HAS TN LAW CHANGED?

[Guest BobR]

In an article on the Castle Doctrine on p. 47 of The Complete Book Of Handguns 2011 currently on newsstands author & handgun authority Massad Ayoob states "My friend and colleague Tom Givins teaches in Memphis, and feels that Tennessee's law works very well, including its tort reform law that blocks lawsuits against the shooter when the shooting is ruled justifiable." (NOTE - bolding is mine for emphasis). Now I thought I was told in my HCP class in April 2010 that a shooter should be prepared for a subsequent civil lawsuit from the person who was shot or that individual's family/estate even if the incident was previously ruled to have been justifiable in a criminal proceeding. So did I simply misunderstand what I was told or has TN law changed & I just slept through the news?

Any insight on this would be greatly appreciated.

Thanks, Bob

[Oh Shoot]

Basically correct, but there are some nuances that haven't been court tested yet, I believe.

One thing's pretty certain, it doesn't give you immunity for collateral damage, at least of the human kind.

I'll let FallGuy do the summary, he's better at this one.

- OS

[macville]

You will get sued, but then it will be thrown out if ruled justified.

I was kinda told the same thing, "you will get sued if you shoot someone in self defense". However, I am starting to think that may not be that accurate (please someone correct me if they have been sued after a legal shooting.) Seems like most people wouldn't sue when a lawyer says that if it's ruled a justified shooting that it will instantly get thrown out. Of course, a lawyer might not tell someone that part to try and get another case, or someone might just ignore that fact because they are so mad. Either way, I would just rep myself and start with a motion to have the case thrown out since you can't be sued when ruled self defense.

Of course, please anyone correct me if I am wrong.

[Fallguy]

Here is the actual law...

39-11-622. Justification for use of force — Exceptions — Immunity from civil liability.

(a) (1) A person who uses force as permitted in §§ 39-11-611 — 39-11-614 or § 29-34-201, is justified in using such force and is immune from civil liability for the use of such force, unless:

(A)

The person against whom force was used is a law enforcement officer, as defined in §

39-11-106

who:

(i)

Was acting in the performance of the officer's official duties; and

(ii)

Identified the officer in accordance with any applicable law; or

(iii)

The person using force knew or reasonably should have known that the person was a law enforcement officer; or

(

The force used by the person resulted in property damage to or the death or injury of an innocent bystander or other person against whom the force used was not justified.

( The court shall award reasonable attorney's fees, court costs, compensation for loss of income, and all expenses incurred by a person in defense of any civil action brought against the person based upon the person's use of force, if the court finds that the defendant was justified in using such force pursuant to §§ 39-11-611 — 39-11-614 or § 29-34-201.

From: http://www.michie.com/tennessee

So it does say in part (a) if you are "justified in using such force" that you are "immune from civil liability" but AFAIK it has never been determined for sure or tested in court if that if simply not being charged by the DA or a No Bill returned by a Grand Jury is enough to establish "justification" for a civil trial.

There have been several court rulings that say a law can not block a persons access to the courts, In other words 39-11-622 couldn't say a person "Can not sue" because that would be blocking the persons access to the court system. Of course the civil court judge could dismiss it right away I guess.

My line of thought has been no attorney of any caliaber would take the civil case if you have already been cleared criminally. Because if they loose at the civil trial, not only do that not get any thing, they have to pay all your expenses etc... as covered in part ( So it's not really a "let's roll the dice and see what happens" situation like some lawsuits are...

[DaveTN]

My thoughts on this are…

1. Failure to prosecute does not mean a shooting is justified.

2. Getting an award or settlement in a civil case from someone that has sued you is worthless if the person doesn’t have any money.

So even if you are justified it can still cost you a lot. But what does that matter? You still have to protect yourself. Don’t worry about Castle Doctrine; you are always justified if a reasonable person would believe you are in danger of death or great bodily harm. As far as I know that would work in all 50 states and does not require or depend on “Castle Doctrineâ€.

[Fallguy]

My thoughts on this are…

1. Failure to prosecute does not mean a shooting is justified.

2. Getting an award or settlement in a civil case from someone that has sued you is worthless if the person doesn’t have any money.

So even if you are justified it can still cost you a lot. But what does that matter? You still have to protect yourself. Don’t worry about Castle Doctrine; you are always justified if a reasonable person would believe you are in danger of death or great bodily harm. As far as I know that would work in all 50 states and does not require or depend on “Castle Doctrine”.

Can't argue with that...

[midtennchip]

Section 39-11-622 just provides a deterrent to civil lawsuits. If there has been a criminal trial and the shooter was found to be justified, this deterrent is almost 100% effective. If there has been no criminal trial, then there has been no court determination that the shooter was justified. As a result, there are a lot of things to argue in court. However, if the plaintiff losses (i.e., the shooter is found to be justified), then the court SHALL award fees and expenses to the defendant/shooter. As Fallguy mentioned, not too many people will sue unless they are fairly certain they will win. Again, just a deterrent, not a guarantee.

[macville]

Section 39-11-622 just provides a deterrent to civil lawsuits. If there has been a criminal trial and the shooter was found to be justified, this deterrent is almost 100% effective. If there has been no criminal trial, then there has been no court determination that the shooter was justified. As a result, there are a lot of things to argue in court. However, if the plaintiff losses (i.e., the shooter is found to be justified), then the court SHALL award fees and expenses to the defendant/shooter. As Fallguy mentioned, not too many people will sue unless they are fairly certain they will win. Again, just a deterrent, not a guarantee.

Maybe we should get a law passed that changes that to if you are not charged or either win a case/have any charges dropped, that means it was in self defense and therefore cannot be sued.

[Fallguy]

Maybe we should get a law passed that changes that to if you are not charged or either win a case/have any charges dropped, that means it was in self defense and therefore cannot be sued.

I think that goes back to the fact that a law can not prevent someone's access to the courts. So any law that says you "can't" be sued would be struck down, the best they can do is give you protection/immunity if it is good, which they have already done.

[DaveTN]

I think that goes back to the fact that a law can not prevent someone's access to the courts. So any law that says you "can't" be sued would be struck down, the best they can do is give you protection/immunity if it is good, which they have already done.

Also… its possible charges could not be filed until years later. That option is open until the statute of limitations runs out.

I can think of a case right now where no charges have been filed, a Grand Jury failed to indict, but I don’t think the homeowner is going to walk away from a civil trial free and clear.

[Fallguy]

Also… its possible charges could not be filed until years later. That option is open until the statute of limitations runs out.

I can think of a case right now where no charges have been filed, a Grand Jury failed to indict, but I don’t think the homeowner is going to walk away from a civil trial free and clear.

Good point....

[Guest mikedwood]

My thoughts on this are…

1. Failure to prosecute does not mean a shooting is justified.

2. Getting an award or settlement in a civil case from someone that has sued you is worthless if the person doesn’t have any money.

So even if you are justified it can still cost you a lot. But what does that matter? You still have to protect yourself. Don’t worry about Castle Doctrine; you are always justified if a reasonable person would believe you are in danger of death or great bodily harm. As far as I know that would work in all 50 states and does not require or depend on “Castle Doctrineâ€.

I can't argue with that either.

I have Questions!

Then to be ruled "justified" it would have to go all the way through trial and a judge or jury rule that it was a justified shooting???,,, but they wouldn't rule that would they? You would just get a "Not Guilty". Is that right or wrong?

So would you have to prove that during the civil trial (if so sued) that it was a "justified self defense situation" at the expense of a lawyer until you were paid back by the aggresor or his or her (some women are getting more violent than men) family?

This law while sounding good when quoted quickly, well Dave you have broke it down in a way that makes it seem like more lawyers would be needed. Which I guess is the intent of most laws.

[DaveTN]

Then to be ruled "justified" it would have to go all the way through trial and a judge or jury rule that it was a justified shooting???,,, but they wouldn't rule that would they? You would just get a "Not Guilty". Is that right or wrong?

I am not an attorney but I would think only a civil court could rule it “justifiedâ€. A criminal court is not going to rule that you were justified; only that you are guilty or not guilty of the crime you are charged with. However…. Let’s be real. If you are in a criminal trial; you have screwed up. Finding you not guilty is not the same as saying the shooting was justified; it could just mean the jury had some doubts.

So would you have to prove that during the civil trial (if so sued) that it was a "justified self defense situation" at the expense of a lawyer until you were paid back by the aggresor or his or her (some women are getting more violent than men) family?

That’s how I read it. Only a Civil Court can rule it “Justifiedâ€. You will get paid back if the court so rules, and if the person has the funds to pay you back. If the dirtbags Mother sues you for killing her thug son; I doubt you will be seeing any money.

This law while sounding good when quoted quickly, well Dave you have broke it down in a way that makes it seem like more lawyers would be needed. Which I guess is the intent of most laws.

You are never going to get a free pass. It’s a “feel good†law; it has no teeth.

[midtennchip]

I agree with Fallguy and Dave. There is no way to guarantee that a shooter will not face a civil lawsuit.

[Fallguy]

I agree with Fallguy and Dave. There is no way to guarantee that a shooter will not face a civil lawsuit.

Yep, but decided I'd rather risk facing that outcome than face an attacker empty handed. But that's just me..... (and a few others on here I figure )

[midtennchip]

I am not an attorney but I would think only a civil court could rule it “justifiedâ€. A criminal court is not going to rule that you were justified; only that you are guilty or not guilty of the crime you are charged with. However…. Let’s be real. If you are in a criminal trial; you have screwed up. Finding you not guilty is not the same as saying the shooting was justified; it could just mean the jury had some doubts.

That’s how I read it. Only a Civil Court can rule it “Justifiedâ€. You will get paid back if the court so rules, and if the person has the funds to pay you back. If the dirtbags Mother sues you for killing her thug son; I doubt you will be seeing any money.

You are never going to get a free pass. It’s a “feel good†law; it has no teeth.

Sorry guys, I missed this post before my last response. Keep in mind that self-defense is an affirmative defense. That is, you have to say "yes, I killed the person" (i.e., you committed a criminal offense), but you were justified in committing the offense. As a result, you must prove that you were justified to be found not guilty. It is very similar to a "not guilty by reason of insanity" defense. You have to admit to the crime and then prove you were justified.

Because of this, I believe the criminal court findings would apply in the civil case.

[DaveTN]

Because of this, I believe the criminal court findings would apply in the civil case.

You believe that if a person is charged with 1st degree murder and the jury finds him not guilty; the family of the dead guy couldn’t successfully sue him civilly?

I have trouble getting my head around that because as we all know a not guilty verdict doesn’t mean the person didn’t commit the crime; it just means the state couldn’t prove its criminal case.

[Fallguy]

You believe that if a person is charged with 1st degree murder and the jury finds him not guilty; the family of the dead guy couldn’t successfully sue him civilly?

I have trouble getting my head around that because as we all know a not guilty verdict doesn’t mean the person didn’t commit the crime; it just means the state couldn’t prove its criminal case.

You didn't read his whole post....that's not what he said.

He said if you claim Self-Defense, which is an affirmative defense, which means you have to prove that it was self-defense.

So if you are able to do that, it's not simply being found not guilty of 1st degree murder, it's also being found to actually be self-defense, i.e. justified.

If you don't claim self-defense and are just found not guilty, that is much different. ....and being found liable at a civil trial is still a real possibility. (OJ)

Of course that still doesn't mean there couldn't/wouldn't be a civil trial, just that if there was the shooter's attorney could file a motion for dismissal based on the finding of justified self-defense in the criminal trial and there'd be a fair chance that it would be dismissed.

Edited January 17, 2011 by Fallguy

[midtennchip]

You believe that if a person is charged with 1st degree murder and the jury finds him not guilty; the family of the dead guy couldn’t successfully sue him civilly?

I have trouble getting my head around that because as we all know a not guilty verdict doesn’t mean the person didn’t commit the crime; it just means the state couldn’t prove its criminal case.

No, that is not at all what I mean. I self-defense case is much different than a regular first degree murder case. I would suggest looking into the issues that arise with using an affirmative defense (such as self-defense). In using self-defense, the defendant is actually admitting that he committed the act of murder. There is a risk to claiming self-defense because of this. For example, a defendant could claim the shooting was a accident (ie: gun malfunctioned, etc.), claim someone else shot the victim, etc. and not have to admit that he committed the act. However, with self-defense, the defendant HAS to admit to shooting the victim intentially, but the shooting was justified. At that point, the trial focuses on the justification factors.

Because the defendant is in the position of having to show that he was justified in shooting the victim, the whole issue you are talking about is different than a typical murder case. The jury is not saying the prosecution couldn't prove the defendant murdered the victim (the prosecution doesn't have to prove it, the defendant admitted it). What the jury is asked to decide is whether the shooting was justified. The elements of proof are just different in a self-defense case.

Edited January 17, 2011 by midtennchip

[Worriedman]

Maybe an answer to this would be to make the Lawyers pony up if the civil case was found in favor of the defendant. As attorneys take the cases on a contingency factor, betting on the come so to speak, make them, as experts in determining the validity of a suit, be responsible for the 1/3 of a judgment against the person bringing a spurious suit.

The attorneys basically finance the suits, banking on getting paid if and when a judgment is made, let them be responsible if it goes in favor of the defendant. If the suit has merit and they are able to convince a jury they enjoy the benefit, if it is found to be sans merit, let them share in the down side as well.

[Guest BobR]

Many thanks for all of the thoughtful responses. I've been a member here for less than a month & have already learned some very useful information.

Bob

[Cruel Hand Luke]

BobR,

You MAY get sued. You MAY not. No way of predicting that with any accuracy....

And it is entirely possible that whoever taught your class may not have even known about TCA 39-11-622.

I know several people who have shot people who were assaulting them.....all were justifiable shootings and none were sued. So to claim "you will get sued" is just not true.