Civil prosecution

[ELB]

A shooting by a security employee is different from a private citizen defending himself. The lawyers know that a business is probably going to have several million in liability insurance.
...
- Jim

In articles other than the ones I cited, there is some indication that the security guard was not on-duty at the time of the incident -- he just happened to be eating at the restaurant's outdoor cafe when the other guy showed up. So, legally speaking, was he a "security guard" in the employ of the restaurant, or just a guy with a CHL? Possibly one of the issues at trial, if there ever was one or will be one.

Regardless, it is the first story I have read, at least since I moved to Texas in 98 and started paying attention to CHL issues, in which a CHL holder was being sued for a legally justified defense, and the first in which a business that had an employee with a CHL was sued. I believe I have seen other instances of people/businesses being sued for their security guard actions, but these seemed to be along the lines of personal bodyguards that shoved photographers and bystanders around, or bar bouncers beating the stuffings out of allegedly unruly patrons.

It does seem to be uncommon for legally justified defenders, whether CHL or legal possessors of guns (e.g. homeowner), to actually be sued.

[seamusTX]

In articles other than the ones I cited, there is some indication that the security guard was not on-duty at the time of the incident ... So, legally speaking, was he a "security guard" in the employ of the restaurant, or just a guy with a CHL? Possibly one of the issues at trial, ...

The issue of whether an employee is an "agent" of his employer when not on the clock is complicated, and probably has a lot to do with state law and legal precedents.

This issue comes up when an off-duty police officer who is working security for a private employer injures someone. The police agency is quite often sued, and sometimes loses or settles out-of-court to the satisfaction of the plaintiff's lawyer.

I can't figure out from these accounts whether the defender was a licensed security guard who also happened to have an out-of-state CHL, or whether he was using the CHL to function as a security guard. The latter would be a big no-no in Texas and probably most states.

Anyway, I have not lost a millisecond of sleep worrying about being sued.

- Jim

[optman09]

ClVlL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is immune
from civil liability for personal injury or death that results from the
defendant's use of force or deadly force, as applicable

My take on the civil immunity clause. IANAL

If you used deadly force against someone the family can sue you in civil court and one of you must prove in civil court whether or not it was justified under Chapter 9 of the penal code. If it is found that you were justified you will have immunity. I don't think being no-billed or being found justified in criminal court will prohibit you from being sued, but it may help your civil case I guess. I don't think there have been any cases so I suppose every opinion has some merit.

[bdickens]

Close.

Civil immunity means that you will win any lawsuit brought against you by the poor scumbag's family.

[optman09]

Close.

Civil immunity means that you will win any lawsuit brought against you by the poor scumbag's family.

Doesn't someone have to say that the force was justified before immunity. My reasoning was that it would be the civil court judge. The family could sue and lose after the judge found that the shooting was justified. But the family could sue and win if the judge found that the shooting was not justified. Obviously IANAL and it's likely that I am completely wrong. Educate me please

[dicion]

Doesn't someone have to say that the force was justified before immunity. My reasoning was that it would be the civil court judge. The family could sue and lose after the judge found that the shooting was justified. But the family could sue and win if the judge found that the shooting was not justified. Obviously IANAL and it's likely that I am completely wrong. Educate me please

That is correct. If the shooting was NOT Justified, then you are not immune.

However, If you do get convicted of Manslaughter or 2nd degree murder, I think a Civil case is the least of your worries.

[ELB]

IANAL and all that...but...since the immunity is dependent on the shooting being justified under Chapter 9 of the Penal Code you'd pretty much have that nailed down if the prosecutor declined to file charges, and/or a grand jury no-billed it. I would think the first thing a judge in a civil case would have to ask is "IAW the law, was this shooting justified under Chapter 9?" If no charges were ever brought (or if they were brought and dropped), I would think the judge would be required to rule "game over, man" and dismiss the case. Attorneys would know this, and would decline to take a case if the potential defendant had been no-billed by a GJ. I don't see how the civil judge could make a criminal determination (i.e. that the shooting was not justified under PC Chapter 9) when the prosecutor had declined to take it to court and/or a GJ had no-billed it.

There have been a number of self-defense shootings since the immunity clause was added to the law, and no civil suits that I am aware of. (And I think Seamus pointed out there's been few or none even before that). Heck, if Joe Horn didn't get sued by somebody (and I don't recall hearing he did), I'd say the civil immunity clause is working as intended.

[seamusTX]

The question that is not clear to me is who is the finder of fact that concludes that the defender is justified and not guilty of a crime.

If a trial court jury finds a defendant not guilty, that is a finding of fact.

A no-bill by a grand jury is not the same as a not-guilty verdict. It simply means that that grand jury did not find probable cause that the defendant committed the offense. A defendant can be no-billed multiple times and then indicted by a later grand jury when more evidence is available.

Back in the bad old days, there were many cases where people who probably committed murder or manslaughter were not prosecuted because of political favoritism or racism. I can't recall the name of the Texas sheriff who had several cases of people shot in the back labeled suicides.

Joe Horn is probably like most defenders who own a homestead and don't have any other assets worth going after. This law probably will not be tested until a wealthy person defends himself.

- Jim

[surprise_i'm_armed]

Dear Abby has had a number of questions over the years from people
who were wronged in some fashion, and were considering suing the other party.

Her response has always stayed with me.

"Dear Abby,
<Someone did something I don't like.>
Can I sue them for this?"

Her reply: You can sue anyone for anything.
The real question you have to ask yourself is:
Is there any possibility to win?

So a Bad Guy's family can start the suit, but if the GG is on solid legal
ground, the suit will be dismissed before it goes too far.

IANAL, but I did stay at a Holiday Inn Express last night. SIA

[srothstein]

it is my understanding that the immunity would have to kick in only after the civil trial judge determined the force was used in accordance with Chapter 9. If there is no prosecution, no grand jury indictment, or no conviction at a trial, it does not indicate the force was proper. It may simply indicate there was a lack of sufficient evidence.

The standard of proof for the conviction in a criminal trial is beyond a reasonable doubt. The standard of proof for the civil trial is a preponderance of the evidence. This is a much lower standard. Based on this, the civil trial judge would have to see the evidence again and make his decision. The best example of how this could work is OJ Simpson. He was found not guilty by the criminal trial and still liable for the deaths by the civil trial. I know this was not Texas and he did not have the defense our law provides, but the legal principles of the second trial and review of the evidence would still hold true.

[ctxpta]

it is my understanding that the immunity would have to kick in only after the civil trial judge determined the force was used in accordance with Chapter 9. If there is no prosecution, no grand jury indictment, or no conviction at a trial, it does not indicate the force was proper. It may simply indicate there was a lack of sufficient evidence.

The standard of proof for the conviction in a criminal trial is beyond a reasonable doubt. The standard of proof for the civil trial is a preponderance of the evidence. This is a much lower standard. Based on this, the civil trial judge would have to see the evidence again and make his decision. The best example of how this could work is OJ Simpson. He was found not guilty by the criminal trial and still liable for the deaths by the civil trial. I know this was not Texas and he did not have the defense our law provides, but the legal principles of the second trial and review of the evidence would still hold true.

Bravo srothstein...I haven't posted in a really long time and it is nice to see the same names with the better information. The problem lies in how is justification proven? I agree that it may have to be argued all over again.

[AF-Odin]

Yet I just watched a news item on Channel 25 out of Waco that was making a big deal of a lawsuit against a Ranch Owner near Tyler who shot and killed a crack head on parole who had just burglarized his house stealing items to include firearms. The Criminal side apparently no-billed and now there is a civil suit. The plaintiff drug out the children of the perp and the father-in-law to tell what a great father the theif was and cried that the crime he committed was not worthy of a death sentence and that the owner should just have let him steal stuff because he never pointed a weapon at the owner, just fleeing the scene of a crime, still on the owner's property, having stolen firearms. seems like a good shoot to me and should have had the civil suit thrown out before it ever got to a potentially sympathetic jury--why can't the law protect the property owner and why do we have to subsidize thieving crack heads.

Sorry for the RANT, but I want some answers on this legal point

[seamusTX]

Apparently you are talking about this case: http://www.kltv.com/global/story.asp?s=10765354" onclick="window.open(this.href);return false;

The shooting occurred in early 2007, before the current civil immunity law went into effect (Sept. 1, 2007). I'm guessing that this case would not proceed under current law.

- Jim

[ELB]

I was backtracking a bit to look up something related to civil immunity, ran across this old thread. Just upstream, seamus provided a link to a story about a burglar's family suing a homeowner because he shot and killed the burglar. Curious as to the outcome, I searched and found a story about the verdict. Excerpts below:

http://www.tylerpaper.com/article/20090 ... /OPINION01" onclick="window.open(this.href);return false;

Jury Rules For Homeowner In Wrongful Death Case

The jury was given nine questions to consider in the wrongful death civil suit of Joshua Chambers.

The jury was asked to answer if Terry Graham — the man who shot Chambers while he was burglarizing Graham's house — committed assault; if the assault was malicious; if Graham's use of force was justified; if either Graham, Chambers or both were negligent and what percentage of negligence each were responsible for; if the death of Chambers resulted from gross negligence; the amount of compensation, if any, to be rewarded to Chambers' two children, Austin and Elizabeth.
...
On each of the questions, the jury found in favor of Graham.
...
Charles Clark, the other plaintiff attorney, likened the task of weighing the facts like squishing a water bug.
He said the jury has had to sift through conflicting and changing expert testimony both from Smith County Sheriff's Department investigators Ira Earls and Noel Martin, and the hired experts Massad Ayoob, Richard Ernest and Albert Rodriguez.
[I have no idea how squishing a water bug is analogous to a jury weighing the evidence. Any water bug squisher's care to comment?]

Furthermore, Crawford said Graham was reasonable to fear that Chambers was attempting to run him over with Chambers' white Ford Taurus.

Expert opinion differed on the question of the movement of the Taurus.
...
Ayoob, Martin and Rodriguez testified ...
...
The minutest details were considered, from Graham's position in relation to the Taurus, to the placement of a basketball goal and even the meaning of “lead investigator” of the case.
...

Go RTWT

[57Coastie]

The suggestion that a case should have been "thrown out" has been "thrown about" here more than once. This question of who can "throw out a case" is similar to, and often the same as, the recurring critical question about who makes a binding determination as to immunity.

I would think that, at the trial level, only the civil trial judge and the jury have opportunities to "throw out" a civil case once filed. The judge gets a crack at it, in theory, two times: first by way of ruling on a defendant's motion for summary judgment when it is argued that there is really no question of fact here for the jury, and secondly at the end of the plaintiff's case by way of granting a directed verdict or judgment as a matter of law, or whatever it might be called by a specific jurisdiction, when the defendant argues that the plaintiff has insufficient evidence to reasonably support its case. If granted by the judge, the case never goes to the jury.

I would be quite surprised to see a motion for summary judgment granted in such a case, but a directed verdict might well be granted in the proper case. I must say, however, that my own experience is that most judges do not much like to take a case away from a jury, but it is done.

If the judge does not "throw it out" before it goes to the jury, then the question of whether or not the defendant's use of force was justifiable is one of most likely several questions of fact the jury must answer. The case cited by ELB above is an example of just that having occurred.

Then, of course, the appellate system can get involved, and a case thought to have been "thrown out" can always be "thrown back in."

Jim