America needs tort reform for lawful self-defense.
- Thread starter AlongCameJones
- Start date
Many states already have such a fund. My state does, for example. IIRC, it is funded through court fees assessed in criminal cases. Unfortunately, my state caps awards at $25,000 for unpaid medical expenses, emotional distress, and other kinds of damages. I know some states compensate victims at higher rates.
Turning to the suggestion that citizens should be given the same immunity as police officers---SCOTUS has interpreted the Constitution to allow qualified immunity for police officers. It is a substantial obstacle for plaintiffs to surmount. Yet, the police almost always have "free" legal counsel through insurance carried by their employers. These liability policies are written specifically with coverage of police liability in mind.
Some private citizens may have general liability insurance (e.g., homeowners insurance) which may provide legal counsel (under a reservation of rights) and might, in some circumstances, even pay damages. Yet, insurers can either (1) change coverage terms without most people being wise to the change or (2) charge higher premiums for the coverage.
Then, of course, there will be a great many people who might need to defend themselves who don't have any homeowners or renters insurance to potentially cover their liability. Legal fees alone may bankrupt many people who are guilty of nothing but exercising their right to life.
As others have mentioned, there is no easy answer of where to place ultimate responsibility in the situation we are discussing. Here's another scenario where there is no easy answer:
A steals a diamond from B. A then sells it to C, who has no reason to believe the diamond has been stolen. B finds out C has the diamond and A cannot be found or has died. Who bears the loss? The original owner B or the person in possession who paid fair market value for the diamond? The classic law school answer is that A cannot pass title to the goods to another because A never had legal title. C bears the risk of dealing with a shady character and comes out the looser.
In each scenario, there at least three kinds of people.
1. an initial aggressor
2. a self defender, and
3. an innocent bystander
In most states as it stands now, 1 and 2 may have liability for the injuries of 3. The proposal is to grant 2 only immunity from suit.
2 knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and 2 acts within his right of self defense in employing deadly force against 1 also inadvertently but carelessly shooting seven other people of the #3 sort. It's an improvement on our current system to deny to those seven innocent bystanders the ability to file a civil complaint against 2?
Or would we prefer people to recognize that in addition to having a right of self defense, they still have duties to others in how they exercise it?
1. an initial aggressor
2. a self defender, and
3. an innocent bystander
In most states as it stands now, 1 and 2 may have liability for the injuries of 3. The proposal is to grant 2 only immunity from suit.
2 knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and 2 acts within his right of self defense in employing deadly force against 1 also inadvertently but carelessly shooting seven other people of the #3 sort. It's an improvement on our current system to deny to those seven innocent bystanders the ability to file a civil complaint against 2?
Or would we prefer people to recognize that in addition to having a right of self defense, they still have duties to others in how they exercise it?
Last edited:
There is already legal remedies for reckless behavior.
Consider the case of Brionna Taylor.
The Louisville PD was seeking her because she had a relationship with a suspected drug dealer. They found that she was currently in another man's place. This guy had no record and was not sought by police.
So, they kicked in his door at 3AM while executing a no knock warrant. The boyfriend believed he was the victim of a home invasion and opened fire striking one of the officers in the leg. The LEO's returned fire and killed Brionna while she was in her boyfriend's bed.
The boyfriend (who was not injured) was not charged because KY is a castle doctrine state.
After an investigation into the murder of an innocent woman by what was clearly reckless behavior on the LPD part some (I believe 2) officers were fired. No charges were ever filed against those officers.
The family sued the only entity they could, the city and it was settled out of court. So who was punished for the reckless behavior of LPD? The Louisville taxpayer.
But the sentiment expressed here is the I better have SEAL gun handling skills because if a bullet gets astray my and my family are going to be financially ruined because I managed to come out of it alive.
If a cop doesn't face the consequences, than neither should you or I.
I think there's a point being missed here, and that is that while the individual may be protected from civil suit due to his "official" status, his umbrella organization is not. The officer doesn't get sued, but the Police Dept DOES.
And when successful, its the police dept's financier that pays any judgement. Cop wrongly shoots an innocent bystander, the individual cop doesn't pay the millions in damages, the CITY (or county or state) pays.
The OTHER operative point is that while you may be legally justified in shooting the bad guy, you are NEVER justified in shooting someone else, on purpose or by accident.
Now, the bad guy(s) absolutely have a share of the blame, they caused the shooting. But even then, each and every bullet you shoot "has a lawyer attached" and YOU ARE responsible for what they do.
In simple terms, as I see it, if you shoot at the bad guy and MISS, and hit someone else, YOU ARE RESPONSIBLE for that. So is the bad guy, but him causing the shooting does not absolve you who aimed and pulled the trigger from the results of hitting the wrong person.
You don't get off the hook because you missed your intended target any more than you get off the hook because you "didn't think it was loaded".
I think its really that simple, or should be. This is, however the USA in the 21st century and you can sue anyone for any reason. I don't consider the "deep pockets" idea of who is responsible for paying to be justice, either.
ghbucky said:
Those remedies are what one requests from a court when he sues 1 and 2. If you grant 2 immunity for his negligence, there is no remedy for the injuries caused by 2's negligence.
ghbucky said:
Not really. I don't believe Rittenhouse had "SEAL gun handling skills".
If you shoot someone to whom you owe a duty not to shoot, your lack of immunity means you can be made to answer about whether you exercised due care. It doesn't mean that the finding is that you failed to exercise due care, but that you can be put to the trouble of defense and explanation.
Look. I get that there are a lot of people that have unrealistic views about how self defense law actually work that read these boards.
HOWEVER, the OP wants to talk about how the US legal system needs tort reform.
Given the OP, a condescending comment in response to anyone answering the OP about how to improve the law AS IT CURRENTLY EXISTS does nothing to advance the OP comment.
I know how the law works. I know that if I am fighting for my life and trying to put down an aggressor that I really think is going to kill me if I don't stop them, and a stray bullet in that fight kills an infant, then everything that I have worked for, will be chewed up by the current tort system and leave me and my children with nothing.
The only people that will profit from that event is the lawyers. That is because lawyers write laws. It isn't a mistake that we have found ourselves here.
My point is very simple. If there is anyone within the legal framework that enjoys any sort of protection from tort, than I get the EXACT SAME PROTECTION!
If a cop can have his PD deal with his wrongful death charges, then the law should also make the PD protect me if my response is judged within the law.
Police, first responders, politicians are not another class that enjoys a separate legal system from me. The judicial system is supposed to be blind. It matters not a whit who/what/when/where/why. If the crime = punishment then we all should face the same outcome from our behavior.
HOWEVER, the OP wants to talk about how the US legal system needs tort reform.
Given the OP, a condescending comment in response to anyone answering the OP about how to improve the law AS IT CURRENTLY EXISTS does nothing to advance the OP comment.
I know how the law works. I know that if I am fighting for my life and trying to put down an aggressor that I really think is going to kill me if I don't stop them, and a stray bullet in that fight kills an infant, then everything that I have worked for, will be chewed up by the current tort system and leave me and my children with nothing.
The only people that will profit from that event is the lawyers. That is because lawyers write laws. It isn't a mistake that we have found ourselves here.
My point is very simple. If there is anyone within the legal framework that enjoys any sort of protection from tort, than I get the EXACT SAME PROTECTION!
If a cop can have his PD deal with his wrongful death charges, then the law should also make the PD protect me if my response is judged within the law.
Police, first responders, politicians are not another class that enjoys a separate legal system from me. The judicial system is supposed to be blind. It matters not a whit who/what/when/where/why. If the crime = punishment then we all should face the same outcome from our behavior.
No, sorry, you don't. Nor do I.
and, this is why you don't. You and I are not agents of the state. The policeman in his official role, IS an agent of the state. He is functioning as an arm of the government, NOT as a private individual.
This can be further complicated by the fact that in some cases, the officer is never "fully" off duty as long as he's employed, he MAY get at least some of the benefit of coverage his time "on duty" earns him.
Now, consider this situation, (and to our legal experts, please correct me if I get something wrong)
Take the "shoots the wrong person" scenario. If a cop shoots the wrong person in the course of their official duties, acting as an arm of the state, he gets the full coverage by "the state".
Same cop, weekend off, at home, someone breaks in and the cop shoots the wrong person, the state is not going to automatically shield him. However, being a cop he will get some aid from the PBA, his union, and the police administration, but not at the same level as he would for an "on duty" shooting. I believe in the at home, day off situation, if the cop shoots the wrong person he can be sued, as a private party and not as an agent of the police dept.
that's the way I understand it, if I'm wrong, please enlighten me.
Spats McGee
Administrator
Given all of the discussion in here about tort liability, police officers and self-defenders, perhaps it would be helpful if I posted a link to my Primer on Civil Rights Litigation and Qualified Immunity.
ghbucky said:
What incentive would a PD have to competently defend you in a civil suit?
Do you want a municipality to incur a huge bill for your civil defense if they don't charge you after a shooting? Isn't that an incentive for them to charge you?
zeke said:
I think that kind of narrow scope is a real advantage. So long as we are discussing immunity from suit by the very fellow who was coming at you in your home, the potential for abuse or unforeseen results is limited.
I see something in this sort of discussion that is understandable, but not optimal. We discuss scenarios with short descriptions of specific actions, but people then attribute the merit or fault for that specific action to subsequent actions. We call a character a "self-defender" then look for solutions to make that person's outlook the best, because he was the good guy.
Since real people wear more than one hat, have more than one motive, it's more conducive to fair rules to evaluate the acts as acts, rather than the description of a person. So one can be a valid self-defender and a tortfeasor. We can applaud the valid self defense, but demand that he answer for the tort.
Noting that the law you reference is narrow isn't a criticism.
Last edited:
AlongCameJones
Moderator
I can't see how anybody who is following the law and acting with only good intentions to be a "tortfeasor". Is a person a tortfeasor or possible tortfeasor for pushing a child off a train track with his hands so the child in question avoids being hit by a quickly-approaching fast freight should the child get a broken arm from this pushing action but recovers from that and is well again? Here is a case where the theory of competing harms comes into play.
AlongCameJones said:
Bob knows he is a bad shot. Everyone at the range makes jokes about the seeing eye dog he doesn't have. He is at a baseball game, and Bob acts within his right of self defense in employing deadly force against Gaige also inadvertently but carelessly shooting seven other people who weren't involved in the conflict.
Bob didn't intend to hit any of the seven other people. Isn't Bob a potential tortfeasor against whom any of the seven should be able to seek damages?
If you like your scenario better:
What if the child would have moved if he'd simple been told to get off the tracks?
What if the train wasn't quite so close as you thought?
What if you just didn't understand that there was a switch between the boy and the train and the boy was perfectly safe?
What if the arm you broke kept him going to school on a baseball scholarship?
Should you be required to answer a complaint?
People with good intentions and committing no crime act so as to hurt others fairly often. We don't beat them, seek retribution against one of their relatives, or have them out for a pre-breakfast duel, but we do have a process that puts a dollar figure on the harm they do. Given the historical alternatives, it seems like quite an improvement.
Last edited:
AlongCameJones
Moderator
All this sue-happiness in our culture has made us a nation of cowards. People may become gun shy of doing what is morally right in their conscience out of fear of being sued or even criminally prosecuted.
Our court system is currently in the twilight zone created by the real world downsides to "the road to hell is paved with good intentions" and "if a little is good, then a lot must be better" concepts.
Over the last century we've changed from "if we occasionally hang an innocent man, that's the sad cost of doing business" to "better ten guilty men go free than one innocent man go to prison".
Not an expert, can't and won't say for certain, but I think the results of that idea are pretty obvious today...
Our current system includes the ability of anyone to sue anyone for any reason.
In the "unenlightened" past a judge might look at a suit and decide it had no merit and toss it out. Often with the admonishment of "Counselor, your client is an idiot and is wasting the court's time. Goodbye and don't come back!"
Today, generally speaking, such cases are allowed to continue into court, I guess the reasoning is that if they truly lack merit the court will decide that.
I think that's the theory, anyway. What happens in practice is we have clogged the courts horribly and I don't think that is a good thing.
as to pushing a child off the train tracks vs. missing the bad guy and shooting an innocent person, I think that's an apples/oranges comparison, and of no value to the discussion.
Over the last century we've changed from "if we occasionally hang an innocent man, that's the sad cost of doing business" to "better ten guilty men go free than one innocent man go to prison".
Not an expert, can't and won't say for certain, but I think the results of that idea are pretty obvious today...
Our current system includes the ability of anyone to sue anyone for any reason.
In the "unenlightened" past a judge might look at a suit and decide it had no merit and toss it out. Often with the admonishment of "Counselor, your client is an idiot and is wasting the court's time. Goodbye and don't come back!"
Today, generally speaking, such cases are allowed to continue into court, I guess the reasoning is that if they truly lack merit the court will decide that.
I think that's the theory, anyway. What happens in practice is we have clogged the courts horribly and I don't think that is a good thing.
as to pushing a child off the train tracks vs. missing the bad guy and shooting an innocent person, I think that's an apples/oranges comparison, and of no value to the discussion.
ghbucky said:
It isn't a strawman; it's a scenario that illustrates a problem with broad immunity for actions undertaken in self defense. I produced it in response to an observation about someone with good intentions and whether that person can also be a tortfeasor.
It illustrates how someone can act with good intent, yet be a tortfeasor, so it clarifies an issue. That's how it advances the discussion.