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by srothstein
Fri Feb 15, 2008 11:13 pm
Forum: 2007 Texas Legislative Session
Topic: Civil Liability
Replies: 36
Views: 9234

Re: Civil Liability

Liko81 wrote:Another legal question. You shoot in self-defense. Damage or injury to an ITP occurs. The DA declines to prosecute any possible unlawful use of force because he thinks you're justified under TPC Chapter 9, and closes the case. If the DA signals his intention not to prosecute now or ever that's as good as an acquittal as far as an official finding of justification, as is a no-bill. According to the letter of the law, the injured ITP then has absolutely no recourse. I would have to be found guilty of unlawful use of force against the person suing me in order to be liable for damages.
While the two lawyers have answered, neither directly corrected what I believe is a misconception in you post. I could be wrong on this, and I hope one of the lawyers will correct me if I am wrong, but here goes.

The DA deciding not to prosecute or a return of no true bill by the Grand Jury does not mean that you were justified and has no bearing on the civil lawsuit. It could be because they all thought you were justified, or it could be for some other reason. One possibility is that the DA thought that you were guilty on all counts but was afraid that the jury would not convict you for some other reason, say racial prejudice maybe. It could be because the police messed up the case so the DA has very little admissible evidence in the case. In any of those cases, it has nothing to do with justification and the immunity.

Even an acquittal in a case does not automatically trigger the immunity. If the defense was that the action was legally justified and you are acquitted, I would say you are golden on the civil side. But if the acquittal was because the DA could not prove beyond a reasonable doubt that it was you that pulled the trigger, the immunity does not apply.

And nothing stops the lawsuit from being filed. You should win on a motion to dismiss if you were acquitted for justification, but I could see a judge ordering a trial to see if you were justified when you are no billed, especially if any of the facts of the shooting are questioned by the plaintiff or it is one of the shootings where the justification is a little gray.

My advice is to plan on being sued and going to trial. That way you cannot be disappointed, just pleasantly surprised.
by srothstein
Sat Jan 19, 2008 11:52 pm
Forum: 2007 Texas Legislative Session
Topic: Civil Liability
Replies: 36
Views: 9234

Re: Civil Liability

Yes, you can be sued. A no bill does not mean that you were justified. It simply means that the grand jury did not think there was enough probable cause for the charge. This could be due to a valid defense or it could be due to a lack of evidence on the prosecution side.

In addition, there is no way to stop any lawsuit from being filed. The best you could do is to have the defense ready for the answering petition. Then ask for a summary judgment in your favor.
by srothstein
Sat Jan 19, 2008 2:03 am
Forum: 2007 Texas Legislative Session
Topic: Civil Liability
Replies: 36
Views: 9234

Re: Civil Liability

locknload wrote:
ELB wrote: If you can't find justification for your action in Chp. 9, then Tex. Civ. Prac. & Rem. Code §83.001 does not apply. Thus, any injured or killed innocent 3rd parties can still sue. It doesn't mean they will win, but they can sue. Whether they prevail will be determined by whether or not your conduct was "negligent." Note, this is a lower standard than the "reckless" standard in the Penal Code.

Chas.
It looks like to me that, in other words, the bad guys still win. What happened to the Texas that I grew up in? "He just needed killin' " used to be an honored defense. Really. Especially, if you found your husband in bed with another woman! ;-)
:txflag:

No, the bad guys lose still. All we are saying is that you cannot hurt the innocent bystander also. And even that has to be reckless, not just negligent. Reckless means you were aware of the danger and disregarded it. So, if you know you are a lousy shot, and the bad guy is surrounded by a lot of other people, when you shoot and hit the bystander, you were reckless and can be charged or sued for it. If you hit the bad guy, he is just out of luck and you are good to go.

As for the "he just needed killin' " defense, it is all up to the jury. Some parts of the state will still by it, no matter what the law reads.
by srothstein
Fri Jan 18, 2008 2:49 pm
Forum: 2007 Texas Legislative Session
Topic: Civil Liability
Replies: 36
Views: 9234

Re: Civil Liability

ELB wrote:I do not see a difference spelled out between personal injury or death to a BG, and personal injury or death to anyone else. It simply says if your use of force was justified, you are immune. Interesting. I hadn't realized that earlier.
Check Penal Code section 9.05

You are not protected by justification for reckless injury to another, even from a criminal case. Since Chapter 9 does not justify the behavior, this civil immunity doesn't help you either.

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