Legal question

[Grayfox54]

On another board I visit they are once again running on and on about the use of reloads/modified guns for self defense. Yadda, yadda, yadda.  :screwy:

Of course it turned to the possibility of civil law suits. If I remember correctly, doesn't Tennessee law state that if a self defense shooting is ruled as justified, that civil suits can not be filled or no awards can be made? Somebody set me straight on this. I can't seem to remember how it goes.  :shrug:

[nightrunner]

Best I remember, if the shoot is ruled justified, you have a defense. Very similar to the fact that carrying a gun is illegal, however having an HCP is a defense to that. Also, if you are carrying illegally, whether it's no HCP or in a forbidden area, if it is a justified shoot, you can't be charged with illegal possession.

Anyone can file a civil suit against you, but all your lawyer has to do is cite the law and you are clear. At that point I would have my lawyer file a motion (or whatever it would be called) to have them pay all court costs and attorney fees.

[monkeylizard]

TCA 39-11-622 is what you're looking for.

 

I'm not certain, but I think for -622 to apply, then the use of force has to have been adjudicated as justified. That just means that a judge or jury has to have said it was a good use of force. If the cops don't arrest you and the DA doesn't charge you, you could face a civil suit. You'd then have to lawyer up and have a judge review the case and make a ruling from the bench that it was justified under one of the 3 statutes listed in a-1 below. Once that's done, the civil suit gets tossed and you can be awarded lawyer fees from the plaintiff, but more often than not that's like getting blood from a stone. It could go the other way I suppose and the judge may rule that the use of force was not justified and the civil suit could continue even if the DA doesn't file criminal charges, but IANAL so I don't really know for sure about that. If the DA does press charges and you are found not guilty, then the use of force has been adjudicated as justified by the jury and no civil suit can proceed. That's the way I understand it, but I could be wrong.

 

Ignore the colors. That's from using the [ code ] tag instead of the [ quote ] tag. The quote tag turns many of the letters in parenthesis into various smiley faces.

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

      (B) 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.

(b) 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.

Edited May 11, 2016 by monkeylizard

[Oh Shoot]

....

Anyone can file a civil suit against you, but all your lawyer has to do is cite the law and you are clear. ....

 

Better read 39-11-622 a little closer. You are not immune from a civil suit unless the shoot was adjudicated as justified by a court. Meaning, simply not being charged for the shoot doesn't get you off that hook. You are "immune" from liability, but you have to win that immunity in court.

 

- OS

 

edit: MonkeyLizard on the quick draw!

Edited May 11, 2016 by Oh Shoot

[DaveTN]

The problem with a civil case is that if you were justified you probably won’t have any court action or rulings saying that; the DA just won’t charge you. That doesn't mean you were justified.

The other problem is that you still have to pay your attorney. You may get a judgement against the person that sues you, but that doesn’t mean they will pay. If they don’t have it; you don’t get paid.

The ammunition issue is comical. Were you justified in the use of deadly force is the issue.

Can you use reloads? Of course. But why in the world would anyone want to. Go to the reloading section and look at all the problems they have. No one can make a more reliable round than a high quality self-defense round from one of the leading manufacturers that have been doing it forever. Anyone that truly believes they may have to use a gun in a self-defense shooting will want a quality gun with quality ammunition.

[monkeylizard]

Not only the reliability, but if you do find yourself in court, the prosecuting attorney is going to use anything and everything to make you look like a cold-blooded calculating murderer. "You made your own ammunition so that you could make it more lethal didn't you? What? The standard ammunition wasn't deadly enough for you? They wouldn't do enough damage to this fine upstanding citizen who was only trying to ask you for directions in the middle of your living room at 2am? Don't change the subject to the crowbar and bowie knife in the victim's hands! The issue is that you intentionally and maliciously planned to take a person's life with your overpowered bullets, didn't you!"

 

Same thing goes for modifications to the firearm.

 

It's a lame argument, but one I'd expect to face if I were using reloads or a modified firearm. Odds of having a "gun person" on the jury are slim, much less 12 of them.

[chances R]

As Dave and monkey have said, not any real good reasons not to use quality factory loads.....plus other loads in the gun  may be subject to forensics.  Meaning your defense may depend on the consistency during testing of the loads in your gun.  Distance, penetration and other sort of factors may help with your defense; so that consistency may help or hurt you.

[Omega]

I personally don't worry about reloads and modified weapons.  I reload most all my rounds, though I do purchase some now and then, but I don't load them to be any hotter, or lethal than factory, just more consistent/accurate. Unless you are using something way out of the ordinary I don't think that will be an issue.  And as far as forensics go, I highly doubt that the evidence will be swayed much by a round going 1000fps vs another going  1800fps, and they can recreate my load easily since I can tell them exactly what bullet, powder and primer I used (they should have my spent cases).  And lets be honest, no prosecutor is going to go  all out to get you if there is even a little doubt to be had of your innocence.  And unless there were some real fishy circumstances surrounding the shooting then it will never get to trial.  I think all we need to worry about is making sure we make a good decision whether to shoot or not and making sure we practice to hit what we aim for, the rest will sort itself out.

[DaveTN]

I contend it doesn’t matter if I used a grenade launcher; if I’m justified in the use of deadly force. Tennessee law states that.

Now if you shoot an innocent bystander; yes the door is open for everything. The only way ammo is going to become an issue is if an innocent got shot.

[JayC]

IANAL,  But my understanding of 39-11-622 is this:

 

If you're involved in a self defense shooting, and a lawsuit if filed against you, then the judge in the civil suit makes a determination if the shooting was justified under that section of law.  My understanding is that this would use the preponderance of evidence method, so were you more likely than not.  Of course if they have any money what so ever you'd be able to recove some or all of your costs.

 

Because of this high bar that you must cross most attorney's aren't likely to take on a civil case involving a self defense shooting on contingency, which means more times than not the person moving forward with a lawsuit would have money, or you the shooter are really in the wrong.

 

Obviously if you hit something under 622b all bets are off ;)

 

The law appears to be working, we rarely hear about what appear to be justified shootings ending up in civil court.

Edited May 11, 2016 by JayC

[Omega]

IANAL,  But my understanding of 39-11-622 is this:

 

If you're involved in a self defense shooting, and a lawsuit if filed against you, then the judge in the civil suit makes a determination if the shooting was justified under that section of law.  My understanding is that this would use the preponderance of evidence method, so were you more likely than not.  Of course if they have any money what so ever you'd be able to recove some or all of your costs.

 

Because of this high bar that you must cross most attorney's aren't likely to take on a civil case involving a self defense shooting on contingency, which means more times than not the person moving forward with a lawsuit would have money, or you the shooter are really in the wrong.

 

Obviously if you hit something under 622b all bets are off ;)

 

The law appears to be working, we rarely hear about what appear to be justified shootings ending up in civil court.

I am sure there are some, but many of the ones I heard about had an element in them that turned them from a justified shooting into a murder/manslaughter, such as a kill shot, shooting at a running suspect (outside the home) or laying in wait for a burglar lured into the garage etc. 

 

I do have an issue with the LEO part though, now hear me out;

 

And I believe this has happened; A no-knock warrant is served on the wrong house, occupants return fire and get charged.  I think this is BS, if I have no reason to believe that the police are at my door why do I not have the right to defend myself??  There have been too many situations where the home invaders used the "Police" line to get the occupants to open the door.  If I am in the business where there is a possibility of having a warrant served on me exists, then that would be a risk I would have to take, one way or the other but as a law abiding citizen there should be something to protect us from these kinds of situations.  I understand protecting our LEOs while performing their duties, and I am all for charging anyone who knowingly fires upon one of them, but at the same time there should be something protecting us as well.  Specially in the cases where a mistake was made on the LEO side, the penalties should all be on their side as well.

[JayC]

Preaching to the choir ;)

 

I am sure there are some, but many of the ones I heard about had an element in them that turned them from a justified shooting into a murder/manslaughter, such as a kill shot, shooting at a running suspect (outside the home) or laying in wait for a burglar lured into the garage etc. 

 

I do have an issue with the LEO part though, now hear me out;

 

And I believe this has happened; A no-knock warrant is served on the wrong house, occupants return fire and get charged.  I think this is BS, if I have no reason to believe that the police are at my door why do I not have the right to defend myself??  There have been too many situations where the home invaders used the "Police" line to get the occupants to open the door.  If I am in the business where there is a possibility of having a warrant served on me exists, then that would be a risk I would have to take, one way or the other but as a law abiding citizen there should be something to protect us from these kinds of situations.  I understand protecting our LEOs while performing their duties, and I am all for charging anyone who knowingly fires upon one of them, but at the same time there should be something protecting us as well.  Specially in the cases where a mistake was made on the LEO side, the penalties should all be on their side as well.

[MacGyver]

I am sure there are some, but many of the ones I heard about had an element in them that turned them from a justified shooting into a murder/manslaughter, such as a kill shot, shooting at a running suspect (outside the home) or laying in wait for a burglar lured into the garage etc.

I do have an issue with the LEO part though, now hear me out;

And I believe this has happened; A no-knock warrant is served on the wrong house, occupants return fire and get charged. I think this is BS, if I have no reason to believe that the police are at my door why do I not have the right to defend myself?? There have been too many situations where the home invaders used the "Police" line to get the occupants to open the door. If I am in the business where there is a possibility of having a warrant served on me exists, then that would be a risk I would have to take, one way or the other but as a law abiding citizen there should be something to protect us from these kinds of situations. I understand protecting our LEOs while performing their duties, and I am all for charging anyone who knowingly fires upon one of them, but at the same time there should be something protecting us as well. Specially in the cases where a mistake was made on the LEO side, the penalties should all be on their side as well.

In the case of a no knock warrant, the issue is likely moot. If they mistake your house, enter and you produce a weapon, you're likely going to wind up dead - just due to the fact that they don't know they're in the wrong place and you're gouge to be outnumbered and outgunned.

It's wrong. Your family might get some money in a settlement later. The department will almost certainly undertake a procedural review. But, none of this will matter much to you because in most cases you'll be dead.

[monkeylizard]

Not always. Ignore the right or left slant of these publications. I only linked them because they covered the issue at hand.

 

Homeowner survived, charged but not indicted:

https://theconservativetreehouse.com/2014/02/08/texas-man-who-killed-police-officer-during-no-knock-raid-will-not-face-murder-charge-grand-jury-refuses-to-indict/

 

Homeowner survived and charged:

http://thefreethoughtproject.com/swat-officer-killed-serving-no-knock-warrant/

Edited May 11, 2016 by monkeylizard

[MacGyver]

Not always. Ignore the right or left slant of these publications. I only linked them because they covered the issue at hand.

 

Homeowner survived, charged but not indicted:

https://theconservativetreehouse.com/2014/02/08/texas-man-who-killed-police-officer-during-no-knock-raid-will-not-face-murder-charge-grand-jury-refuses-to-indict/

 

Homeowner survived and charged:

http://thefreethoughtproject.com/swat-officer-killed-serving-no-knock-warrant/

 

Interesting.  I'll edit my comment above a bit to reflect.

[monkeylizard]

I'd say you're right 99.9% of the time though. Most no-knocks where the homeowner fires at the officers ends up dead. It's just not a guaranteed foregone conclusion.

[DaveTN]

Things can be done to help; unfortunately they are not requirements.

Any search warrant; no knock, or not can go south for the either the cops or the people inside. A no knock or forced entry warrant should require the lead investigator (hopefully the person that is developing the information) to have eyes on the house at the time of entry. Chiefs and Sherriff’s should never allow Officers to wear masks or subdued uniforms. The uniform should be the standard uniform a citizen would recognize, criminal wear masks; not cops. If a full on assault by the SWAT team is needed; the requirements should be more than “We don’t want them to flush their drugs”. Good Police work can prevent that without anyone having to die.

These procedures are set by the Chief or Sherriff. If you don’t like the procedures in your area; let them know.

A man died in Lebanon because the cops had the wrong house. I can’t for the life of me figure out how that can happen with professionals; there is no excuse. If I remember right they charged the Lieutenant in charge; but then dropped charges. His wife got a settlement that she’s not allowed to talk about; but he is dead.

[chances R]

I personally don't worry about reloads and modified weapons.  I reload most all my rounds, though I do purchase some now and then, but I don't load them to be any hotter, or lethal than factory, just more consistent/accurate. Unless you are using something way out of the ordinary I don't think that will be an issue.  And as far as forensics go, I highly doubt that the evidence will be swayed much by a round going 1000fps vs another going  1800fps, and they can recreate my load easily since I can tell them exactly what bullet, powder and primer I used (they should have my spent cases).  And lets be honest, no prosecutor is going to go  all out to get you if there is even a little doubt to be had of your innocence.  And unless there were some real fishy circumstances surrounding the shooting then it will never get to trial.  I think all we need to worry about is making sure we make a good decision whether to shoot or not and making sure we practice to hit what we aim for, the rest will sort itself out.

Ask George Zimmerman.  If using reloads and or a modified gun, may have been a different outcome.

[Grayfox54]

As usual with this sort of thread the conversation has wandered all over the place. 

Getting back to my original question. My take as based on this and the thread at the other board is that if I was involved in a self defense shooting that was ruled as justified, I could still be sued in a civil action. However, such a suit is unlikely because few, if any, lawyers would take on the case because they would most likely lose. If it should manage to go to court, the odds would be pretty heavy in my favor and I would be entitled to recover all my legal fees.  Is that about it? 

[Omega]

As usual with this sort of thread the conversation has wandered all over the place. 

Getting back to my original question. My take as based on this and the thread at the other board is that if I was involved in a self defense shooting that was ruled as justified, I could still be sued in a civil action. However, such a suit is unlikely because few, if any, lawyers would take on the case because they would most likely lose. If it should manage to go to court, the odds would be pretty heavy in my favor and I would be entitled to recover all my legal fees.  Is that about it? 

Pretty much.  

[monkeylizard]

Yep. The law I cited says you can't be civilly liable if the force is adjudicated as lawful and you can recoup legal fees. But that still doesn't stop an idiot from filing the suit anyway.

[walthermitty]

Sorry if I'm not seeing the search function.  On a related topic, do you have insurance to cover costs related to a shooting incident?  Which insurance do you prefer.  It seems USCCA has a program that covers you up front, but it seems expensive.  Any tips?  Thanks

Edited May 12, 2016 by walthermitty

[monkeylizard]

There are various ones. Some homeowners polices will cover you, but most won't. If you have an umbrella policy, it may cover you, but some don't. Mine does for any civil suits as long as it has been adjudicated as justified, but doesn't cover criminal suits. USCCA seems to be the leader in this area. At $147/year it's really not that expensive, especially compared to paying a lawyer. A good criminal defense lawyer doesn't get out of bed to pick $147 up off the floor.

[DaveTN]

So you have this insurance and USCCA is going to pay your attorney bills when you shoot an innocent bystander?

[chances R]

It is the exception for a HO policy / company to say they will cover you in a shooting. Most will say "it depends" because of the many varibles.