Will you please shout this on every thread and from every tower, so that anyone who thinks that the determination of whether a shooting is made when the bad guy's body hits the floor or the cop shows up will know that isn't the case? That the decision will only be made when and if a trier of fact says "you were justified" and that a lot can happen between the event and the decision? For years, we've seen the argument that you'll be in no legal trouble if you have a justified shooting. The reality is that after a shooting, you are in legal trouble until someone with the authority to get you out of said trouble does so.
Use of deadly force and civil litigation
- Thread starter River Rat
- Start date
Will you please shout this on every thread and from every tower, so that anyone who thinks that the determination of whether a shooting is made when the bad guy's body hits the floor or the cop shows up will know that isn't the case? That the decision will only be made when and if a trier of fact says "you were justified" and that a lot can happen between the event and the decision? For years, we've seen the argument that you'll be in no legal trouble if you have a justified shooting. The reality is that after a shooting, you are in legal trouble until someone with the authority to get you out of said trouble does so.
Frank Ettin
Administrator
The question, Eghad, will be whether, given what happened in your particular case, your use of lethal force was justified as thus defined. Of course, determining what happened is often a trick in itself. Evidence is unclear or contradictory. Witnesses, if any, tell difference stories, etc.
And not all criminal cases will go to a grand jury. Most jurisdictions recognize the doctrine of prosecutorial discretion. That means that a prosecutor is free to decide not to pursue an otherwise valid case. And therefore, most jurisdictions may not consider a prosecutor's decision not to prosecute to be exculpatory. Among other things, a prosecutor might decide that it would be difficult to meet the applicable standard of proof, or the prosecutor might conclude that it would be politically undesirable to pursue.
Whether a prosecutor's failure to pursue a criminal complaint will materially help your claim in a civil case that your use of lethal force in self defense was justified will depend on the way your Castle Doctrine law is written as well as evolving law in your jurisdiction.
But the point of all of this is simply that Castle Doctrine laws can be very powerful tools in your civil and criminal legal defense following your use of lethal force in self defense. But they are not necessarily a free pass.
And not all criminal cases will go to a grand jury. Most jurisdictions recognize the doctrine of prosecutorial discretion. That means that a prosecutor is free to decide not to pursue an otherwise valid case. And therefore, most jurisdictions may not consider a prosecutor's decision not to prosecute to be exculpatory. Among other things, a prosecutor might decide that it would be difficult to meet the applicable standard of proof, or the prosecutor might conclude that it would be politically undesirable to pursue.
Whether a prosecutor's failure to pursue a criminal complaint will materially help your claim in a civil case that your use of lethal force in self defense was justified will depend on the way your Castle Doctrine law is written as well as evolving law in your jurisdiction.
But the point of all of this is simply that Castle Doctrine laws can be very powerful tools in your civil and criminal legal defense following your use of lethal force in self defense. But they are not necessarily a free pass.
I'll try to explain this from the beginning. I'll talk about Colorado and Florida criminal law since I researched this issue fairly recently. However, don't depend 100% on what I'm writing. The civil law stuff is just general legal principles.
Colorado and Florida are two states which have the Castle Doctrine. It states a person is immune from prosecution if the shooting is justified under the Castle Doctrine. In Colorado, a prosecutor can proceed by information which means a grand jury doesn't have to ever hear the case. I don't know about Florida.
In both states, once a defendant claims the shooting was justified by the Castle Doctrine, a judge holds an evidentiary hearing on the claim because immunity under the Castle Doctrine is different than the normal claim of justification. The burden is on the defendant claiming immunity to show justification by a preponderance of the evidence. If he meets this burden, the criminal case is dismissed. If the judge finds he does not meet this burden, he goes to trial but can still raise the immunity claim in front of the jury. The jury would be instructed to find the defendant not guilty unless it believed beyond a reasonable doubt that he did the act and that the shooting was not justified. The instructions would define what is justified under the law.
If the judge dismisses the case or the jury acquits, the person can still be sued by the victim's estate or family. The civil suit is not barred for two reasons. First, there are different standards of proof involved in a criminal case and a civil case. The government has to prove it's case beyond a reasonable doubt in a criminal case. A civil litigant has an easier burden -- normally, proof by a preponderance of the evidence. The second reason a civil suit can still be brought is that the victim's family or estate has not had their day in court. The state prosecutor does not represent them. He or she represents the state. Think O.J. The jury in the criminal trial acquitted him but the jury in the civil case ruled differently and awarded damages.
Now, from here on, I am just speculating. I would think a defendant in a civil suit who claims immunity under the Castle Doctrine would be able to pursue an expedited evidentiary hearing similar to the hearing in the criminal case (or submitted on depositions and affidavits). If he or she can prove immunity by a preponderance of proof, the case is ended. Otherwise, it would go to a jury trial with the person still being able to claim justification/immunity.
Even though the idea is to allow a person to avoid large legal bills and a lot of heartache, the reality is that even truncated proceedings can be costly.
Colorado and Florida are two states which have the Castle Doctrine. It states a person is immune from prosecution if the shooting is justified under the Castle Doctrine. In Colorado, a prosecutor can proceed by information which means a grand jury doesn't have to ever hear the case. I don't know about Florida.
In both states, once a defendant claims the shooting was justified by the Castle Doctrine, a judge holds an evidentiary hearing on the claim because immunity under the Castle Doctrine is different than the normal claim of justification. The burden is on the defendant claiming immunity to show justification by a preponderance of the evidence. If he meets this burden, the criminal case is dismissed. If the judge finds he does not meet this burden, he goes to trial but can still raise the immunity claim in front of the jury. The jury would be instructed to find the defendant not guilty unless it believed beyond a reasonable doubt that he did the act and that the shooting was not justified. The instructions would define what is justified under the law.
If the judge dismisses the case or the jury acquits, the person can still be sued by the victim's estate or family. The civil suit is not barred for two reasons. First, there are different standards of proof involved in a criminal case and a civil case. The government has to prove it's case beyond a reasonable doubt in a criminal case. A civil litigant has an easier burden -- normally, proof by a preponderance of the evidence. The second reason a civil suit can still be brought is that the victim's family or estate has not had their day in court. The state prosecutor does not represent them. He or she represents the state. Think O.J. The jury in the criminal trial acquitted him but the jury in the civil case ruled differently and awarded damages.
Now, from here on, I am just speculating. I would think a defendant in a civil suit who claims immunity under the Castle Doctrine would be able to pursue an expedited evidentiary hearing similar to the hearing in the criminal case (or submitted on depositions and affidavits). If he or she can prove immunity by a preponderance of proof, the case is ended. Otherwise, it would go to a jury trial with the person still being able to claim justification/immunity.
Even though the idea is to allow a person to avoid large legal bills and a lot of heartache, the reality is that even truncated proceedings can be costly.
"Shootings go to the grand jury who decide if it self defense....so there is some due process involved."
Not everywhere. OK prosecutors can decline to take the case to a grand jury in those cases where he/she feels like the shooting was justified. The prosecutor in my OK county recently declined to take three self defense shooting cases to the grand jury. Two of these shootings resulted in the death of the perp.
Here is one of them:
http://www.tulsaworld.com/common/printerfriendlystory.aspx?articleID=071027_1__LAWTO58228
"No charges expected in fatal Commanche County shooting
by: The Associated Press
10/27/2007 12:00 AM
LAWTON -- A state prosecutor cited Oklahoma's "Stand Your Ground" law in announcing that no charges would be filed against a man who shot and killed a teen who appeared to be a burglar.
Comanche County District Attorney Robert Schulte said he plans to take no action against Jeffrey David Dorrell, 40, who shot and killed Frederick Stuever, 17.
Dorrell arrived at his father's home Tuesday afternoon to find Stuever leaving the home with the family's property. The back door had been kicked in, and officials believe the teen was attempting to take things from the home.
Items belonging to the homeowner were later found in Stuever's vehicle, police said.
Dorrell, who has a permit to carry a concealed weapon, held Stuever at gunpoint while he called the police.
While on the phone with dispatchers, Dorrell ordered Stuever to lay on the ground until the police could come. When Stuever would not comply, Dorrell fired five shots in his direction, but did not hit Stuever.
Dorrell told police that he shot Stuever when the teen charged at him. Stuever died at the scene.
Schulte said under the "Stand Your Ground" law that went into effect on Nov. 1, 2006, Dorrell was within his rights under the law.
The law broadened self-defense rights by removing the requirement that a person who is attacked has a "duty to retreat" before turning to deadly force.
It specifies that people can use deadly force if they believe they are in danger in any place they have a legal right to be. It provides immunity from criminal charges and civil liability.
Three other people, unrelated to Stuever or Dorrell, witnessed the shooting and backed up Dorrell's account, Schulte said."
Not everywhere. OK prosecutors can decline to take the case to a grand jury in those cases where he/she feels like the shooting was justified. The prosecutor in my OK county recently declined to take three self defense shooting cases to the grand jury. Two of these shootings resulted in the death of the perp.
Here is one of them:
http://www.tulsaworld.com/common/printerfriendlystory.aspx?articleID=071027_1__LAWTO58228
"No charges expected in fatal Commanche County shooting
by: The Associated Press
10/27/2007 12:00 AM
LAWTON -- A state prosecutor cited Oklahoma's "Stand Your Ground" law in announcing that no charges would be filed against a man who shot and killed a teen who appeared to be a burglar.
Comanche County District Attorney Robert Schulte said he plans to take no action against Jeffrey David Dorrell, 40, who shot and killed Frederick Stuever, 17.
Dorrell arrived at his father's home Tuesday afternoon to find Stuever leaving the home with the family's property. The back door had been kicked in, and officials believe the teen was attempting to take things from the home.
Items belonging to the homeowner were later found in Stuever's vehicle, police said.
Dorrell, who has a permit to carry a concealed weapon, held Stuever at gunpoint while he called the police.
While on the phone with dispatchers, Dorrell ordered Stuever to lay on the ground until the police could come. When Stuever would not comply, Dorrell fired five shots in his direction, but did not hit Stuever.
Dorrell told police that he shot Stuever when the teen charged at him. Stuever died at the scene.
Schulte said under the "Stand Your Ground" law that went into effect on Nov. 1, 2006, Dorrell was within his rights under the law.
The law broadened self-defense rights by removing the requirement that a person who is attacked has a "duty to retreat" before turning to deadly force.
It specifies that people can use deadly force if they believe they are in danger in any place they have a legal right to be. It provides immunity from criminal charges and civil liability.
Three other people, unrelated to Stuever or Dorrell, witnessed the shooting and backed up Dorrell's account, Schulte said."
Frank Ettin
Administrator
That's one example of a situation in which the evidence strongly supported a conclusion that the use of lethal force was justified under the applicable statute. Among other things, eyewitnesses corroborated the story told by the defender. Every case will be different. Not every case will be so compelling.
Wildalaska
Moderator
And remember, a DA can indict a ham sandwich if he wants...
Thats why it is vital for voters and responsible citizens to be INVOLVED in the political process
WildonryepleaseAlaska TM
Thats why it is vital for voters and responsible citizens to be INVOLVED in the political process
WildonryepleaseAlaska TM
HMmmmmmmmmmm
Parents file suit against man who fatally shot son from Somerset County
By Paul Peirce
TRIBUNE-REVIEW
Thursday, April 10, 2008
The parents of a Somerset County man shot and killed when he knocked on the wrong door looking for a party have filed a wrongful death lawsuit against the man who said he shot to defend himself.
Jay and Carolyn Zimmerman of Central City, the parents of the late Perry Zimmerman, are seeking unspecified damages against Matthew Eperjesi, 29, formerly of Somerset, in connection with the April 8, 2006, shooting outside Eperjesi's former apartment.
Eperjesi reportedly has since moved to the New Kensington area.
"On or about April 6, 2006, Matthew Eperjesi intentionally and without provocation or justification shot and killed Perry Jay Zimmerman, then 33 years old, at 132 Wills Church Road. ... It is hereby alleged that Matthew Eperjesi negligently, recklessly and/or carelessly shot and killed Perry Jay Zimmerman," says the six-page lawsuit filed in Somerset County.
In addition to multiple damage claims, the Zimmermans are seeking money for their son's funeral and probate expenses.
State police said Eperjesi fatally shot Zimmerman of Central City and wounded a friend, Terry Mostoller, 34, of Berlin during the early-morning hours. Eperjesi claims he shot the men in self-defense after they caused a disturbance outside his apartment and kicked open his front door.
Court records indicated the men went to the apartment, falsely believing it was the location of a party they were invited to attend. Mostoller remains in a coma following the shooting, according to family members.
In August, a coroner's jury recommended no criminal charges be filed against Eperjesi.
In the fall, Zimmerman's parents also asked President Judge John M. Cascio to ask the state attorney general's office to enter the case. However, Cascio denied the request, ruling he has no jurisdiction to interfere with the decision of District Attorney Jerry Spangler not to file criminal charges.
Noah Geary of Washington filed the lawsuit late last week. He recently appealed Cascio's decision to Superior Court.
Parents file suit against man who fatally shot son from Somerset County
By Paul Peirce
TRIBUNE-REVIEW
Thursday, April 10, 2008
The parents of a Somerset County man shot and killed when he knocked on the wrong door looking for a party have filed a wrongful death lawsuit against the man who said he shot to defend himself.
Jay and Carolyn Zimmerman of Central City, the parents of the late Perry Zimmerman, are seeking unspecified damages against Matthew Eperjesi, 29, formerly of Somerset, in connection with the April 8, 2006, shooting outside Eperjesi's former apartment.
Eperjesi reportedly has since moved to the New Kensington area.
"On or about April 6, 2006, Matthew Eperjesi intentionally and without provocation or justification shot and killed Perry Jay Zimmerman, then 33 years old, at 132 Wills Church Road. ... It is hereby alleged that Matthew Eperjesi negligently, recklessly and/or carelessly shot and killed Perry Jay Zimmerman," says the six-page lawsuit filed in Somerset County.
In addition to multiple damage claims, the Zimmermans are seeking money for their son's funeral and probate expenses.
State police said Eperjesi fatally shot Zimmerman of Central City and wounded a friend, Terry Mostoller, 34, of Berlin during the early-morning hours. Eperjesi claims he shot the men in self-defense after they caused a disturbance outside his apartment and kicked open his front door.
Court records indicated the men went to the apartment, falsely believing it was the location of a party they were invited to attend. Mostoller remains in a coma following the shooting, according to family members.
In August, a coroner's jury recommended no criminal charges be filed against Eperjesi.
In the fall, Zimmerman's parents also asked President Judge John M. Cascio to ask the state attorney general's office to enter the case. However, Cascio denied the request, ruling he has no jurisdiction to interfere with the decision of District Attorney Jerry Spangler not to file criminal charges.
Noah Geary of Washington filed the lawsuit late last week. He recently appealed Cascio's decision to Superior Court.
That is why I voted in the primary to be sure we had a change in the DA's office. I think he used a little bit too much discretion sometimes. We had a case where a person shot another person after a dog got loose. A little wrestling with the gun and somebody died. The local county newspaper which I send correction letters to sometimes stated that because he had a FFL he was entitled to carry a pistol 
I wrote them a letter but never heard back from them. Of course the guy was a good ol boy in the county and the young man had relocated here.
I dont think the case would have went to trial except that some of the citizens/voters who thought it should go to trail. The DA excused himself from the case and got another DA from another county.
So yes it isnt cut and dried.
That DA did not win the primary again.
I wrote them a letter but never heard back from them. Of course the guy was a good ol boy in the county and the young man had relocated here.I dont think the case would have went to trial except that some of the citizens/voters who thought it should go to trail. The DA excused himself from the case and got another DA from another county.
So yes it isnt cut and dried.
That DA did not win the primary again.
Who said that was the norm? Not I. I suspect that the majority of the DAs will do their best to do the right thing, as they see it.
Of course, not all incidents are entirely clear to the investigators just what is right and what is wrong. And some small proportion of DAs believe that anyone carrying a gun is a bad guy, or, like Mike Nifong, are ambitious and willing to trample over anyone to further their career.
Plan for the worst and hope for the best. The thing is, however, if you do run into a Mike Nifong, it is going to do more than ruin your whole day.
Wildalaska
Moderator
Very true...on the other hand, his example shows the Criminal Justice System, flawed as it must be (it is run by humans) does provide justice.
WildcaretoarguethatoneAlaska ™
Yes, if one has sufficient resources for a defense team capable of raising the stink necessary to get the state AG and bar to do something. That doesn't always occur.
There are plenty of DAs generally doing the right thing who make the Naifong case an aberration. There are also plenty of disreputable DAs who get away with things to again make the Naifong case an aberration.
I keep hearing this. That our justice system is a crap shoot and that there are just as many bad apples as good apples. Well, I'd like to see some evidence of this. Show me something that suggests these assertions are true.
You folks point to a single case, or maybe two. For every one of these I have millions that worked out properly.
I'm not saying it's a crap shoot. That implies random chance. The reality is that random chance isn't involved, but egos and self-interest are at every level. I know ADAs and DAs who were so focused on winning that the innocent were at risk, or on maintaining political power so that well-connected killers walked (the killer being a deputy with mental issues who doubletapped a disabled vet in the back because the vet "disrespected" him and walked away). I've experienced (i.e. been hammered) judges who let their personal desires lead them to ignore the evidence and/or the law.
The judicial system is like everything else government related: it sucks, but not as bad as the alternative.