How do you get gun back after a clean shoot?

[5thGenTexan]

Son and daughter-in-law have a friend who was involved in a fatality shoot about 2 years ago. He just got letter from DA's office that the case is closed. No charges filed nobilled by Grand Jury but DA's office has not returned his weapon. Any clue as to how he gets it back?

Sad part is the deceased blood sucking relatives are now suing him for wrongful death. His homeowners insurance is defending that claim and providing a lawyer. Good kids and they don't deserve the hassle for stopping a breakin attempt while home with 2 small kids.

[mgood]

Is this in Texas? If so, that wrongful death suit shouldn't get too far. I don't remember the specifics of the law (though it's been discussed numerous times on this forum and I should have paid more attention), but if you are not at fault, Texas has made it very difficult for them to sue you over it, and even more difficult for them to win.

I have no idea what the process may be for getting the gun back. He should get it back.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

[xdfanatic]

Wow, it's terrible that he is being sued. It's sad to hear that, but hopefully as pointed out above he will not loose because he was in the right. I am also curious to know how he would go about getting his firearm back.

[mgood]

Is this in Texas? If so, that wrongful death suit shouldn't get too far. I don't remember the specifics of the law. . . .

So I went and looked it up.

From our Castle Doctrine:

CIVIL PRACTICE AND REMEDIES CODE



TITLE 4. LIABILITY IN TORT



CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON




Sec. 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.



Added by Acts 1995, 74th Leg., ch. 235, Sec. 2, eff. Sept. 1, 1995.

Amended by:

Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 4, eff. September 1, 2007.

[flechero]

Unfortunately it will probably cost more to get it back than it's replacement value. I suppose a carefully worded letter from an attorney to the DA or PD would be a good start.

Good luck!

[RPB]

Maybe look in Texas Code of Criminal Procedure - Article 18.19. Disposition Of Seized Weapons

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http://www.statutes.legis.state.tx.us/D ... .htm#18.19" onclick="window.open(this.href);return false;

Among other things:

(c) If there is no prosecution or conviction for an offense involving the weapon seized, the magistrate to whom the seizure was reported shall, before the 61st day after the date the magistrate determines that there will be no prosecution or conviction, notify in writing the person found in possession of the weapon that the person is entitled to the weapon upon written request to the magistrate. The magistrate shall order the weapon returned to the person found in possession before the 61st day after the date the magistrate receives a request from the person. If the weapon is not requested before the 61st day after the date of notification, the magistrate shall, before the 121st day after the date of notification, order the weapon destroyed or forfeited to the state for use by the law enforcement agency holding the weapon or by a county forensic laboratory designated by the magistrate. If the magistrate does not order the return, destruction, or forfeiture of the weapon within the applicable period prescribed by this subsection, the law enforcement agency holding the weapon may request an order of destruction or forfeiture of the weapon from the magistrate.

[phrogg]

Is this in Texas? If so, that wrongful death suit shouldn't get too far. I don't remember the specifics of the law (though it's been discussed numerous times on this forum and I should have paid more attention), but if you are not at fault, Texas has made it very difficult for them to sue you over it, and even more difficult for them to win.

I have no idea what the process may be for getting the gun back. He should get it back.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

But he can still be sued for wrongful death. Because the Grand Jury nobilled him they did not find him at fault or not at fault. They simply made the determination that there wasn't evidence to bring him to a trial and make a determination. So he can still be sued until a determination is made.

CPRC § 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.

This states that you are immune from civil liability, but not until a jury has determined that the use of deadly force was justified under Chapter 9. Hence, he can still be sued... This is why I keep a large umbrella liability policy as well as my homeowners, etc.

[mgood]

But he can still be sued for wrongful death. Because the Grand Jury nobilled him they did not find him at fault or not at fault. They simply made the determination that there wasn't evidence to bring him to a trial and make a determination. So he can still be sued until a determination is made.

Hmmm.
I never thought of it like that. I just assumed (and you know what that does) that if he was not convicted, then he was protected by 83.001.
So, there are cases where Texans have fatally shot someone in self-defense and not even been arrested. They'd also be open to civil suits?
You have to actually be tried and found not guilty in order to be protected by 83.001?

Even so, if you can show in civil court that you were justified under Chapter 9, then that should be the end of it. That route still costs you though.

[sjfcontrol]

Also keep in mind that criminal charges must be proved "Beyond reasonable doubt". Civil charges only need to be proved to "a preponderance of the evidence" (i.e., more likely guilty than innocent). Therefore, it is MUCH easier to prove guilt in a civil trial, than a criminal one.

[Oldgringo]

Anybody can be sued for anything, anytime, anywhere by anybody. Shooting even the most low-down, deserved to be shot, so-in-so will get you some attention.

An umbrella liabilty policy on top of your homeowners' insurance is not real costly and worthy of consideration.

[5thGenTexan]

Thanks RPB for the citation.

DA did not seek an indictment just presented to the grand jury. It was in Tarrant County. PD was very helpful to him afterwards.

Anyone can sue you and my guess is it's extortion by the family and lawyer too see if the insurance carrier will cough up a settlement instead of spending the money fighting it. Should be an easy suit to beat if the insurance company fights it.

Will post result when wrapped up knowing Texas court speed probably be another year or two.

[Winchster]

I am not a lawyer,

Yes you can still be sued. Anyone can bring a suit at anytime for anything. However, 83.001 says plainly that if the force was justified according to chapter 9, ( and since the Grand Jury no billed it, it was ) then you are immune from liability. The civil judge will ask for determination from the DA, find it was a no-bill, and then dismiss the lawsuit.

Pretty simple, and it is was a great addition when it went into effect in 2007.