America needs tort reform for lawful self-defense.

[44 AMP]

I'm not sure how you get that someone is held accountable when all that happened is the tax payers paid a settlement amount to someone.

Trust me, someone is always held accountable. They may not be punished the way we feel they should be, they may not go to jail or have to pay ruinous amounts directly out of their personal pocket, but there are always consequences, though we seldom hear about them.

Do you think someone who costs their employer millions of dollars due to their errors or incompetence gets away without any consequences? Think again.

It may not be (and usually isn't) what we think they deserve but there are unpleasant and often expensive consequences for those responsible.

Commonly its at the very least the end of any possibility of advancement in their career path. It can even be the end of their ability to work in that chosen field.

No, its not nearly enough to be considered justice, but those people responsible DO have their lives irrevocably altered and not for the better. Don't think they get off without any consequences at all.

I am of course speaking generally, there are always individual cases where that doesn't happen and the "guilty" do get away without serious penalties. Our system isn't flawless, it has people running it...

[ghbucky]

We have along history of putting people in different groups and treating them differently in our legal system. Minors are in a different group than legal adults. People who have been found mentally incompetent by a court are in another. Convicted felons are in another. and agents of the government in the course of their official duties are in yet another class.

Mentally incompetent and minors have been determined by the judiciary AND law makers as incapable of understanding the consequences of their actions. Felons have been determined by the judiciary AND law makers to have surrendered some of their rights by their actions that have previously been brought before the judiciary system.

But, somehow, agents of the government have been determined by the judiciary, NOT law makers, mind you, ONLY the judiciary, to be exempt from the consequences of their actions.

I am most emphatically opposed to a legal system that affords an 'out' for a criminal wearing a badge. They are fully capable of understanding the consequences of their actions, and did them with disregard for the consequences.

In fact, I want much harsher consequences for those who violate the public trust than for some random victim of a violent crime going about their private business but happened to injure an innocent bystander in the act of defending themselves from an attack.

Our current system of providing a shield for those who violate the law, simply because of who their employer is, when they are charged with upholding and enforcing the laws that they themselves violate is undermining the fabric of our society.

Defending this by saying 'well their career advancement is impacted' is hardly anything approaching justice. Justice would be them facing the exact same consequences that anyone else would face.

'oh darn, I killed an innocent woman, now I'll never make Sergeant'. You or me? We would be fortunate to 'only' be financially ruined and any legacy to our children be wiped away.

I see the arguments that affording protection from liability for someone defending themselves would somehow provide license for people to 'pray and spray' and ask myself: How is that argument any different from the argument that allowing people to go about their daily life while exercising their 2nd amendment right an invitation to shootouts over every single disagreement?

[aarondhgraham]

Pardon my ignorance,,,
But what exactly does "Tort Reform" mean?

Aarond

.

[Aguila Blanca]

Pardon my ignorance,,,
But what exactly does "Tort Reform" mean?

https://lawyer.zone/tort-reform/

https://www.hg.org/legal-articles/wh...t-reform-35441

https://www.thebalancesmb.com/how-to...siness-4152126

[zukiphile]

Originally Posted by ghbucky

I see the arguments that affording protection from liability for someone defending themselves would somehow provide license for people to 'pray and spray' ...

It's not an argument; it's what the words mean. If there is no liability for negligence causing injury to third parties, then one engaging in valid self-defense has the license you describe. That this isn't your motive doesn't change the consequence.

Originally Posted by ghbucky

...and ask myself: How is that argument any different from the argument that allowing people to go about their daily life while exercising their 2nd amendment right an invitation to shootouts over every single disagreement?

The difference is that carrying doesn't reduce one's liabilities or duties to others. If you shoot someone who isn't threatening you over a parking space, you still have liability for the injuries you cause.

[44 AMP]

Mentally incompetent and minors have been determined by the judiciary AND law makers as incapable of understanding the consequences of their actions. Felons have been determined by the judiciary AND law makers to have surrendered some of their rights by their actions that have previously been brought before the judiciary system.

The way this is worded leads me to think you have the order reversed. Its the legislature (law makers) acting first, and then the judiciary operating under those laws.

Minors and convicted felons were NOT barred from possessing or buying firearms until the law was passed prohibiting that in 1968. (and that law also included those determined by a court (NOT a doctor) to be mentally incompetent to be prohibited persons as well.

After that law was passed, THEN the judiciary acts on it, barring purchases and bringing charges (hopefully) for those who violate the law.

But, somehow, agents of the government have been determined by the judiciary, NOT law makers, mind you, ONLY the judiciary, to be exempt from the consequences of their actions.

I'm not a lawyer and can't provide specific references (perhaps some of our legal minds here can) but I believe there is a principle in law about not being able to sue elected officials and other agents of the government, personally, for harm that results from the performance of their official duties.

If a law causes harm to someone, they don't get to sue the legislators who voted for it, or the executive (President / Governor) who signed it into law, as individuals. They sue the government about the law, and if its found the law is harmful, (usually be being unconstitutional) the law gets struck down or changed.

I THINK this is the base principle when it comes to suing individual police officers. When their actions are approved by their superiors in govt, the govt, not the individual bears the responsibility. When those actions are NOT approved by the govt THEN it is the individual officers who face the legal consequences.

Is this justice? doesn't feel like it, it it IS THE LAW.

I am most emphatically opposed to a legal system that affords an 'out' for a criminal wearing a badge. They are fully capable of understanding the consequences of their actions, and did them with disregard for the consequences.

I am against such a system as well. However, that is not the subject under discussion. The point under discussion has been the perceived need for tort reform and the issue used to illustrate that is the difference in legal treatment between a police officer and a private citizen when both unintentionally shoot the wrong person. Adding in "disregard for the consequences" implies a willful and deliberate act. Are you suggesting that police officers deliberately shoot innocent people because they believe they can "get away with it"??

Defending this by saying 'well their career advancement is impacted' is hardly anything approaching justice.

I never said it was justice. Only that there was some consequences, not "no consequences" or that the consequences were appropriate to the severity of the act.

Justice would be them facing the exact same consequences that anyone else would face.

I do not dispute your opinion, but currently our legal system does not agree with you.

I see the arguments that affording protection from liability for someone defending themselves would somehow provide license for people to 'pray and spray' and ask myself: How is that argument any different from the argument that allowing people to go about their daily life while exercising their 2nd amendment right an invitation to shootouts over every single disagreement?

I see a difference, the former is a plausible situation, the latter is not, simply because there ARE consequences for every shot fired by those defending themselves. Remove those consequences (the first argument) and you remove the NEED for restraint in defensive shooting situations. I do believe that if there are no significant consequences for misses striking the innocent then many people will not restrict themselves to only trying to shoot the people who need shooting and spray and pray becomes a valid tactic with no legal repercussions.

THe other argument is simply the old gun control argument that people should not be allowed (forget your rights) to go armed because they will act irresponsibly with the implication that everyone will be irresponsible, every time, because they ARE armed.

That's crap from the git go, in my opinion, and quite a different matter from the first argument.

[zukiphile]

GHBucky, this post isn't an effort to cut short you line of argument, but to get to the heart of it.

Originally Posted by GHBucky

I am most emphatically opposed to a legal system that affords an 'out' for a criminal wearing a badge. They are fully capable of understanding the consequences of their actions, and did them with disregard for the consequences.

In fact, I want much harsher consequences for those who violate the public trust than for some random victim of a violent crime going about their private business but happened to injure an innocent bystander in the act of defending themselves from an attack.

So you are building on a principle that two men who do the very same thing should receive the same treatment, even if one works as a state agent and the other doesn't. This isn't a tort reform idea, but a more basic what's good for the goose point.

If you are just venting, have at it. If you are interested in what is possible, know that the principle to which you give voice is fundamentally at odds with the behaviour of any sovereign. It isn't just applications of force; there are all sorts of doctrines in law to which you and I are subject, but that never apply against government.

Is that balanced, equal and fair? No. It's government.

[44 AMP]

Is that balanced, equal and fair? No. It's government.

There appears to be no quote these days that someone on the internet does not claim as faked...but whether he actually said it himself, or not, remember what Washington is attributed as saying about government.

"Government is not eloquence, it is not reason, it is a force of nature, like fire, a fearful servant and a terrible master."

you are building on a principle that two men who do the very same thing should receive the same treatment, even if one works as a state agent and the other doesn't.

I'm actually surprised no one has yet mentioned the greatest example of "injustice" (by sheer numbers if nothing else) and that is WAR.

Some might consider the example extreme, but isn't warfare the greatest example of people not being treated "fairly"? Every soldier, sailor, airman, and Marine who ever pulled a trigger, dropped a bomb, etc, or ordered that done, to be fair, aren't they just as "guilty" as the wackjob who opens fire in a nightclub on his own? IS the only difference, and the reason they get treated differently in law because of who they work for??

I don't think so, but that's just me.

[zukiphile]

Historically in war, we take young men the government did not feed, raise or educate, and we take only the healthiest of them. Their servitude is often involuntary, which we aren't supposed to like in principle. If they survive the experience, they get to enjoy what's left of their health and years.

Sometimes we do things because we recognize a necessity and don't have any better ideas.

[Aguila Blanca]

Another thing about war is that the winners write the rules. Things that are done by both sides are awarded or at least ignored when done by the victors, but the losers are prosecuted as war criminals for the same things.

[44 AMP]

Valid points about conscription and how the winners write the rules, but I don't see how either applies to the idea being put forth that legal consequences should be the same no matter who you work for (govt/private).

Oher than the most general point that the government (who is the winner in wars) writes the rules for EVERYONE, in war and in peace.

[mehavey]

War crimes & crimes against humanity notwithstanding...

If an agent of a legal government -- acting IAW the legal rules, training & procedures of that gov't -- causes injury in the course
of actions which he has a legal duty to perform, why would the agent be personably held liable and not the the gov't ?

.

[zukiphile]

Originally Posted by 44 AMP

Valid points about conscription and how the winners write the rules, but I don't see how either applies to the idea being put forth that legal consequences should be the same no matter who you work for (govt/private).

It illustrates the point that we may do something because it is the best solution we've found, even if it has problems.

That a government agent may injure someone is a problem. Having that agent answer a civil complaint as if he were not a government agent solves one problem and introduces a different problem to the basic operation of a sovereign government by disregarding its sovereign character.

Governments do recognize that telling every last person with a claim to get bent is a problem, so Congress has some guidelines that allow some claims, and states have courts of claim for the tiny universe of cases states choose to allow, but it isn't anything like the claim one can file against those subject to the decisions of the sovereign.

[44 AMP]

This was pretty much my point, that you don't sue the individual actor when the govt is the responsible party for what happens.

There is a degree of logic to the point that no matter if an agent of the state or as private citizen, it is the individual who pulls the trigger. HOWEVER when someone is acting as an agent of the state (police, military, or "OGA") our government assumes the responsibility for their actions.

Provided that those actions are within approved rules, training and guidelines. When they are not, and the govt disapproves of them, then the individual who performed the unapproved actions is the responsible party.

In the postulated scenario, a cop shoots at a bad guy and strikes an innocent bystander vs. a private citizen defending themselves who shoots at a bad guy and strikes an innocent bystander, the physical act is the same. Someone who should not have been shot gets shot.

The rest of the situation is completely different, and is not treated the same under the law, and I think, correctly so. One can argue if the current way the law treats the incident is fair or just, or sufficient or insufficient, but I cannot see any basis for arguing that they are not different and so should be treated the same.

[Spats McGee]

Originally Posted by zukiphile

....Sometimes we do things because we recognize a necessity and don't have any better ideas.

I'm not sure I've ever seen truer words.

[ghbucky]

I think there is a lot of uninformed opinions about the court created doctrine of Qualified Immunity.

Justice Clarence Thomas' dissenting opinion in this case spells out quite well the history of how this doctrine was created and expanded by the judiciary:

https://www.supremecourt.gov/opinion...-1287_09m1.pdf

The root of it is a law passed by legislature in the aftermath of the Civil War:

“any person who, under color of any law, statute, ordinance, regulation, custom, or usage of any State, shall
subject, or cause to be subjected, any person within the
jurisdiction of the United States to the deprivation of
any rights, privileges, or immunities secured by the
Constitution of the United States, shall . . . be liable to
the party injured in any action at law, suit in equity, or
other proper proceeding for redress . . . .” Act of Apr.
20, 1871, §1, 17 Stat. 13.

Put in simpler terms, §1 gave individuals a right to sue
state officers for damages to remedy certain violations of
their constitutional rights.

Somehow, over the next century the judiciary turned this on its head. Immunity was added bit by bit until now it is a blanket immunity for any government office holder. No lawmaker ever voted on this expansion. The Supreme Court has denied to hear cases challenging this doctrine.

It is a doctrine that grants immunity to violations of our constitutional rights. The only way to rectify that is through legislation.

My purpose here is to convince YOU that it needs to happen. Our policing has reached such an enormous disconnect between what should be 'law enforcement' to behavior that has people weaponizing the police against each other (SWATTING).

If by affording me the same protection as police that if I hit a bystander will cause me to be less judicious in my use of force, then the immunity afforded to police has encouraged them to ignore public safety and leads to incidents such as I linked previously of the NYPD shooting 9 bystanders while shooting at 1 suspect.

[zukiphile]

Originally Posted by ghbucky

It is a doctrine that grants immunity to violations of our constitutional rights. The only way to rectify that is through legislation.

My purpose here is to convince YOU that it needs to happen.

Citing a dissent about qualified immunity in 1983 actions isn't likely to do that.

Where the state is a sovereign and I am not, liability found for my agents and me will always be without my consent, and any liability found for the sovereign and its agents will only be with its consent.

If by affording me the same protection as police that if I hit a bystander will cause me to be less judicious in my use of force, then the immunity afforded to police has encouraged them to ignore public safety and leads to incidents such as I linked previously of the NYPD shooting 9 bystanders while shooting at 1 suspect.

Emphasis added. I don't think anyone in this thread doubts that. If you believe that, then you also accept the reasoning of public policy that holds valid self-defenders liable for injuries they cause to third parties.

As to the issue of tort reform, would you agree that the WI code noted by Zeke gets us very far toward a viable curb on civil actions by criminals against self-defenders?

https://law.justia.com/codes/wiscons...ection-895.62/

[ghbucky]

Not a lawyer so parsing that isn't easy for me, but what I read there is it is specific to unlawful entry into what I was taught is called the 'domicile'.

I would say that is fine, but doesn't go far enough. In KY, my understanding from my training is that if am legally allowed to use deadly force anywhere, then I am immune from civil liability from the person I used it against, or his estate/family. Actually, I thought that was pretty much any state with 'stand your ground' probably already has those protections in place. But I never researched it.

As to the dissent from 1983, the last 2 congresses have passed bills striking QI, so it is very much a current topic. This is part of Tort reform in general, AFAIC.

IMO, if you want true tort reform, then strip public officials from their immunity and they will get right on cleaning up our tort system. Until they are subject to the same insanity we are, why would they care?

[Frank Ettin]

Sovereign immunity is a complex topic and manifests itself in various ways in various circumstances. A comprehensive discussion of sovereign immunity in the United States is well beyond the scope of this thread. If anyone is interested in beginning his (or her) study of the principle, here are links to a couple of articles that might help start him (or her) on the way: "Suing the Federal Government"; and "A Primer on the Doctrine of Federal Sovereign Immunity".

Second, the principle of sovereign immunity does not foreclose suing the government to challenge the validity or application of a law.

Third, we're here discussing primarily 42 USC 1983, a federal law that under certain circumstances allows suits for damages against government officials (thus limiting sovereign immunity). Other laws or judicial decisions might limit sovereign immunity (e. g., the Federal Tort Claims Act) in other circumstances, but discussion of those laws in also outside the scope of this thread.

But to return to the subject matter of this thread, the law being discussed, 42 USC 1983, is an example of a conscious erosion by government of sovereign immunity. Again, 42 USC 1983 provides:

Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress, ...

By expressly permitting suits against government personnel when their conduct amounts to a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws", the statute effectively waives sovereign immunity with respect to that sort of misconduct. And in that way government officials are held accountable for their misdeeds if they deprive one of "any rights, privileges, or immunities secured by the Constitution and laws."

The case law defining Qualified Immunity under 42 USC 1983 is really about defining what conduct is or is not permissible under the Constitution. It is not about escaping liability for wrongful acts. It's about defining when conduct is wrongful and when it is not.

So let's look at a couple of examples of the application of qualified immunity principles in a 42 USC 1983 action against an LEO based on alleged excessive force. In the cases cited the application of qualified immunity is related to the question of the reasonableness of the LEO's use of force and the necessity of that force in light of a manifest lethal threat to either the officer or others.

So, for example, in Tennessee v. Garner, 471 U.S. 1, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985), the Supreme Court rejected a claim of qualified immunity noting (at 20-21):

....In reversing, the Court of Appeals accepted the District Court's factual conclusions and held that "the facts, as found, did not justify the use of deadly force." 710 F.2d, at 246. We agree. Officer Hymon could not reasonably have believed that Garner—young, slight, and unarmed—posed any threat. Indeed, Hymon never attempted to justify his actions on any basis other than the need to prevent an escape. The District Court stated in passing that "[t]he facts of this case did not indicate to Officer Hymon that Garner was 'non-dangerous.' " App. to Pet. for Cert. A34. This conclusion is not explained, and seems to be based solely on the fact that Garner had broken into a house at night. However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others....

On the other hand, in Mullenix v. Luna, 136 S. Ct. 305, 193 L. Ed. 2d 255 (2015), the Supreme Court in finding qualified immunity noted (135 S. Ct., at 310):

....This Court has considered excessive force claims in connection with high-speed chases on only two occasions since Brosseau . In Scott v. Harris, 550 U.S. 372, 127 S.Ct. 1769, the Court held that an officer did not violate the Fourth Amendment by ramming the car of a fugitive whose reckless driving "posed an actual and imminent threat to the lives of any pedestrians who might have been present, to other civilian motorists, and to the officers involved in the chase." Id., at 384, 127 S.Ct. 1769. And in Plumhoff v. Rickard, 572 U.S. ––––, 134 S.Ct. 2012, 188 L.Ed.2d 1056 (2014), the Court reaffirmed Scott by holding that an officer acted reasonably when he fatally shot a fugitive who was "intent on resuming" a chase that "pose[d] a deadly threat for others on the road." 572 U.S., at ––––, 134 S.Ct., at 2022. ....

So in Garner the officer was not entitled to qualified immunity for his use of lethal force because he had no basis upon to reasonably believe that the subject posed an imminent lethal threat to the officer or others. On the other hand, in Mullenix the officers involved were entitled to qualified immunity because the use of lethal force could be justified by the actual and imminent danger the subject posed to others.

[zeke]

Used to deal with many gooberment officials/employees who thought they had blanket immunity. Largely before the City's, Townships, Village, and Counties got access to competent attorneys.

And as a state gooberment employee, have had the DOJ represent me. The DOJ used to say i was covered while acting within my position description or classification requirements. Unfortunately for some, that immunity didn't apply in some cases when they intentionally DIDN'T do their job, and someone was injured financially or physically.

[Aguila Blanca]

Originally Posted by zeke

And as a state gooberment employee, have had the DOJ represent me. The DOJ used to say i was covered while acting within my position description or classification requirements. Unfortunately for some, that immunity didn't apply in some cases when they intentionally DIDN'T do their job, and someone was injured financially or physically.

In my line of work, building officials are indemnified -- as long as they are trying to do their job properly. The actual language (empasis added):

The building official, member of the board of appeals or employee charged with the enforcement of this code, while acting for the jurisdiction in good faith and without malice in the discharge of the duties required by this code or other pertinent law or ordinance, shall not thereby be civilly or criminally rendered liable personally and is hereby relieved from personal liability for any damage accruing to persons or property as a result of any act or by reason of an act or omission in the discharge of official duties.