Civil Liability

[srothstein]

I do not see a difference spelled out between personal injury or death to a BG, and personal injury or death to anyone else. It simply says if your use of force was justified, you are immune. Interesting. I hadn't realized that earlier.

Check Penal Code section 9.05

You are not protected by justification for reckless injury to another, even from a criminal case. Since Chapter 9 does not justify the behavior, this civil immunity doesn't help you either.

[Charles L. Cotton]

This language was in SB378 as filed, but unfortunately it was amended to get the bill out of committee. This is what was substituted and is now part of the Civil Practices & Remedies Code.

Chas.

CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.

I searched around and couldn't find the final bill that became law. All I could find was what I found. It looks like what they ended up with has more protection for the homeowner.

Where did you find that?

Go to the Texas Legislature's website and look at the different versions of the bill as it went through the process. The on that passed is the "enrolled" version.

Chas.

http://www.capitol.state.tx.us/BillLook ... Bill=SB378

[Charles L. Cotton]

I do not see a difference spelled out between personal injury or death to a BG, and personal injury or death to anyone else. It simply says if your use of force was justified, you are immune. Interesting. I hadn't realized that earlier.

Check Penal Code section 9.05

You are not protected by justification for reckless injury to another, even from a criminal case. Since Chapter 9 does not justify the behavior, this civil immunity doesn't help you either.

If you can't find justification for your action in Chp. 9, then Tex. Civ. Prac. & Rem. Code §83.001 does not apply. Thus, any injured or killed innocent 3rd parties can still sue. It doesn't mean they will win, but they can sue. Whether they prevail will be determined by whether or not your conduct was "negligent." Note, this is a lower standard than the "reckless" standard in the Penal Code.

Chas.

[ELB]

Aha. When I wrote my comment, I almost added "unless there is some other part of the law I don't know about..." but I was in a hurry. Turns out there is. Thanks. (And not that I intended to spray the universe with bullets in my next self-defense activity! ).

elb

[locknload]

If you can't find justification for your action in Chp. 9, then Tex. Civ. Prac. & Rem. Code §83.001 does not apply. Thus, any injured or killed innocent 3rd parties can still sue. It doesn't mean they will win, but they can sue. Whether they prevail will be determined by whether or not your conduct was "negligent." Note, this is a lower standard than the "reckless" standard in the Penal Code.

Chas.

It looks like to me that, in other words, the bad guys still win. What happened to the Texas that I grew up in? "He just needed killin' " used to be an honored defense. Really. Especially, if you found your husband in bed with another woman!

[srothstein]

If you can't find justification for your action in Chp. 9, then Tex. Civ. Prac. & Rem. Code §83.001 does not apply. Thus, any injured or killed innocent 3rd parties can still sue. It doesn't mean they will win, but they can sue. Whether they prevail will be determined by whether or not your conduct was "negligent." Note, this is a lower standard than the "reckless" standard in the Penal Code.

Chas.

It looks like to me that, in other words, the bad guys still win. What happened to the Texas that I grew up in? "He just needed killin' " used to be an honored defense. Really. Especially, if you found your husband in bed with another woman!

No, the bad guys lose still. All we are saying is that you cannot hurt the innocent bystander also. And even that has to be reckless, not just negligent. Reckless means you were aware of the danger and disregarded it. So, if you know you are a lousy shot, and the bad guy is surrounded by a lot of other people, when you shoot and hit the bystander, you were reckless and can be charged or sued for it. If you hit the bad guy, he is just out of luck and you are good to go.

As for the "he just needed killin' " defense, it is all up to the jury. Some parts of the state will still by it, no matter what the law reads.

[KD5NRH]

If you can't find justification for your action in Chp. 9, then Tex. Civ. Prac. & Rem. Code §83.001 does not apply. Thus, any injured or killed innocent 3rd parties can still sue. It doesn't mean they will win, but they can sue. Whether they prevail will be determined by whether or not your conduct was "negligent." Note, this is a lower standard than the "reckless" standard in the Penal Code.

I can't think of much off the top of my head that might work, but what about, say, 9.22 justifying a shot that isn't clearly negligent, but very necessary? (risky "hostage shot," where the hostage is hit unintentionally, etc.)

[TX Rancher]

This language was in SB378 as filed, but unfortunately it was amended to get the bill out of committee. This is what was substituted and is now part of the Civil Practices & Remedies Code.

Chas.

CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.

Can you please explain further. I hear people say that "if you are no billed you can't be sued" and on and on. As I understand it, you CAN be sued, and the court will determine if you were justified under the law. Is that correct?

Charles:

I too am interested in your response to TI's question since I've heard it argued both ways...

[srothstein]

Yes, you can be sued. A no bill does not mean that you were justified. It simply means that the grand jury did not think there was enough probable cause for the charge. This could be due to a valid defense or it could be due to a lack of evidence on the prosecution side.

In addition, there is no way to stop any lawsuit from being filed. The best you could do is to have the defense ready for the answering petition. Then ask for a summary judgment in your favor.

[frankie_the_yankee]

I think that in practical terms, given the slim to none chance of winning (assuming a legal shoot), and the fact that lawyers, like most other people, do not enjoy working for nothing, most lawyers won't agree to take a (contingent fee) case under the new law.

[Liko81]

This law was intended to relieve a defender from civil liability claimed by the attacker, or the attacker's family. I'm not confident that this law will be interpreted to relieve a defender of liability for injury to an an innocent third party or property damage.

Injury of a third party could be considered reckless or an accident. It would depend upon the circumstances. In either case, the defender could be civilly liable.

We won't really know until a case lands in court.

- Jim

Good point. It's mentioned in the statutes:

§ 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even
though an actor is justified under this chapter in threatening or
using force or deadly force against another, if in doing so he also
recklessly injures or kills an innocent third person, the
justification afforded by this chapter is unavailable in a
prosecution for the reckless injury or killing of the innocent
third person.

I guess the key point is "recklessly injures or kills". Does this clause presume that injury to a third party is reckless, or does it require that recklessness be demonstrated in order for justification not to attach? If I were on a jury I would tend to assume the latter. From "handgun wounding factors and effectiveness":

A review of law enforcement shootings clearly suggests that regardless of the number of rounds fired in a shooting, most of the time only one or two solid torso hits on the adversary can be expected. This expectation is realistic because of the nature of shooting incidents and the extreme difficulty of shooting a handgun with precision under such dire conditions. The probability of multiple hits with a handgun is not high.

Choosing a bullet because of relatively shallow penetration will seriously compromise weapon effectiveness, and needlessly endanger the lives of the law enforcement officers using it. No law enforcement officer has ever lost his life because a bullet overpenetrated his adversary, and virtually none have ever been sued for hitting an innocent bystander through an adversary. On the other hand, tragically large numbers of officers have been killed because their bullets failed to penetrate deeply enough

The first point is used in the document to argue that each bullet should be as effective as possible, but the fact is still a fact: the nation's top civilian law enforcement agency recognizes that even officers who train regularly as part of their job do not place every shot COM when the target is moving and firing back, and if they expect a shooting they do not rely on a handgun. The second point illustrates that a caliber that overpenetrates is NOT a disqualifying consideration of law enforcement, who in fact do use calibers and cartridges that demonstrably overpenetrate because NOT to do so is dangerous to them. Well that's true of anyone who carries a handgun; if you have to use it, you expect it first to go BANG with every trigger pull, and second you expect its projectiles to be effective. Why then would a CHL, or any civilian owning a defensive handgun, not make the same choice in a weapon they might have to bet their life on?

The conclusion is that overpenetration and missed shots are a natural consequence of shootings, even involving people whose job description includes shootouts and who as a consequence train regularly for them. Thus, a missed or overpenetrating shot cannot be prima facie of reckless conduct. Those who are not in law enforcemeent cannot logically be held to a higher standard of performance, even if they DO have a similar or even higher standard of training (a person's military background, IPSC experience, CHL qualification, or other training regimens cannot be used to infer a guarantee of shot placement). They might be held to the SAME standard of performance, but that standard as evidenced is rather low. The shooter, in taking a shot, must have been either intentionally aiming at that person or negligently failing to identify his target in order for the shot to have been made recklessly.

[seamusTX]

That fact that an innocent person was injured does not create a presumption of recklessness. The law recognizes that accidents occur.

The law also contains a definition of reckless with respect to criminal cupability:

PC § 6.03. DEFINITIONS OF CULPABLE MENTAL STATES.
(c) A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.

Of course, human beings have to decide whether a particular action is reckless in light of this definition.

I would say, as a general principle, that if shooting is justified (immediately necessary to prevent the unlawful use of deadly force, etc.), and the defender acts reasonably, any injury to an innocent party that might occur is not reckless.

Spraying 90° of arc on either side of someone who pulls a knife would be reckless.

These events are so rare in civilian self defense that it's difficult to come up with examples.

- Jim

[Liko81]

So therefore, given that it's only "reckless" conduct that voids justification under Chapter 9, you are justified and therefore immune even if your actions might meet the standard for "negligent"? In reality I'm not sure there's a difference; if you fire at a BG with a crowd around or beyond him crowd and a bullet hits anyone other than the BG, you were aware of a risk that it would happen and disregarded it. The only question remaining is if the risk that an ITP would be hit was great enough, and the results of a severe enough nature, that choosing to fire constituted gross deviation from a reasonable standard of care.

Another legal question. You shoot in self-defense. Damage or injury to an ITP occurs. The DA declines to prosecute any possible unlawful use of force because he thinks you're justified under TPC Chapter 9, and closes the case. If the DA signals his intention not to prosecute now or ever that's as good as an acquittal as far as an official finding of justification, as is a no-bill. According to the letter of the law, the injured ITP then has absolutely no recourse. I would have to be found guilty of unlawful use of force against the person suing me in order to be liable for damages. So, the question is, would a DA decline to prosecute across the board if someone other than the BG were damaged by my actions? How severe would the damage need to be (a broken window and a hole in a wall, or would an ITP have to be personally injured)? Would the incident be considered as one count (justifiable with one defense), or one count for each bullet impact or injured party (where I'd have to prove I was justified in using deadly force against everything I hit)?

I would think the DA would define "use of deadly force" in terms of it being against people and not property; all property damage would be incidental if the use of force against the intended target was justified. However, justification against one does not excuse reckless conduct against others, and if injury to an ITP were determined to be reckless my justification stops right there. So, the DA would examine all injured parties, and I'd have to justify use of force against every last one. I may or may not be able to justify injury due to overpenetration as incidental, or it may have been reckless to fire at my intended target while someone was behind them, if I reasonably should have known someone was beyond them and still in visible range. Similarly, injury to people around the target could be incidental, or could be reckless, depending on the reasonable hit percentage expected in the circumstances.

this is why the lawyers make the big bucks.

[seamusTX]

You're asking a lot of hypothetical questions that I can't answer. What happens in a particular case depends upon the facts of the case.

Non-LEOs so seldom injure an innocent third party when they are defending themselves, I am not aware of any pattern of whether they are found liable.

Not being indicted or being acquitted in a criminal case has very little relevance to a related civil case. O.J. Simpson was found not guilty and then held liable for wrongful death.

- Jim

[Liko81]

Not being indicted or being acquitted in a criminal case have vary little relevance to a related civil case. O.J. Simpson was found not guilty and then held liable for wrongful death.

Becuase he wasn't acquitted for justification; he was acquitted because the prosecution couldn't find enough evidence to tie him positively to the crime. Nor was there a law providing immunity if he were acquitted on any grounds.