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seamusTX wrote:Not being indicted or being acquitted in a criminal case have vary little relevance to a related civil case. O.J. Simpson was found not guilty and then held liable for wrongful death.

Becuase he wasn't acquitted for justification; he was acquitted because the prosecution couldn't find enough evidence to tie him positively to the crime. Nor was there a law providing immunity if he were acquitted on any grounds.

So therefore, given that it's only "reckless" conduct that voids justification under Chapter 9, you are justified and therefore immune even if your actions might meet the standard for "negligent"? In reality I'm not sure there's a difference; if you fire at a BG with a crowd around or beyond him crowd and a bullet hits anyone other than the BG, you were aware of a risk that it would happen and disregarded it. The only question remaining is if the risk that an ITP would be hit was great enough, and the results of a severe enough nature, that choosing to fire constituted gross deviation from a reasonable standard of care.

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. So, the question is, would a DA decline to prosecute across the board if someone other than the BG were damaged by my actions? How severe would the damage need to be (a broken window and a hole in a wall, or would an ITP have to be personally injured)? Would the incident be considered as one count (justifiable with one defense), or one count for each bullet impact or injured party (where I'd have to prove I was justified in using deadly force against everything I hit)?

I would think the DA would define "use of deadly force" in terms of it being against people and not property; all property damage would be incidental if the use of force against the intended target was justified. However, justification against one does not excuse reckless conduct against others, and if injury to an ITP were determined to be reckless my justification stops right there. So, the DA would examine all injured parties, and I'd have to justify use of force against every last one. I may or may not be able to justify injury due to overpenetration as incidental, or it may have been reckless to fire at my intended target while someone was behind them, if I reasonably should have known someone was beyond them and still in visible range. Similarly, injury to people around the target could be incidental, or could be reckless, depending on the reasonable hit percentage expected in the circumstances.

this is why the lawyers make the big bucks.

seamusTX wrote:This law was intended to relieve a defender from civil liability claimed by the attacker, or the attacker's family. I'm not confident that this law will be interpreted to relieve a defender of liability for injury to an an innocent third party or property damage.

Injury of a third party could be considered reckless or an accident. It would depend upon the circumstances. In either case, the defender could be civilly liable.

We won't really know until a case lands in court.

- Jim

Good point. It's mentioned in the statutes:

§ 9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even
though an actor is justified under this chapter in threatening or
using force or deadly force against another, if in doing so he also
recklessly injures or kills an innocent third person, the
justification afforded by this chapter is unavailable in a
prosecution for the reckless injury or killing of the innocent
third person.

I guess the key point is "recklessly injures or kills". Does this clause presume that injury to a third party is reckless, or does it require that recklessness be demonstrated in order for justification not to attach? If I were on a jury I would tend to assume the latter. From "handgun wounding factors and effectiveness":

A review of law enforcement shootings clearly suggests that regardless of the number of rounds fired in a shooting, most of the time only one or two solid torso hits on the adversary can be expected. This expectation is realistic because of the nature of shooting incidents and the extreme difficulty of shooting a handgun with precision under such dire conditions. The probability of multiple hits with a handgun is not high.

Choosing a bullet because of relatively shallow penetration will seriously compromise weapon effectiveness, and needlessly endanger the lives of the law enforcement officers using it. No law enforcement officer has ever lost his life because a bullet overpenetrated his adversary, and virtually none have ever been sued for hitting an innocent bystander through an adversary. On the other hand, tragically large numbers of officers have been killed because their bullets failed to penetrate deeply enough

The first point is used in the document to argue that each bullet should be as effective as possible, but the fact is still a fact: the nation's top civilian law enforcement agency recognizes that even officers who train regularly as part of their job do not place every shot COM when the target is moving and firing back, and if they expect a shooting they do not rely on a handgun. The second point illustrates that a caliber that overpenetrates is NOT a disqualifying consideration of law enforcement, who in fact do use calibers and cartridges that demonstrably overpenetrate because NOT to do so is dangerous to them. Well that's true of anyone who carries a handgun; if you have to use it, you expect it first to go BANG with every trigger pull, and second you expect its projectiles to be effective. Why then would a CHL, or any civilian owning a defensive handgun, not make the same choice in a weapon they might have to bet their life on?

The conclusion is that overpenetration and missed shots are a natural consequence of shootings, even involving people whose job description includes shootouts and who as a consequence train regularly for them. Thus, a missed or overpenetrating shot cannot be prima facie of reckless conduct. Those who are not in law enforcemeent cannot logically be held to a higher standard of performance, even if they DO have a similar or even higher standard of training (a person's military background, IPSC experience, CHL qualification, or other training regimens cannot be used to infer a guarantee of shot placement). They might be held to the SAME standard of performance, but that standard as evidenced is rather low. The shooter, in taking a shot, must have been either intentionally aiming at that person or negligently failing to identify his target in order for the shot to have been made recklessly.

TDDude wrote:I searched around and couldn't find the final bill that became law. All I could find was what I found. It looks like what they ended up with has more protection for the homeowner.

Where did you find that?

Well, as it's now law, you can find it in the Civil Practice and Remedies Code: http://tlo2.tlc.state.tx.us/statutes/cp.toc.htm. Section 83.001.

That site basically has all State laws available to read; very useful.

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.

Interesting interpretation, and you might plausibly argue that point. However, my interpretation of that law is that you are still responsible for every bullet that comes out of your gun, and every shot fired is the use of deadly force against whatever it hits, regardless of whom the deadly force was intended to be directed toward. Your use of deadly force, bullet by bullet, is justified only if that target was doing or attempting to do any action in Section 9 that justified deadly force as a response. Therefore, a miss or overpenetration that strikes anything other than the BG is your responsibility and you are not immune from suit. Even if that is not the case, it's a good mindset, in line with Rule 4 ("Always be sure of your target and what is around and beyond it").

You DO have a good defense in that missed and overpenetrating shots are a natural consequence of a shooting encounter. The FBI memo on Handgun Wounding Factors and Effectiveness states that even among trained LEOs, accuracy in terms of hit percentage on the intended target is VERY low. It also states that overpenetration should not be a more pressing concern than penetrating adequately. I paraphrase: "overpenetration has never been dangerous to the officer; failure to penetrate adequately on the other hand has indeed resulted in the deaths of officers". Your actions in deciding to shoot, your choice of an overpenetrating weapon and caliber, etc. are therefore no different than that of an LEO standing in your shoes. You should however avoid a "lesser of two evils" argument ("The shooter would have done worse"). While convincing to common sense, such an argument is an appeal to consequences ("ends justify the means") and also to speculation, and thus is NOT a valid legal argument.

AEA wrote:This Civil Case business may have already saved their lives a bunch of times. I think they know this and will be more afraid of Texas CHL holders than ever before!

Well it's not just CHL holders; anyone who owns a gun can use it to defend themselves, their family, their property, and anyone who expressly or by implication would be justified in using deadly force but is unable to do so, from a person engaged in the use of "unlawful force". This includes any crime involving forcible entry (B&E), forcible removal of a person (abduction), violent sexual offense (rape/sexual assault), violent assault (up to and including murder, but NOT simple assault) and/or robbery.

There was a POSSIBILITY, before the Doctrine with immunity passed, that an assailant or next-of-kin could sue for damages. It's based on case law especially in other states that basically says when you pull the trigger, you are responsible for every bullet that exits the barrel, where it goes, and what it does. Such claims are made and do win, especially in wrongful death suits because the assailant's criminal trial does not exist and therefore neither it nor the evidence and testimony given there are available as a defense. The new Stand-Your-Ground law basically gives the shooter the same level of backup; if the shooter was judged to be justified in the use of deadly force, the assailant by the definition of that justification was acting illegally and therefore has no legal standing to claim damages for injury or death. You can't break into a home, get mauled by a dog and claim damages; the same now applies if you are shot by the homeowner.

The possibility of lawsuit still exists; you are liable for missed or overpenetrating shots that cause collateral damage to people or property. The assailant may not file claims for damage to him or his property, but that's where immunity ends. Now, unless a bystander suffers a debilitating injury a lawsuit is highly unlikely, but the justification for your action does not relieve you of your responsibilities under Rule 4: you must think about what you will hit if you miss the target or once the bullet gets to the other side.