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.
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.
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.
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.