The price we pay for being right

[rtroha]

No really, Ohio's had Castle Doctrine on each session's slate but it keeps getting held up in committee until the end of the year, then dumped. I think it'll take a congressman's defensive shooting and subsequent civil suit in order to get it passed. They seem to slack until it happens to them.

Perhaps if enough Ohioans bothered to contact their state legislators, the current Castle Doctrine bill, Senate Bill 184 might actually get passed.

 

[GhostlyKarliion]

Can a state law preclude a federal lawsuit?

that, I believe, is what sub section H is covering, if the idiot does find a way to sue you, the state will reimburse you for any costs, including loss of income!

Isn't the second part of the law completely and utterly worthless? What is the value - to your lawyer - of a judgment against a convicted (or dead) felon? Or his family?

ugh... wha??

 

[Blackbeard]

I assume your homeowner's policy covers lawsuits for people injured on your property. It's up to them to defend or settle. Does anyone know if self-defense shooting is excluded under any homeowner policies?

Also, it's worth looking into an umbrella policy with a high cap - at least $1 million. It doesn't cost that much and protects your assets against civil liability suits.

 

[buzz_knox]

Can a state law preclude a federal lawsuit?

Most tort between individuals suits tried in federal court are based on state law. If state law does not allow for the cause of action, the plaintiff has to find a federal basis such as violation of civil rights. Given that engaging in criminal activity is not (yet anyway, notwithstanding some suggestions) a protected activity, that would not hold up in federal court.

 

[jdc1244]

I just LOVE the Gunshine state

I love it here as well.

I hope those in the criminal community get the message; home invade at your own risk.

Like everyone here I harbor no fantasies of shooting someone – I’ll do it if a criminal breaks into my home without a second thought – but I don’t want it to come to that. I just want criminals to stay the hell off of my property. Again, I hope they get the message.

 

[vis-à-vis]

May I ask which member was involved in the shooting and whether or not he and his family are ok so that I may pray for them during this time?

 

[littlegator]

Does that just move the suit from the state to the federal level, or does it have a real effect?

Federal Ct. will only hear a civil suit if the amount in controversy (the legitimate amount of the claim being made) is more than $75,000 and the parties to the suit (Plaintiff and Defendant) are residents of different states. (ie. - diversity of citizenship) Or...if there is a federal question involved in a civil action arising under the constitution, laws, or treaties of the US. So from the OP's example, it would be a stretch for it to be in federal court on a civil case, (not because of the amount in controversy, but because of the other factors), and even it was because of diversity, the fed ct. would probably be applying state statutes (e.g. - castle doctrine statutes).

We're not talking about a federal question here, we're just talking about the law of torts - someone was wronged, sustained damages, and are suing in civil court. Tort law is normally handled in state court, and when it's not, the fd. ct. still applies state law.

Additionally, you can sue for anything, whether you are successful or not is another issue. (ie. - motion to dismiss for failure to state a claim, etc.)

 

[RPCVYemen]

So from the OP's example, it would be a stretch for it to be in federal court on a civil case, (not because of the amount in controversy, but because of the other factors),...

Thanks - I have wondered about that.

So the fact that the injured party is not allowed under state law to sue in state courts does not make it easier to sue in federal court?

Mike

 

[Bobarino]

Washington has the same type of law protecting a victim of a crime against civil suits if the killing is deemed justifiable. any other way is simply ridiculous. look at OJ. found not guilty, sued for wrongful death and lost. one court says he's not guilty, the other says he is. just stupid.

Bobby

 

[buzz_knox]

found not guilty, sued for wrongful death and lost. one court says he's not guilty, the other says he is. just stupid.

No, just different standards of proof and evidentiary rules. The civil jury was also privy to more facts than the criminal jury (as well as not being carefully selected to insure a particular result).

 

[RPCVYemen]

that, I believe, is what sub section H is covering, if the idiot does find a way to sue you, the state will reimburse you for any costs, including loss of income!

Maybe I misread it. I assume that the state awarding you costs does not mean that they are going to pay those costs. I assumed that meant they'd award you a judgment against the plaintiff. Which would not be worth very much.

Does it really mean that the state is going to pay?

Mike

 

[RPCVYemen]

People get sued every day for acts performed within their scope of authority that are not malicious or intentional, why should attornies have immunity?

Two reasons:

1. No one would represent poor people on either of any suit if the attorney for the losing side was liable.
2. An attorney is not obligated to judge his client - he is obligated to represent his client.

Mike

 

[RPCVYemen]

If state law does not allow for the cause of action, the plaintiff has to find a federal basis such as violation of civil rights.

Isn't there a theory (used mainly for criminal cases) the killing someone deprives them of their civil rights? Does this apply in tort law?

Not arguing, just curious.

Mike

 

[buzz_knox]

Maybe I misread it. I assume that the state awarding you costs does not mean that they are going to pay those costs. I assumed that meant they'd award you a judgment against the plaintiff. Which would not be worth very much.

Does it really mean that the state is going to pay?

No. The section on costs only applies to civil actions and any costs would be judged against the plaintiff. In these kind of cases, the state will likely never be the plaintiff (that's what the criminal proceeding is for). Basically, if you are immune from criminal prosecution and someone goes after you civilly, they will be charged the costs of your defending yourself. You will, of course, likely never see this money as most such plaintiffs are judgment proof. People who can afford to pay the costs tend to not be stupid enough to sue the victim of their own criminal misconduct or the misconduct of the decedent.

 

[buzz_knox]

Isn't there a theory (used mainly for criminal cases) the killing someone deprives them of their civil rights? Does this apply in tort law?

Violation of civil rights is what the feds typically use to go after bad actors whom states will not or cannot prosecute. The former situation was frequently found with some of the '50-'60s era slayings (the state wouldn't go after the killers) and the latter often involve those who were acquitted at the state level (such as the officers in the Rodney King case).

Generally, these kind of allegations in civil cases involve state actors or are brought pursuant to a specific statute (like Title VII) that grant a remedy under the law.

 

[Citroen]

Check your Policy

To the poster that thinks his homeowner's insurance will cover him, you need to read the policy and/or check with your agent or company. Most homeowner's exclude deliberate acts and, if my memory serves me correctly, there have been several examples of this in the news.

The NRA offers a reasonably priced insurance policy to protect you in the event of a justified shooting. I believe it costs under $200 per year.

JOhn
Charlotte, NC

 

[littlegator]

So the fact that the injured party is not allowed under state law to sue in state courts does not make it easier to sue in federal court?

No. In order to even bring the case in federal court, the Court must have what's called "subject matter jurisdiction", which requires either a federal question (which torts is not) or diversity of citizenship between the parties by state and an amount in controversy over $75000. Additionally, even if the state has a castle doctrine statute, the perpetrator may still have other options to sue under. And again, whether they are successful or not is another issue.

Isn't there a theory (used mainly for criminal cases) the killing someone deprives them of their civil rights? Does this apply in tort law?

Perhaps if the police or another state/govt actor were the shooter, then maybe a 1983 claim may be brought for deprivation of civil rights.

Additionally, a few of the posts seem to confuse civil with criminal, indicating that a court may find someone "guilty" in a civil suit, which is not the case. A person is "guilty" in a criminal case, whereas a person is "liable" in a civil case. A criminal case involves the state suing the individual for a crime. A civil case involves a party suing another party for damages either in money or equity (fairness -e.g. - stop people from trespassing on my lawn, get an injunction). In the trespass case, the victim may sue in equity (civil) and the state may bring charges against the perpetrator of the trespass for violation of some law.

 

[littlegator]

Does anyone know if self-defense shooting is excluded under any homeowner policies?

Usually depends on whether the act is criminal.

Additionally, the insurance company's obligation to defend against a lawsuit is higher than their obligation to actually pay if there is a verdict/judgment. Oftentimes, even where there is a dispute as to coverage, the company will defend the homeowner rather than risk having the homeowner sue for bad faith insurance practices and/or unfair insurance practices.

 

[littlegator]

People get sued every day for acts performed within their scope of authority that are not malicious or intentional, why should attornies have immunity?

As a civil defense attorney, I sympathize with this and have had cases where I wanted to tell the jury that the case would never had made it to trial had it not been for the Plaintiff's attorney pushing it there. There are laws that are supposed to protect against "frivolous" lawsuits, but I've never actually seen a lawsuit deemed as such.

Notwithstanding, "malicious" or "intentional" does not mean "negligent" which is a valid cause of action going back to before the foundation of this country. And I suspect you, like many others including myself, feel that many of the negligence cases that are brought should have merely been chalked up as a life's lesson - no need to go after the person whose accident caused damages/injuries.

Additionally, back to the OP, the thread started out with a question as to why someone could get off criminally but still be held civilly liable. The difference as indicated by Buzz Knox is that the standard applied by the court in a criminal case is different than in a civil case. The jury need only find the defendant in a civil case liable by a preponderance of the evidence (over 50% of evidence) as opposed to a criminal case where the jury must find the defendant guilty beyond a reasonable doubt - also termed, beyond a shadow of a doubt. Therefore, although the criminal court may not find the defendant guilty, the jury in the civil court may find the defendant negligent, which merely requires a showing that the defendant breached a duty of care to act as a reasonable, prudent person, which breach caused damages. This is fun.

 

[RPCVYemen]

Perhaps if the police or another state/govt actor were the shooter, then maybe a 1983 claim may be brought for deprivation of civil rights.

So when a state murder charge is "elevated" to a federal civil rights case the accused must be a someone acting as an agent of some government entity?

I didn't know that.

Thanks,

Mike

 

[littlegator]

So when a state murder charge is "elevated" to a federal civil rights case the accused must be a someone acting as an agent of some government entity?

No. I like you Mike. You ask a lot of questions. And quite frankly, I'm not sure how to get your last response out of the hole it got into. LOL Or rather, the hole that I apparently led it into...other than to say, the state murder charge is a criminal charge brought by the state and a federal civil rights case is brought by a person/Plaintiff against the government for money damages (usually).

 

[robert garner]

With talk of suit and counter suit, even if all found for you, the lawyers will be richer.

BINGO!
robert

 

[RPCVYemen]

Additionally, the insurance company's obligation to defend against a lawsuit is higher than their obligation to actually pay if there is a verdict/judgment.

Learn something new every day. I had always assumed that defend vs. pay was purely business decision on that part of the insurance company (i.e, "Is it cheaper to defend or pay out?").

The common perception (among non lawyers) is that the insurance company will pay out small claim ($10K, $20K) since they are cheaper than going to court. Is that just an urban myth?

Mike

 

[Titan6]

There was a case here several years ago and some details elude me but a guy robed a liquor store and a patron was armed one way or another the patron shot the robber dead and was not charged but his family wanted several million dollars for a wrongful death charge in civil court and ended up getting $100,000 WHY?

Umm, because the insurance company would rather pay $100K and be done with it than pay $300K in legal fees for a case that goes on for years, even if they win?

 

[Warren]

California has a law (California Civil Code Section 847) that was passed some years ago that if you are injured or killed in the commission of a felony you or your kin have no standing to sue.

(a) An owner, including, but not limited to, a public entity, as defined in Section 811.2 of the Government Code, of any estate or any other interest in real property, whether possessory or nonpossessory, shall not be liable to any person for any injury or death that occurs upon that property during the course of or after the commission of any of the felonies set forth in subdivision (b) by the injured or deceased person.

(b) The felonies to which the provisions of this section apply are the following: (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4) sodomy by force, violence, duress, menace, or threat of great bodily harm; (5) oral copulation by force, violence, duress, menace, or threat of great bodily harm; (6) lewd acts on a child under the age of 14 years; (7) any felony punishable by death or imprisonment in the state prison for life; (8) any other felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, or any felony in which the defendant uses a firearm; (9) attempted murder; (10) assault with intent to commit rape or robbery; (11) assault with a deadly weapon or instrument on a peace officer; (12) assault by a life prisoner on a noninmate; (13) assault with a deadly weapon by an inmate; (14) arson; (15) exploding a destructive device or any explosive with intent to injure; (16) exploding a destructive device or any explosive causing great bodily injury; (17) exploding a destructive device or any explosive with intent to murder; (18) burglary; (19) robbery; (20) kidnapping; (21) taking of a hostage by an inmate of a state prison; (22) any felony in which the defendant personally used a dangerous or deadly weapon; (23) selling, furnishing, administering, or providing heroin, cocaine, or phencyclidine (PCP) to a minor; (24) grand theft as defined in Sections 487 and 487a of the Penal Code; and (25) any attempt to commit a crime listed in this subdivision other than an assault.

(c) The limitation on liability conferred by this section arises at the moment the injured or deceased person commences the felony or attempted felony and extends to the moment the injured or deceased person is no longer upon the property.

(d)

The limitation on liability conferred by this section applies only when the injured or deceased person's conduct in furtherance of the commission of a felony specified in subdivision (b) proximately or legally causes the injury or death.

(e) The limitation on liability conferred by this section arises only upon the charge of a felony listed in subdivision (b) and the subsequent conviction of that felony or a lesser included felony or misdemeanor arising from a charge of a felony listed in subdivision (b). During the pendency of any such criminal action, a civil action alleging this liability shall be abated and the statute of limitations on the civil cause of action shall be tolled.

(f) This section does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.

(g) The limitation on liability provided by this section shall be in addition to any other available defense.

Of course you don't get to keep wailing on a felon once he gives up.