense trials is no doubt aware of cases in which armed citizens who have had to defend themselves have been acquitted in criminal court and found themselves facing the threat of a civil lawsuit, perhaps from the surviving families of the persons shot in self defense. That is not uncommon.
In our litigious society, there have been some rather extreme outcomes that have appeared to many people to far exceed reasonable justice for the injured persons or their estates. In order to try to establish an equitable balance, a number of state legislatures have enacted laws intended to protect lawful defenders from unreasonable civil liability.
Such laws usually something read something like " A person who uses force as permitted in [Sections…..] is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless….". In at least one state, the law reads "such fact [(that the use of force was justified under the criminal code)] shall be an absolute defense to criminal prosecution or civil liability."
To the layman, such wording may seem to indicate that such laws effectively eliminate the risk of civil judgments in self defense shootings, at least when the defender acts in a lawful manner. However, that is not the case at all.
It is very important that no one misunderstand what such laws mean and what they do not. One occasionally hears such statements as “in my state, if I shoot in self defense in my home, I cannot be sued”. That is not what the laws mean, or what they were intended to mean.
This is necessarily a very general discussion that does not address details that could be very important in individual cases.
Justification and the Burden of Proof
It is extremely important to understand that the fact that a defender is not charged in the criminal justice system does not mean that he or she has met the standard for justification to prevent civil liability. Nor does an acquittal in criminal court automatically establish civil immunity; and depending upon the laws of the jurisdiction, acquittal in criminal court may indeed fall far short of protecting a defendant from civil liability.
On the criminal side, the burden of proof for justifying the use of force varies among jurisdictions. In some states, such as New York, to cite only one example, a defendant who clams self defense must convince the triers of fact that the act was lawfully justified by showing by a preponderance of the evidence that all of the elements of lawful self defense had been present. In others, such as Arizona, Florida, and West Virginia, the state must prove beyond a reasonable doubt that the defender’s act was not justified. Thus, a prosecutor who believes that he or she would be unlikely to meet the BARD threshold may choose to not charge a suspect. Or if charges are filed, the state may fail to get a conviction.
The first outcome would not meet the standard for civil immunity--nothing has been proven. Nor would the second, in a state in a jurisdiction in which the state would be required to prove beyond a reasonable doubt that the defendant had not acted in lawful self defense. In a civil trial, only a preponderance of the evidence is necessary to support a judgment against a defendant. Put another way, unless more of the evidence supports justification than liability, the judgment will go against the defendant. In some jurisdictions, the burden of proof for the state in a criminal trial involving a claim of justified self defense is much greater than that for a plaintiff in a civil trial.
There’s nothing new there. That’s the way it has been for centuries. What is new, in those states that have enacted civil immunity laws, is outlined as follows:
Immunity for Civil Liability for the Justified Use of Force
The kinds of laws we are discussing do a couple of things:
- They establish that the standard for what constitutes necessary and reasonable force for purposes of judging civil liability is the same as that used to determine criminal culpability.
- They (are intended to) protect a defender from having to go to trial to defend against an unjustified civil suit for a justified action. How that is supposed to happen is usually defined by the courts. One common way is for the defendant to ask a judge to invoke the civil immunity clause and prevent a civil suit from proceeding. More on that later.
In some states, the laws go farther:
- They require a plaintiff who fails in a civil suit to pay for court costs, often including the legal fees incurred by the defendant.
- In some states, an unsuccessful plaintiff is required to reimburse the defendant for other damages, such as lost wages.
These last two items are intended to mitigate against the filing of frivolous suits, but it is important to understand that many of the persons who may end up filing such suits have little or no money with which to reimburse a defendant.
Where such laws have been enacted, they have generally resulted in a significant reduction in the number of frivolous lawsuits.
Pursuing Civil Immunity under the Law
As indicated in the aforementioned example, in some states, but not all, the section of the law that covers civil immunity is grouped with wording that is intended to also prevent criminal prosecution in the event of an act of force is justified under the law.
That is the case in Florida, to cite one example. The appellate courts have established that one who has been charged with having committed a use of force crime and who intends to pursue a defense of justification may ask the courts to stop the prosecution process. To do so, the defendant would present evidence of justification and to persuade a judge that a preponderance of the evidence supports the lawful justification of the act in question.
A claim of entitlement to civil immunity might be handled in that way, but there's still no clear law on that. In any case, every civil immunity law sets out various requirements that need to be satisfied in order for there to be immunity. There may be dispute about whether those requirements had been satisfied. Perhaps a dispute on that issue could be dealt with in some summary proceeding. But sometimes perhaps not. In any case, it will be a matter for a court.
So while someone might be in theory entitled to immunity, if there's any dispute about that he'll be in court and paying a lawyer anyway.
Separate Trials, Different Legal Processes
In case it is not now clear, a criminal defense and a defense against civil proceedings will entail entirely different processes--different courts, different judges, different juries, and different rules. Transcripts of testimony in the criminal trial will not be used in a civil trial. The defendant will face an attorney who represents the plaintiff rather than a prosecutor who represents the state. The defendant will most likely employ different attorneys. Incidentally, the defendant is not entitled to a public defender in a civil case.
While there have been some high profile cases in which wrongful death suits have followed the criminal case, it will not necessarily happen that way. It is not unlikely that a defendant will choose to settle a civil suit before the criminal case has been concluded.
Untested Law
The intersection of state codes and tort law includes some uncharted territory. Tort law has traditionally been the province of the courts. Not every attempt by state legislatures to limit the rights of citizens to seek redress in civil court has withstood the test of the judicial process.
Some of what we have discussing remains untested. Some legislatures have attempted to provide for civil immunity in cases in which criminal prosecution is simply not pursued. Such provisions represent a very significant departure from long-standing legal tradition, and it would not be prudent to rely on them or to be the test case.
The Scope of This Discussion
The above applies to civil liability associated with justified, necessary, and intentional acts of self-defense that result in harm to a criminal aggressor.
The subject of civil liability associated with acts of negligence and with injuries incurred by third parties is beyond our scope.
We will, however, touch on one limited but very important aspect of the inherent intentional nature of a self defense shooting: unless other wise specified, home-owners insurance policies cover damages resulting only from unintentional acts. Liability associated with the sooting of an assailant in self defense shooting is almost always excluded. The home owner is almost always on his own.
Summary and Take-Away Points
To recap, (1) some states have passed laws that have effectively tended to dissuade the proverbial “ambulance chasers” among attorneys from pursuing frivolous lawsuits involving acts of self defense; (2) everyone should be aware that there is a very significant difference between what it takes to establish criminal guilt and what it takes to prevail in a civil suit; and (3) for that reason, civil liability remains a potentially substantial risk for one who harms another, even in a necessary act of self preservation.
This further underscores the reason for our always repeating the admonition that the use of deadly force should always be regarded as a last resort, to be used only when no other means of protection are unavailable or all have been exhausted.
