Civil liability in justified shootings

[Birch Knoll]

They did it here.

Ugh. Folks, your immunity will only be decided once you are prosecuted or sued and you are in court. Nothing can stop a prosecutor from filing charges against you, and nothing can stop someone from filing suit against you. You can be hauled into court, and only then can you assert your immunity.

 

[Frank Ettin]

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."...

Nope, you don't understand how things work in the legal system. Note that immunity attaches only if your use of force was justified.

Well if the DA and/or grand jury thought your use of force was justified, you wouldn't be prosecuted anyway. And you're not the one who has the final say on whether or not your use of force was justified. So if you think your use of force was justified, but the DA and/grand jury, or the guy you shot, doesn't think so, there's a dispute on the question. And when a legal issue is in dispute, that dispute gets resolved in court.

So unless everyone agrees that your use of force was justified, you can still wind up in court, even if only to decide the question of justification.

 

[Deanimator]

They can file pro se.

In the words of Sponge Bob, "Good luck with that!"

A pro se suit filed by a crackhead who got shot in a valid self-defense incident has the life expectancy of a lucid thought in Joe Biden's head... at least in Ohio.

A first WEEK law student could get it dismissed on the pleadings faster than you can say, "This is a big ****** deal!"

Of course too, Ohio has laws sanctioning "vexatious litigators". I believe they include jail time.

 

[TexasRifleman]

They did it here.

I'm sorry, that's simply not how the law works. It's well established law, and upheld all the time, that you cannot legislate away the ability to sue another.

What the Oklahoma law does is forces the other side to prove you should NOT be covered by the law that will make you immune. That's difficult for them to do (assuming you are cleared on the criminal side) but it simply cannot stop someone from suing you. It can make it pointless, which the OK law and many others pretty much do, but you just can't legislate it away.

Call a lawyer if you are not sure or don't want to believe what you've read here, it's important to have a VERY good understanding of laws regarding self defense in your state.

 

[brickeyee]

It's well established law, and upheld all the time, that you cannot legislate away the ability to sue another.

This.

You can make o harder to sue, you can enact 'loser pays' in suits, but you cannot deny someone the right to sue.

That can get pitched so easily it is meaningless.

 

[Darkhorse]

Civil liability for shootings is one reason I have an umbrella liability policy.

I've read the policy; guns aren't mentioned anywhere, but illegal activities are.

 

[95XL883]

Quote:
They can file pro se.

A first WEEK law student could get it dismissed on the pleadings faster than you can say, "This is a big ****** deal!"

I wish that was the way it worked here. My ordeal has been going on for almost two years. Judges tend to be very patient with pro se plaintiffs even if their claim is totally bogus. Mine is an extreme case with no guns involved. The point is you can be sued at anytime for anything or nothing and then you will have to deal with it. Add in a shooting, even a justified one, and it will get more complex, more trying and more at stake.

Castle law may acknowledge my right to defend my family and myself but my actions are going to be scrutinized carefully. You can be darn sure that if I ever have to pull the trigger it will be because the lives and health of my family and/or myself are in imminent danger.

 

[Hugo]

Any advice on legal insurance or umbrella policy to pay legal fees if you do have to injure or kill someone in self defense?

Also remember you defending yourself probably will involve a firearm but not necessarily. If you have a baseball bat/hockey stick/whatever in hand and the attacker has a knife in hand 10 feet away, and your pistol is in another room....... Civil cases are complicated...

 

[HoboCoastie]

You wanna see some really cool laws in support of the gun owner, check out Louisiana's Justifiable Homicide Laws <---Clicky

 

[Frank Ettin]

You wanna see some really cool laws in support of the gun owner, check out Louisiana's Justifiable Homicide Laws

Actually, that statute isn't very different from statutes in effect in most States. Even the applicable statutes in California are pretty similar.

A few words about presumptions, since a presumption is mentioned in the Louisiana statute, and presumptions were alluded to in post 51:

1. A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.
   
   
2. So for example, the Louisiana law linked to above says (LSA-R.S. 14:20 B):

   B. For the purposes of this Section, there shall be a presumption that a person lawfully inside a dwelling, place of business, or motor vehicle held a reasonable belief that the use of deadly force was necessary to prevent unlawful entry thereto, or to compel an unlawful intruder to leave the premises or motor vehicle, if both of the following occur:
   
   (1) The person against whom deadly force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered the dwelling, place of business, or motor vehicle.
   
   (2) The person who used deadly force knew or had reason to believe that an unlawful and forcible entry was occurring or had occurred....

   
   
3. So if in Louisiana you've shot someone inside your house and claim self defense, you don't necessarily have to provide evidence that you reasonably believed that deadly force was necessary to make your self defense case, since that can be presumed, BUT to be entitled to that presumption you must still put on evidence that (1) the person you shot was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered your home; and (2) you knew or had reason to believe that.
   
   
4. In other words, a presumption is not free. While it might mean that you won't have to put on evidence of one thing, in order to get the presumption you will have to put on evidence of something else.
   
   
5. Other presumptions work the same way. Also, in the law, all presumptions are rebuttable.

 

[Kleanbore]

You wanna see some really cool laws in support of the gun owner, check out Louisiana's Justifiable Homicide Laws...

As fiddletown points out, that law is not much different from that in many other states.

Actually, it is a law "in support of" the resident or motorist, etc., whether or not he or she happens to own a gun. The law addresses the justification of the use of deadly force, whether such force is administered with a firearm, carving knife, baseball bat, golf club, or a heavy antique gum ball dispenser.

More relevant to this thread, Louisiana has enacted a law providing civil immunity for the use of deadly or other force provided that the court finds that the defendant is immune from suit.

 

[Cosmoline]

There is enormous state and even city variation in the civil side of matters. Procedures are different as is the substantive law. And of course the juries are different. So location matters enormously. Maybe more than anything else.

And of course there are always nutcases and sociopathic plaintiff lawyers who will take even loser cases as far as possible. Up here we have the nation's strongest loser-pays system but even so people still bring frivolous claims.

 

[Jeff White]

I'd like to welcome all you private citizens into the world of civil immunity

Anyone who thinks that they cannot be sued because a castle doctrine law says they can't is going to find themselves in for a rude awakening if they are ever unfortunate enough to be involved in a shooting.

Police officers and other public employees have been covered under civil immunity laws to protect them from retaliation for actions taken in the line of duty almost from the start of the republic. But you read about them being sued all time. How does that happened if they have civil immunity?

It happens the same way it happens to you under the civil immunity part of the castle doctrine law many of you so proudly wave as a shield in front of them.

The law does not forbid the circuit clerk form accepting the petition to the court. If some wishes to sue you, all they have to do is file suit. It will then be up to you and your lawyer to file a response saying, I am immune from this action because the castle doctrine law says I am. If you are served with a civil action in a matter like this and you ignore it, the plaintiff just asks for a default judgement and the fact that you are supposedly immune doesn't come into play. BAM!! judgement for the plaintiff!!

So you still have to hire an attorney and respond. And all the plaintiff has to do is convince the judge that something you did was so bad that the protections of the castle doctrine law shouldn't apply to you and guess what? You're in court!!

Think that you are just an ordinary guy and don't have a lot of money so they won't come after you? You might want to think again. Do you have homeowners or renters insurance? What are the limits of liability on the policies? Don't think some lawyer won't think that a third of whatever the insurance company offers to pay isn't enough to make it worth his while. The insurance company is going to settle as cheaply as possible. They don't care about the facts they care about the bottom line, what will be the most inexpensive way to make the case go away. If a payoff to the "victim's" family of $40K is cheaper then going to court to prove that you were in the right, and with the cost of litigation, it most likely will be, that's what they will do.

Much of what goes on in our legal system is little more then legal extortion.

And civil immunity doesn't mean what you think it does...

 

[Deanimator]

If you are served with a civil action in a matter like this and you ignore it, the plaintiff just asks for a default judgement and the fact that you are supposedly immune doesn't come into play. BAM!! judgement for the plaintiff!!

A "default judgment" for WHAT?

Ohio law SPECIFICALLY bars recovery of damages.

Plaintiff can no more recover than he can have you declared a slave. It's COMPLETELY unenforceable.

What's the judgment going to declare, that I have to promise not to kill the decedent AGAIN? He's sure not getting a penny in monetary compensation.

Again, good luck finding a lawyer who'll file a frivolous suit, KNOWING you can't recover and he won't get paid.

Yeah, get a lawyer. It's always smart whether the cops want to talk to you about something or whether you're getting sued by the inbred, mutant family of the imbecile who tried to dismember you with a chainsaw. But in Ohio, it's a moot point. A lawyer will just make a faster, simpler moot point.

 

[Jeff White]

Ohio law SPECIFICALLY bars recovery of damages.

I sure hope the federal court enforces the Ohio law...

Don't think that a suit can't be moved to federal court. I have personal knowledge of a suit for damages in an auto accident that made it's way into the federal court system.

Sleep well tonight in the knowledge that you are completely immune to civil civl action because you live in Ohio

 

[Matthew Courtney]

Everyone at my wife's law firm makes their living defending frivilous suits. Federal and state law make it very clear that Union Pacific trains always have the right of way on Union Pacific tracks, but people who run into trains or get hit while walking down the tracks have families who find attorney who file suits.

"My clients late daughter was innocently walking to the store when suddenly and out of nowhere a Union Pacific train recklessly appeared on the Union Pacific railroad tracks...". They have never lost a case. A few have actually gone to a jury when Plaintiffs attorneys have argued that the tracks were not adequately marked and other such nonsensical questions of fact. On that one, the jury awarded the dead dudes family $250,000 - to be paid by the local government, not UP, because the local government failed to maintain a crossing point.

Default judgements are 100% enforcible and once they become final, questions of law, such as actual liability, which might have been argued no longer matter. At that point, the only defense against an enforcement of the judgement is destitution.

 

[Deanimator]

I sure hope the federal court enforces the Ohio law...

Don't think that a suit can't be moved to federal court. I have personal knowledge of a suit for damages in an auto accident that made it's way into the federal court system.

Sleep well tonight in the knowledge that you are completely immune to civil civl action because you live in Ohio

A meth head kicks in my door and I shoot him.

1. What's the federal issue at hand?
2. Where's the federal jurisdiction?

 

[Matthew Courtney]

Actually, that statute isn't very different from statutes in effect in most States. Even the applicable statutes in California are pretty similar.

A few words about presumptions, since a presumption is mentioned in the Louisiana statute, and presumptions were alluded to in post 51:

1. A presumption is a rule that affects evidence and burden of proof in court. Ordinarily, one who asserts something in court will have the burden of proving, by presenting good evidence, that certain facts supporting that assertion are true. But sometimes the law might allow one of those facts to be accepted as true without specific evidence of that fact if the party with the burden of proof shows that certain other facts are true. So the party might be entitled under a rule of law to have fact A presumed to be true if facts B, C, and D are shown to be true, even if the party produces no direct evidence that fact A is true.
   
   
2. So for example, the Louisiana law linked to above says (LSA-R.S. 14:20 B):
   ​
   
   
3. So if in Louisiana you've shot someone inside your house and claim self defense, you don't necessarily have to provide evidence that you reasonably believed that deadly force was necessary to make your self defense case, since that can be presumed, BUT to be entitled to that presumption you must still put on evidence that (1) the person you shot was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered your home; and (2) you knew or had reason to believe that.
   
   
4. In other words, a presumption is not free. While it might mean that you won't have to put on evidence of one thing, in order to get the presumption you will have to put on evidence of something else.
   
   
5. Other presumptions work the same way. Also, in the law, all presumptions are rebuttable.

In Louisiana, if your attorney informs the court that he is going to argue self-defense, he does not have to prove any element of justification. Here, the presumtion of innocence in a self-defense case is interpreted very broadly. If a procecutor wants to argue against justification, every element of justification is presumed to be present and each and every fact presented by your attorney supporting elements of justification is presumed to be true. The prosecutors bar is very high - he has to prove beyond a reasonable doubt that the facts supporting justification are false.

 

[Matthew Courtney]

You wanna see some really cool laws in support of the gun owner, check out Louisiana's Justifiable Homicide Laws <---Clicky

Our laws regarding civil liability in a justified use of force case are horrible. Even if you prevail at trial in criminal court, you are not immune from civil suit. You have to go to civil court and prove once again that you were justified.... and in civil court the bar is much lower, you are entitled to no presumptions, the standard of proof is preponderance of the evidence, you have no right against self incrimination, ect.....

If you want to see some caselaw, look up Williams et al v Courtney et al in Louisiana's 19th Judicial District.

 

[Matthew Courtney]

A meth head kicks in my door and I shoot him.

1. What's the federal issue at hand?
2. Where's the federal jurisdiction?

If the meth head is in any class protected by Federal law, you can be brought into federal court for shooting him because:

1. he was black
2. he was white
3. he was gay
4. he was a vet
5. he was handicapped
6. he was muslim
7. he was christian
8. he was jewish
9. he lives with his kids
10. he was mexican
11. he was female
12. his sister is a Democrat
13. he was a republican
14. he's on government aid
15. he's an illegal alien

Federal jurisdiction exists under the:

Civil Rights Act of 1866
Civil Rights Act of 1875
Civil Rights Act of 1957
Civil Rights Act of 1964
Civil Rights Act of 1991 and the
Voting Rights act of 1965 and
Americans with Disabilities Act.

 

[Deanimator]

If the meth head is in any class protected by Federal law, you can be brought into federal court for shooting him because:

Meanwhile in the real world...

It doesn't seem to be happening in Ohio.

 

[Rico567]

<SNIP>

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.

That's correct. That's all a civil suit is. An this is where our application of the concept of equity falls to the ground. There must either be fundamental reform of tort law, or at some point Shakespeare's solution becomes more likely....or we could be a bit more humane and just board up the law schools for 50 years.

 

[brickeyee]

Civil liability for shootings is one reason I have an umbrella liability policy.

Better read that policy VERY carefully.

Intentional acts are often not covered.

 

[Top_Gunn]

Quote:
If you are served with a civil action in a matter like this and you ignore it, the plaintiff just asks for a default judgement and the fact that you are supposedly immune doesn't come into play. BAM!! judgement for the plaintiff!!
A "default judgment" for WHAT?

Ohio law SPECIFICALLY bars recovery of damages.

Plaintiff can no more recover than he can have you declared a slave. It's COMPLETELY unenforceable.

What's the judgment going to declare, that I have to promise not to kill the decedent AGAIN? He's sure not getting a penny in monetary compensation.

This is simply wrong. You get out of paying damages only if it's a "good shoot," as you put it. If you have defaulted, the other party wins on all substantive issues, including the issue of whether it was a "good shoot." so you are out whatever damages the plaintiff asked for.

A lot of people have pointed out that the law never makes it impossible for someone to sue you. This isn't just because of the way the laws are written: it wouldn't be possible to write a law that prevented a lawsuit whenever you satisfied certain standards, because you'd need to conduct some sort of hearing to determine whether those standards were satisfied. So, if somebody sues you, claiming that you haven't met the standards for immunity, and you default, you have lost that suit and will have to pay.

As you have said repeatedly, the immunity from paying damages exists for a "good shoot." Do you think they're going to take your word for it that it was a good shoot? That if you don't put on a defense they'll just assume that what you did was OK?

 

[JRH6856]

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.

Acquittal in criminal court does not convey immunity in civil court. (Ask OJ.)

Each court makes its own determination of fact and the rules of evidence are different. And if criminal charges are never filed, there is no judicial finding of fact to point to in civil court even if it mattered.