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Old August 20, 2019, 07:44 PM   #26
gwpercle
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My daughter had to use armed force against two armed robbers , they had the money but the bad guy with the gun ordered her to face the wall and kneel down...criminals around here like to not leave a witness that can testify...she feared for her life and shot him with her concealed revolver .

There were NO huge expenses to pay....there were no expenses whatsoever to pay.
The bad guy was arrested , found guilty (she testified) and is enjoying some Angola State Prison time .
This is Louisiana and law abiding person's who defend themselves are not persecuted by the justice system or media .
Here people still have a right to defend themselves without the need for huge amounts of insurance coverage .
Gary
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Old August 20, 2019, 08:28 PM   #27
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Originally Posted by gwpercle
My daughter had to use armed force against two armed robbers , they had the money but the bad guy with the gun ordered her to face the wall and kneel down...criminals around here like to not leave a witness that can testify...she feared for her life and shot him with her concealed revolver .

There were NO huge expenses to pay....
Why do people continue to cling to the preposterous belief that a single, felicitous example covers the whole universe of possibilities? Why do you believe that every self defense incident that ever happened, or ever will happen, necessarily will work out the way your daughter's incident worked out? Even Aristotle said, "One swallow does not a summer make."

On the other hand, sometimes a defensive use of lethal force will have grave consequences for the defender, even when ultimately exonerated. For example --

  • This couple, arrested in early April and finally exonerated under Missouri's Castle Doctrine in early June. And no doubt after incurring expenses for bail and a lawyer, as well as a couple of month's anxiety, before being cleared.

  • Larry Hickey, in gun friendly Arizona: He was arrested, spent 71 days in jail, went through two different trials ending in hung juries, was forced to move from his house, etc., before the DA decided it was a good shoot and dismissed the charges.

  • Mark Abshire in Oklahoma: Despite defending himself against multiple attackers on his own lawn in a fairly gun-friendly state with a "Stand Your Ground" law, he was arrested, went to jail, charged, lost his job and his house, and spent two and a half years in the legal meat-grinder before finally being acquitted.

  • Harold Fish, also in gun friendly Arizona: He was still convicted and sent to prison. He won his appeal, his conviction was overturned, and a new trial was ordered. The DA chose to dismiss the charges rather than retry Mr. Fish.

  • Gerald Ung: He was attacked by several men, and the attack was captured on video. He was nonetheless charged and brought to trial. He was ultimately acquitted.

  • Those were all cases of legitimate self defense in gun friendly States, but they happened under circumstances in which the justification for the use of lethal force was not immediately clear. While the actor was finally exonerated, it came at great emotional and financial cost.
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Old August 21, 2019, 08:02 AM   #28
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Originally Posted by gwpercle View Post
My daughter had to use armed force against two armed robbers , they had the money but the bad guy with the gun ordered her to face the wall and kneel down...criminals around here like to not leave a witness that can testify...she feared for her life and shot him with her concealed revolver .

There were NO huge expenses to pay....there were no expenses whatsoever to pay.
The bad guy was arrested , found guilty (she testified) and is enjoying some Angola State Prison time .
This is Louisiana and law abiding person's who defend themselves are not persecuted by the justice system or media .
Here people still have a right to defend themselves without the need for huge amounts of insurance coverage .
Gary
She was being held at gunpoint and was able to take her revolver from a concealed place and shoot the guy?? Ballsy...
Quote:
Why do people continue to cling to the preposterous belief that a single, felicitous example covers the whole universe of possibilities? Why do you believe that every self defense incident that ever happened, or ever will happen, necessarily will work out the way your daughter's incident worked out? Even Aristotle said, "One swallow does not a summer make."
He's not saying that..He's saying in THIS instance, there was not a YUGE, high $, case that ended up in court costing a bunch of $.
Are ya saying the above can't happen??
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Old August 21, 2019, 10:05 AM   #29
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Having spent my career in the insurance biz, I would be highly suspect of these standalone companies. Where does the money come from to indemnify you if there is a million dollar judgment? No insurance for illegal acts in all States. For a legal act check with a good insurance agent or an underwriter at an insurance company and see how your homeowner's insurance policy will respond.
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Old August 22, 2019, 10:26 AM   #30
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In States in which there is a civil immunity law for bona fide self defense, an acquittal at the criminal trial won't necessarily establish that the defendant is entitle to civil immunity. That area of the law is evolving.
Interesting. That, of course, is not the way it is usually discussed. I for one appreciate that heads up.

On the more general question, I think most of us realize that all insurance is a bet against yourself. I have so far told myself that the odds of it paying off are too low to justify the expense. If I have to defend myself tomorrow, my opinion could change, but between the low odds of ever needing it and the restrictions placed on the various plans, I personally haven't felt it to be a worthwhile expense.
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Old August 26, 2019, 08:05 AM   #31
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What do you think of the different insurances and has anyone actually used one ?
You can look into US Law shield their program covers you for criminal and civil cases "AS LONG AS YOU WERE LEGALLY CARRYING" if you were in a prohibited place and carrying and were involved in a SD situation they will not
represent you as well as none of the other insurance or programs
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Old August 26, 2019, 10:46 AM   #32
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You can look into US Law shield their program covers you for criminal and civil cases "AS LONG AS YOU WERE LEGALLY CARRYING" if you were in a prohibited place and carrying and were involved in a SD situation they will not represent you as well as none of the other insurance or programs
Like a couple of the other programs, U.S. Law Shield is not available in a number of states. (They do offer 50-state coverage, for more than twice the premium cost.)

Where available, they cover only legal fees. They don't cover damages in civil lawsuits, so IMHO it's inaccurate to call their program "insurance." Also, according to the comparison chart to which I linked in a previous post, they are the only one of the listed programs that doesn't allow you to choose your own attorney.
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Old August 26, 2019, 10:59 AM   #33
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aren't there some states that have a law in which a shooting that has been cleared of criminal conduct cannot be brought in a civil suit?
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Old August 26, 2019, 11:07 AM   #34
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aren't there some states that have a law in which a shooting that has been cleared of criminal conduct cannot be brought in a civil suit?
One is never actually "cleared of criminal conduct".

The charging authority or a grand jury may decide to not go to trial. A jury may decide that the state did not prove criminal conduct beyond a reasonable doubt.

That's not the same as concluding that the actor was innocent.

In a civil trial, the burden of persuasion is a preponderance of the evidence ("more likely than not").
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Old August 27, 2019, 06:43 AM   #35
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In a civil trial, the burden of persuasion is a preponderance of the evidence ("more likely than not").
Many states also allow for assigning a percentage of blame as well. They might decide you are only 25% responsible. Most people can't afford to be 25% responsible for a 5 million dollar lawsuit.
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Old August 27, 2019, 08:33 AM   #36
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Originally Posted by OldMarksman View Post
One is never actually "cleared of criminal conduct".

The charging authority or a grand jury may decide to not go to trial. A jury may decide that the state did not prove criminal conduct beyond a reasonable doubt.

That's not the same as concluding that the actor was innocent.

In a civil trial, the burden of persuasion is a preponderance of the evidence ("more likely than not").
far enough I will restate my question. aren't there some states in which a civil suit will not go forward (summary judgment, dismissed, not entertained by the courts) if the shooter is not criminally charged?
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Old August 27, 2019, 12:03 PM   #37
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No.

In some states, after a suite is filed, one can request an Immunity from Civil Liability hearing. If the hearing is granted, both sides present evidence before a judge. The judge decides on the basis of a preponderance of the evidence. If immunity is granted , the suit may not proceed.

A decision to nt charge or indict does not provide civil immuniy, nor does an acquittal in a criminal trial.

Criminal liability is a different matter.

There are states that allow judges to grant immunity from criminal prosecution, but it is not always wise for a defender to reguest such a hearing.
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Old August 27, 2019, 12:24 PM   #38
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Jerry maybe thinking of Patel Vs. Kumar. Both the lower and appeals court ruled that the law did provide immunity to civil cases. There was quite a lot of media attention at the time. This was overturned later by the Florida Supreme Court.

https://law.justia.com/cases/florida...sc16-1457.html
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Old August 27, 2019, 12:46 PM   #39
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Just to clarify (I hope)

The law as written does allow for immunity but this is not determined at a criminal trial. The Supreme Court of Florida ruled that determination must be made at a civil proceeding, using that standard as the mechanism.

Quote:
776.032 Immunity from criminal prosecution and civil action for justifiable use or threatened use of force.—
(1) A person who uses or threatens to use force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in such conduct and is immune from criminal prosecution and civil action for the use or threatened use of such force by the person, personal representative, or heirs of the person against whom the force was used or threatened, unless the person against whom force was used or threatened is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using or threatening to use force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
(2) A law enforcement agency may use standard procedures for investigating the use or threatened use of force as described in subsection (1), but the agency may not arrest the person for using or threatening to use force unless it determines that there is probable cause that the force that was used or threatened was unlawful.
(3) The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
(4) In a criminal prosecution, once a prima facie claim of self-defense immunity from criminal prosecution has been raised by the defendant at a pretrial immunity hearing, the burden of proof by clear and convincing evidence is on the party seeking to overcome the immunity from criminal prosecution provided in subsection (1).
History.—s. 4, ch. 2005-27; s. 6, ch. 2014-195; s. 1, ch. 2017-72.
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Old August 27, 2019, 01:27 PM   #40
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MTT TL -- That's Florida. JERRYS. asked if there are any states in which civil immunity is automatic if a shooter is not charged. Oldmarksman responded "No."

Oldmarksman, I'd like to ask if this response was based on having researched the laws of all 50 states, or if you are extrapolating from your home state's law?
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Old August 27, 2019, 01:34 PM   #41
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Originally Posted by MTT TL View Post
Just to clarify (I hope)

The law as written does allow for immunity but this is not determined at a criminal trial. The Supreme Court of Florida ruled that determination must be made at a civil proceeding, using that standard as the mechanism.
this is what I was thinking of. I thought there were a few more states with such laws...
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Old August 27, 2019, 03:44 PM   #42
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https://codes.findlaw.com/al/title-1...-13a-3-23.html


Quote:
(d)(1) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
This is sometimes called the "Saban clause" tongue in cheek.

I can speak authoritatively on Alabama where Jerry is from. On the criminal side they get a double bite of the apple. The defendant can request a hearing to find out if they are qualified for immunity. If they win it is over (subject to prosecutor appeal). If they lose they can go to trial and to chance it with the jury.

If they win either the hearing or the case and the shooting was not determined to be unlawful, then they are immune to civil cases under the Alabama criminal code. The litigous have been getting around this by filing for civil rights violations in Federal Court. These mostly only move if there is a police officer involved.

Prior to the addition of the paragrpah to the criminal code in 2013 there was a civil case of Grimes v Saban that was decided and appealed using the updated code. This was added some say because of the case involved Nick Saban's daughter.

https://caselaw.findlaw.com/al-supre...t/1686584.html

Grimes eventually gave up and dropped her lawsuit in 2015 with each side paying their own legal fees.

In the Saban case there was no hearing or trial as there were never any criminal charges.

All other states I don't know.
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Old August 28, 2019, 08:07 AM   #43
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Oldmarksman, I'd like to ask if this response was based on having researched the laws of all 50 states, or if you are extrapolating from your home state's law?
Neither. Our law is modeled after the law in Forida.

The Florida Supreme Court ruling would be a pretty good baseis fror study, however.

It's all about basic legal principles.

A plaintiff would first have to file a suit in a civil court. Only the civil judge could grant immunity from civil liability.

He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
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Old August 28, 2019, 11:36 AM   #44
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Originally Posted by OldMarksman
A plaintiff would first have to file a suit in a civil court. Only the civil judge could grant immunity from civil liability.

He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
Isn't the legislative intent behind the immunity provisions in SYG laws precisely that citizens who are involved in "righteous" self defense shooting should not have to face the burden of undergoing a trial with a lower burden of proof following a situation in which they had to defend their lives?
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Old August 28, 2019, 12:38 PM   #45
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Isn't the legislative intent behind the immunity provisions in SYG laws precisely that citizens who are involved in "righteous" self defense shooting should not have to face the burden of undergoing a trial with a lower burden of proof following a situation in which they had to defend their lives?
Of course.

That does not mean that someone who is not charged, for any reason, or not indicted, or not convicted, may not face criminal liability.

That's because none of those things necessarily indicate that the actor had been involved in "righteous" self defense.

A prosecutor may have had other priorities, or a jury, while believing that the actor was probably guilty, may have had reasonable doubt.

Neither would deprive an injured person of the right to be made whole.

It's just that the civil process can be made much less lengthy and costly.
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Old August 28, 2019, 12:48 PM   #46
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He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
Not in Alabama. After the Court of Civil Appeals denied her a motion to have a pre-trial hearing in an ex parte ruling in Jenniffer Watters the Alabama Supreme Court found that the point of the pre-trial hearing to determine qualified [statutory] immunity was to avoid civil suits. The hearing was eventually held and it was found that Watters actions were not unlawful. Note that the standard for the pre-trial hearing is "preponderance of evidence".

https://law.justia.com/cases/alabama...6/1150182.html



This was also affirmed in State of Alabama v. Demetrius Raishad Watson where the court stated;

Quote:
"Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code [1975,] § 13A-3-23(d), provides not just a defense at trial but a bar to trial.
I did find this article:

http://www.ncsl.org/research/civil-a...ur-ground.aspx

Which covers other states but does not explain the process.

Here is the thing though. If you lose in the pre-trial hearing a civil suit can get dropped on your head. However if you win in criminal court than the matter gets thrown out and those that filed suit against you have to pay your civil legal fees.

So now most of the civil trials are also waiting until after the disposition of the criminal trial if there is one.

I guess at the end of the day someone can still try to file suit against you even if you win in the pre-trial hearing and they convince a lawyer to do so. However I would not want to be that lawyer and reckon that very few would. And when the one pressing the lawsuit loses (and lose they will) then they have to pay your legal fees.
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Old August 28, 2019, 01:22 PM   #47
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After the Court of Civil Appeals denied her a motion to have a pre-trial hearing in an ex parte ruling in Jenniffer Watters the Alabama Supreme Court found that the point of the pre-trial hearing to determine qualified [statutory] immunity was to avoid civil suits. The hearing was eventually held and it was found that Watters actions were not unlawful. Note that the standard for the pre-trial hearing is "preponderance of evidence".
That had to do only and entirely with a pretrial hearing for the purpose of requesting immunity from criminal prosecution

https://law.justia.com/cases/alabama...6/1150182.html[/QUOTE]


Quote:
"Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code [1975,] § 13A-3-23(d), provides not just a defense at trial but a bar to trial.

That is the law. But there are two kind of immunity here.

Quote:
Here is the thing though. If you lose in the pre-trial hearing a civil suit can get dropped on your head.
Anyone can sue anyone at any time, but a pre-trial hearing for the purpose can provide immunity from civil liability. The suit would be thrown out if immunity is granted.

Different hearing. Different court.

Quote:
However if you win in criminal court than the matter gets thrown out and those that filed suit against you have to pay your civil legal fees.
No. The burden of persuasion in a criminal court (if immunity from prosecution has not been granted) is beyond a reasonable doubt. The defendant wins if the state does not meet that burden..

To avoid civil liability, the defendant must prove much more that the existence of reasonable doubt. The burden of persuasion is by a preponderance of the evidence. That's true either in court or in a civil immunity hearing.
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Old August 28, 2019, 01:34 PM   #48
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I am going to have to disagree. However it will be easy for you to prove.

You would have to show me such a case where there was a criminal pre trial hearing and then a subsequent civil proceeding that did not defer to the criminal pre trial hearing. I am unaware of any such case. Such a suit would have had to have been instigated 2014 onward after the law changed.

In Alabama of course.

Quote:
That is the law. But there are two kind of immunity here.

That is not the law, that was from the court.
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Old August 29, 2019, 06:42 AM   #49
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You would have to show me such a case where there was a criminal pre trial hearing and then a subsequent civil proceeding that did not defer to the criminal pre trial hearing. I am unaware of any such case. Such a suit would have had to have been instigated 2014 onward after the law changed.
I seriously doubt hat anyone can ever cite a judgment or decision in a cil court that was based ona finding in criminal court, ever, in any US jurisdiction.

Quote:
That is not the law, that was from the court
That is a fundamental legal principle.

And by the way, a higher court ruling becomes law.
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Old August 29, 2019, 08:35 AM   #50
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I seriously doubt hat anyone can ever cite a judgment or decision in a cil court that was based ona finding in criminal court, ever, in any US jurisdiction.
So like I said super easy. Just one case will do it for me. Any case at all since 2014 in Alabama. Where there was a pre-trial hearing that held the shooters actions were found to be not unlawful and the civil case proceeded ahead anyway. I am saying there are not any. The existence of even one would invalidate my opinion. Although if such a case is still open the answer is unresolved.

Quote:
That is a fundamental legal principle.

And by the way, a higher court ruling becomes law.
There is no such legal principle that gives a bar to trial. Less than half the states even have SYG laws.

But in essence you are agreeing with me.

Quote:
Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation.
There are two kinds of immunity and the statement addresses both of them.
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