Use of deadly force and civil litigation

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Frank Ettin

Administrator
Of course one cigar butt in the onion dip is that a law making the unsuccessful plaintiff liable for your attorney fees and costs helps only if that unsuccessful plaintiff has money.

Say the unsuccessful plaintiff is a drug addicted welfare mother who was married to the burglar you iced. You very well could wind up with a judgment against her for your attorney fees and costs (which could easily amount to $15,000 to $30,000 in a fairly simple case). However, she most likely would not have enough money to pay the bill. You still owe, and will have to pay, your attorney and costs. And you will be left with a worthless piece of paper that says the unsuccessful plaintiff owes you a bunch of money.

Also, there's a difference between the loser having to pay the winner's "costs" and the loser having to pay the winner's "costs and attorney fees." When the word "costs" is used, the statute refers to only certain administrative costs like filing fees, copying expenses, witness fees, etc. The magic words you want are "costs and attorney fees."
 
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Alleykat

Moderator
As if it's your business, I practiced law for over 30 years and retired last year. For the 15 years prior to my retirement, I was a senior lawyer and vice president of a Fortune 200 company. I was sufficiently successful at my profession to be able to retire before I turned 60.
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Hard to believe that a real lawyer could make a statement like the one that I previously questioned. If a civil suit is precluded, it's precluded. If a civil suit were filed, what the heck do you think it'd be about, other than questioning whether the shoot was justifiable? Please, oh, please, tell us what law school you attended. Maybe it's just that you practiced "cushy" law for so long, you forgot most of what you learned in law school? :D

Or maybe you're only a lawyer at the keyboard? :)
 
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FireMax

New member
Quote:
As if it's your business, I practiced law for over 30 years and retired last year. For the 15 years prior to my retirement, I was a senior lawyer and vice president of a Fortune 200 company. I was sufficiently successful at my profession to be able to retire before I turned 60.
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Quote: Alleykat
Hard to believe that a real lawyer could make a statement like the one that I previously questioned. If a civil suit is precluded, it's precluded. If a civil suit were filed, what the heck do you think it'd be about, other than questioning whether the shoot was justifiable? Please, oh, please, tell us what law school you attended. Maybe it's just that you practiced "cushy" law for so long, you forgot most of what you learned in law school?

Or maybe you're only a lawyer at the keyboard?
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AlleyKat, I have rarely witnessed so much arrogance from one person at one time in a forum in my 10 years of posting on web forums.
 
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Frank Ettin

Administrator
AlleyKat, it's too bad that you don't seem to understand how the law works in the real world.

Under the usual "castle doctrine" law, a civil suit is precluded only if use of lethal force is justified as described in the particular statute or statutes providing for immunity. Usually, the statute or statutes will set out specific criteria that would need to be satisfied in order for the use of lethal force to be justified for the purposes of the law and for immunity to therefore attach (see for example thallub's post, above).

So if there is any dispute as to the facts of a particular event and any reason to challenge whether or not every statutorily required element of justification has been satisfied, that dispute or challenge can be subject to litigation. That is what litigation is all about.

A castle doctrine law is a wonderful thing for a law abiding citizen, but it's not a get out of jail free card or a hunting license. In order to come within the protections offered by such a law, a defender must satisfy the elements of justification, and in a given situation that can be a matter of disagreement. And such disagreements can become the subject matter of a law suit.
 
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M1911

New member
AlleyKat:

The laws vary greatly in different jurisdictions. Here's an example of the applicable law in MA, MGL Ch231 S85u:

Chapter 231: Section 85U. Death or injury to unlawful dwelling occupants; liability of lawful occupants

Section 85U. No person who is a lawful occupant of a dwelling shall be liable in an action for damages for death or injuries to an unlawful occupant of said dwelling resulting from the acts of said lawful occupant; provided, however, that said lawful occupant was in the dwelling at the time of the occurrence and that he acted in the reasonable belief that the person unlawfully in said lawful dwelling was about to inflict great bodily injury or death upon said occupant or upon another person lawfully in said dwelling, and that said lawful occupant used reasonable means to defend himself or such other person lawfully in said dwelling. There shall not be a duty on said occupant to retreat from such person unlawfully in said dwelling.
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This law provides a possible defense against civil litigation in the aftermath of a self-defense shooting, but it does not prevent someone from filing such a lawsuit.

Reading this law, you can clearly see where the perp's lawyer might try to attack the homeowner. For example, did the homeowner really believe that he was in danger of death or great bodily injury? Was the homeowner just mad and wanted to "get even"? Was it really an accidental shooting, rather than a deliberate act of self defense? If the homeowner really believed he was in danger of death or grave bodily injury, was that belief "reasonable" based on the circumstances? Did the homeowner use "reasonable means" or did he use excessive force?

Here in MA, I suspect that many a judge would let a civil jury decide such questions, rather than toss the case out. So the homeowner may end up spending a whole bunch of money defending himself.

I'm not saying that you should never use deadly force. Rather that you shouldn't be naive about the possible legal aftermath.
 
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Alleykat

Moderator
Surely, nobody would hold out a statute from Barneychusetts as an example of relevant s.d. law in this thread? :rolleyes:

In my state, civil litigation is precluded, in legitimate cases of s.d., in which there is no prosecution. It's just as simple as that. Any such civil suit will be thrown out immediately by the judge of the court in which the suit is filed. There is no "wiggle room" to raise ANY issues about the homeowner's intentions, whether the shoot was justifiable, blah blah, blah.
 
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Frank Ettin

Administrator
AlleyKat, prove it. You've already demonstrated your lack of legal acumen. In any case, as you've said, protection attaches in the case of legitimate self defense, and whether or not it is a case of legitimate self defense may, under certain circumstances, be subject to dispute.

But then, you have extensive legal training and a long history of practicing law, so we will of course accept your interpretation of a law that you do not quote and that we can't even research ourselves since we don't know in what state you live.

But it's been my experience that a skillful lawyer, given the right circumstances, can always find some "wiggle room." I haven't seen a bulletproof law yet.
 
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KyJim

New member
Hard to believe that a real lawyer could make a statement like the one that I previously questioned. If a civil suit is precluded, it's precluded.
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AlleyKat, I've been a lawyer for over 20 years and I can tell you that you do not have a clue. Go on believing what you want. "Ignorance is bliss."
 
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M1911

New member
Surely, nobody would hold out a statute from Barneychusetts as an example of relevant s.d. law in this thread?
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Actually, it is quite relevant. Self defense cases also occur here in MA.

It is an example of a state law concerning civil litigation in the event of a self defense incident. Examining this law shows the types of arguments that a plaintiff's attorney could use in a civil case in MA.
 
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Frank Ettin

Administrator
Eghad, it's of course true that "Most states with Castle Doctine laws prohibit civil suits on a justified shooting." The question will always be whether it is a justified shooting.

Who decides if it's a justified shooting? What are the standards for determining if it is a justified shooting? Who decides if all those standards were satisfied?

Do you, the guy claiming self defense decide? Do you think that you just tell everyone, "Hey, I was justified." and they have to take your word for it? Well, I hate to have to break it to you, but in real life, nobody has to take your word for it. If you say it was justified, and the guy you shot or his next of kin disagrees and challenges your claim to protection under the Castle Doctrine law, there may be a judge and jury in your future who will decide. That's what litigation is -- the way those types of differences of opinion get resolved.

It may be that in your case the facts are so clear and compelling that no one would dare to challenge the proposition that the shooting was justified. But then again, in the real world, things are often not that clear. Evidence could be unclear or equivocal. There might be no witnesses; or there might be witnesses who disagree on what happened.

All sorts of things happen in real life, and many times I've seen someone "snatch defeat out of the jaws of victory."
 
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buzz_knox

New member
Most states with Castle Doctine laws prohibit civil suits on a justified shooting.
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And most judges won't award damages against a person who is found not to be liable.

In both cases, the issue is how the key determination (justified or not liable) was made and those determinations tend not to be made until suit has been filed.

The prohibitions allow people who have been sued to get cases dismissed once a judge says "yea verily, you were justified to use the force you did." If a judge doesn't want to say those magic words (and some don't want to, and at least one has done so in the context of such a prohibition), the suit continues.
 
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buzz_knox

New member
All sorts of things happen in real life, and many times I've seen someone "snatch defeat out of the jaws of victory."
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It's always fun to watch an attorney talk their way into defeat . . . and it's a nightmare when you almost do it to yourself.
 
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Eghad

New member
Shootings go to the grand jury who decide if it self defense....so there is some due process involved.

The only other question would be whether state laws allow people injured in the commision of a crime to hold people liable.
 
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buzz_knox

New member
Shootings go to the grand jury who decide if it self defense....so there is some due process involved.
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Is that the normal practice in your area? Also, is there case law or an AG opinion that a lack of indictment from the grand jury constitutes a definitive statement that the shooting was justified?
 
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Eghad

New member
"Justified" - that's a mighty big word. Ranks in there with 'righteous'.

Magic words that make all problems go away.
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And most judges won't award damages against a person who is found not to be liable.

In both cases, the issue is how the key determination (justified or not liable) was made and those determinations tend not to be made until suit has been filed.

The prohibitions allow people who have been sued to get cases dismissed once a judge says "yea verily, you were justified to use the force you did." If a judge doesn't want to say those magic words (and some don't want to, and at least one has done so in the context of such a prohibition), the suit continues.
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hey gentleman dont blame me call your legislator if you liv in Texas :p

Justified is the term used in The Texas Penal Code...

§ 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the
force is immediately necessary to protect the actor against the
other's use or attempted use of unlawful force. The actor's belief
that the force was immediately necessary as described by this
subsection is presumed to be reasonable if the actor:
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what is "Justified"

1) knew or had reason to believe that the person
against whom the force was used:
(A) unlawfully and with force entered, or was
attempting to enter unlawfully and with force, the actor's occupied
habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was
attempting to remove unlawfully and with force, the actor from the
actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force
was used; and
(3) was not otherwise engaged in criminal activity,
other than a Class C misdemeanor that is a violation of a law or
ordinance regulating traffic at the time the force was used.​
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So if the magic word fits one of those justifications as defined by the Texas Penal Code then you are justified if adjudicated so by a legal body such as a grand jury.
 
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