HPD officers no-billed in Carnaby case

[57Coastie]

The two HPD officers in the Carnaby killing were no-billed by a Harris County grand jury. Carnaby's widow continues her civil action, her lawyer claiming that the grand jury's action does not insulate the City of Houston from liability for her husband's death.

Jim

[barres]

I do believe the Castle Doctrine says otherwise. At least it does for individuals. I don't see why it wouldn't protect the City of Houston.

[seamusTX]

"Castle doctrine" (Civil Practice and Remedies section 83.001) may protect the officers from a wrongful death claim, but I doubt it would protect the city from a federal civil rights claim.

If the facts of this case have been reported accurately, I doubt that the plaintiff would have much of a case.

- Jim

[WildBill]

What does the Castle Doctrine have to do with this?

§ 83.001. AFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using deadly force under Section 9.32, Penal Code,
against a person who at the time of the use of force was committing
an offense of unlawful entry in the habitation of the defendant.

[seamusTX]

That is not the version that made it into law.

§ 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.

- Jim

[WildBill]

That is not the version that made it into law.

§ 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.

- Jim

That makes more sense!

[Rokyudai]

Have you read the "comments" on the chron? ... they have some interesting tinfoil talk going on.

[57Coastie]

In case a little misunderstanding of my original post has cropped up here, it should be noted. as recognized by seamusTX, that the argument reported by the Chronicle was not that the police officers involved might be subject to civil litigation, but rather that the City of Houston might be subject to civil litigation, on a completely different theory. Furthermore, it might also be noted that, as in the Joe Horn case, the fact that a shooter was no-billed by a grand jury does not, in and of that fact itself, immunize the shooter from civil liability.

Jim

[seamusTX]

I might add, the new castle doctrine has not been tried in court, AFAIK. I expect it to be tried all the way to the Texas Supreme Court at some point. I also expect it to be upheld, based on the history of this court.

- Jim

[seamusTX]

Civil suit tossed: http://abclocal.go.com/ktrk/story?secti ... id=7089270" onclick="window.open(this.href);return false;

I can't tell if this was state or federal court.

- Jim

[C-dub]

The link didn't work for me, so I Googled around a little. That stuff got deep real quick.

[ELB]

Civil suit tossed: http://abclocal.go.com/ktrk/story?secti ... id=7089270" onclick="window.open(this.href);return false;

I can't tell if this was state or federal court.

- Jim

I don't know what the article said when you last saw it, but it now has the following sentence in it:

"A federal judge has thrown out a lawsuit filed by the widow. " So sounds like it was a federal suit claiming the city and police violated Carnaby's civil rights.

A bunny trail -- many discussions on this forum about how (Texas) law defines justification of deadly force being (roughly) immediately necessary to protect the actor against another's use of deadly force, or to prevent various violent crimes. However, this same news article states the following: "The judge said that was the moment the officers were justified in applying deadly force because they reasonably feared for their lives." Maybe federal law is different somehow, but I repeatedly read stories and DA's press releases mentioning "fear of his life" -- I cannot remember any story mention "immediately..." etc.

[seamusTX]

I think the justification of fearing for one's life is common law.

Both the life and limbs of a man are of such high value, in the estimation of the law of England, that it pardons even homicide if committed se defendendo, or in order to preserve them. For whatever is done by a man, to save either life or member, is looked upon as done upon the highest necessity and compulsion. Therefore if a man through fear of death or mayhem is prevailed upon to execute a deed, or do any other legal act; these, though accompanied with all other the requisite solemnities, are totally void in law, if forced upon him by a well-grounded apprehension of losing his life, or even his limbs, in case of his non-compliance. And the same is also a sufficient excuse for the commission of many misdemesnors,...

http://press-pubs.uchicago.edu/founders ... dIXs1.html" onclick="window.open(this.href);return false;

The defense to a wrongful death suit is that the actions that caused the person's death were reasonable, according to the understanding of the actor at the time.

The "immediately" aspect is common sense. If someone lunges at you with a knife, you are unarguably justified in the use of deadly force to stop the attack. If someone says that he is going to buy a knife next week and kill you, you are not justified -- though you can press a charge of terroristic threat.

- Jim

[57Coastie]

Jim,

I love your citation to Blackstone, which, as old as it is, should be of interest to many today as they debate the "intentions of the founders." Your link is a beautiful discussion of an important part of the common law in England when our nation was founded, and it survives intact today in large measure, while fiddled with here and there by our constitutional amendments, legislatures and courts.

This was of course not a wrongful death action. As you pointed out earlier, it was a federal action under Section 1983 of Title 42, U. S. Code, not a wrongful death action in a state court. In a Section 1983 action the plaintiff must must prove both of the following elements by a preponderance of the evidence, (1) that the defendant acted under color of state law, and, (2) that while acting under color of state law, defendant deprived plaintiff of a federal constitutional or statutory right.

In this case, while I am unfamiliar with what transpired judicially, I suspect that your valid questions related to "immediacy," "reasonable fear for one's life," and such, arose in the context of just what was the federal right which the police deprved Mr. Carnaby of under the circumstances of this whole incident, if any? The devil once again is in the details.

Jim

[57Coastie]

Jim,

I may have egg on my face for assuming this was a Section 1983 case, as I do not see that explicitly stated in the background we have before us here, and, as I stated before, I am not knowledgeable of the ins and outs of judicial process which occurred here. For more than one reason, however, I still suspect this to be the case, if only because I would suspect that the plaintiff's lawyer would have known that the plaintiff's chances of winning in a state court, given the relevant state law and likely jury attitude, would be slim.

Sorry,

Jim