America needs tort reform for lawful self-defense.

[zukiphile]

Originally Posted by ghbucky

There is already legal remedies for reckless behavior.

Those remedies are what one requests from a court when he sues 1 and 2. If you grant 2 immunity for his negligence, there is no remedy for the injuries caused by 2's negligence.

Originally Posted by ghbucky

But the sentiment expressed here is the I better have SEAL gun handling skills because if a bullet gets astray my and my family are going to be financially ruined because I managed to come out of it alive.

Not really. I don't believe Rittenhouse had "SEAL gun handling skills".

If you shoot someone to whom you owe a duty not to shoot, your lack of immunity means you can be made to answer about whether you exercised due care. It doesn't mean that the finding is that you failed to exercise due care, but that you can be put to the trouble of defense and explanation.

[zeke]

Wisconsin 895.62  Use of force in response to unlawful and forcible entry into a dwelling, motor vehicle, or place of business; civil liability immunity.

[zukiphile]

Zeke, this immunity appears to only apply to suits by the assailant or assailant's estate.

(2) Except as provided in sub. (4), an actor is immune from civil liability arising out of his or her use of force that is intended or likely to cause death or great bodily harm if the actor reasonably believed that the force was necessary to prevent imminent death or bodily harm to himself or herself or to another person and either of the following applies:
(a) The person against whom the force was used was in the process of unlawfully and forcibly entering the actor's dwelling, motor vehicle, or place of business, the actor was on his or her property or present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that an unlawful and forcible entry was occurring.
(b) The person against whom the force was used was in the actor's dwelling, motor vehicle, or place of business after unlawfully and forcibly entering it, the actor was present in the dwelling, motor vehicle, or place of business, and the actor knew or had reason to believe that the person had unlawfully and forcibly entered the dwelling, motor vehicle, or place of business.

[zeke]

correct, but at least a beginning.

"dwelling, motor vehicle, or place of business"

[ghbucky]

Look. I get that there are a lot of people that have unrealistic views about how self defense law actually work that read these boards.

HOWEVER, the OP wants to talk about how the US legal system needs tort reform.

Given the OP, a condescending comment in response to anyone answering the OP about how to improve the law AS IT CURRENTLY EXISTS does nothing to advance the OP comment.

I know how the law works. I know that if I am fighting for my life and trying to put down an aggressor that I really think is going to kill me if I don't stop them, and a stray bullet in that fight kills an infant, then everything that I have worked for, will be chewed up by the current tort system and leave me and my children with nothing.

The only people that will profit from that event is the lawyers. That is because lawyers write laws. It isn't a mistake that we have found ourselves here.

My point is very simple. If there is anyone within the legal framework that enjoys any sort of protection from tort, than I get the EXACT SAME PROTECTION!

If a cop can have his PD deal with his wrongful death charges, then the law should also make the PD protect me if my response is judged within the law.

Police, first responders, politicians are not another class that enjoys a separate legal system from me. The judicial system is supposed to be blind. It matters not a whit who/what/when/where/why. If the crime = punishment then we all should face the same outcome from our behavior.

[44 AMP]

My point is very simple. If there is anyone within the legal framework that enjoys any sort of protection from tort, than I get the EXACT SAME PROTECTION!

No, sorry, you don't. Nor do I.

If a cop can have his PD deal with his wrongful death charges, then the law should also make the PD protect me if my response is judged within the law.

and, this is why you don't. You and I are not agents of the state. The policeman in his official role, IS an agent of the state. He is functioning as an arm of the government, NOT as a private individual.

This can be further complicated by the fact that in some cases, the officer is never "fully" off duty as long as he's employed, he MAY get at least some of the benefit of coverage his time "on duty" earns him.

Now, consider this situation, (and to our legal experts, please correct me if I get something wrong)

Take the "shoots the wrong person" scenario. If a cop shoots the wrong person in the course of their official duties, acting as an arm of the state, he gets the full coverage by "the state".

Same cop, weekend off, at home, someone breaks in and the cop shoots the wrong person, the state is not going to automatically shield him. However, being a cop he will get some aid from the PBA, his union, and the police administration, but not at the same level as he would for an "on duty" shooting. I believe in the at home, day off situation, if the cop shoots the wrong person he can be sued, as a private party and not as an agent of the police dept.

that's the way I understand it, if I'm wrong, please enlighten me.

[Spats McGee]

Given all of the discussion in here about tort liability, police officers and self-defenders, perhaps it would be helpful if I posted a link to my Primer on Civil Rights Litigation and Qualified Immunity.

[zukiphile]

Originally Posted by ghbucky

If a cop can have his PD deal with his wrongful death charges, then the law should also make the PD protect me if my response is judged within the law.

What incentive would a PD have to competently defend you in a civil suit?

Do you want a municipality to incur a huge bill for your civil defense if they don't charge you after a shooting? Isn't that an incentive for them to charge you?

Originally Posted by zeke

correct, but at least a beginning.

"dwelling, motor vehicle, or place of business"

I think that kind of narrow scope is a real advantage. So long as we are discussing immunity from suit by the very fellow who was coming at you in your home, the potential for abuse or unforeseen results is limited.

I see something in this sort of discussion that is understandable, but not optimal. We discuss scenarios with short descriptions of specific actions, but people then attribute the merit or fault for that specific action to subsequent actions. We call a character a "self-defender" then look for solutions to make that person's outlook the best, because he was the good guy.

Since real people wear more than one hat, have more than one motive, it's more conducive to fair rules to evaluate the acts as acts, rather than the description of a person. So one can be a valid self-defender and a tortfeasor. We can applaud the valid self defense, but demand that he answer for the tort.

Noting that the law you reference is narrow isn't a criticism.

[AlongCameJones]

I can't see how anybody who is following the law and acting with only good intentions to be a "tortfeasor". Is a person a tortfeasor or possible tortfeasor for pushing a child off a train track with his hands so the child in question avoids being hit by a quickly-approaching fast freight should the child get a broken arm from this pushing action but recovers from that and is well again? Here is a case where the theory of competing harms comes into play.

[zukiphile]

Originally Posted by AlongCameJones

I can't see how anybody who is following the law and acting with only good intentions to be a "tortfeasor".

Bob knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and Bob acts within his right of self defense in employing deadly force against Gaige also inadvertently but carelessly shooting seven other people who weren't involved in the conflict.

Bob didn't intend to hit any of the seven other people. Isn't Bob a potential tortfeasor against whom any of the seven should be able to seek damages?


If you like your scenario better:

Is a person a tortfeasor or possible tortfeasor for pushing a child off a train track with his hands so the child in question avoids being hit by a quickly-approaching fast freight should the child get a broken arm from this pushing action but recovers from that and is well again?

What if the child would have moved if he'd simple been told to get off the tracks?
What if the train wasn't quite so close as you thought?
What if you just didn't understand that there was a switch between the boy and the train and the boy was perfectly safe?
What if the arm you broke kept him going to school on a baseball scholarship?

Should you be required to answer a complaint?

People with good intentions and committing no crime act so as to hurt others fairly often. We don't beat them, seek retribution against one of their relatives, or have them out for a pre-breakfast duel, but we do have a process that puts a dollar figure on the harm they do. Given the historical alternatives, it seems like quite an improvement.

[AlongCameJones]

All this sue-happiness in our culture has made us a nation of cowards. People may become gun shy of doing what is morally right in their conscience out of fear of being sued or even criminally prosecuted.

[44 AMP]

Our court system is currently in the twilight zone created by the real world downsides to "the road to hell is paved with good intentions" and "if a little is good, then a lot must be better" concepts.

Over the last century we've changed from "if we occasionally hang an innocent man, that's the sad cost of doing business" to "better ten guilty men go free than one innocent man go to prison".
Not an expert, can't and won't say for certain, but I think the results of that idea are pretty obvious today...

Our current system includes the ability of anyone to sue anyone for any reason.
In the "unenlightened" past a judge might look at a suit and decide it had no merit and toss it out. Often with the admonishment of "Counselor, your client is an idiot and is wasting the court's time. Goodbye and don't come back!"

Today, generally speaking, such cases are allowed to continue into court, I guess the reasoning is that if they truly lack merit the court will decide that.
I think that's the theory, anyway. What happens in practice is we have clogged the courts horribly and I don't think that is a good thing.

as to pushing a child off the train tracks vs. missing the bad guy and shooting an innocent person, I think that's an apples/oranges comparison, and of no value to the discussion.

[ghbucky]

Bob knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and Bob acts within his right of self defense in employing deadly force against Gaige also inadvertently but carelessly shooting seven other people who weren't involved in the conflict.

Bob didn't intend to hit any of the seven other people. Isn't Bob a potential tortfeasor against whom any of the seven should be able to seek damages?

You keep trotting out this straw man. No one is arguing against this.

It does not advance the discussion at all.

[zukiphile]

Originally Posted by ghbucky

You keep trotting out this straw man. No one is arguing against this.

It does not advance the discussion at all.

It isn't a strawman; it's a scenario that illustrates a problem with broad immunity for actions undertaken in self defense. I produced it in response to an observation about someone with good intentions and whether that person can also be a tortfeasor.

It illustrates how someone can act with good intent, yet be a tortfeasor, so it clarifies an issue. That's how it advances the discussion.

[ghbucky]

I'm curious how many times an act of self defense has resulted in 8 people being shot by the victim?

[ghbucky]

Here is an actual case of bystanders being shot:

By police.

https://www.foxnews.com/us/nypd-9-sh...police-gunfire

[zukiphile]

.I'm curious how many times an act of self defense has resulted in 8 people being shot by the victim?

Curiosity is a virtue.

It would also be a virtue to be curious about whether your interests are served by having the police serve as your defense counsel in civil matters, or how a broad grant of immunity for those engaged in self-defense trades one problem, the defense and potential liability costs in civil matters, for another problem, extinguishing the current duty toward the innocent of one engaged in self defense.

It's an interesting topic, but not one that turns on whether an illustration of a principle has transpired exactly as set forth in the illustration.

[ghbucky]

whether your interests are served by having the police serve as your defense counsel in civil matters

I do not want that. What I want is a justice system. What we now have is anything but a justice system. If I am treated by a different set of standards than other people, then it is not a justice system, it is unjust.

If I shoot a bystander as part of a self defense altercation we all know how that ends for me. But if the police shoot 9! innocent bystanders it is:

"I believe it was handled well,"

So says the Police Commissioner.

It isn't just me that thinks the doctrine of qualified immunity is unjust,

“Given that qualified immunity is unlawful, should the court revisit it?”

https://www.americanbar.org/groups/l...fied-immunity/

A search for 'qualified immunity bar association' reveals the first 7 links are articles at the ABA critical of it.

[Spats McGee]

Are we going to discuss the legal issue? Or is this thread headed for closure?

[44 AMP]

It isn't just me that thinks the doctrine of qualified immunity is unjust,

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.

If you think this is unjust, you have the right to that opinion, and the freedom within our system to work to get the laws changed.

I do not think the right answer is to grant everyone the immunity the police currently have. I think we might be better off if the police were required to operate under the same limitations and risks as the rest of us. But, until such time as the laws get changed, and court rulings require and enforce those changes, we have what we got.

I will continue to hold to my personal opinion that if you shoot someone you should not have shot, no matter the reason, it does not change the fact that you shot them. The reason(s) and circumstances for the shooting can make the difference between it being a criminal or a civil matter, but NOTHING changes the fact that you shot them, and are responsible for that.

[Koda94]

somebody correct me if I'm wrong, I always thought the reason police have certain immunity is because they are required to be there where citizens are not? To me that's a huge difference in accepting liabilities. This is notwithstanding cases where an armed citizen has no choice but to defend his life but in the course accidentally shoots the wrong person. I do wish there was a way to put all that liability on the bad guy who caused it but that gets complicated...

[zukiphile]

Originally Posted by Koda94

somebody correct me if I'm wrong, I always thought the reason police have certain immunity is because they are required to be there where citizens are not?

While POs aren't required by any law to be somewhere and take action, i.e. they don't owe you or me a duty of protection, a core part of the police function is to apply force. That is going to get people hurt.

When a PO engages in a high speed chase for a trivial violation and kills or maims an innocent person, or shoots at a bad guy and hits an innocent, I think it is a normal reflex to view the event retrospectively and seek ways to dissuade POs to take those sorts of risks in the future. Doing that without compromising the core function of policing is difficult.

This thread is about two related but different topics. The first was whether a defensive shooter should have immunity. Zeke posted the WI immunity code. The second involves shrinking the zone of state immunity, an issue no less difficult.

I wanted a public agency to provide records my client needed. The agency sent someone and was represented, but they didn't provide the records or any excuse for withholding the records. I asked the court to assess against the agency my fees for my appearance that day, which drew an objection from agency counsel that I can't do that because it's "the peoples'" money. The court didn't find my reasoning, "Well then, screw the people", persuasive.

[Koda94]

Originally Posted by zukiphile

While POs aren't required by any law to be somewhere and take action, i.e. they don't owe you or me a duty of protection, a core part of the police function is to apply force. That is going to get people hurt.

I think this is close to what my understanding was, but clarifies it better thank you. Not really for the individual but they are legally required to be there and take action.

[44 AMP]

Not really for the individual but they are legally required to be there and take action.

That's the job. And on the job police officers are acting as agents of the government. Not as private citizens who happen to wear the same suit and have badges and guns. If a cop shoots someone they should not shoot, and they are acting within their guidelines and training, and the Dept approves their actions, the individual officers dont get sued, the Police Dept or its boss, the City (or county or state) gets sued.

They hired, trained and paid for the cop, they are responsible for what the cop does in their name.

one of the things skewing the public's perception about this, is that often the City (state. etc) will settle wrongful death cases out of court for "undisclosed" sums and usually with a non-disclosure clause, so the public never hears about it, and so goes on thinking the no one is held accountable for the shooting.

[ghbucky]

skewing the public's perception about this, is that often the City (state. etc) will settle wrongful death cases out of court for "undisclosed" sums and usually with a non-disclosure clause, so the public never hears about it, and so goes on thinking the no one is held accountable for the shooting.

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.