Civil liability in justified shootings

[Fleet]

In SC, if you are involved in a justified shooting under our castle doctrine, you can not be sued in civil court by the aggressor or their family, estate, yadda yadda yadda. We don't reward criminals here in SC.

Same thing in Oklahoma.
The Self Defense Act here further states that if someone breaks into your home, there is an automatic and immediate presumption that they are there to do you/yours personal harm. Makes NO difference whether they are armed or not.

 

[Matthew Courtney]

I am perhaps not understanding the term "deliberate" here. To me, Peairs (my unfortunate index case) acted deliberately: he consciously chose to do what he did. But I feel he acted recklessly: he chose to do very unwise things, and because of that, an innocent man died.

Yet, I don't think what Peairs did defies understanding. That's why I think the criminal penalties should not have applied (as they in the end didn't), and why the civil penalties shoud have (as they ultimately did).

Is my analysis faulty?

The jury in the Peairs civil trial did not weigh whether on not Rodney Peairs solo deliberate act of shooting was negligent. The Hattori Attorney was better then that. That jury weighed whether either the husband and/or the wife were negligent in the sequence of events which led up to the shooting. Based on what was argued at trial, the jury instructions, and the appeal of the jury verdict filed by the Peairs couple, I believe that the jury ruled that the main act of negligence was Mrs. Peairs screaming for Rodney to "get your gun" as she slammed the front door on Yoshi and the other kid. Because Louisiana is a community property state, the jury did not need to find one party to the marriage solely negligent or assign percentages with a finding of joint negligence. In any case, the initial $2,000,000 jury award did not stand. On appeal, the Hattoris agrees to accept about $250,000.

 

[Matthew Courtney]

True of any law. That's the point of a trial by a "jury of one's peers". The idea is that one's peers can evaluate the situation and make a reasonable/fair/just judgement even if it doesn't align perfectly with the letter (or even the intent) of the law.

I'd rather a jury of my Peairs.

 

[Birch Knoll]

In SC, if you are involved in a justified shooting under our castle doctrine, you can not be sued in civil court by the aggressor or their family, estate, yadda yadda yadda.

Uh huh. And who decides if the shooting meets the conditions of the law? A court does, AFTER you've been charged with a crime or civilly sued. THEN you get to claim immunity, and your opponent disputes it. You still get to see the inside of a courtroom and you still get to pay an attorney.

 

[Kleanbore]

Posted by mgkdrgn: No [not an attorney], but I can read. In SC, if you are involved in a justified shooting under our castle doctrine, you can not be sued in civil court by the aggressor or their family, estate, yadda yadda yadda. We don't reward criminals here in SC.

It would be a good idea to consult an attorney to find out what the law means.

If one is sued, and there is nothing to prevent that, one can request a pre-trial finding of of immunity. To do so, the defendant must show by a preponderance of the evidence that the shooting was justified. If that request is granted, the suit is dismissed, and the plaintiff is responsible for the defendant's legal expenses.

That's true in most states that have criminal and/or civil immunity provisions.

This is relatively new and uncharted legal ground.

One thing that would not be wise is to conclude that, simply because the state does not prove beyond a reasonable doubt that a shooting was not justified, that there is a legal basis for claiming that it was justified.

 

[brickeyee]

No matter what the law may say, if it prohibits even filing a suite it may not survive a challenge.

Laws that prohibit even filing usually get a really bad reception court (as in they are declared invalid).
This is one of the reasons that it can be more effective to allow the suite to be filed, but enforce a 'looser pays' doctrine.

It will be hard to find an attorney to file the suite unless it has a VERY good chance of succeeding.
Attorneys (like everyone else, like to get paid for their work).


No one is denied their day in court.
An important concept in our legal system.

 

[JohnKSa]

In SC, if you are involved in a justified shooting under our castle doctrine, you can not be sued in civil court by the aggressor or their family, estate, yadda yadda yadda. We don't reward criminals here in SC.

We have a similar law in TX.

The problem is, as with many legal issues, that it's more complicated than it appears at first glance.

Here's a simple question that opens a can of worms.

What constitutes a "justified shooting" for the purpose of the castle doctrine exclusion?

Would the DA not seeking an indictment make the shooting justified? Or would it just mean that the DA didn't think it was worth his time to pursue? What about a failure to get an indictment? Or would it actually take a trial and acquittal?

The problem is that the law (at least TX law) doesn't carefully spell out precisely what makes a shooting justified. A criminal trial and acquittal would certainly suffice, but it's not clear if a DA's decision not to pursue a prosecution would qualify.

 

[Nordeste]

You guys can keep it going like this, please. It's being quite instructive .

 

[Thefabulousfink]

Debates on the Law can get quite academic, and American law can be very clear in some respects, and very complicted in others. It is also open to being challenged by anyone who can present good reason (or has enough money).

Fortunately, since many members of this forum carry guns for protection, they have taken it upon themselves to know the details. Obviously a lawyer is the best source of information, but these discussions can be interesting and educational.

 

[Loosedhorse]

Because Louisiana is a community property state, the jury did not need to find one party to the marriage solely negligent or assign percentages with a finding of joint negligence.

Thanks. That makes sense.

I personally put more blame on Peairs--always more blame on the one firing the shot. And civil trials especially are about blame: Hattori dies, no good reason (no one wants to be shot for getting an address wrong). Assigning blame to both the Peairs is straight-forward.

 

[Kleanbore]

A criminal trial and acquittal would certainly suffice,...

Probably not.

Acquittal in a criminal court would simply mean that the triers of fact did not conclude that the evidence showed beyond a reasonable doubt that the shooting had been been unjustified under the law. It would not indicate that the jurors had decided that the evidence showed the shooting to have been justified.

The burden in any civil trial is a preponderance of the evidence--one way or the other. To avoid a civil trial, the defendant would likely be required to request a motion of immunity from the civil judge.

This is relatively uncharted ground in most jurisdictions. One does not want to be the test case.

 

[JohnKSa]

Well, we won't know until someone gets acquitted for a shooting under the castle doctrine and then sued in civil court. Still, I would think that a trial and acquittal would be pretty hard to attack as evidence that the shooting was justified.

If that's not enough, what WOULD be enough? It almost sounds like you're saying that there's nothing that would actually be enough to positively ensure that the civil immunity clause is activated.

 

[TexasRifleman]

Some of you might want to go read your state laws again.

If you believe your state law prevents you from being sued you are mistaken. There is no way to legislate away the ability to sue someone. You CAN legislate a built in defense, and you CAN legislate away the ability to collect in some circumstances, but you cannot take away someone's ability to sue. Laws that have attempted to do that have been found unconstitutional and I don't believe any still stand in this country.

What most of the laws state is that it's a DEFENSE that the shooting was justified. That doesn't mean they can't sue. Texas as an example:

It is an affirmative defense to a civil action for damages

and later uses the phrase

is immune from civil liability

But that doesn't mean that the other person can't sue. What it means is that there is no liability if the shoot is justified.

If that's not enough, what WOULD be enough? It almost sounds like you're saying that there's nothing that would actually be enough to positively ensure that the civil immunity clause is activated.

That's the problem with all this. There is no way to positively ensure the civil immunity clause kicks in. No way to do it with 100% certainty. That's why tort reform of some kind that places a high cost burden on lawyers and plaintiffs that bring bad suits should be put in place. But they aren't, so there's still the risk of being sued even in an iron clad justified shooting. Things are better than they used to be, but not perfect. It's fairly tight in Texas since the Civil code specifically references the Penal Code, and says that if the Penal Code is satisfied there can be no civil immunity. That's very good, probably as good as you can get, but nothing is iron clad. You simply cannot legislate away the ability to sue someone so there is always the risk.

 

[Kleanbore]

It almost sounds like you're saying that there's nothing that would actually be enough to positively ensure that the civil immunity clause is activated.

No. A preponderance of the evidence that that the shooting was justified would suffice. Same thing to preclude criminal prosecution.

 

[Frank Ettin]

...I would think that a trial and acquittal would be pretty hard to attack as evidence that the shooting was justified.

If that's not enough, what WOULD be enough?...

A good question, and I don't think we have any good answers yet. A lot of this sort of thing will need to be worked out in the courts.

I suspect that various of the States with civil immunity laws as part of their castle doctrine will work thing out in different ways based on different approaches they may have to the handling of civil suits. There are a number of ways for disposing of civil litigation at an early stage, like motions to dismiss, motions for judgment on the pleadings, summary judgment, etc. So I can imagine States developing ways of addressing claims of civil immunity early on and thus possibly foreclosing and avoiding protracted litigation.

But it will still be costing the defendant some money.

...lawyers take cases expecting to be paid. Cases brought by thugs and their relatives are more than likely to be on a "contingency fee" basis than up front payment. No lawyer is going to waste his time such a case as he knows there is no payday.

Except sometimes lawyers will bet their time on the possibility that they can complicate the litigation sufficiently to get a settlement. And sometimes a self defense shooting becomes a "cause" generating financing from outside sources for the litigation.

Are you a lawyer?...

No, but I can read.

In SC, if you are involved in a justified shooting under our castle doctrine, you can not be sued in civil court by the aggressor or their family, estate, yadda yadda yadda....

So exactly how does that work? Exactly what does the actual law say? Exactly what happens if the aggressor or his family, etc., goes ahead and files a law suit?

 

[Deanimator]

But that doesn't mean that the other person can't sue.

In practice, it makes it virtually impossible to sue.

If I shoot somebody, what's the overwhelming likelihood of who he'll be?

Some meth head or other generic lowlife with poor victim selection skills, looking for an easy score.

If he survives, the odds are he's got no money for a lawyer to pursue a case in which he can NEVER recover.

If he dies, the odds are his mutant family's got no money for a lawyer to pursue a case in which they can NEVER recover.

How many lawyers do YOU know who'll take a blatantly frivolous case on a contingent basis, KNOWING that they're NEVER going to get paid?

Lawyers go after DEEP pockets, not NO pockets.

There are plenty of lawyers willing to pursue nonsense cases. There are a lot fewer of them willing to default on their mortgages to pursue them.

 

[brickeyee]

In practice, it makes it virtually impossible to sue.

They can file pro se.

And if you have any brains you will have your attorney respond.

They have a fool for a client, you should not commit the error.

Invoking a 'loser pays' doctrine has stood up when challenged, and is and effective way of suppressing frivolous suits.

 

[Frank Ettin]

The reality is that getting sued after using your gun defensively is not all that uncommon. That's why these civil immunity laws are so important and helpful. But while they can make the situation for the honest person much better, they can't make the issue completely go away.

 

[hermannr]

I think OK it was that passed a law within the last couple years, that said if you sue and loose, you get to pay the opposing team. In certain cases WA is like that too.

But there is even a problem with that. I was sued, I successfully defended myself, and even though the judge did not like the provision that he had to award my lawyer his costs, he did.

However there was a problem even there. The guy that sued me legally hid all his assets before he initiated his suit, and then would not pay my court ordered costs...there wasn't even anything to go back to court to sieze to cover them...so I was out the $$$$$ I had already paid my lawyer.

Be careful

 

[JohnKSa]

A preponderance of the evidence that that the shooting was justified would suffice. Same thing to preclude criminal prosecution.

The standard of conviction in criminal court is guilt beyond a reasonable doubt. That's a difficult standard. If the defense can raise even a reasonable doubt about the defendant's guilt then he goes free.

The standard of proof in civil court is a preponderance of the evidence. If the plaintiff can show that although 49.9999% of the evidence supports the innocence of the defendant, 50.00001% suggests he's guilty then he's civilly liable. That's a MUCH easier standard of proof for the plaintiff to meet.

The whole point of the civil immunity clauses is that if a person is not criminally guilty that fact provides civil immunity--the defendant doesn't have to run the gauntlet of a civil trial where the standard of proof against him could be much more easily satisfied.

What you're basically saying is that the criminal trial means nothing in terms of civil immunity because even after a criminal acquittal the defendant must STILL prove, by a preponderance of the evidence, that he isn't civilly liable. That's the SAME standard that he would have been held to before the castle doctrine civil immunity laws were passed . An interpretation like that would TOTALLY invalidate the civil immunity laws.

In practice, it makes it virtually impossible to sue.

In practice it makes it much less likely to sue successfully. It's still just as easy to sue as it has ever been, it just means that a suit is now harder to prove than it would have been without the civil immunity clauses in place.

 

[95XL883]

I reviewed KS law, http://ag.ks.gov/docs/documents/self-defense-statutes.pdf, with an attorney this morning. KS has a castle law and the last provision, 21-5231, provides immunity from criminal prosecution and civil action. Nonetheless, my attorney pointed out these can always be rebutted, even though they do provide a great deal of protection to a justified shooting. Basically there are too many variables to comfortably say in advance exactly what will happen after a shooting. For example, it would be harder to defend if the intruder was shot while fleeing, surrendering, passed out or hurling on the floor. It would be easy to defend shooting an armed intruder who is approaching or aiming/threatening. He was fairly comfortable that he could defend shooting, in the back, an armed intruder who didn’t know the homeowner was there. (The difficulty is knowing he is armed.) He also felt it would be easier to defend if the house is well secured, eg, door latches and hinges secured with long screws to structural lumber, pinned or blocked windows (so that the frame has to be broken to enter), a dog, audible alarms. Basically anything that will alert residents will be proof of the bad guys’ injurius intent.

The point is don’t rely on the law alone to protect you from a civil suit. Securing your perimeter beforehand, keeping your cell phone close and immediately calling the police strengthen your defense against a civil suit. Of course, these all help you survive to even face a civil suit.

You can always be sued and defending yourself against an unrepresented frivolous plaintiff is probably a minimum of $3,000 and can easily be much more. (For example, I’m one of five defendants being sued on a civil matter by an unrepresented frivolous plaintiff. He has no case. He has lost every round in court. He is possibly psychotic. The “deep pocket” defendant is doing virtually all of the legal work. My bill so far is $1,500. The “deep pocket” defendant’s bill is in the tens of thousands of dollars. I'll think long and hard before I do somebody a favor again.)

 

[ATLDave]

If that's not enough, what WOULD be enough? It almost sounds like you're saying that there's nothing that would actually be enough to positively ensure that the civil immunity clause is activated.

The problem is that the same system used for determining liability is the same system that decides defenses like immunity.

Take it out of the shooting context. Truth is an absolute defense to a slander or libel claim. But it's not enough to only ever speak the truth. Someone can still sue you by claiming your words were false. And then the evidence will either support or not support your truth defense.

Put another way, any legal doctrine, such as immunity, is going to have a test or set of requirements. The institution that we, as a society, use to decide whether sets of requirements have been met is the court system. That's what they do. (They generally do a far better job of it than regulators, which is your only other alternative, BTW.)

That's all a civil suit is. Although the suit itself feels like punishment, it's just one party asking the court to decide if a list of requirements for liability has been met, and, if so, to calculate what that liability is.

 

[95XL883]

What you're basically saying is that the criminal trial means nothing in terms of civil immunity because even after a criminal acquittal the defendant must STILL prove, by a preponderance of the evidence, that he isn't civilly liable. That's the SAME standard that he would have been held to before the castle doctrine civil immunity laws were passed . An interpretation like that would TOTALLY invalidate the civil immunity laws.

My attorney explained that the burden of proof is on the intruder/plaintiff, not the justified shooter/defendant. The justified shooter can be sued, but the burden is on the plaintiff and that's a big advantage to the justified shooter. But the justified shooter still has to defend himself. It should be easy if the intruder is armed and/or the perimeter is secured. And don't forget, juries can be a wild card.

 

[Fleet]

Texas Rifleman wrote:

Some of you might want to go read your state laws again.

If you believe your state law prevents you from being sued you are mistaken. There is no way to legislate away the ability to sue someone.

They did it here.

From the Oklahoma Self Defense Act:
"A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is justified in using such force and is immune from criminal prosecution and civil action for the use of such force. As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant."
http://www.ok.gov/osbi/documents/SDA_Lawbook_NOV_2009.pdf

 

[JohnKSa]

They did it here.

Most of the third page of this thread is discussing why laws like the one in OK do NOT actually prevent you from being sued.