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baldeagle wrote:Then civil immunity is meaningless, because it is whatever the civil trial jury says it is.

Almost true. It means what the courts say it means, up through the Supreme Court. Of course, this is according to the realism school of legal philosophy. On something like this, I have to agree with their thoughts.

You're right we have a disagreement. To me, if civil immunity is to have any meaning at all, it means you cannot be sued for an act that qualifies under the immunity clause. Diplomats have immunity. It means they cannot be sued. Not that they cannot be found liable. You cannot even file a suit against them. Your contention is that, in the case of the use of deadly force, immunity merely means you cannot be found liable after you have been sued if the jury finds you not liable.

Almost true but not quite. You can file a lawsuit against a diplomat, just as I could arrest one when i was an officer. As soon as he proves his diplomatic immunity, I had to let him go and the court would dismiss the lawsuit, but the immunity still had to be proven to the court.

As Charles pointed out in the other thread referenced by KFP, you cannot stop a person's access to the courts, just direct the court's verdict.

Let me put this to you a different way. If the suit could not be filed, who made the decision that the shooting was justified? I have shown why no one could make that binding decision under our system, so the court must be able to make that decision, which requires a trial or hearing of some type
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The legal definition of immunity is "exemption from a duty or liability that is granted by law to a person or class of persons " cite. Your contention is that you still have a duty to defend yourself in a civil suit and that you must prove your innocence before the immunity applies. IANAL, but I doubt seriously that is what civil immunity means.

My question to you would be, if immunity means what you think it means, then why was the wording of the law changed from "It is an affirmative defense to a civil action for damages" to "is immune from civil liability" for the legal use of deadly force? I believe the wording was changed precisely because, in the former case, a citizen who used deadly force lawfully still had to go through the process of a civil suit. Otherwise, the change in wording is meaningless.

I am not sure of the reasons for the change or exactly what benefit it provides. I am confident it has to do with the different levels of proof needed between an immunity from liability and an affirmative defense, as well as possibly how those facts can be determined and the amount of protection provided. But, not being a lawyer, I am not sure of the exact differences between the two.

baldeagle wrote:We just went through this in another thread. "any remedy", in the instance of a legal use of deadly force is no remedy. Civil immunity means just that. Civil immunity. As in you cannot be sued. Any lawyer that files a civil suit in an instance where deadly force was legally used would have his case thrown out immediately. You wouldn't need to hire an attorney to do that. You simply petition the court to dismiss the case with prejudice, citing 83.001. I wouldn't even bother petitioning the court. I would call the plaintiff's attorney directly and suggest to him that he has two options. He can withdraw the suit and promise, in writing, not to file again, or I will not only petition the court to dismiss with prejudice but I will ask that the attorney be sanctioned and the plaintiff be ordered to pay any court or filing fees that I incurred in the process.

While this has been gone through several times, we still seem to have a disagreement on a basic concept. You can be legally sued. Civil immunity does not mean you cannot be sued. It simply means you cannot be held liable. Being held liable is, by definition, the results of a trial.

And there is a reason your concept of sanctions will not work. A motion to dismiss will only work if there is NO question of the facts of the case. One of the facts to be determined is if you were legally justified in shooting. There is no way for the civil court to make this determination (if the plaintiff does not agree with your defense) other than by having a trial. A police officer cannot make a legally binding decision on this, even if they currently decide not to charge you. A prosecuting attorney cannot make this as a legally binding decision, even if he decides not to prosecute you.

And the big misconception is that a grand jury cannot make this as a legally binding decision either. They only decide to file a true bill of indictment or no true bill. They may even explain their logic that the case was justified but it is not legally binding on any other court (or even later grand juries, as Ronnie Earle has proven several times).

Even winning a criminal trial does not establish that your case was justified. All that is recorded is a finding of guilty or not guilty. This could mean you were justified, could mean the prosecution messed up its case, and could mean the jury felt sympathetic to you and voted in complete disregard for the law.


As an aside on the pro se representation, SCOTUS Chief Justice Oliver Wendell Holmes once said that the attorney who represents himself in court has a fool for a client. I always recommend getting the best lawyer you can afford ANYTIME you are going to court. The other side has the best they can afford, so it is only fair for you to do so also.

DoubleactionCHL,

I believe you may have an old copy of the code, as the one posted by Joe817 is an exact quote from the state's legislative web site for the official statutes. It was revised in 2007 and your version may not include that revision.

here is a link to the code:
http://www.statutes.legis.state.tx.us/D ... htm#83.001" onclick="window.open(this.href);return false;

Obviously, IANAL and may be missing something in the contract, but it really doesn't look THAT bad to me. I am most troubled by the lack of a price specified in the contract, even by reference to an appendix or advertising price. The conflict of interest termination could be better explained (like how they decide which side of the conflict to terminate, or do they drop both sides), but by law they have to terminate if there is a conflict anyway, so I am surprised it is in there at all. I did take the crime clause to be referring to a crime other than the use of the firearm, such as a robbery or something. I was not even surprised by the fact that it covers the lawyer only, and not the expert witnesses or investigators.

If you want a bigger problem with the CHL contract, it clearly only covers your CONCEALED HANDGUN. If you are at home, or out hunting, and use a rifle or shotgun, it doesn't cover you at all. You might need both contracts they offer to get the proper coverage you think you have.

As a marketing tip, they might want to expand their coverage a little bit. It is currently restricted to only Texas CHL holders, and would not cover a person in Texas with an out of state CHL, say a tourist, a military person, or even a Texas resident who decided to get Utah's license instead. And I would also look at covering the investigator's time and some of the support stuff. It would require a raise in rates, but even double the fee, if that was added, would make me look more into it.

Since the terms of the contract are posted, I would strongly recommend anyone considering it to take the contract to their own lawyer and see what they have to say about it. Most of what we are objecting to might be straight contractual boilerplate in lawyer contracts. A good lawyer could tell you whether or not it is worth the money.