this is what I was thinking of. I thought there were a few more states with such laws...
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Carry insurance
- Thread starter richrd1
- Start date
https://codes.findlaw.com/al/title-13a-criminal-code/al-code-sect-13a-3-23.html
This is sometimes called the "Saban clause" tongue in cheek.
I can speak authoritatively on Alabama where Jerry is from. On the criminal side they get a double bite of the apple. The defendant can request a hearing to find out if they are qualified for immunity. If they win it is over (subject to prosecutor appeal). If they lose they can go to trial and to chance it with the jury.
If they win either the hearing or the case and the shooting was not determined to be unlawful, then they are immune to civil cases under the Alabama criminal code. The litigous have been getting around this by filing for civil rights violations in Federal Court. These mostly only move if there is a police officer involved.
Prior to the addition of the paragrpah to the criminal code in 2013 there was a civil case of Grimes v Saban that was decided and appealed using the updated code. This was added some say because of the case involved Nick Saban's daughter.
https://caselaw.findlaw.com/al-supreme-court/1686584.html
Grimes eventually gave up and dropped her lawsuit in 2015 with each side paying their own legal fees.
In the Saban case there was no hearing or trial as there were never any criminal charges.
All other states I don't know.
(d)(1) A person who uses force, including deadly physical force, as justified and permitted in this section is immune from criminal prosecution and civil action for the use of such force, unless the force was determined to be unlawful.
This is sometimes called the "Saban clause" tongue in cheek.
I can speak authoritatively on Alabama where Jerry is from. On the criminal side they get a double bite of the apple. The defendant can request a hearing to find out if they are qualified for immunity. If they win it is over (subject to prosecutor appeal). If they lose they can go to trial and to chance it with the jury.
If they win either the hearing or the case and the shooting was not determined to be unlawful, then they are immune to civil cases under the Alabama criminal code. The litigous have been getting around this by filing for civil rights violations in Federal Court. These mostly only move if there is a police officer involved.
Prior to the addition of the paragrpah to the criminal code in 2013 there was a civil case of Grimes v Saban that was decided and appealed using the updated code. This was added some say because of the case involved Nick Saban's daughter.
https://caselaw.findlaw.com/al-supreme-court/1686584.html
Grimes eventually gave up and dropped her lawsuit in 2015 with each side paying their own legal fees.
In the Saban case there was no hearing or trial as there were never any criminal charges.
All other states I don't know.
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OldMarksman
Staff
Neither. Our law is modeled after the law in Forida.Oldmarksman, I'd like to ask if this response was based on having researched the laws of all 50 states, or if you are extrapolating from your home state's law?
The Florida Supreme Court ruling would be a pretty good baseis fror study, however.
It's all about basic legal principles.
A plaintiff would first have to file a suit in a civil court. Only the civil judge could grant immunity from civil liability.
He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
Aguila Blanca
Staff
Isn't the legislative intent behind the immunity provisions in SYG laws precisely that citizens who are involved in "righteous" self defense shooting should not have to face the burden of undergoing a trial with a lower burden of proof following a situation in which they had to defend their lives?OldMarksman said:A plaintiff would first have to file a suit in a civil court. Only the civil judge could grant immunity from civil liability.
He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
OldMarksman
Staff
Isn't the legislative intent behind the immunity provisions in SYG laws precisely that citizens who are involved in "righteous" self defense shooting should not have to face the burden of undergoing a trial with a lower burden of proof following a situation in which they had to defend their lives?
Of course.
That does not mean that someone who is not charged, for any reason, or not indicted, or not convicted, may not face criminal liability.
That's because none of those things necessarily indicate that the actor had been involved in "righteous" self defense.
A prosecutor may have had other priorities, or a jury, while believing that the actor was probably guilty, may have had reasonable doubt.
Neither would deprive an injured person of the right to be made whole.
It's just that the civil process can be made much less lengthy and costly.
He or she would decide on the basis of evidence. He or she could possess no evidence about why the actor may not have (yet) been brought to trial, or if the actor had been acquitted, whether the evidence would support the civil burden of persuasion.
Not in Alabama. After the Court of Civil Appeals denied her a motion to have a pre-trial hearing in an ex parte ruling in Jenniffer Watters the Alabama Supreme Court found that the point of the pre-trial hearing to determine qualified [statutory] immunity was to avoid civil suits. The hearing was eventually held and it was found that Watters actions were not unlawful. Note that the standard for the pre-trial hearing is "preponderance of evidence".
https://law.justia.com/cases/alabama/supreme-court/2016/1150182.html
This was also affirmed in State of Alabama v. Demetrius Raishad Watson where the court stated;
I did find this article:"Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code [1975,] § 13A-3-23(d), provides not just a defense at trial but a bar to trial.
http://www.ncsl.org/research/civil-and-criminal-justice/self-defense-and-stand-your-ground.aspx
Which covers other states but does not explain the process.
Here is the thing though. If you lose in the pre-trial hearing a civil suit can get dropped on your head. However if you win in criminal court than the matter gets thrown out and those that filed suit against you have to pay your civil legal fees.
So now most of the civil trials are also waiting until after the disposition of the criminal trial if there is one.
I guess at the end of the day someone can still try to file suit against you even if you win in the pre-trial hearing and they convince a lawyer to do so. However I would not want to be that lawyer and reckon that very few would. And when the one pressing the lawsuit loses (and lose they will) then they have to pay your legal fees.
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OldMarksman
Staff
That had to do only and entirely with a pretrial hearing for the purpose of requesting immunity from criminal prosecutionAfter the Court of Civil Appeals denied her a motion to have a pre-trial hearing in an ex parte ruling in Jenniffer Watters the Alabama Supreme Court found that the point of the pre-trial hearing to determine qualified [statutory] immunity was to avoid civil suits. The hearing was eventually held and it was found that Watters actions were not unlawful. Note that the standard for the pre-trial hearing is "preponderance of evidence".
https://law.justia.com/cases/alabama...6/1150182.html[/QUOTE]
"Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation. Accordingly, Ala. Code [1975,] § 13A-3-23(d), provides not just a defense at trial but a bar to trial.
That is the law. But there are two kind of immunity here.
Anyone can sue anyone at any time, but a pre-trial hearing for the purpose can provide immunity from civil liability. The suit would be thrown out if immunity is granted.Here is the thing though. If you lose in the pre-trial hearing a civil suit can get dropped on your head.
Different hearing. Different court.
No. The burden of persuasion in a criminal court (if immunity from prosecution has not been granted) is beyond a reasonable doubt. The defendant wins if the state does not meet that burden..However if you win in criminal court than the matter gets thrown out and those that filed suit against you have to pay your civil legal fees.
To avoid civil liability, the defendant must prove much more that the existence of reasonable doubt. The burden of persuasion is by a preponderance of the evidence. That's true either in court or in a civil immunity hearing.
I am going to have to disagree. However it will be easy for you to prove.
You would have to show me such a case where there was a criminal pre trial hearing and then a subsequent civil proceeding that did not defer to the criminal pre trial hearing. I am unaware of any such case. Such a suit would have had to have been instigated 2014 onward after the law changed.
In Alabama of course.
That is not the law, that was from the court.
You would have to show me such a case where there was a criminal pre trial hearing and then a subsequent civil proceeding that did not defer to the criminal pre trial hearing. I am unaware of any such case. Such a suit would have had to have been instigated 2014 onward after the law changed.
In Alabama of course.
That is the law. But there are two kind of immunity here.
That is not the law, that was from the court.
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OldMarksman
Staff
I seriously doubt hat anyone can ever cite a judgment or decision in a cil court that was based ona finding in criminal court, ever, in any US jurisdiction.You would have to show me such a case where there was a criminal pre trial hearing and then a subsequent civil proceeding that did not defer to the criminal pre trial hearing. I am unaware of any such case. Such a suit would have had to have been instigated 2014 onward after the law changed.
That is a fundamental legal principle.That is not the law, that was from the court
And by the way, a higher court ruling becomes law.
I seriously doubt hat anyone can ever cite a judgment or decision in a cil court that was based ona finding in criminal court, ever, in any US jurisdiction.
So like I said super easy. Just one case will do it for me. Any case at all since 2014 in Alabama. Where there was a pre-trial hearing that held the shooters actions were found to be not unlawful and the civil case proceeded ahead anyway. I am saying there are not any. The existence of even one would invalidate my opinion. Although if such a case is still open the answer is unresolved.
That is a fundamental legal principle.
And by the way, a higher court ruling becomes law.
There is no such legal principle that gives a bar to trial. Less than half the states even have SYG laws.
But in essence you are agreeing with me.
Therefore, a person meeting the requirements of Ala. Code [1975,] § 13A-3-23(a), is exempt and free from the burden of criminal prosecution or civil litigation.
There are two kinds of immunity and the statement addresses both of them.
OldMarksman
Staff
Correct. There aren't any.Where there was a pre-trial hearing that held the shooters actions were found to be not unlawful and the civil case proceeded ahead anyway. I am saying there are not any. The existence of even one would invalidate my opinion.
You seem to beleive that you can prove a negative.
I do not understand what it is that makes you believe that something that happens in the criminal justice system would impinge upon a case of tort law.
The fundamental legal principle is that criminal matters and civil mattere are adjudicate in different courts.There is no such legal principle that gives a bar to trial.
Neither immunity from prosecution nor immunity from civl liability has anything to do with SYG provisions.Less than half the states even have SYG laws.
Correct. There aren't any.
You seem to beleive that you can prove a negative.
I do not understand what it is that makes you believe that something that happens in the criminal justice system would impinge upon a case of tort law.
The way the criminal law is written and it's cited application by a civil court judge as noted in the civil case cited above. I guess you didn't read the case?
OldMarksman
Staff
The way the criminal law is written
...says nothing about how the law is carried out.
...its cited application by a civil court judge as noted in the civil case cited above.
The case you cited had to do solely with immunity from criminal prosecution.
The court was the Alabama Supreme Court.
The Florida law is written exactly the same way. The two kind of immunity come from pretrial hearings in different courts
The case you cited had to do solely with immunity from criminal prosecution.
Ah, so you did not read it. Or maybe you are looking at the wrong one. If you somehow think the Saban case is a criminal case then you misunderstood every aspect of it.
OldMarksman
Staff
Wrong case.Ah, so you did not read it. Or maybe you are looking at the wrong one. If you somehow think the Saban case is a criminal case then you misunderstood every aspect of it.
But the appeal of the "Saban Case" was decided on its own merits and had nothing to do with the criminal procedure.
The Justia Opinion Summary said this:
The Stand Your Ground law does not confer civil liability immunity to a criminal defendant based upon an immunity determination in the criminal case.
Emphasis added.
They were, of course referring to immunity provisions, and not to SYG. The latter has only to do with a duty to retreat.
Odd to find such an authoritative source propogating that common error.
The Justia Opinion Summary said this:
Who cares what they think?
That isn't what the opinion stated or even implied. Emphasis added.
The ruling could not state that because there never was a criminal case at all.
And because there was no criminal case there was no ruling. Therefore the ASC tried to examine the actions to determine if Saban's actions were unlawful. They found issues and therefore remanded. They stated in the ruling they had no opinion on the immunity itself.
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labnoti wrote:
If it is truly a clean shoot, you may not even be charged with anything.
Even in the case of the "cleanest" shooting imaginable with no resulting criminal charges, don't forget that you may still face a civil lawsuit.
Years ago my neighbor's dogs attacked me numerous times. One time I chased the dog off my property. The neighbor then assaulted me. I beat him up. When the 1st officer arrived on the scene I asked if I'd done anything wrong & he assured me I had not. The assistant state's attorney I spoke with said I was the good guy & had done the right thing. Later the neighbor attempted to intimidate me by exiting his front door & walking to the edge of the walk every time I'd walk by his house, causing me to have to look over my shoulder as I passed to make sure he didn't jump me. I asked the police what to do should he ever block my path & was told to tell him to get out of the way once. If he didn't I was to pepper spray him & to do so without hesitation. I was told our county's state's attorney would never prosecute me in this situation. Fast forward: Recently while working in another jurisdiction a man assaulted me, violated my space & while right on top of me verbally threatened to beat me up. I sprayed him. The prosecutor treated both of us as criminals threatening to send my case to trial for battery. My attorney called her decision ridiculous saying I'd given the guy what he deserved. The rep @ the Armed Citizens' Legal Defense Network said the same. I would think that had that incident occurred in my home county the sa would have never done what this prosecutor did. ..different jurisdictions. ..different prosecutors. ..different mindsets. ACLDN gave me the option to choose an attorney or to allow them to do so. ACLDN paid the legal bill & agreed to do so without hesitation.
I don't like "carry insurance". It will lead to the insurance industry dictating carry policy and the politicians already owned by them will gladly go along with whatever is proposed.
Insurance is a good way to ensure your loss of 2A rights and burden you with unwanted restrictions.
Insurance is a good way to ensure your loss of 2A rights and burden you with unwanted restrictions.
I don't like "carry insurance". It will lead to the insurance industry dictating carry policy and the politicians already owned by them will gladly go along with whatever is proposed.
Insurance is a good way to ensure your loss of 2A rights and burden you with unwanted restrictions.
It will only lead to it dictating carrying if it becomes mandatory. I don’t know anywhere where it is currently mandatory. If you don’t want it then you’re free to not get it.
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