Civil Suits?

This is a discussion on Civil Suits? within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I don't want to hijack the reloads for SD thread, but the mention of getting sued as the result of an SD shooting always comes ...

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Thread: Civil Suits?

  1. #1
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    Civil Suits?

    I don't want to hijack the reloads for SD thread, but the mention of getting sued as the result of an SD shooting always comes up. Here in Florida, a justified shooter is protected from civil actions (as it should be everywhere). I've never heard of one where it was found to be a "good shoot."

    So, my question is: Can someone provide "documented" cases of a successful civil suit following a justified (No arrest/conviction of the shooter) self defense incident, with either commercial or reloaded ammunition. And what percentage of justified SDs were sued.

    I think this fear of civil suits is overhyped. But that's just my thoughts.

    Here is FL's statute:

    776.032 Immunity from criminal prosecution and civil action for justifiable use of force.—
    (1) A person who uses force as permitted in s. 776.012, s. 776.013, or s. 776.031 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom force was used is a law enforcement officer, as defined in s. 943.10(14), who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person was a law enforcement officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
    (2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
    (3)The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant is immune from prosecution as provided in subsection (1).
    Last edited by OldVet; October 5th, 2012 at 03:21 PM.
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    When I have to pay my legal fees for a civil suit, successful or otherwise, I lose--thousands, at least.
    "When you have to shoot, shoot, don't talk."
    Tuco

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    Quote Originally Posted by Mike1956 View Post
    When I have to pay my legal fees for a civil suit, successful or otherwise, I lose--thousands, at least.
    So you won't defend yourself for fear of a civil suit?

    But that's not an answer to the question I posed.
    Retired USAF E-8. Remember: You're being watched!
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    Good question OldVet. We are also protected from civil action in a justified shoot, and I personally know two people, in two separate incidents, who have been involved in a justified shoot, and there was no civil action taken.

    I'll be watching this thread to learn as well.
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    I don't know of any personally. We in Texas have a defense. It is the last paragraph of the CHL 16 maunual.

    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.
    To add to your question Oldvet. If the shoot is considered justified by the prosecutor based on the evidence presented by the investigating officers ect. How many times do they actually do ballistics tests, or other in depth analysis of the shooting beyond the physical evidence left at the scene. Shell casing at X spot, victim fell or started bleeding at spot Y, shooter was at point Z. Aggressor was dirtbag with long criminal record, shooter was good guy protecting himself from dirtbag, and everything is as is reported by victim shooter and other witnesses. Case closed, no prosecution of shooter, only prosecution of dirtbag if he is still alive.

    Now when dirtbag or dirtbag's family wants to file a civil case, who is going to pick up the tab for going back and trying to recreate the shooting scene when there is little chance of getting any additional evidence over and above what the police collected from the shooting. Is dirtbag's attorney going to eat the cost of the high dollar foresic investigation from this limited evidence, especially when a state has civil immunity statutes on the books, and no criminal prosecution was persued?

    I doubt there will be many if any cases brought up to go against the question that you have posed Oldvet.
    Just remember that shot placement is much more important with what you carry than how big a bang you get with each trigger pull.
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    VIP Member Array Harryball's Avatar
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    From: THR - View Single Post - Are legal concerns over carrying handloads trivial?

    As promised, here are the sources for records for any who feel a need to confirm the cases I have referenced previously where handloaded ammunition caused problems for people in the aftermath of shootings.

    As I have noted in this thread earlier, and as the attorneys who have responded to this matter have confirmed, local trials and results are not usually available on-line. However, in each case, I have included the location where the physical records of the trials are archived.

    NH v. Kennedy

    James Kennedy, a sergeant on the Hampton, NH police force, pursued a drunk driver whose reckless operation of the vehicle had forced other motorists off the road. The suspect ended up in a ditch, stalled and trying to get underway again. Advised by radio that responding backup officers were still a distance away, and fearing that the man would get back on the road and kill himself and others, Kennedy approached the vehicle. At the driver’s door, the suspect grabbed Kennedy’s Colt .45 auto and pulled it towards himself. It discharged in his face, causing massive injury.

    The reload in the gun was a 200 grain Speer JHP, loaded to duplicate the 1000 fps from a 5” barrel then advertised by Speer for the same bullet in loaded cartridge configuration.

    This was the first case where I saw the argument, “Why wasn’t regular ammunition deadly enough for you,” used by opposing counsel. They charged Kennedy with aggravated assault. They made a large issue out of his use of handloads, suggesting that they were indicative of a reckless man obsessed with causing maximum damage.

    Defense counsel hired the expert I suggested, Jim Cirillo, who did a splendid job of demolishing that argument and other bogus arguments against Kennedy at trial, and Kennedy was acquitted.

    This case dates back to the late 1970s. The local courts tell me that the case documentation will be on file at Rockingham County Superior Court, PO Box 1258, Kingston, NH 03843. File search time is billed at $25 per hour for cases such as this that date back prior to 1988.

    NJ V. Bias

    This is the classic case of gunshot residue (GSR) evidence being complicated by the use of handloaded ammunition, resulting in a case being misinterpreted in a tragic and unjust way. On the night of 2/26/89, Danny Bias entered the master bedroom of his home to find his wife Lise holding the family home defense revolver, a 6” S&W 686, to her head. He told police that knowing that she had a history of suicidal ideation, he attempted to grab the gun, which discharged, killing her. The gun was loaded with four handloaded lead SWC cartridges headstamped Federal .38 Special +P.

    Autopsy showed no GSR. The medical examiner determined that Lise Bias had a reach of 30”, and the NJSP Crime Lab in Trenton determined that the gun in question would deposit GSR to a distance of 50” or more with either factory Federal 158 grain SWC +P .38 Special, or handloads taken from his home under warrant for testing after Danny told them about the reloads. However, the reloads that were taken and tested had Remington-Peters headstamps on the casings and were obviously not from the same batch.

    Danny had loaded 50 rounds into the Federal cases of 2.3, 2.6, and 2.9 grains of Bullseye, with Winchester primers, under an unusually light 115 grain SWC that he had cast himself, seeking a very light load that his recoil sensitive wife could handle. The gun had been loaded at random from that box of 50 and there was no way of knowing which of the three recipes was in the chamber from which the fatal bullet was launched.

    We duplicated that load, and determined that with all of them and particularly the 2.3 grain load, GSR distribution was so light that it could not be reliably gathered or recovered, from distances as short as 24”. Unfortunately, the remaining rounds in the gun could not be disassembled for testing as they were the property of the court, and there is no forensic artifact that can determine the exact powder charge that was fired from a given spent cartridge.

    According to an attorney who represented him later, police originally believed the death to be a suicide. However, the forensic evidence testing indicated that was not possible, and it was listed as suspicious death. Based largely on the GSR evidence, as they perceived it, the Warren County prosecutor’s office presented the case to the grand jury, which indicted Danny Bias for Murder in the First Degree in the death of his wife.

    Attorney John Lanza represented Danny very effectively at his first trial, which ended in a hung jury. Legal fees exceeded $100,000, bankrupting Danny; Attorney Lanza, who believed then and now in his client’s innocence, swallowed some $90,000 worth of legal work for which he was never paid.

    For his second trial, Bias was assigned attorney Elisabeth Smith by the Public Defender’s office. Challenging the quality of evidence collection, she was able to weaken the prosecution’s allegation that the GSR factor equaled murder, but because the GSR issue was so muddled by the handloaded ammo factor, she could not present concrete evidence that the circumstances were consistent with suicide, and the second trial ended with a hung jury in 1992. At this point, the prosecution having twice failed to convince a jury beyond a reasonable doubt, the judge threw out the murder charge.

    It was after this that I personally lost track of the case. However, I’ve learned this past week that the case of NJ v. Daniel Bias was tried a third time in the mid-1990s, resulting in his being acquitted of Aggravated Manslaughter but convicted of Reckless Manslaughter. The appellate division of the Public Defender’s office handled his post-conviction relief and won him a fourth trial. The fourth trial, more than a decade after the shooting, ended with Danny Bias again convicted of Reckless Manslaughter. By now, the state had changed its theory and was suggesting that Danny had pointed the gun at her head to frighten her, thinking one of the two empty chambers would come up under the firing pin, but instead discharging the gun. Danny Bias was sentenced to six years in the penitentiary, and served three before being paroled. He remains a convicted felon who cannot own a firearm.

    It is interesting to hear the advice of the attorneys who actually tried this case. John Lanza wrote, “When a hand load is used in an incident which becomes the subject of a civil or criminal trial, the duplication of that hand load poses a significant problem for both the plaintiff or the prosecutor and the defendant. Once used, there is no way, with certainty, to determine the amount of powder or propellant used for that load. This becomes significant when forensic testing is used in an effort to duplicate the shot and the resulting evidence on the victim or target.”

    He adds, “With the commercial load, one would be in a better position to argue the uniformity between the loads used for testing and the subject load. With a hand load, you have no such uniformity. Also, the prosecution may utilize either standard loads or a different hand load in its testing. The result would be distorted and could be prejudicial to the defendant. Whether or not the judge would allow such a scientific test to be used at trial, is another issue, which, if allowed, would be devastating for the defense. From a strictly forensic standpoint, I would not recommend the use of hand loads because of the inherent lack of uniformity and the risk of unreliable test results. Once the jury hears the proof of an otherwise unreliable test, it can be very difficult to ‘unring the bell.’”

    Ms. Smith had this to say, after defending Danny Bias through his last three trials. I asked her, “Is it safe to say that factory ammunition, with consistently replicable gunshot residue characteristics, (would) have proven that the gun was within reach of Lise’s head in her own hand, and kept the case from escalating as it did?”

    She replied, “You’re certainly right about that. Gunshot residue was absolutely the focus of the first trial. The prosecution kept going back to the statement, “It couldn’t have happened the way he said it did’.”

    The records on the Bias trials should be available through:
    The Superior Court of New Jersey
    Warren County
    313 Second Street
    PO Box 900
    Belvedere, NJ 07823

    Those who wish to follow the appellate track of this case will find it in the Atlantic Reporter.

    142 N.J. 572, 667 A.2d 190 (Table)

    Supreme Court of New Jersey
    State
    v.
    Daniel N. Bias
    NOS. C-188 SEPT.TERM 1995, 40,813
    Oct 03, 1995
    Disposition: Cross-pet. Denied.
    N.J. 1995.
    State v. Bias
    142 N>J> 572, 667 A.2d 190 (Table)


    TN v. Barnes

    The decedent attacked Robert Barnes and his young daughter with a large knife and was shot to death by the defendant with SJHP .38 Special reloads from a Smith & Wesson Model 36. The distance between the two at the time of the shooting became a key element in the trial, and a misunderstanding of that distance was a primary reason he was charged with Murder. The evidence was messed up in a number of ways in this case, and I do not believe the reloaded ammo (which the prosecution did not recognize to be such until during the trial) was the key problem, but it definitely was part of a problem in reconstructing the case. We were able to do that without GSR evidence, and Mr. Barnes won an acquittal. In this case, I believe the use of factory ammo, combined with proper handling and preserving of the evidence by the initial investigators, would have made the defense much easier and might well have prevented the case from ever being lodged against him.

    The records of TN v. Barnes are archived under case number 87297015 at:

    Criminal Justice Center
    201 Poplar
    Suite 401
    Memphis, TN 38103

    Iowa v. Cpl. Randy Willems

    A man attempted to disarm and murder Corporal Randy Willems of the Davenport, IA Police Department, screaming “Give me your (expletive deleted) gun, I’ll blow your (expletive deleted) brains out.” Willems shot him during the third disarming attempt, dropping him instantly with one hit to the abdomen from a department issue factory round, Fiocchi 9mm 115 grain JHP +P+. The subject survived and stated that the officer had shot him for nothing from a substantial distance away. GSR testing showed conclusively that the subject’s torso was approximately 18” from the muzzle of the issue Beretta 92 when it discharged. Randy was acquitted of criminal charges in the shooting at trial in 1990. Two years later, Randy and his department won the civil suit filed against them by the man who was shot.

    I use this case when discussing handloads because it is a classic example of how the replicability of factory ammunition, in the forensic evidence sense, can annihilate false allegations by the “bad guy” against the “good guy” who shot him. The records of State of Iowa v. Corporal Randy Willems are archived in the Iowa District Court in Scott County, Davenport, Iowa. Those from the civil suit, Karwoski v. Willems and the City of Davenport, should be at the Iowa Civil Court of Scott County, also located in Davenport, Iowa.

    A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

    This is now absolutely, and I hope finally, refuted.

    Respectfully submitted,
    Massad Ayoob
    mkh and johnmed3 like this.
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    Quote Originally Posted by OldVet View Post
    So you won't defend yourself for fear of a civil suit?

    But that's not an answer to the question I posed.
    Sorry, here is an example of someone being sued after the prosecutor took a pass on criminal charges:
    Olympia shooting victim sues homeowner | NEWS UPDATES - The News Tribune

    I didn't say I would not defend myself out of fear of a civil suit, merely that it could wind up costing much in legal fees.
    "When you have to shoot, shoot, don't talk."
    Tuco

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    Harry,

    None of those are civil suits, and only two of them are related to self defense shootings with reloads. One if you discount the officer on duty. In the second civilian case, ammo was not even an issue as admitted by the author.
    Just remember that shot placement is much more important with what you carry than how big a bang you get with each trigger pull.
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  10. #9
    VIP Member Array Harryball's Avatar
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    Quote Originally Posted by farronwolf View Post
    Harry,

    None of those are civil suits, and only two of them are related to self defense shootings with reloads. One if you discount the officer on duty. In the second civilian case, ammo was not even an issue as admitted by the author.
    Ill let Massod answer you....

    A final word: I did not research the above and place it here to placate lightweight net ninjas. I did it because three recent Internet threads led me to believe that a number of decent people had honest questions about the real-world concerns about using handloads for self-defense, and were possibly putting themselves in jeopardy by doing so. For well over a decade, certain people have been creating an urban myth that says, “No one has ever gotten in trouble in court because they used handloads.”

    This is now absolutely, and I hope finally, refuted
    Edited to add: If it can happen to the people he referenced, it can happen to anyone.
    Don"t let stupid be your skill set....

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    Okay, we need some clarifiation here. Granted - anyone can file a lawsuit against anyone else for just about anything. I think we can all agree that winning said lawsuit is another matter altogether, if it even comes to trial. No doubt--somewhere, sometime, someone has filed a "CIVIL" suit as a result of a self defense shooting. A case doesn't translate to all cases.


    The many comments about "CIVIL" lawsuits make it seem rampant and inevitable that anyone choosing to defend one's self with a firearm is doomed to eternal financial debt. If fear of a lawsuit--not criminal charges--is a driving force in yourself defense, why would you even own a gun for that purpose? In all the "legitimate" SD cases I'm aware of, I know of no successful civil suit, or of one even being filed. But that's gun-happy Florida where self defense is legal and given the legal edge. My opinion is that civil suit for justified SD is rare, and even more rarely successful. Even in furtherance, the use of the type of ammunition having even less influence on the outcome.

    So, civil lawsuits where use of type ammunition caused a determinable outcome, not where some jerk shark tried to make something of it? What I want to know, and I think others will also, is in fact the risk of a civil suit following a true SD shooting as high as some would like to claim? I don't really care about any criminal cases as the fact that someone is on trial makes the shooting questionable--not the type ammo used.
    Retired USAF E-8. Remember: You're being watched!
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    When it comes to civil suits the law don't mean much. It is what ever a slick lawyer can get a jury to go along with. Or even an anit gun Judge.
    You have to take your chances.

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    But that's not an answer to the question put forth, only your opinion of how the legal system works.
    Retired USAF E-8. Remember: You're being watched!
    Paranoia strikes deep, into your heart it will creep. It starts when you're always afraid... "For What It's Worth" Buffalo Springfield

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