Clarification on the Castle Doctrine

[flatlander]

Not to over simplify, but I was under belief that the Castle Doctrine prevented one from civil liabilites as well as allowing one not to have to retreat before using force/deadly force (providing you have the legal right to be at the location such as your home, car, etc. and force/deadly force is justifiable). I was in renewal class recently and the instructor stated that this law has not been tested and most likely one will be facing a civil lawsuit regardless of the Castle Doctrine. Is he correct?

[seamusTX]

To the best of my knowledge and the collective wisdom of the forum, the castle doctrine law that took effect last year has not been tested. It will probably be a long time before it is.

Criminals or their survivors rarely sue defenders in Texas, and rarely win when they do.

- Jim

[kdom]

First off, I'm not a lawyer, I'm just a dumb engineer, so my opinion doesn't really mean much...

That said, the way our instructor explained it to the class was this - you can still be sued in civil court, but "self defense" is an "affirmative defense" to civil liabilities for your actions. (Not sure how this works - is being no-billed by a grand jury, or not being brought to a grand jury enough, or do you need to tried and found not guilty, etc. - I guess this is what hasn't been tested...) Also, the civil statue was changed to entitles you to be reimbursed all attorney's fees and "other reasonable expenses" from the plaintifs if they loose the case - he suggested this is the change that will limit the BG / BG's family from filing suit, since it will likely limit the number of attorneys willing to take these type of cases.

Not sure if this is an accurate representation of the facts or not, but it was how it was explaned to us in our class last October.

-KD

[frankie_the_yankee]

First off, I'm not a lawyer, I'm just a dumb engineer, so my opinion doesn't really mean much...

That said, the way our instructor explained it to the class was this - you can still be sued in civil court, but "self defense" is an "affirmative defense" to civil liabilities for your actions. (Not sure how this works - is being no-billed by a grand jury, or not being brought to a grand jury enough, or do you need to tried and found not guilty, etc. - I guess this is what hasn't been tested...) Also, the civil statue was changed to entitles you to be reimbursed all attorney's fees and "other reasonable expenses" from the plaintifs if they loose the case - he suggested this is the change that will limit the BG / BG's family from filing suit, since it will likely limit the number of attorneys willing to take these type of cases.

Not sure if this is an accurate representation of the facts or not, but it was how it was explaned to us in our class last October.

-KD

From another dumb engineer.........

The way you described it, with self defense being an affirmative defense to civil liability was the way the bill was originally worded.

During the legislative process, the affirmative defense statement got changed to the stronger (IMO, though IANAL) "civil immunity". Your instructor may not have been aware of how the final wording turned out.

It doesn't mean that you can't be sued, but it means that the perp or his estate can't win if your actions are justified under the laws regarding the use of force.

As has been said, the law has not been tested yet. So what does "justified" mean? Does it mean if you are no-billed by the GJ? Does it mean when the police don't even bother to refer the case to the DA because it is so clear cut in their view? Does it mean being found "not guilty" after criminal trial? Who knows?

But the practical (and intended) effect is to set the legal bar for winning such a suit very high. Since most such cases are brought on a contingint fee basis, and considering that lawyers (like the rest of us) do not like to work for nothing, it means that the chances of a lawful defender being sued in TX, which was already very low, just got a lot lower.

At least that's my read on it.

[Greybeard]

(Instructor's) Quote: "the civil statue was changed to entitles you to be reimbursed all attorney's fees and "other reasonable expenses" from the plaintifs if they loose the case"

Maybe in the original wishfull version, but I don't think that's what got passed. Chas will will likely amble in here shortly to confirm that little tidbit of "history".

see http://www.capitol.state.tx.us/tlodocs/ ... 00378E.HTM for the final version, especially wording of 83.001

[Charles L. Cotton]

(Instructor's) Quote: "the civil statue was changed to entitles you to be reimbursed all attorney's fees and "other reasonable expenses" from the plaintifs if they loose the case"

Maybe in the original wishfull version, but I don't think that's what got passed. Chas will will likely amble in here shortly to confirm that little tidbit of "history".

see http://www.capitol.state.tx.us/tlodocs/ ... 00378E.HTM for the final version

Yes, that was in the original bill, but it was removed in committee to get the vice-chairman's vote. It passed out of committee by one vote!! People sometimes forget that, since it passed by a huge margin.

Chas.

[kdom]

Thanks for the clarification guys. My class was in the first week of October, and the final version hadn't been published at the time... going back and reviewing the final version linked above, there were some significant changes we didn't learn about. Just another example of why this site is such a geat resource!

-KD

[charlie]

After looking at HB 378, i wonder if "unlawful deadly force" would include an old fashioned beating. By that I mean that someone could begin threatening you with a fist fight or country rear kicking. Would that be a threat of deadly force?

I'm about to turn 60. If some other 60 year old threatened me with a beating, I might not be afraid of being killed, but wouldn't want to suffer a broken nose either. I might be inclined to use deadly force to prevent the country rear kicking that was imminent because I shouldn't have to tolerate such a thing.

Whearas if the other guy was a huge 25 yr old, I might be justified with being afraid for my life and using a firearm.

So does the threat of unlawfull deadly force mean that you have to be afaid that the situation could result in your death or does it apply to someone giving you a beating as well?

And yeah I know that any beating can result in a death.

[seamusTX]

Using a weapon against someone who is beating you with fists is very dicey. Three CHL holders that I am aware of were charged with murder for shooting unarmed people who were beating them. None was convicted, but that's small comfort when the bill from the lawyer arrives.

IMHO, it has to be a situation with a great disparity of force, either multiple attackers or a large, strong attacker going against a small, elderly, or disabled person.

This is one reason to carry pepper spray.

- Jim

[apostate]

Using a weapon against someone who is beating you with fists is very dicey. Three CHL holders that I am aware of were charged with murder for shooting unarmed people who were beating them. None was convicted, but that's small comfort when the bill from the lawyer arrives.

Perhaps their hospital bills would have been even greater, had they not defended themselves.

This is one reason to carry pepper spray.

Yes! More people need to be pepper sprayed.

[seamusTX]

Using a weapon against someone who is beating you with fists is very dicey. Three CHL holders that I am aware of were charged with murder for shooting unarmed people who were beating them. None was convicted, but that's small comfort when the bill from the lawyer arrives.

Perhaps their hospital bills would have been even greater, had they not defended themselves.

I am not interested in playing word games or head games.

The fact is that Texas DAs are far more likely to prosecute shooting an unarmed attacker than an armed attacker. They are more likely to do so in Travis, Harris, and Dallas counties, according to the slim statistics.

Gordon Hale had the privilege of paying his legal and medical bills. The last I read, some ten years ago, he had permanent damage to his vision.

- Jim

[frankie_the_yankee]

Disparity of force and reasonable belief are fuzzy legal concepts that mean different things to different people in different places and at different times.

5 years ago, my threshold for resorting to deadly force was much higher than it is today, because 5 years ago my ability to retreat or to protect myself with hand to hand techniques, or even to absorb a beating, was much greater than it is today.

Still, these are all fuzzy concepts and if it ever comes down to it, all we can hope for is that our peers will agree that our actions were reasonable.

Castle Doctrine removes the duty to retreat and so simplifies things a little bit. But all other laws relating to the use of deadly force are unchanged.

[ELB]

The following took place in Wisconsin, not Texas, but it is a relief, in fact down right amusing, to see that at least some judges get the concept of self-defense, "Castle Doctrine," and the like, when the good guy is sued by the bad guy:

http://gazettextra.com/news/2008/mar/06 ... s-lawsuit/

The key points:

JANESVILLE — A Rock County judge has tossed out a lawsuit that most people thought never should have been filed.

“There is no doubt that the jury would find for the defendant,� Judge James Welker wrote in his memorandum decision. “In fact, it is likely that the jury would prefer the option of throwing the plaintiff down the steps of the courthouse.�

To borrow a phrase...Heh.

The rest of the story...

The plaintiff was Kurt Prochaska, 40, now an inmate at Fox Lake Correctional Institution.

The defendant was Michael Rainiero, the Janesville doctor who shot Prochaska once in the back after Prochaska broke into his home.

Prochaska, 40, was sentenced to eight years in prison for the burglary, followed by four years of extended supervision. He also was sentenced to four years in prison with two years extended supervision for felony criminal damage, but the criminal damage sentence is concurrent with the burglary term.

Prochaska sued for damages, simultaneously claiming:

-- Negligence: With badly shaking hands, Rainiero “negligently fired a shot and accidentally hit the plaintiff.�

-- Assault and battery: Prochaska agreed that the defendant, confronted by a burglar, had the right to use force to protect himself, his family and his property. But Prochaska contended that the defendant’s use of a gun was excessive force.

On the negligence claim, a jury would have to weigh Prochaska’s negligence against Rainiero’s, Welker wrote.

Prochaska’s negligence consisted of crawling into a house in the middle of the night with intent to commit a felony and “with the knowledge that startled and confused homeowners may take some action to protect themselves, their families and their property,� Welker wrote, adding:

“Certainly he could not expect that the startled homeowner confronted at night by an intruder will calmly ask the burglar to sit down at the kitchen table, drink a cup of herbal tea and join in a chorus of ‘Kum Bay Yah.’�

Rainiero’s negligence would consist of pointing and firing a gun to frighten an intruder but failing to miss the intruder as intended, the judge wrote.

Prochaska’s attorney conceded that no reasonable jury would find Rainiero’s negligence as great or greater than Prochaska’s, Welker wrote.

Agreeing with that concession, Welker dismissed the negligence claim.

On Prochaska’s claim of assault and battery, a jury would have to conclude that Rainiero’s belief that he had to shoot Prochaska in self-defense is not what a person of ordinary intelligence and judgment would have concluded.

Welker decided that no reasonable, properly instructed jury would come to such a conclusion.

“To allow a case as devoid of merit as this one to proceed to trial works an injustice to the jurors who have to hear the case, to the taxpayers who have to pay for it and to the defendant and his family who have to endure the continued trauma resulting from the acts of the plaintiff,� Welker wrote.

I ran across an earlier report on the burglary, which I can't find the link to right now. It said the homeowner first confronted the burglar, THEN went to his bedroom, got a .380, had his wife call the cops, TOOK OFF THE GUN LOCK, LOADED THE GUN, then finally went back to confront the burglar again, who instead of sensibly running back out the door, took off down the hallway towards the homeowner's child's bedroom. The homeowner shot the burglar once in the back.

I am happy it turned out well for the homeowner, but he needs to rethink his tactics.