Liability of self defense shooting

[The Annoyed Man]

I can't speak for other states' laws, but I know that in Texas, if you kill someone in self defense - even under the authority of your CHL, a homicide has still taken place and must be accounted for. That you killed the other person in self-defense is your defense to prosecution, but you may still face a prosecution. But understand that, at the very least, you are going to have to go downtown, possibly in handcuffs, to give a statement. Unless the circumstances are absolutely clear and obvious, you will likely have to face a grand jury. However, to the best of my recollection, no Texas grand jury has ever handed down an indictment against any CHL holder who defended themselves in public with lethal force. I believe the record is pretty much the same for those who have killed someone in defense of their home and its occupants.

The sometimes gray area is killings over property. Technically, you have the right to use lethal force to defend property, at least at night (but maybe not during the day), but in practical application, that may be a stupid thing to do. Confronting a thief in your driveway who is leaving with your $2,500 television and killing him is going to cost you ten times that much in legal fees before the grand jury no-bills you. Better to let the TV go and call your insurance agent.

 

[emb]

Impure. There are too many variables to answer the questions you ask. As stated each case is different. If you go to www.myflorida.com to the Department of Agriculture, you will find a link to Florida's firearm laws.

The best you can do now is to try and understand them. If the situation arises, you will have to apply them on the fly anyway. In other words you just do the best you can.

There are some general rules.

1. You no longer need to retreat before using deady force in any place you have a right to be. However, the use of deadly force must be justified in the first place.

2. If someone comes into your home (even just around the home), they are presumed to have the intent to commit a forcible felony. You are justified in using deadly force.

3. If the shoot is good, you are immune from civil and criminal liability.

Read the statutes and make sure you understand them. If after reading them you still have questions, consult a lawyer. Usually a consultation is provided at a nominal charge.

I don't know where you are in Florida. If you don't know a lawyer where you are, pm me and I'll help you find one that can answer your questions.

 

[Frank Ettin]

Laws vary from state to state, and every situation is different. If you use your gun in self defense, you can count on being detained and questioned, and the event will be investigated. Depending on what the investigation concludes, what the evidences is and what the witnesses, if any say, the DA can conclude that the shooting was self defense, or you could be charged and brought to trial. There is no way to know here and now what will happen.

I strongly suggest doing some studying. Check out the books by Massad Ayoob, or better yet, if you can, take his class, LFI-1, Judicious Use of Lethal Force.

A few points:

[1] As far as being considered guilty, it helps to understand the nature of a claim of self defense. When you claim self defense, you have in effect admitted that you did something that is ordinarily criminal. You shot someone. That is aggravated assault, if he survives, and at least manslaughter if he doesn't. Your defense is that it your act was justified. The fact that you shot the guy is obvious and established. Establishing that you were justified may take a little, or a lot, of doing, depending on the circumstances.

[2] Don't be cavalier about things even if you live in a gun friendly state. Someone suggested that you Google "Joe Hood." That's fine, but you should also Google "Harold Fish." Fish took place in another gun friendly state, Arizona.

[3] While some folks suggest saying nothing when the police arrive, Mas Ayoob suggests saying the following:

• That man attacked me.

• I will sign a complaint.

• There are witnesses (point them out).

• There is evidence (point it out).

• That's all I'll say now. You'll have my full cooperation in 24 hours after I've talked with my lawyer.

 

[ar10]

Are you an attorney? You know this how?

If I believed all this I would never carry, much less use a gun.

INAL but I did meet with my attorney after a previous incident and we discussed CC for about an hour. The post stated 50,000.00. In Ohio plan on 70,000.00 for a good criminal lawyer. All shooting incidents will go before a grand jury hearing and I would urge anyone to have an attorney who is qualified in criminal law representing you.
As far as talking with police, be polite, do as they say, then very politely state you need to talk with your attorney. Even police invoke their 5th amendment rights after any violent encounter. I figure if it's good enough for them, it's good enough for me.

 

[JWarren]

I live in one of the more self-defense oriented and homeowner-protected states. We cannot be sued in civil court if there has been no conviction of a crime.

However, that says NOTHING about whether an over-zealous DA wouldn't bring charges, and once a case is in the courts anything can happen.

The best advice I can give is what I would do in such a scenerio...

My first call is to my father-- to delagate the task of calling my attorney. I'll VERY briefly give Dad the facts, tell him to call ____, and to come to the house.

My next call is to 911. I don't want it on a 911 tape that I had to hang up with them in order to call an attorney. Some may interpret that as a "guilty" mindset.

Noone, however, could fail to understand a person calling their parent in a tramatic instance such as described.


Bottom line however...

Until the issue is dropped or you have a No-Bill, your potential risk HAS been elevated. It is foolish to simply hope that sane-minds prevail. I've got too much anedocatal evidence to put my faith in that.

In a position of elevated risk, we prepare for that risk. If I am willing to put in hundreds of dollars in alarm systems, and thousands in firearms for SD, you better damn well believe I am going to have something put back for legal defense.

If you don't, you really haven't covered all of your Self-Defense bases.



-- John

 

[mgkdrgn]

Rest assured there will be a wrongful death civil suit.

Not necessary. Some states castle doctrine (SC being one of them thankfully) are strong enough to preclude that kind of nonsense in an SD shooting.

 

[emb]

Impure. Going to the Dept of Ag wesite got rather convoluted so here is your link.

http://licgweb.doacs.state.fl.us/weapons/index.html

 

[nelson133]

Michigan is a "castle defense" state with some interesting provisions in the law.
Any part of your property, including your car, is treated the same as in your house. There is no duty to retreat anywhere your are legally allowed to be, like walking down the street for example. Prosecuting Attorneys are restricted to a higher standard of proof before bringing charges in a self defense shooting. You immune to civil suit in a good shooting, and if such a suit is attempted, the other side is liable for your legal expenses.
There have been some publicized shootings where the shooter was questioned and then allowed to go home with his gun, no grand jury, no further problems. There is at least one cases I am aware of where a DA wanted to prosecute a shooter, but couldn't becaause of the law.

 

[SCKimberFan]

INAL but I did

sleep at a Holiday Inn Express last night?

While it is a good idea to have an attorney available, you may or may not have charges brought against you. Each state is different. SC preempts civil liability lawsuits if you are not charged.

 

[sniper5]

The good and bad of California:

Bad: CCW is generally not easy to get unless you live in the "right" place or know the "right" people.

Good: Pretty decent castle doctrine-Anyone forcibly entering an occupied dwelling is considered a grave threat. Makes defense generally simple-He ain't one of us. I didn't invite him. I was home. He broke this to get in.

Fiddletown can go into detail on those points, but prosecution or civil suits for HD shootings after forcible entry are REALLY rare here.

 

[Kleanbore]

Some states castle doctrine (SC being one of them thankfully) are strong enough to preclude that kind of nonsense [wrongful death civil suit] in an SD shooting.

You may want to consult an attorney to discuss what circumstances must exist to provide a citizen with immunity from a civil suit. If the prosecuting attorney elects not to pursue a criminal case because he feels that the evidence will not support a finding beyond reasonable doubt that a homicide was either intentional or not justified, and there is therefore no verdict of innocence, what fact exists that would prevent a plaintiff from entering into a suit in which his burden is to prove culpability via a preponderance of the evidence? What's the case law on that? Will the judge say, we must proceed, since the defendant has not been acquitted of criminal action, or will he conclude that there was a "good shoot" from the absence of any charges having been filed (yet, since there's no statute of limitations on criminal prosecutions)?

SECTION 16-11-450. Immunity from criminal prosecution and civil actions; law enforcement officer exception; costs.

(A) A person who uses deadly force as permitted by the provisions of this article or another applicable provision of law is justified in using deadly force and is immune from criminal prosecution and civil action for the use of deadly force, unless the person against whom deadly force was used is a law enforcement officer acting in the performance of his official duties and he identifies himself in accordance with applicable law or the person using deadly force knows or reasonably should have known that the person is a law enforcement officer.

(B) A law enforcement agency may use standard procedures for investigating the use of deadly force as described in subsection (A), but the agency may not arrest the person for using deadly force unless probable cause exists that the deadly force used was unlawful.

(C) The court shall award reasonable attorneys' fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of a civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (A).

The law in my state read almost exactly the same way (except for no mention of loss of income), and until I get a legal reading, I'm not willing to rely on a lay interpretation that I am protected against a civil suit unless there has been a trial and acquittal in criminal court.

When I have gotten advice from a qualified source I'll try to remember to post what I've learned, but I would not assume that it would be valid in any other state.

 

[Deanimator]

1. Self-defense law is purely a state by state matter. I'd definitely rather be in Ohio than New Jersey if I have to use lethal force to defend myself. That having been said, it's not 100% that you're going to be persecuted in NJ for not letting somebody rob, rape or murder you.

If you have questions about particular laws in certain places, talk to a lawyer, or at least read up on the applicable laws yourself.

2. Police officer and lawyer are different job titles. Accept legal advice from police at your own peril. If it's wrong or self-serving, you have no recourse. Once you see enough documented cases of false arrests and harassment by police in CCW and open carry incidents, you'll rethink the idea of taking legal advice from cops. A guy from North Carolina was arrested in Fairfax County, Virginia for "carrying hollowpoints", "crossing state lines with a loaded firearm", and "carrying a firearm with an out of state concealed carry credential [recognized by the Commonwealth of Virginia]". NONE of these things is of course a crime in Virginia. I believe Fairfax County and the individual officers are the subject of a Federal civil rights suit for false arrest. If police can't be bothered to know the law in instances where the absence of knowledge could have grave financial consequences to themselves, are you willing to take a chance on them knowing something when an error could cause great harm to you and NONE to them?

3. Letting somebody kill you will certainly avoid a lot of legal issues... for you. Personally, I prefer being on trial for shooting somebody than having somebody on trial for murdering me. A lot of women feel the same way about rape.

 

[mljdeckard]

You are not considered immediately at fault. You have the presumption of innocence. However, it may be your word against a dead man's. The police are being prudent to not turn you loose until they have all the facts. You may well be cleared quickly, but you might be held until you are.

Lawyers run this planet. If you are picked up by the police, you are now in Lawyerville. They are working against you. This isn't a traffic ticket. GET A LAWYER. If you carry, you should consult a lawyer, even if you can't afford to keep one on retainer. You should have umbrella liability on your homeowner's or renter's insurance. Ask your lawyer in advance if this will cover the bulk of his fees in advance.

And JWarren is right. Your state might have laws that shield you from civil liability in the event of a legitimate defensive shooting, BUT, you may still have to go to court to assert this. Are you going to do this yourself, or do you want to have a lawyer do it? ANYTHING CAN GO TO COURT. All it takes is a lawyer willing to file it, and a grumpy anti-gun judge who thinks that it is an issue that needs to be revisited. COURTS CAN OVERTURN LAWS. Just because the law, the facts, and the precedents are on your side doesn't mean you won't have to fight it.

As for the dog issue, it varies from state to state. In Utah, animals are a strict liability. The owner is responsible for everything the animal does, and the animal never gets the benefit of the doubt. Your dog is NEVER allowed to bite someone, even under circumstances where you would be allowed to SHOOT the same person. There have been a few dog shootings on the news lately and the story always ends the same. "No charges will be filed."

 

[Deanimator]

Michigan is a "castle defense" state with some interesting provisions in the law.
Any part of your property, including your car, is treated the same as in your house.

In Ohio, "castle doctrine" covers your home and your vehicle. I believe that you're protected from suit for a lawful defense.

Outside of your home, you have a duty to ATTEMPT to retreat before using deadly force, if you can do so IN PERFECT SAFETY. You've got no duty to expose your back and try to run away.

Home invasion and carjacking are NOT good career paths in Ohio.

 

[Frank Ettin]

Here is the sad part: Even though you are not guilty, even though you protected yourself and your family from scum, and even though you did right by the eyes of the law, it will still cost you about $50,000 if it is drawn out for a year or two. Not an exaggeration!

You will miss time at work which costs money. You will pay a qualified attorney what seems like an exorbitant amount of money, but you get what you pay for. You will feel stress and anxiety. Your family will feel these burdens.

A light trigger pull is fine for target guns, but think wisely when pulling your trigger on the street or in the home.

Are you an attorney? You know this how?

If I believed all this I would never carry, much less use a gun.

Well I am a lawyer, and what was quoted sounds about right. I still carry when I legally can, and we of course have loaded guns around the house. A gun is the tool of last resort -- by which point it will usually be the least unsatisfactory choice from a number of even more unsatisfactory choices. And understanding the downsides, I've tried to mitigate them by seeking out professional training and practicing regularly, and also by educating myself in the legal side of things.

 

[Deanimator]

[3] While some folks suggest saying nothing when the police arrive, Mas Ayoob suggests saying the following:

* That man attacked me.

* I will sign a complaint.

* There are witnesses (point them out).

* There is evidence (point it out).

* That's all I'll say now. You'll have my full cooperation in 24 hours after I've talked with my lawyer.

fiddletown is online now Report Post

While I agree in PRINCIPLE, I think that he's coming at this as a cop, law enforcement trainer, and self-defense trainer. It's his JOB to remember things from a script, be it the Miranda warning or a particular program of instruction for a class.

I think the odds of the average person having that sort of script down cold after a self-defense shooting are 50/50 AT BEST. There's a dead guy in your living room. There's blood and tissue spattered on your big screen TV. Your wife and kids are in hysterics. The cops may have guns pointed at you, you're on your face on the floor and the cops have their knees in your back, cuffing you. Do you REALLY want to try to remember the king's "we happy few" speech from "Henry V"?

It's better to say NOTHING than to say the wrong thing. Anything you say can be used against you, whether you meant to say it or not. Once you unintentionally say something incriminating, even if it isn't true, you CAN'T take it back. It's always lying around waiting for you, like a landmine.

I prefer a much simpler and easier to remember formula.

"I was in fear for my life and I defended myself."
"I will talk to you further when my lawyer is present."

If you can't remember even THAT, just ID yourself and SHUT UP until your lawyer's present.

 

[Deanimator]

As for the dog issue, it varies from state to state. In Utah, animals are a strict liability. The owner is responsible for everything the animal does, and the animal never gets the benefit of the doubt. Your dog is NEVER allowed to bite someone, even under circumstances where you would be allowed to SHOOT the same person. There have been a few dog shootings on the news lately and the story always ends the same. "No charges will be filed."

In Ohio, you are allowed to shoot a dog which puts you in reasonable fear of life and limb. You are NOT allowed to shoot a dog to protect another dog (or presumably cat, iguana, gerbil, etc.).

That having been said, I've seen at least a couple of cases where a vicious dog attacked a person's dog in their presence and they shot the attacking dog without being prosecuted. The general tendency here appears to be to extend considerable benefit of the doubt to somebody in an instance where a dog attacks another dog, where that dog could just as easily have attacked the owner, and where a reasonable person would fear that they'd be attacked next, or if they attempted to intervene. This appears to be especially so in the case of "dangerous breeds".

Again, "common sense" appears to be the basic guiding principle. In Ohio:

Don't be a home invader.
Don't be a carjacker.
Don't cause or allow your dog to put people in reasonable fear of life and limb.

If you do, don't expect much sympathy from the law or the public at large. You won't get it.

 

[Frank Ettin]

...I think the odds of the average person having that sort of script down cold after a self-defense shooting are 50/50 AT BEST. There's a dead guy in your living room. There's blood and tissue spattered on your big screen TV. Your wife and kids are in hysterics. The cops may have guns pointed at you, you're on your face on the floor and the cops have their knees in your back, cuffing you. Do you REALLY want to try to remember the king's "we happy few" speech from "Henry V"?...

Well sure, if you're the "average person." But if you've taken Mas' LFI-1 and regularly rehearse your lines, it shouldn't be a problem. It's another thing to practice.

We few, we happy few, we band of brothers;
For he today that sheds his blood with me shall be my brother;
Be he ne'er so vile today shall gentle his condition;
And gentlemen in England now abed shall think themselves accursed they were not here....

Oops, sorry. I got carried away.

I prefer a much simpler and easier to remember formula.

"I was in fear for my life and I defended myself."
"I will talk to you further when my lawyer is present."

And that should also work. But it still will need to be memorized and practiced so that it will be remembered under stress.

 

[hankdatank1362]

I didn't read all the responses, so I apologize if this was already posted.

If you shoot and kill a violent assailant, you have just committed homicide.

Now, whether it was justified (you get to sleep in your own bed for the rest of your life) or criminal (you sleep next to Tyrone for the rest of your life) depends on the facts and details of the shooting scenario, with specific regard to your state.

Also, things like politically-motivated DAs, tense racial climate if the shooting is cross-racial, and other things shouldn't matter... but they often do.

 

[emb]

The problem is that Impureclient at least says he lives in Florida. If that is true, he needs to understand Florida law. Not Ohio, New Jersey, California or whatever state. They all have different firearm laws. If I travel and I carry, I make it a point to read the law of all of the states that I travel through.

Now, I am an attorney as well. I'll extend the offer to Impure one more time to help him find a lawyer to advise him on the appropriate use of force in Florida. I also know that the NRA will help him too.

I don't necessarily disagree with some of the advice, but Impure has requested fairly specific advice that he should not trust to the internet.

 

[rscalzo]

If you shoot and kill a BG are you immediately considered at fault no matter what the situation
may have been?

During my time with the department, we have had several shootings. Most were murder suicides involving domestics so there was no need to charge anyone.

In the others, for the most part a detailed and extensive investigation is initiated. Most likely it will be presented to a Grand Jury at which time they will decide where it goes. Too many seem to think that the police department decides if any charges are to be filed. Many in a small county or town. In the large city, it come down from the Prosecutor's Office. and usually after the GJ meets.

As far as a civil suit being filed, the fact that a law states that none can be filed doesn't mean squat. I've seen them filed regardless. Putting your financial well being of some loosely worded statutes means nothing. A judge can very easily decide that the "injuried party" has the right to sue. Even worse is recent desicions that have decided that the next of kin cannot be denied their rights to file suit. That one cost a friend everything he owned even though he was judged twice not at fault (in a non-firearm's related incident). Laws change.

If you want to cover your butt, have a liability policy that will cover the costs up front. For the years working for the department, they covered any costs of a lawsuit. Regardless I still maintained a policy that covered me up to one million. I wasn't trusting them to cover my costs even though it was spelled out in my contract.

 

[Confederate]

Check out the link in my signature. You ought to take it to heart...really.

Our laws are becoming literally that of a police state. The U.S. Constitution is virtually a dead letter. Americans, especially the younger ones, have been so dumbed down as to completely disregard the Constitution.

I agree with Glenn Beck that what we're seeing is the largest power grab in U.S. history. In just over a hundred days our entire government has been changed.

 

[Kleanbore]

I prefer a much simpler and easier to remember formula.

"I was in fear for my life and I defended myself."
"I will talk to you further when my lawyer is present."

That might be OK if the police perform perfectly, but if they do not, you may later regret leaving out

There are witnesses (point them out).

There is evidence (point it out).