Civil Liability

[seamusTX]

You're right about O.J. being a different situation.

I'll try to answer this the best I can, which is not very well, because IANAL. Let's say you shoot an attacker and accidentally hit an innocent third party, "Fred." The DA can look at the facts of the case and decide you were justified in shooting and no charges should be brought. The case might not even go to a grand jury if the attacker was not killed.

Then Fred can sue you. The judge might decide to throw out the case based on the same set of facts, or let it go to trial. This is a new law, and it hasn't yet been tested (AFAIK). Judges sometimes interpret the law in weird ways, and they are sometimes reversed on appeal, sometimes not.

The bottom line is that I don't think you're in the clear in this kind of situation. Even defending a civil case that you win is expensive.

- Jim

[Nazrat]

I am a lawyer. The significant difficulty in comparing an acquittal in criminal court to a civil trial is the large difference in the burden of proof. Beyond a reasonable doubt is significantly harder to establish than preponderance of the evidence. The civil standard has been compared to having a 50.1% chance of being correct while the criminal standard has been compared to a 99.9% chance of being correct.

The criminal standard has no bearing on the civil standard. NONE. Nothing in a criminal trial prevents the filing of a civil suit. NOTHING.

Just FYI. There is also an old legal saying, "Intent follows the bullet."

[Charles L. Cotton]

I am a lawyer. The significant difficulty in comparing an acquittal in criminal court to a civil trial is the large difference in the burden of proof. Beyond a reasonable doubt is significantly harder to establish than preponderance of the evidence. The civil standard has been compared to having a 50.1% chance of being correct while the criminal standard has been compared to a 99.9% chance of being correct.

The criminal standard has no bearing on the civil standard. NONE. Nothing in a criminal trial prevents the filing of a civil suit. NOTHING.

Just FYI. There is also an old legal saying, "Intent follows the bullet."

Nothing in the criminal case prevents the filing of suit, but an acquittal will trigger the immunity from civil liability provisions of SB378. The defendant in the civil suit will win and they should get a summary judgment early in the process. That's if an plaintiff's attorney will take the case knowing they are going to lose. Also, it won't take an acquittal, or even a trial, to show that use of deadly force was justified under Chp. 9 of the penal code.

Chas.

[srothstein]

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.

While the two lawyers have answered, neither directly corrected what I believe is a misconception in you post. I could be wrong on this, and I hope one of the lawyers will correct me if I am wrong, but here goes.

The DA deciding not to prosecute or a return of no true bill by the Grand Jury does not mean that you were justified and has no bearing on the civil lawsuit. It could be because they all thought you were justified, or it could be for some other reason. One possibility is that the DA thought that you were guilty on all counts but was afraid that the jury would not convict you for some other reason, say racial prejudice maybe. It could be because the police messed up the case so the DA has very little admissible evidence in the case. In any of those cases, it has nothing to do with justification and the immunity.

Even an acquittal in a case does not automatically trigger the immunity. If the defense was that the action was legally justified and you are acquitted, I would say you are golden on the civil side. But if the acquittal was because the DA could not prove beyond a reasonable doubt that it was you that pulled the trigger, the immunity does not apply.

And nothing stops the lawsuit from being filed. You should win on a motion to dismiss if you were acquitted for justification, but I could see a judge ordering a trial to see if you were justified when you are no billed, especially if any of the facts of the shooting are questioned by the plaintiff or it is one of the shootings where the justification is a little gray.

My advice is to plan on being sued and going to trial. That way you cannot be disappointed, just pleasantly surprised.

[Charles L. Cotton]

An acquittal will trigger civil immunity, if the defendant's defense was "justification" pursuant to Chp. 9 of the penal code. If the defendant's defense was "I wasn't the guy who shot him," then he could still lose a civil suit if the civil jury determined that the preponderance of the evidence shows he really did kill the deceased and wasn't "justified."

If a defendant was no-billed, then I think that is going to be sufficient evidence of justification, but this is a new law, so I am by no means certain. If the matter was never presented to a Grand Jury, then a prosecutor's written statement of "no intent to prosecute" may be enough also. If you don't have any of these, then the defendant is going to have to prove "justification" in the civil suit.

Again, anything other than an acquittal based upon a "justification" defense is unsettled, since there are no cases on it. The Joe Horn case may give us some indication.

Chas.

[Nazrat]

Thanks for the info, Charles. I agree. However, too many people seem to believe that immunity from liability equals no lawsuit filed. Only a crusading lawyer would take the type of case described above with little chance of eventual success. However, the possibility of suit still exists under current law. I'm not sure how many people realize how much it costs to win a summary judgment. It is much cheaper than trial but it is not lunch money.

[frankie_the_yankee]

1) If I am facing an unlawful threat and/or use of force, what might happen in civil court is going to be the last thing on my mind at that moment.

2) No matter how many different ways you slice the onion, we (the self defense community for want of a better term) are far better off under the new law than we were under the old.

3) As has been pointed out, the chief benefit of the new law is that with suits so much harder, nearly impossible, to win (in the case of a justifiable shooting or use of force in self defense) in most cases they won't be filed in the first place.

So it's not impossible to be sued. It's just very unlikely, because it is almost impossible for the BG or his estate to win.

At least that's my non-lawyer take on it.