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Old July 17, 2013, 06:34 AM   #1
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Civil Liability, Civil Immunity, and the Use of Force


In this forum, we continually address some of the key legal aspects of the use of force in self-defense. Subjects that we have covered include the basics of use of force law; some more specific things, such as the duty to retreat, "stand-your-ground" laws, and the castle doctrine; and some aspects of how the criminal justice system works, from the reporting of an incident through interaction with arriving officers and through the investigation and trial stages.

We have concentrated on the criminal law aspects of the justification of the use of deadly force. There is another side that is also of great importance: civil liability.

The Short Version

We have discussed at great length in this forum about how citizens who are involved in the use of either non-deadly physical force, deadly force, or even the threat of force against other persons are likely to find it necessary to show that their actions were lawfully justified from the criminal standpoint.

No one should lose sight of the fact that there is also a risk of suits in which the other party may seek significant monetary damages.

Some states have enacted laws intended to limit the risk of frivolous civil suits. To the layman, a casual reading of those laws may give the impression that they virtually eliminate the risk of civil suits in situations in which the use of force is deemed justified in the criminal justice system.

No one should ever rely on such an impression. There are significant differences between the criminal justice system and the civil court system. These differences involve evidentiary rules; the fact that in criminal trials a defendant is entitled to certain constitutional protections, such as that involving self incrimination, that are not afforded to defendants in civil cases; and issues having to do with the different burdens of proof.

In the following discussion, we will touch primarily on the last of these differences, which is probably the most important.

In order to provide our members with a better understanding of this important subject, I have consulted with attorneys Frank Ettin, Spats McGee, and Bartholomew Roberts to put together a brief outline of the pertinent principles.

Discussion and Overview

When one person harms another for whatever reason, the injured party, or his surviving family, can be expected to seek to recover damages in the court system. When a shooting involves a sworn officer properly acting in the line of duty, there is always the possibility that the person who has been shot, or his surviving family members, will file suit against the police department, the officer involved, and perhaps even the supervisors of the officers involved. However, as long as the officer acted responsibly and in accordance with approved policy, he or she can count on the support of the state, county, or municipality in his or her defense. Except in cases involving particularly egregious actions on the part of the officer, it is highly unlikely that he or she will be held personally responsible for damages assessed by the court or agreed upon between the parties.

That is not true when a private citizen uses force against someone else. The citizen is on his own.

Anyone who has followed a sufficient number of self-defense trials is no doubt aware of cases in which armed citizens who have had to defend themselves have been acquitted in criminal court and found themselves facing the threat of a civil lawsuit, perhaps from the surviving families of the persons shot in self defense. That is not uncommon.

In our litigious society, there have been some rather extreme outcomes that have appeared to many people to far exceed reasonable justice for the injured persons or their estates. In order to try to establish an equitable balance, a number of state legislatures have enacted laws intended to protect lawful defenders from unreasonable civil liability.

Such laws usually something read something like " A person who uses force as permitted in [Sections…..] is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless….". In at least one state, the law reads "such fact [(that the use of force was justified under the criminal code)] shall be an absolute defense to criminal prosecution or civil liability."

To the layman, such wording may seem to indicate that such laws effectively eliminate the risk of civil judgments in self-defense shootings, at least when the defender acts in a lawful manner. However, that is not the case at all.

It is very important that no one misunderstand what such laws mean and what they do not. One occasionally hears such statements as “in my state, if I shoot in self-defense in my home, I cannot be sued”. That is not what the laws mean, or what they were intended to mean.

This is necessarily a very general discussion that does not address details that could be very important in individual cases.

Justification and the Burden of Proof

It is extremely important to understand that the fact that a defender is not charged in the criminal justice system does not mean that he or she has met the standard for justification to prevent civil liability. Nor does an acquittal in criminal court automatically establish civil immunity; and depending upon the laws of the jurisdiction, acquittal in criminal court may indeed fall far short of protecting a defendant from civil liability.

On the criminal side, the burden of proof for justifying the use of force varies among jurisdictions. In some states, such as New York, to cite only one example, a defendant who clams self-defense must convince the triers of fact that the act was lawfully justified by showing by a preponderance of the evidence that all of the elements of lawful self-defense had been present. In others, such as Arizona, Florida, and West Virginia, the state must prove beyond a reasonable doubt that the defender’s act was not justified. Thus, a prosecutor who believes that he or she would be unlikely to meet the BARD threshold may choose to not charge a suspect. Or if charges are filed, the state may fail to get a conviction.

The first outcome would not meet the standard for civil immunity--nothing has been proven. Nor would the second, in a state in a jurisdiction in which the state would be required to prove beyond a reasonable doubt that the defendant had not acted in lawful self-defense. In a civil trial, only a preponderance of the evidence is necessary to support a judgment against a defendant. Put another way, unless more of the evidence supports justification than liability, the judgment will go against the defendant. In some jurisdictions, the burden of proof for the state in a criminal trial involving a claim of justified self-defense is much greater than that for a plaintiff in a civil trial.

There’s nothing new there. That’s the way it has been for centuries. What is new, in those states that have enacted civil immunity laws, is outlined as follows:

Immunity for Civil Liability for the Justified Use of Force

The kinds of laws we are discussing do a couple of things:
  • They establish that the standard for what constitutes necessary and reasonable force for purposes of judging civil liability is the same as that used to determine criminal culpability.
  • They (are intended to) protect a defender from having to go to trial to defend against an unjustified civil suit for a justified action. How that is supposed to happen is usually defined by the courts. One common way is for the defendant to ask a judge to invoke the civil immunity clause and prevent a civil suit from proceeding. More on that later.

In some states, the laws go farther:
  • They require a plaintiff who fails in a civil suit to pay for court costs, often including the legal fees incurred by the defendant.
  • In some states, an unsuccessful plaintiff is required to reimburse the defendant for other damages, such as lost wages.

These last two items are intended to mitigate against the filing of frivolous suits, but it is important to understand that many of the persons who may end up filing such suits have little or no money with which to reimburse a defendant.

Where such laws have been enacted, they have generally resulted in a significant reduction in the number of frivolous lawsuits.

Pursuing Civil Immunity under the Law

As indicated in the aforementioned example, in some states, but not all, the section of the law that covers civil immunity is grouped with wording that is intended to also prevent criminal prosecution in the event of an act of force is justified under the law.

That is the case in Florida, to cite one example. The appellate courts have established that one who has been charged with having committed a use of force crime and who intends to pursue a defense of justification may ask the courts to stop the prosecution process. To do so, the defendant would present evidence of justification and to persuade a judge that a preponderance of the evidence supports the lawful justification of the act in question.

A claim of entitlement to civil immunity might be handled in that way, but there's still no clear law on that. In any case, every civil immunity law sets out various requirements that need to be satisfied in order for there to be immunity. There may be dispute about whether those requirements had been satisfied. Perhaps a dispute on that issue could be dealt with in some summary proceeding. But sometimes perhaps not. In any case, it will be a matter for a court.

So while someone might be in theory entitled to immunity, if there's any dispute about that he'll be in court and paying a lawyer anyway.

Separate Trials, Different Legal Processes

In case it is not now clear, a criminal defense and a defense against civil proceedings will entail entirely different processes--different courts, different judges, different juries, and different rules. Transcripts of testimony in the criminal trial will not be used in a civil trial. The defendant will face an attorney who represents the plaintiff rather than a prosecutor who represents the state. The defendant will most likely employ different attorneys. Incidentally, the defendant is not entitled to a public defender in a civil case.

While there have been some high profile cases in which wrongful death suits have followed the criminal case, it will not necessarily happen that way. It is not unlikely that a defendant will choose to settle a civil suit before the criminal case has been concluded.

Untested Law

The intersection of state codes and tort law includes some uncharted territory. Tort law has traditionally been the province of the courts. Not every attempt by state legislatures to limit the rights of citizens to seek redress in civil court has withstood the test of the judicial process.

Some of what we have been discussing remains untested. Some legislatures have attempted to provide for civil immunity in cases in which criminal prosecution is simply not pursued. Such provisions represent a very significant departure from long-standing legal tradition, and it would not be prudent to rely on them or to be the test case.

The Scope of This Discussion

The above applies to civil liability associated with justified, necessary, and intentional acts of self-defense that result in harm to a criminal aggressor.

The subject of civil liability associated with acts of negligence and with injuries incurred by third parties is beyond our scope.

We will, however, touch on one limited but very important aspect of the inherent intentional nature of a self-defense shooting: unless otherwise specified, homeowners insurance policies cover damages resulting only from unintentional acts. Liability associated with the shooting of an assailant in self-defense shooting is almost always excluded. The homeowner is almost always on his own.

Summary and Take-Away Points

To recap, (1) some states have passed laws that have effectively tended to dissuade the proverbial “ambulance chasers” among attorneys from pursuing frivolous lawsuits involving acts of self-defense; (2) everyone should be aware that there is a very significant difference between what it takes to establish criminal guilt and what it takes to prevail in a civil suit; and (3) for that reason, civil liability remains a potentially substantial risk for one who harms another, even in a necessary act of self preservation.

This further underscores the reason for the admonition that the use of deadly force should always be regarded as a last resort, to be used only when no other means of protection are available or all have been exhausted.

Last edited by Al Norris; October 28, 2013 at 01:19 PM. Reason: a misapplied word corrected
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Old July 17, 2013, 07:33 AM   #2
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Great post; its VERY VERY important to know your states use of force laws. I would suggest if you are reading this, you own and gun and you don't understand your states use of force laws you correct that ASAP. If you don't own a gun I would suggest you read up on your states use of force laws right after the laws governing posession/transportation if firearms.

Illinois for example has very good use of force laws, better in some ways than many "gun friendly" states in we get good civil immunity.

(b) In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of "aggressor" set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct.
Nothing a Cook County jury couldn't ignore but its better than many states who have no written law on immunity. There are ways around most such laws; this famous California case as an example.

A Northern California homeowner who police say survived being shot in the jaw during a burglary is now getting a "punch in the gut": The burglary suspect is suing him for returning fire.
The Marin Independent Journal reported the suspect alleges that Jay Leone, who is 90-years-old, negligently shot the intruder.
In that case the bad guy was trying to sue claiming negligence; something that the homeowners insurance may have to cover.
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Old July 17, 2013, 07:54 AM   #3
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A fine post, OldMarksman!
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Old July 17, 2013, 11:38 AM   #4
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A great post, and long overdue.
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Old July 17, 2013, 12:33 PM   #5
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Very well done, OldMarksman.
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper
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Old July 17, 2013, 12:49 PM   #6
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Credit Where Credit is Due

First, I have already pointed out that Frank, Spats, and Bartholomew were involved in the vetting process and that I received their suggestions.

More importantly, much of what I know about matters about which I make contributions here was learned over the years from reading their numerous thoughtful and valuable posts, along with those of a number of others here and on The High Road. We see some of them on television, and you will read their work in magazines and other publications.

Yes, it certainly is overdue. I would like to have completed this one sooner, since the subject matter has been talked about a lot recently, but better late than never.

Thanks for the kind words, and I am glad to have been of service.
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Old July 17, 2013, 08:45 PM   #7
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Over at The High Road, there's an identical OP. A member there who goes by Cosmoline made an excellent point in discussing Civil Liability, Civil Immunity and the Use of Force. With Cosmoline's permission, I am shamelessly copying and pasting it here:
Originally Posted by Cosmoline
. . . .Also remember that while a criminal acquittal is typically not going to have collateral impact on a civil litigation, a criminal *conviction* absolutely can and likely will. If it comes to a plea deal, be sure you understand civil implications of such a plea. For example even pleading "no contest" to a lesser charge can have enormous impacts on subsequent civil proceedings. I've argued the issue with the Alaska Supreme Court, but they didn't have much sympathy for the defendant. Be sure to cover the matter with counsel, and to muster all your forces both criminal and civil as part of your overall defense strategy. It is too often the case that criminal defendants focus solely on the criminal defense issues assuming that the civil matters can just wait to be dealt with later on. But a decision in criminal court can have serious impact later on. It can walk you out of coverage and walk you into automatic liability. Rest assured, the plaintiff's counsel is not waiting until the criminal case is over before starting his work! If there are assets involved, or high enough profile, those sharks get swimming really early. So you need to get your Quint up and sober.
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Old July 18, 2013, 11:20 AM   #8
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Excellent OP.

I would add that while Federal cases require jury unanimity, most states (30, if the Wikipedia is accurate) do not require jury unanimity in civil cases in their civil trial courts, whereas all but Louisiana and Oregon do require jury unanimity in their state criminal jury trials. Not requiring unanimity can significantly lessen the burden of proof for the plaintiff (or prosecutor, in LA and OR). It takes away the possibility of a single dissenting member causing a hung jury.

Related to that, a friend of mine who is an attorney said that when he took trial law in law school, the instructor, an experienced trial lawyer, told the class that if you go to court with your client entirely in the right and with all the facts on your client's side, the chance of victory was, in his estimation, about 60%. This was in Massachusetts, and I don't know if that applies equally around the country. But good trial lawyers can be persuasive and spin and twist things even when their client is in the wrong and juries can be persuaded by them. It is why going to court is considered a roll of the dice, and why most cases are settled out of court; taking the uncertainty out. But filing countersuits and other steps that may be needed to set up conditions for negotiating civil settlements are expensive. Even if the suit is dropped, you are likely to be out of pocket a good bit of money. If you have more money than the other guy, he can probably find an attorney to take the case on contingency, but if he has nothing, you'll have to pay for your defense, as you won't find a contingency lawyer to sue someone who has nothing to lose.

This just adds fuel to the idea that if you decide to use deadly force, you not only have to be in the right, you have to feel so certain about the threat that it is worth enduring considerable subsequent punishment for doing the right thing. As Clare Booth Luce famously said: "No good deed goes unpunished".
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Last edited by Unclenick; July 24, 2013 at 07:15 AM. Reason: typo fix
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Old January 17, 2014, 01:49 AM   #9
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<Snip Post>

<Also remember that while a criminal acquittal is typically not going to have collateral impact on a civil litigation, a criminal *conviction* absolutely can and likely will.>

How does that work exactly?
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Old January 17, 2014, 03:24 AM   #10
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It seems to Mr. Ayoob once said if you use your gun you need to win three times, in the street, in criminal court and in civil court.
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Old January 17, 2014, 07:55 AM   #11
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Originally Posted by ATN082268
<Snip Post>

<Also remember that while a criminal acquittal is typically not going to have collateral impact on a civil litigation, a criminal *conviction* absolutely can and likely will.>

How does that work exactly?
Well, it is related to burdens of proof. In order to get a criminal conviction, the prosecutor has to support the highest legal burden: Beyond a Reasonable Doubt. Civil cases are judged by a lower legal burden: By a Preponderance of the Evidence.

So if the SD shooter has already been convicted of something, the elements of that crime have already been established Beyond a Reasonable Doubt. In the civil case, the plaintiff's attorney is going to argue (at least in settlement negotiations) that those elements which overlap have already been proven by the State in the criminal case, and to a higher burden that he will have to meet in the civil case (Preponderance).

If it goes the other way (civil first, then criminal), which is unlikely, then even if the civil plaintiff wins, the criminal defense attorney can reasonably take the position that "just because the plaintiff was able to establish x, y, and z by a preponderance of the evidence, doesn't mean that the State can establish them beyond a reasonable doubt."

Does that help clarify matters?
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Old November 25, 2015, 03:36 PM   #12
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There is no right to remain silent in civil court

Excellent job, OldMarksman.

I no longer practice and when I did I didn't deal with firearms law or criminal law. I would still point out a major difference between the two. There is a right to remain silent in a civil action.

I mention this because I have read so many posts about how dead men don't talk and all you have to do is keep your mouth shut. If you do, it is nearly impossible to prosecute you. Perhaps criminally and any civil suit may be stayed until the conclusion of any criminal action, if one is brought, but there is no right to remain silent (to not be a witness against yourself) in a civil case.

What I am saying is don't think you can avoid civil liability by keeping your mouth shut.

Be careful dealing with your own insurer. Insurance does not cover intentional acts. As pointed out above, it covers negligent acts. The law is going to be different in different states, but whatever you tell your insurer about the shooting may come allow your insurance company to deny you coverage. Perhaps it won't even have to provide you with a defense in the civil case or, if it does have to pay for that defense it can later sue you to reimburse if for defense costs.

Last edited by Dreaming100Straight; November 25, 2015 at 03:48 PM.
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Old February 20, 2017, 01:07 PM   #13
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I've deleted a handful of posts that are essentially off-topic. This is "Law and Civil Rights." We discuss what the law is, and how it developed, and we back it up with citation to authority. Neither common sense nor folklore constitute "authority." If your post disappeared, please allow it to remain so.
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