Revisiting the topic of civil liability in a self defense shooting

[JAB]

Okay, for a long time, now I have believed that TN law did not specifically declare that a person who uses deadly force in a self defense situation to be immune from civil liability. Instead, there seemed to be measures to 'dissuade' potential plaintiffs from bringing civil suits in such instances (in that if a defendant is found to have been justified in such use the court will award that defendant attorney fees, etc.) That is what my HCP instructor told us and discussions on this forum have reinforced that belief. While searching the Tennessee Code Annotated to find the exact wording of these methods of dissuasion, however, I was surprised to find not only what I expected to find but also a clear statement to the effect that someone who uses deadly force in self defense is immune to civil liability. Is this a recent addition to the law? Does it not really mean what it says - or does it simply mean that one must still 'prove' that deadly force was justified in civil court even if a police investigation or even a criminal lawsuit has already resulted in such a finding?

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.

I mean, TN law is often muddy but in this case the law specifically says, "...is immune from civil liability for the use of such force..." Hard to be more clear than that.

Edited October 23, 2012 by JAB

[E4 No More]

I've known it was there for several years - since my HCP class. It protect you from a state civil suit. God forbid that they tie it to a Federal charge though.

[Oh Shoot]

It's my understanding that the lawyers here have said that not being charged criminally is not the same as having been found justified, and would not preclude a civil trial.

So the civil suit could still proceed against you, and would have to be determined as justified within that procedure.

In other words, you'd still have to hire a lawyer, and of course there's no guarantee that you'd ever see a dime from the person who sues you, blood from a turnip and all. And of course their lawyer, who may have taken the case on contingency, ain't on the hook for it either.

- OS

Edited October 23, 2012 by OhShoot

[Guest 6.8 AR]

If you aren't charged by the law in the area, I'll bet in most cases you wouldn't have any problem defending

yourself and countersuing the other party. I know I'm not a lawyer, but there needs to be a reason other than

you defending yourself in a justifiable manner for someone to successfully win a lawsuit against you. They

need to show where you are negligent to win, don't they?

I wouldn't want to have to hire a lawyer, but that is a necessity.

Edited October 23, 2012 by 6.8 AR

[E4 No More]

Patrick Stegall has opined a couple of times that no lawyer would take this kind of case unless the client paid 100% UP FRONT to waste their time.

[Oh Shoot]

Patrick Stegall has opined a couple of times that no lawyer would take this kind of case unless the client paid 100% UP FRONT to waste their time.

There are crops of newbie hungry lawyers every spring.

- OS

[Guest 6.8 AR]

Patrick Stegall has opined a couple of times that no lawyer would take this kind of case unless the client paid 100% UP FRONT to waste their time.

Which? To sue a shooter? Or the other? Or both?

[DaveTN]

I have read it thoroughly and it’s been posted here several times. I’m no lawyer but I’ve worked enough criminal cases to know that just because the DA doesn’t file charges, it doesn’t mean you are innocent or that he won’t file later. If a DA had a way of making a ruling on a case that you were justified; I think you might have a chance, but how and why would he do that?

And if you do get sued and you win; do you get your money back because you got a judgment against the people that brought the suit against you? Probably not, because chances are the people suing you for shooting their dirt bag family member don’t have any money.

Its run by lawyers, they aren’t going to give you a way out without them getting a payday from someone that has the ability to pay.

[Stegall Law Firm]

There are crops of newbie hungry lawyers every spring.

- OS

Actually most new lawyers come in the fall. Majority of law students graduate in May, take the bar in July, and get licensed in Oct/Nov, assuming they passed.

Which? To sue a shooter? Or the other? Or both?

If it were me, I'd certainly want up front from the defendant (the armed citizen). If it were a criminally justified shooting I'd tell him or her that the law allows us to recoup attorney fees, etc., but (as others have pointed out) don't count on that actually happening.

As for the shootee, I wouldn't even take that kind of case because that's just not what I do, but if I was a plaintiff's lawyer and it was clearly a justified shooting I probably still wouldn't take it. If the client broke out the checkbook and said, just tell me what number to write, I would put it in the fee agreement that they understand the difficulties of the case and that they may end up paying more, that there are no guarantees, etc. But if it was an unjustified shooting and it looked like there was a deep pocket somewhere, I'd probably take in on 1/3.

It would have to be a pretty sleazy lawyer to represent a plaintiff on contingency where the shooting was justified. Even a bottom feeder will realize that's not worth their time.

[midtennchip]

The operative part of that statute is in the last provision that says "if the court finds that the defendant was justified . . . ". For this protection to apply, some court (either a criminal court or the civil court in the negligence lawsuit) has to find that the defendant was justified. In my opinion, the only real protection provided by this is two-fold:

1. The self-defense criminal statute provides a specific framework for the determination and that can be decided by the judge (rather than a civil jury); and

2. There is a potential for the Plaintiff to have to pay for the Defendant's costs.

There is no blanket prevention from having a lawsuit filed against you. However, the threat of having a judge (probably at an early stage) determine that the lawsuit should be dismissed AND the Plaintiffhas to pay the Defendant's costs is better than any other civil lawsuit I know of.

[TMF]

Good stuff. I'm listening to the lawyers on this.

Either way, if I'm in fear of my life, I'm not going to be considering any thing else other than picking the most likely path to continuing my existence. Anyone concerned about post-shoot litigation at the moment of the shoot is not in fear for their life. One fear should trump the other, in my opinion.

[JReedEsq]

Patrick Stegall has opined a couple of times that no lawyer would take this kind of case unless the client paid 100% UP FRONT to waste their time.

I agree. I don't know any lawyers that would take on that kind of case. FYI, asking for a cash retainer up front on what might normally be a contingency fee case is usually what lawyers do to make someone go away if you think their story doesn't make sense or their case will be have a problem. It is much easier than telling someone you don't believe them.

[JReedEsq]

There are crops of newbie hungry lawyers every spring.

- OS

Things to note:

1. If they graduate in the spring take the July bar they aren't actually licensed until the fall.

2. There are definitely a lot of hungry young lawyers. However, my opinion is that the legal profession is becoming more like real estate and certain jobs in the business world in that the marketplace will begin to regulate how many lawyers instead law school entrance exams or bar passage. In other words, with the downturn of the economy and certain new (think the one in downtown Knoxville) unaccredited law schools, having a law license no longer guarantees that someone will find employment or have the ability to open an office and have any clients. Just like real estate, the guys who work hard and know what they are doing can generate an income but a lot of guys wash out after a year or two. I know several people with law degress who don't practice law.

How does this apply to this thread? Because if these guys aren't making money on something they will get out of it and I agree with Chip that the threat of dismissal and paying the defendant's costs is a more significant deterrent than most people realize. In other words, you could be sued for a shooting that was determined to be justified by the local authorities... but I think it is highly unlikely.

Last year I spoke with a gentleman from a remote East Tennessee county who was shot in a landlord/tenent dispute... He had been evicted and was returning to the property to retrieve some personal property. When he didn't leave immediately, the LL hit him with 8 rounds of .22LR. The LL was originally prosecuted for attempted murder and plead guilty to a reduced charge because it appeared he was acting in defense of property which is not justifiable in TN. In any case the guy was prosecuted and I turned down the case. Additionally, I believe it had been turned down by at least one or two other lawyers before it ended up in my office. Why? First off, the tenent was rip roaring drunk and didn't, to me, have a clear enough recollection of the events. Secondly, because the LL acted criminally, his insurance company most likely had an exclusion in their policy so that they don't have to provide coverage.

Lessons learned:

1. Yes, a law practice is a business and lawyers want to make money, but, contrary to what a lot of people believe, it is the great exception and not the norm for a lawyer to make money on a B.S. case.

2. Don't be drunk and get into any dispute that could lead to a legal battle. Not only is your judgment impaired but your testimony generally won't be credible. I can't tell you how many people I've had in my office who claim they were drunk/high and "wrongfully beaten in a bar by security", "fell down in a dangerous hazard at a business", "assaulted by LEO" etc... maybe some of these people were telling the truth but I'm not going to spend my time trying to prove a case for someone that doesn't have a clear recollection of the underlying events. I told my assisant recently, "if you're going to get wasted... do it at your own house."

3. I probably wouldn't rely on .22LR for defensive use.

Edited October 24, 2012 by JReedEsq

[S&WForty]

I'll go ahead and ask it... what if during a legitimate self-defense shooting a witness claims the victim (potential defendant) used a racially derogatory word or phrase while defending his or her life? Is that a "game changer?" In this politically correct world we now live in, did self-defense just become a hate crime (or "civil case" crime) because of something said in the heat of the moment?

Do we need to incorporate Minority Motivational Encouragement into our self-defense training? "You fine young man. I know you are trying to get your life turned around, but I must ask you to stop, or I'll shoot."

[Guest 6.8 AR]

That's a lot of stuff to think about. Thanks, guys.

I, like most everyone else around here, hope to never happen, but you never

know.

Sent from my iPhone using Tapatalk

[JReedEsq]

I'll go ahead and ask it... what if during a legitimate self-defense shooting a witness claims the victim (potential defendant) used a racially derogatory word or phrase while defending his or her life? Is that a "game changer?" In this politically correct world we now live in, did self-defense just become a hate crime (or "civil case" crime) because of something said in the heat of the moment?

Do we need to incorporate Minority Motivational Encouragement into our self-defense training? "You fine young man. I know you are trying to get your life turned around, but I must ask you to stop, or I'll shoot."

Not quite sure what you're getting at here but I would steer clear of using any derogatory racial slurs. You want to emphasize that you are acting to protect yourself. Your personal opinion on the other partyt shouldn't play a role.

[S&WForty]

Not quite sure what you're getting at here but I would steer clear of using any derogatory racial slurs. You want to emphasize that you are acting to protect yourself. Your personal opinion on the other partyt shouldn't play a role.

I threw that out there to make people think and to see what the legal experts say (Edit: on a PC now, I see you're one of the Legal experts. ). I'm not looking for a free pass to allow shooters to spew hate.

Stating a "personal opinion" of the attacker is not the same as saying something when emotions are running through the roof.

I've been told after a shooting, one is supposed to be examined by medical personnel due to the stress of the situation. In the heat of the moment, a lot can take place.

Also, thanks to Hollywood, there is a bit of glamor associated to using a firearm (think of a few Eastwood lines). People need to 'dry-fire' mental thoughts and not watch too much Dirty Harry before going out alone in a dark alley. State the legal stuff taught in HCP class and then be a mute. (edit: avoid situations, dark alley comment is sarcasm )

Also note, I didn't explicitly say if one used such terms. I used the term "witness claims..." There could arise a situation where the shooter was strictly by the book, but a biased witness lies to paint a racial picture. I guess it still comes down to "rather be tried by 12 than carried by 6."

Anti-gun or gun-neutral people don't have a clue what kind of responsibility we put on ourselves for the sake of protecting ourselves while they think we're a bunch of wannabe cowboys.

Edited October 24, 2012 by S&WForty

[midtennchip]

The fact of the matter is, EVERYTHING is going to be taken into account, including what you say (and how you say it). If you are in a true self-defense situation, chances are that you wouldn't be saying anything or the sound of gunfire would drowned out the words. But, I guess it is possible for something to slip out. If something like that does come out, I would expect it to have a significant effect on how a DA and/or civil attorney would view the shooter's actions.

Some jurors make a significant issue out of the type of gun used, so I would certainly expect what a shooter says to have an effect on both juries and attorneys handling such a case:

http://www.firearmsresearch.org/content.cfm/article_summary?article_id=3652

Summary of Article: Mock juries find that gender and type of gun can have significant effect on guilty verdicts

[S&WForty]

Thank you. That confirms what I suspected. Your last two points are scary but not too surprising.

[JReedEsq]

If you are in a true self-defense situation, chances are that you wouldn't be saying anything or the sound of gunfire would drowned out the words. But, I guess it is possible for something to slip out.

I agree with Chip. I have serious doubts anyone facing a self-defense scenario is going to have much of a conversation... The attacker/mugger might say something to threaten or intimidate but if you're scared for your life I don't think your likely to be standing around throwing out one-liners.

[RobertNashville]

I've always thought the protection afforded by TN law was an affirmative defense to a lawsuit; meaning that it would not prevent someone from suing me (assuming they could find one of those hungry lawyers) but that if the shooting was justified that I would win the suite. However, I've also assumed that if I am ever involved in a self-defense shooting I had better be prepared to spend money to defend myself in court whether the shooting is eventually found to have been justified or not.

That is why I carry insurance to provide funds should I ever have to defend my self from either a criminal charge or a civil action.

[midtennchip]

I've always thought the protection afforded by TN law was an affirmative defense to a lawsuit; meaning that it would not prevent someone from suing me (assuming they could find one of those hungry lawyers) but that if the shooting was justified that I would win the suite. However, I've also assumed that if I am ever involved in a self-defense shooting I had better be prepared to spend money to defend myself in court whether the shooting is eventually found to have been justified or not.

That is why I carry insurance to provide funds should I ever have to defend my self from either a criminal charge or a civil action.

In essence, you are correct. Although I am not aware of any case law on this statute, I believe one of two things could occur to end the lawsuit at the earliest stages:

1. If the shooter was adjudicated in the criminal court as having been justified in using force, the defense files a Motion to Dismiss and asks for attorney fees, costs, etc. in that Motion; or

2. Defendant asks for a preliminary hearing to have the judge determine justification issue. If judge finds that defendant was justified, same motion as mentioned above.

Unlike the "loser pays" rule that went into effect in Tennessee this year, the protection in this statute is really strong. It is the only time I know of in Tennessee where the plaintiff ends up paying for the defendant's loss of income from defending himself. It is HUGE. Again, anyone can bring the suit, but they may wish they hadn't. But keep in mind, getting a judgment against the plaintiff is one thing. Collecting is another.

[E4 No More]

I've always thought the protection afforded by TN law was an affirmative defense to a lawsuit; meaning that it would not prevent someone from suing me (assuming they could find one of those hungry lawyers) but that if the shooting was justified that I would win the suite. However, I've also assumed that if I am ever involved in a self-defense shooting I had better be prepared to spend money to defend myself in court whether the shooting is eventually found to have been justified or not.

That is why I carry insurance to provide funds should I ever have to defend my self from either a criminal charge or a civil action.

Curious, who did you go through for such insurance?

[RobertNashville]

Curious, who did you go through for such insurance?

USCCA Defense Shield although there are "stand alone" carriers.

[E4 No More]

USCCA Defense Shield although there are "stand alone" carriers.

Thanks, Robert.