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
.
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.
I have the utmost trust in Charles's professional opinion. You may also notice the dac weighed in on both of these threads, so I trust that he has some personal knowledge of the process through his friend.
