Immunity from civil action after a shooting?

This is a discussion on Immunity from civil action after a shooting? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Disclaimer: I am not an attorney, this isn't legal advice. I DO have a law degree, and work in the legal system on a daily ...

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Thread: Immunity from civil action after a shooting?

  1. #16
    Member Array Marty Hayes's Avatar
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    Disclaimer: I am not an attorney, this isn't legal advice. I DO have a law degree, and work in the legal system on a daily basis.

    This is a good question and thread. Let me give my .02, since this is so important. Please understand that whatever your state statutes say about being immune from civil action is only a presumption that you will not or cannot be sued after being found not guilty in a criminal action. I say this, because it is your appellate courts of your states which decide of your statutory laws are valid, (constitutional). If your state has recently passed such a law, it is presumed to be valid and constitutional, (subject though, to review and intrepretation by the appellate courts).

    What a person needs to do, is to discuss this issue with a local criminal defense attorney, but be sure that attorney knows that he needs to study the state's case law to see if the statute has had any challenges.

    Having said the above, it is my opinion that these statutes would likely be held to be unconstitutional. Here is why. Being found innocent of a criminal charge means the state could not convince a jury to the evidentary standard of "beyond a reasonable doubt" that you committed a crime. The problem is, is that if you are sued, the standard of proof for a civil tort is a "preponderance of the evidence." Because these standards are different, I believe most courts would find that the statute is unconstitutional because under our standard of justice here in this country, we have the right to sue for alleged wrongs against us. That right to sue is pretty strong, and because the standard of proof is different, I would expect the appellate courts, when they finally
    got around to hearing the appeal, would find against you.

    How this would work in a practical sense, is the following example. You shoot and kill someone, and are prosecuted for murder or manslaughter. You are successful in defending yourself against that criminal charge, but are sued for the tort of "wongful death." (Think O.J.)

    You then defend the civil suit, relying upon the statutory law that says you can't be sued. But, wait, you are sued anyway! So, you file for a motion to dismiss based upon the statutory law. The plaintiff in the suit fights this, and off to court you go. The trial judge will make a decision as to whether or not the statute is valid. Now, it doesn't really matter what he decides, because the next step is the part that looses will appeal the judges ruling. At which time, the trial court's decision is considered by the appellate court. Now, depending on the outcome of that decision, the decision might be again appealed to the State Supreme Court. The Supreme Court will then decide whether or not the statute is constitutional. It should be over, right?

    Nope, not necessarily. Because a constitutional issue is at hand, the State Supreme Court's decision might be appealed to the Federal Court of Appeals. They would render a decision, which is then subject to review, ultimately, by the United States Supreme Court.

    Until the above happens, you really cannot count on the local statute to keep you safe from civil law suit. Hopefully, someone else with a lot of money has already done this, and the case law is solidly on your part. But, until you know this, you MIGHT be facing the above scenario.

    The cost? Probably $150,000 to $250,000 in attorneys fees. The case will take several years to work it's way through the courts, and in the meantime, you keep paying your attorney.

    The bottom line? Make sure your use of force is legitimate, you can document the threat against you, and have good legal representation as soon as possible after the incident.
    barstoolguru likes this.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

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  3. #17
    Ex Member Array MadMac's Avatar
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    Quote Originally Posted by Marty Hayes View Post
    The cost? Probably $150,000 to $250,000 in attorneys fees. The case will take several years to work it's way through the courts, and in the meantime, you keep paying your attorney.
    Wow - that's one big number, and a boatload of cash. Not sure where the number comes from. Perhaps you could cite some analysis....

    I wish there was some kind of association or group that could offer to insure me in the event of such an incident. Could you recommend one?

  4. #18
    Ex Member Array barstoolguru's Avatar
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    Marty Hayes, President
    Armed Citizens' Legal Defense Network, LLC
    Armed Citizens' Legal Defense Network, Inc.
    So where does your origination (armedcitizensnetwork) stand on this? Do you stand with the client though the whole process of a legal shooting criminal and civil?

  5. #19
    Member Array Marty Hayes's Avatar
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    Quote Originally Posted by MadMac View Post
    Wow - that's one big number, and a boatload of cash. Not sure where the number comes from. Perhaps you could cite some analysis....
    $50,000-$100,000 retainer for civil litigator to defend wrongful death complaint. (Depends on how intricate the defense will need to be, i.e. how many experts are needed, jury selection stratigists, moot trial to prepare for trial, double trial counsel because you always need a back-up. (Remember here, you just spent an equivalent amount to fight the murder/manslaughter criminal complaint).

    Then:

    $10,000 to take first, (and each successive appeal to conclusion). (The system is designed to drain the client dry. For an appeal, you will need appellate briefs, (with legal research done), then analysis of other side brief, then response to other side brief, etc. Two attorneys to argue case at appellate court level, plus perhaps a paralegal.

    There is travel expense to the various courts of appeals, (for example, in WA state in my county, one would argue the first appeal in Tacoma, then the second in Olympia, the first Federal in San Francisco, then to the USSC in DC. Attorneys and their staff do not fly coach, nor stay at Motel 6 either.

    I frankly think my statement is conservative. I believe Harold Fish is in debt for over $250k for his ordeal.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

  6. #20
    Member Array Marty Hayes's Avatar
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    Quote Originally Posted by barstoolguru View Post
    So where does your origination (armedcitizensnetwork) stand on this? Do you stand with the client though the whole process of a legal shooting criminal and civil?
    If we are convinced that the member was justified, we will help him defend his case, either criminal or civl, to the best of our financial abilities. After 4 years, we have been able to set aside over $150,000 in our legal defense fund. Our goal is half a mil, which should pretty much cover any type of case.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

  7. #21
    Member Array Marty Hayes's Avatar
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    Quote Originally Posted by MadMac View Post
    I wish there was some kind of association or group that could offer to insure me in the event of such an incident. Could you recommend one?
    No, I can't recommend one. There are several insurance policies that will insure an armed citizen up to the limits of their policy, (usually $250,000) and that by extension, will either defend the claim against you or settle with the plaintiff. My biggest problem with all the insurance plans that I have seen, is they don't go high enough. ANY wrongful death complaint will be in the millions, not the thousands. But, as I have said in the past, I also believe that having insurance invites the civil lawsuit. Just my opinion though.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

  8. #22
    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by Eaglebeak View Post
    I'm certainly no attorney and don't have the flexible character it takes to be one;
    I resent that!

    My character is not flexible!

    It is rock solid, and for sale to the highest bidder, or the one who comes up with the money first.

    Or both.
    MadMac and rably like this.

  9. #23
    VIP Member Array MitchellCT's Avatar
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    Quote Originally Posted by Marty Hayes View Post

    $10,000 to take first, (and each successive appeal to conclusion). (The system is designed to drain the client dry. For an appeal, you will need appellate briefs, (with legal research done), then analysis of other side brief, then response to other side brief, etc. Two attorneys to argue case at appellate court level, plus perhaps a paralegal.
    $10k for an appeal?

    Dam.

    You are cheaper than I am, and I'm a rock bottom priced bottom feeder working for indigent people.

    I won't touch an appeal for that kind of money. Know why?

    Cause an appeal is kinda like an abortion. You gotta "un....k" the "B".

    Ugly. Messy.

    Thank you. No thank you.

  10. #24
    VIP Member Array MitchellCT's Avatar
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    Oh, and if states were smarter, they would not have eliminated the right to sue...

    They would simply require a statement, in writing, under oath from an expert state in their opinion, the shooting was unjustified or negligent filed with the clerk of the court at the time the lawsuit is brought.

    See, that way you have the right to sue.

    You just have a few, insignificant...bumps...on the path to the courthouse.

    So, someone wants to sue you for shooting a gang member in the face.

    Now, not only do they have to find a lawyer to take the case, the lawyer needs to go out of pocket for an expert to review the case...and if he doesn't get a favorable report from the first one, he's got to find another expert...$$$.

    So...

    You can sue.

    You just have to have your ducks in a row. You know, the kind of thing we make people who want to sue for Med Malpractice do.

    Those laws are constitutional.

    So, why not here?

    We make people looking to sue a doctor get an expert opinion, from an expert who is willing to put it on the line against another doctor...

    Find an instructor willing to say the shooting was negligent. Find someone willing to put his professional rep on the line for a gangbanger.



    Not too hard, right?

    Oh, wait...

    Who are most of these experts...

    Former cops & soldiers.

    Humm...

  11. #25
    VIP Member Array oakchas's Avatar
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    Quote Originally Posted by MadMac View Post
    Wow - that's one big number, and a boatload of cash. Not sure where the number comes from. Perhaps you could cite some analysis....

    I wish there was some kind of association or group that could offer to insure me in the event of such an incident. Could you recommend one?
    Why are you "baiting" Mac?

    The most important thing Marty said was this:

    The bottom line? Make sure your use of force is legitimate, you can document the threat against you, and have good legal representation as soon as possible after the incident.
    And, if you want to make sure your use of force is legitimate? Marty also said this:

    What a person needs to do, is to discuss this issue with a local criminal defense attorney, but be sure that attorney knows that he needs to study the state's case law to see if the statute has had any challenges.
    Mac, you know this already... barstool... I think you would find that the lawyer (the most voiciferous one anyway) on the forum, Mitchell, would agree with the second statement.

    If you're gonna use your weapon, you better be darned sure you're in the right... or suffer the consequences. And not too many here can afford those consequences.
    All that said....
    It could be worse.
    __________________________________________________
    "The History of our Revolution will be one continued Lye from one end to the other."
    John Adams

  12. #26
    Member Array Marty Hayes's Avatar
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    I didn't realize I was baiting Mac. Sorry.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

  13. #27
    Member Array Bhamrichard's Avatar
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    Not being an insurance guru, I've often wondered.. what about an Umbrella policy, would that also help defray costs associated? 1-5 million dollar umbrella policies are reasonably cheap.
    We hold these truths to be self-evident, that all men are created equal...

    Alabama Constitution of 1901 - That every citizen has a right to bear arms in defense of himself and the state.

  14. #28
    Member Array Marty Hayes's Avatar
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    Don't know about umbrella policies. Generally speaking though, a typical insurance policy will not insure against intentional acts, which is what a self-defense act is. Some of the specific policies address this issue, like hte NRA endorsed policy by Lockton risk. One has to read the fine print of any insurance policy to see if an act of self-defense is covered.
    Marty Hayes, President
    Armed Citizens' Legal Defense Network, Inc.
    www.armedcitizensnetwork.org

  15. #29
    VIP Member Array MitchellCT's Avatar
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    Plaintiffs & prosecutors try to classify shooting as negligent or otherwise mistaken because:

    Plaintiffs - Can't get $$ from insurance companies for intentional actions. Been their. Done that. Had a client who tried to get money from an auto policy when the driver deliberately attempted to run my guy over.

    It was outside a pool hall. Over a woman...

    Anyway...Insurance company denied coverage. They cover drunken stupidity & negligence, not intention hormonal aggression.

    Prosecutors - Self defense is a justification enshrined in law. It is a complete defense if the persons actions are correct; however, SD is INTENTIONAL. If statements or whatnot indicate the shooting was not intentional - The gun just went off...I don't know how this happened...whatever...then the defense of SD fails.

    You cannot justify an negligent action. Even if it has a good result.

    Death + Negligence = manslaughter .... This is a much easier case to make than intentional murder.

  16. #30
    Ex Member Array MadMac's Avatar
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    Quote Originally Posted by oakchas View Post
    Why are you "baiting" Mac?


    And, if you want to make sure your use of force is legitimate? Marty also said this:

    Mac, you know this already... barstool..
    8f2e0_ORIG-successful_troll.jpg

    A SD shooting is a VERY, very rare occurrence. It's not common like an auto accident or a slip-and-fall for which we insure ourselves. There's a REASON insurance doesn't make a lot of sense for that one specific act. I carry DEATH insurance. It's guaranteed to happen for 100% of the population.

    I find it odd how many people feel that guns and SD insurance are a great idea, but don't invest in basic insurance to protect their families in case they die - from ANYTHING - including a violent attack. Even if you have a gun on you, there's not guarantee you're going to live.

    If you have a SD shooting, and need a lawyer, you'll get one no matter how much money you have or don't have. Quality may suffer, but the rich are going to be better off - they even have nicer houses and cars than we do, so why not better representation?

    The BEST insurance you can have is knowing your state laws COLD, and always looking for a way - any way - NOT to pull out your gun.

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