Civil immunity issues at CHL renewal

[G26ster]

There was a thread on this not long ago. Immune from civil liability does not mean you cannot be sued. if an attorney wanted to take the plaintiff's case (although I can't imagine why), you'd need an attorney to defend yourself. You cannot deny a person's right to sue, is what I got out of the discussion.

[A-R]

Well, just got done with the renewal class and it was ran quite well. One of the instructors who works for a prepaid legal firm spent about 30 minutes trying to sell us their services for $35 a month which kind of irritated me, but that's a subject for another thread.

Did this 30 minutes take up a significant amount of the overall class time for your renewal? By law, they must teach you 4 hours of CHL content on a renewal. If they taught you 3 1/2 hours plus this 30 minutes and called it a day, then that's a BIG PROBLEM in my book - one that needs to be reported promptly to DPS.

If they taught 4 hours but then tacked on this 30 minute sales pitch at the end, then they're not technically doing anything wrong that I can think of (but I've only been certified a short time) - but I do agree it's very annoying, not what the class is supposed to be about etc

[KFP]

The instructor makes more money off of his sales pitch for the prepaid legal than he does off of his course fees. IMO he would rather take your money rather than enhance your understanding of the law.

[Crossfire]

The instructor makes more money off of his sales pitch for the prepaid legal than he does off of his course fees. IMO he would rather take your money rather than enhance your understanding of the law.

[b322da]

As a general observation, it appears to me that an instructor has a bad conflict of interest if his day job in fact results in his distorting his presentation to his students, whether intentional or not. I do not imply that is the case here, recognizing that we are chatting about hearsay related by the OP. The precise words used by this particular instructor are needed before we can intelligently assess them. A word or two here misunderstood, or "misstated," to use a Washington word, can make all the difference in the world.

Having said that, I certainly concur with the other commentatators that the area of the law where this issue arose is a particularly critical area, as it is right where the pedal meets the metal -- the point where one may have to make the most important decision he has made in his lifetime. One will most likely not have a few milliseconds left over at this point to refresh himself on the law.

The comments here demonstrate, at least to me, a possibility that both instructor and student may perhaps be leaning over too far in opposite directions, the instructor possibly downplaying the potential effectiveness of 83.001, with the student making a little bit more of it than is wise.

It has been pointed out time and again here that "a jury of your peers" in a civil action is most unlikely to be composed of CHL-holders -- quite the contrary, and that the operative words in 81.001 which we cannot lose sight of are "force or deadly force that is justified in Chapter 9, Penal Code." Even if a case has been no-billed by a grand jury, or a prosecutor concludes not to proceed with a charge, a civil action is something else. A civil action is still possible, with the jury called upon to make the determination underlined above.

This explains the anecdote of the police officer who said that each round fired in the line of duty has cost him $10,000, and this was quite a while ago. I am not selling insurance here, only that we are wise to not lock ourselves into a state of mind that believes that when we have those milliseconds to make that tough decision we are home free because of 83.001.

Elmo

[Charles L. Cotton]

b332da's advice not to go overboard relying upon or dismissing the "immunity from civil liability" provisions in the Tex. Civil Practices & Remedies Code (CRPC) is excellent. It's easy to go to one extreme or the other.

I've heard some people, including attorneys, say that the civil liability provisions added in the "Castle Doctrine Bill" don't change anything because a civil judge or jury still have to determine whether or not the defendant's use of deadly force was justifiable pursuant to Chp. 9 of the Texas Penal Code. In short, they say nothing has changed.

This argument is overly pessimistic and the law most certainly did change significantly. Prior to 9/1/07 when the Castle Doctrine Bill went into effect, a plaintiff in a civil action had to prove the the use of force by the defendant breached some duty to the plaintiff and this breach caused their damages. (We all have a duty no to shoot each other, except under limited circumstances.) The defendant could counter by showing his/her conduct was justified self-defense, defense of an innocent 3rd person, prevention of certain crimes, etc. The essence of the defense was the defendant did not owe a duty to the plaintiff under those circumstances, thus there was no breach of a duty.

This is still the situation in civil court, but the new immunity provisions of the CRPC are significant. Prior to 9/1/07, it could not be argued that getting "no billed" by the Grand Jury, or the DA's refusal to prosecute (with or without a letter of intent) prevented a jury verdict for the plaintiff. This was because of the difference in the burden of proof in a criminal trial and in a civil trial. In criminal courts, the prosecution must prove the defendant committed the crime "beyond a reasonable doubt," while the plaintiff in a civil trial must prove his case the much easier standard referred to as "a preponderance of the evidence" (so-called 51% rule). This difference in the burden of proof is why a person can be acquitted in a criminal trial only to lose in a civil trial.

However, with passage of the "Castle Doctrine's," civil immunity provisions, the defendant in a civil trial has a statutory affirmative defense available and he/she is not left with only common law defenses. When a defendant can prove an affirmative defense, he is essentially saying that "it doesn't matter what the Plaintiff can prove, I still win because . . ." A "no bill" from a Grand Jury, or a letter of intent not to prosecute by a DA, is very strong evidence to support the affirmative defense of "justified use" created in the Castle Doctrine and it likely to support a Motion for Summary Judgment your attorney will file asking the Court to dismiss the case. (If the case is filed in federal court, it's even easier to get a Summary Judgment.) Since most counties now take every case to the Grand Jury, this evidence will likely be available in "righteous shootings."

Now for the overly optimistic side of the issue. There are no cases testing everything I just typed; at least I haven't found one. Remember, Texas district courts do not write opinions like federal courts, so when an attorney says "there is no case law," we mean nothing has reached the appellate court level. There could be many cases filed and tried, but none in the appellate courts.

If/when a civil case hits the appellate courts, we could have a rogue appellate court panel who doesn't like self-defense and rules that the new civil liability immunity provisions don't change a thing. I think this is unlikely, but I'm also confident that the very conservative Texas Supreme Court would overturn such a ruling.

At the end of the day, I think we all need to remember to use deadly force only when necessary and when it is necessary, do what you have to do to preserve your life and/or the lives of other innocent people and don't worry about a civil matter. That's my job. As b322da said, don't be overly optimistic about the Castle Doctrine, but don't believe those who say "nothing has changed."

Chas.

[Shoot Straight]

Instructors like that are worse than all the complaints about Utah instructors/license in Texas.

[Charles L. Cotton]

Instructors like that are worse than all the complaints about Utah instructors/license in Texas.

Can't agree with you there. Promoting pre-paid legal plans hasn't prompted the filing of a bill to prohibit Texas residents from carrying on another state's license. Advertising by two Utah Instructors is why Lon Burnam filed HB356. Thankfully, he also filed HB354 to establish a state income tax, so he'll be dodging a lot of barbs from his colleagues! Maybe he'll be too busy to try to get a hearing on HB356.

Chas.

[hangfour]

I get upset when I pay for a class on X and someone (for whatever reason) invites another person in (on my time and money) to pitch Y. If I were in that class I would have demanded my money back and reported the incident to the DPS. Grumble, grumble, grumble ...

[A-R]

I get upset when I pay for a class on X and someone (for whatever reason) invites another person in (on my time and money) to pitch Y. If I were in that class I would have demanded my money back and reported the incident to the DPS. Grumble, grumble, grumble ...

That kinda bait-n-switch sales pitch happens with real estate "classes" all the time. My dad and I once took a three-day long-weekend course from a very well-known Austin real estate "investor" who gave us about 1 hour of good quality information, and 20+ hours of talking about how great he was, his successes, and trying to sell us his "motivational" books and other investment "seminars"

[Greybeard]

Somewhere around a year or more ago, some folks with a certain instructor's association put out a power point presentation with a "DPS approved" lesson plan. And immediately following the section on civil liability just so happens to be a blurb on another available "protection plan". Anybuddy wanna guess how some instructors using that "package" are teaching 83.001?