Civil and Criminal Liabilities after Use of Deadly Force

 Training  No Responses »
Aug 282011
 

Beware of both civil and criminal liability after using deadly force in self-defense

One of the issues we must consider when choosing whether or not it is necessary and appropriate to use deadly force is the possibility not just of a criminal charge being filed against us, but also the possibility of a civil suit being brought by the person we shot (or their estate if we ended up killing them).

Both issues have plenty of downside associated with them.

Criminal Liability

An unlawful killing charge could see us spending years or even decades in prison.

On the other hand, generally a prosecutor has to persuade a jury beyond a reasonable shade of a doubt that the killing was unlawful, and depending on the social and moral values in your part of the country, that may prove to be a tough hurdle for the prosecution to surmount.  If the situation is unclear or ambiguous to start with, it is even possible that the prosecutor may decide not to waste time and money and resource on a case that he might end up losing rather than winning, especially in more socially conservative areas that take a harsher view of crime and have less appreciation of ‘criminals’ rights’.

Here in Washington state’s King County, it seems the county prosecutor’s office has a good reputation for not unfairly bringing prosecutions in cases of prima facie justifiable self-defense shootings, but that’s no promise that your situation, whatever it is and wherever you are, will also be greeted with fair understanding.

Civil Liability

Things are very different with civil suits.  In a civil suit, the requirement for the other side to prove their case to a 99% or greater certainty (in a criminal prosecution) shifts down to a 51% probability as part of a civil suit.  The good news is that if you lose a civil suit, you’re not risking incarceration.  Instead, you’ll ‘only’ be facing a monetary award of damages.

This lower standard of proof is magnified by different considerations that a jury must ponder.  In a criminal trial, the jury is basically being asked the question ‘Is what the defendant did so bad that he should go to prison for a dozen years?’ and if the jury reasonably feels that you acted perhaps not 100% perfectly, but not maliciously and certainly not in a way that makes you deserving of a lengthy period of imprisonment, they’ll probably give you some benefit of the doubt.

But that same fair-mindedness which might help you in a criminal trial may harm you in a civil trial.  Now the question before the jury is one of either ‘Okay, so the plaintiff (the guy you shot) shouldn’t have done what he did, but is it fair that he now be doomed to spend the rest of his life in a wheelchair, and who will pay his ongoing medical costs of care?’, or possibly ‘Is it fair that the dead assailant’s family should now suffer a life of poverty and sadness and misfortune, while the defendant (ie you) gets off scott free with no cost nor consequence?’.

Can you see how a kindhearted well-meaning jury might decide to ‘compromise’ on these sorts of questions and end up agreeing that you should bear some sort of responsibility for the magnified misfortune that is a consequence of you shooting and injuring or killing an assailant?  Especially when the other side only needs to prove their case to a 51% degree of probability rather than a 99% probability as in a criminal case?

That’s not your only worry.  There’s more to a civil suit than just the 51% burden of proof and monetary award.  Two other issues apply as well.  The first is that whereas – hopefully – a criminal prosecutor will make a reasonably fair and even-handed decision about whether to bring a prosecution or not, in a civil case, you have a (possibly even understandably) vengeful process motivating the other side – indeed, it is a terrible combination of seeking vengeance and greed – hoping to get a big cash payoff.

Which brings us to the second point.  This greed factor applies not only to the person you shot and/or his estate.  It may also apply to their attorney, who will probably have agreed to take the case on the basis of getting a share of the ‘winnings’ if their side triumphs.  So whereas you can justifiably hope for a fair decision to prosecute or not by the county prosecutor, you’re less likely to have such a fair-minded decision on the part of a civil suit and the people bringing it.

The Cost of Defending a Case

Let’s talk for a minute at what it might cost to defend yourself in either a criminal or civil action.  The short answer is that it will cost you almost certainly a six figure sum.  You’ll be paying some hundreds of dollars an hour for your attorney’s time, plus you’ll be paying thousands of dollars more for various expert witnesses, some of whom will research issues and hopefully uncover weaknesses in the other side’s case, and others who will testify on your behalf about the appropriateness of your actions.

You might also feel the need to bring in jury consultants to help your attorney’s decide how best to present your case in a manner that will be best understood and best accepted by the jury.

It is very easy for a case to consume 100 or 200 hours of an attorney’s time prior to going to trial, and then a three or four day trial will be another 30 – 40 hours.  Say 250 hours in total of attorney’s time, and when you add on other costs for expert witnesses, jury consultants, and who knows what else; you’ve ended up spending $100,000 very quickly.

Furthermore, there’s a very good chance (or should we say, a very bad chance) that your homeowner’s policy will not cover your costs.  Many insurance companies take the view that they will defend you against accidents and even against your negligence, but they will not join your defense as a result of a deliberate but wrong action you took of your own volition.

So even if your homeowner’s policy might protect you, your friends, and even uninvited assailants against accidental harm while on your property, it probably won’t protect them or you against ‘intentional harm’ you inflict upon them – even if such intentional harm is shown to be lawful and essential.

There’s a good side and bad side to this lack of insurance protection.  The bad side is that you could be bankrupted by the costs of defending yourself, whether you win or lose the case.

The good side is that the lack of insurance cover is something that attorneys know.  So if you don’t have a substantial net worth (which will be one of the first things the attorney will research), an attorney will be less likely to launch a civil suit against you, because if you don’t have enough money to pay for both your attorney’s costs and then more for an award of damages, the opposing attorney understands that even if he ‘wins’ a big settlement, if you’ve no money to pay it, he’ll end up with no cash and no compensation.

Conclusion

Using deadly force is absolutely the ultimate ‘last resort’ that you should only ever consider if you truly have exhausted every other possible way of resolving the problem confronting you, and if you absolutely are in grave fear of your life or that of your loved ones.

Even if your state has ‘stand your ground’ and ‘castle’ laws that give you some immunity from criminal prosecution, you must anticipate a possible additional consequence of a civil action for damages against you, where the more ‘black and white’ criminal liability issues transform into ugly amorphous greys, and where you might find, to your great cost, that an action which was deemed acceptable in terms of not incurring criminal liability might be deemed unacceptable by the different standards of civil liability.

Lastly, the thing that has caused more civil suits to succeed than anything else?  The inappropriate statements of the person who defended themselves.  Here’s a classic case in point – read both this article and the one preceding it.  The people in this case were outstandingly fortunate to avoid criminal prosecution, but by virtue of their own words, both before and after the shooting, they were understandably found guilty in a civil case.

Correcting some Misinformation about Shotguns

 Firearms  2 Responses »
Aug 192011
 

Buckshot from a shotgun will penetrate about half a dozen sheets of drywall

There are two distinctive things about firearms and the people who profess to know lots about them.

The first thing is there’s a terrible amount of misinformation and misunderstanding out there – no doubt exacerbated by what we see in the movies (people thrown backwards a considerable distance after getting hit by a pistol bullet, and ‘six shooter’ revolvers that seem to never need reloading, for just two examples).

The second thing is that some of these people who are not necessarily fully correct about what they may tell you – often people who on the face of it should know better – are very adamant about their views, whether they are supported by facts or not.

The most dangerous misunderstandings of course are those which start from a factual point and then move far beyond that, making it difficult to tell where certain reality ends and uncertain ambiguity takes over.  From this perspective, let’s consider some often cited ‘facts’ about shotguns.

The shotgun is a weapon which is sometimes given more credit than it is due.  By way of specific example, here’s a newspaper report of a horrific sounding home invasion in an upmarket town in Connecticut.  The result of this is that local people are rushing to buy firearms, and it seems that most people are buying shotguns.

There are two reasons why these people are buying shotguns.  The first is that you can walk out of the gun store with a shotgun minutes after purchasing it, whereas it seems that buying a handgun in CT is a much more difficult and time-consuming experience, sometimes requiring you to wait patiently for as long as 3 months or more.

The second reason seems to be that the local gun store owner is recommending shotguns – he is semi-quoted in the article (and we confirmed with the reporter) as saying that shotguns are excellent for home defense because they are maneuverable and when you are shooting one, they are unlikely to shoot through walls.

Unfortunately, we can’t agree with either of these statements.  Let’s consider maneuverability first.

By law, a shotgun must have at least an 18″ barrel and an overall length of at least 26″.  A typical shotgun (eg a Mossberg 500 or a Remington 870) weighs about 6.5 lbs.  Compare that to a pistol which might have a barrel as short as 2″, an overall length of as little as 4″, and a weight of little more than half a pound.  A shotgun is 6+ times longer and 12+ times heavier.  Of course this makes it much harder to carry, and to sneak around corners and confined spaces in your house with, compared to a pistol.  At the typically very close ranges in which home encounters occur, you run an appreciable risk of having the bad guy(s) wrestle the shotgun out of your hands.

And how about shotgun rounds not going through walls?  We can’t agree with the store owner about that, either.  Here’s an excellent article (which we took our opening picture from) that shows how buckshot will penetrate through not just one or two but half a dozen sheets of dry wall.

On the other hand, if you were thinking you’d load your shotgun with birdshot rather than buckshot, while you solve the problem of shooting through walls, you create a new problem – something that isn’t powerful enough to shoot through a wall is probably not powerful enough to shoot sufficiently into an up close and aggressive attacker.  This is commented on at the bottom of the recommended article, with the easily understood conclusion that if you’re shooting at birds, then by all means use birdshot, but if you’re shooting at larger animals, you must use buckshot (or solid slugs).

Can we also comment on one other misperception about shotguns, even though it is not referred to in the newspaper report.  Some people think that a shotgun is a better home defense weapon because the spread of the shot is such as to compensate for any errors in your aim.

Alas, this is not true, either.  At typical home defense distances (probably ranging from somewhere under 10 ft at a minimum and up to 20 ft as a maximum) the spread of shot (assuming a ‘best case’ scenario with a short barrel that has no choke on it) is unlikely to be more than perhaps a 4″ diameter circle at the 20′ point, and correspondingly less at shorter distances.  That’s not quite the same as being able to simply close your eyes, point the shotgun in the general direction of where you think you heard/saw the bad guy, pull the trigger, and be assured of an effective hit, is it!

Don’t get us wrong.  A shotgun can be an excellent weapon for home defense, and perhaps its greatest strength is its intimidation factor.  There’s nothing more likely to take the fight out of an aggressor than the sound of a pump action shotgun being confidently racked.  The good thing about this is that a shotgun could save you from needing to use deadly force, because, let’s face it – if the bad guy turns around and runs away, the threat has been removed, and while he might ‘escape’ that should no longer be your concern.  You’ve successfully defended yourself, your loved ones, and your home, and best of all, have done so without needing to use deadly force.  That’s about as good as it gets, isn’t it.

So – shotguns are good, but they have no magical powers.  They won’t snake sinuously around corners for you, they will shoot through walls, and they won’t compensate for bad aiming.

For More Reading

Please also see our article ‘The Maximum Effective Range of a Shotgun‘ for more discussion on Shotgun facts and fallacies.

Is Utah the ‘Best’ Concealed Weapons Permit to Have?

 Training  No Responses »
Aug 162011
 
Sample UT CCW

A sample CCW permit from Utah

Utah has become famous for its concealed weapons permits.  Easy to obtain, and universally accepted throughout the rest of the country, right?

Actually, wrong.  Getting a non-resident Utah permit requires a minimum four hours of instruction, and once you have secured one, it is valid for five years and accepted in 30 states (plus UT itself).

Because the Utah licensing authorities limit who can teach UT qualifying classes, the classes tend to be more expensive.

Compare that to Florida’s non-resident permit.  The course of instruction is less rigorous, it is good for seven years (the longest of any permit validities from any state) and is accepted in 30 states (plus FL itself of course).  Because they are more accepting of classes, their class costs tend to be less expensive.

Note that the 30 states that accept UT permits are not the same as the 30 states that accept FL permits.  This excellent site shows you the policies of every state and which permits they will recognize.

The only point in UT’s favor?  They charge $65 for their five-year permit, compared to a $97 fee for FL’s seven-year permit.  But the extra $32 gets you two more years and less hassle.

A FL permit gives you NM and SC, neither of which are available with a UT permit.  As for the two states that UT offers, they are also available for WA state license holders, so are not so much an issue for most people reading this article.

Code Green currently offers training to qualify you for FL (and selected other) permits.  Ask us for class details.