An Attorney Question: After the shooting, has this ever been done?

[RobertJ.]

Let's say, God forbid, that you're forced to act in self defense. The attacker doesn't survive. It's a cut and dried case, you're cleared by a grand jury. You can still expect to have a civil wrongful death or something of the sort brought on by the estate or family of the attacker, and be forced to spend a lot of money proving your innocence.

What if directly after being cleared by a grand jury one was to file a suit against the estate and family of the attacker, for all the mental trauma and anguish he forced you to endure? Then you could bring to light his entire criminal history, and not just focus on the event that forced this to happen. Also, his family for knowing he was a criminal, and doing nothing about it, or even encouraging it.

You certainly wouldn't expect to win any money from the family, but when they filed suit, couldn't you call it a wash?

I'd love to hear some thoughts on this!

 

[robertrwalsh]

I THINK it is an excellent idea. I have never heard of it being done. I have heard of cases of "prison guards" (I used to be one) filing civil actions against prisoners for damages for assaults, essentially to tie up their inmate trust accounts. They rarely got much money from it. There was an organization that actually did this fairly vigorously, they might still be around.

 

[ATF]

I don't know if it's been attempted or not but most of the criminals you may end up shooting probably wouldn't have much money anyway. It's also very doubtful that the family or parents could be held responsible unless the dead guy is a minor. I'd be more worried about one of his friends or family seeking revenge especially if you instigated a civil case.

 

[Autococker07]

Great idea, even if you don't get anything from it just to put the facts out there and prevent a predatory suit. We have a ccw instructor around here who recommends immediately swearing a complaint for any action in which your ccw is used (fired or brandished). Seems to be a good way to have the system look at the troublemaker vs the victim.


If you think about it that way, a legal ccw holder who legally and morally defends himself is ALWAYS a victim.... Just not one of a successful crime.... I smell what your stepping in!!

 

[lawdog45]

Mental Pain and Anguish

In Texas, a plaintiff is not entitled to mental pain and suffering without physical injury.

 

[ISCS Yoda]

Interesting. I have never heard of anyone doing that but it could be accomplished, I suppose.

I am unaware of the number of wrongful death cases being brought by dead perpetrators' families but I imagine the number is lower than most people imagine. If you have a perfectly good/justified self defense shooting, and the DA either doesn't bother to prosecute or the Grand Jury no bills you, there really is not that much of a case for the dead guy's family. Also, before someone sues for wrongful death in a justified shooting they have to at least think there is money to be won - after all, what good is it to sue an average man or woman who can't pay a million dollar judgment, anyway? Total waste of time.

Especially in Texas, but that's a long story for a different discussion. Suffice it to say that suing Joe or Mary Average in Texas is quite likely to be an exercise in futility. Then there is this:

In Texas, a plaintiff is not entitled to mental pain and suffering without physical injury.

Okay, if the shooting happens at the mansion of a Ross Perot, well, maybe - but if a wealthy individual was no billed, what do you think is going to happen when his lawyers get your lawyers in court? Do you think lawyers will take these types of wrongful death cases on contingency fee arrangements? Highly doubtful. So the dead perp's family has to pay a lawyer. Seriously?

Again, yes, if the dead perp is the progeny of Jerry Jones, for example, then Mr. Jones can afford to take a legal shot at you. But the average family of a criminal is just that - an average family. It's not going to happen except under special circumstances.

Special circumstances? Think OJ Simpson.

One other item of note - you don't want to sue the dead perp's family if they're not OJ Simpson level in dollars. Do you really want that kind of contact with his family? To what end? On the other hand, if you do get sued for wrongful death in a justified shooting, then, TA DA!!!! - you can counterclaim for all of the "mental trauma and anguish he forced you to endure? Then you could bring to light his entire criminal history, and not just focus on the event that forced this to happen. Also, his family for knowing he was a criminal, and doing nothing about it, or even encouraging it." Again, you must bear in mind that your State's system has to allow such claims (see above).

That latter point, about his family encouraging the dead guy's criminality, is a stretch. But I kept it because anything is possible in a courtroom. Again, you must bear in mind that your State's system has to allow such claims (see above).


Basically, you just want the incident behind you if at all possible.

Besides, if the guy you shot is a serious criminal, do you want contact that leads to contact with his criminal friends? I think not.

Walk away and be happy you lived.

 

[scott1970]

That is an interesting approach I've never heard of before.

On a positive note two of my co-workers have killed men in the line of duty and never got sued civilly after being cleared by the DA. So, there is the possibility the "impending" post-good-shoot-lawsuit will never happen.

 

[dullh]

You can still expect to have a civil wrongful death or something of the sort brought on by the estate or family of the attacker, and be forced to spend a lot of money proving your innocence.

Not always true. if you live in a state where immunity from civil liability comes after a no bill, acquittal or ruling by the DA of justifiable homicide, this can't happen.

 

[dullh]

We have a ccw instructor around here who recommends immediately swearing a complaint for any action in which your ccw is used (fired or brandished).

Your CCW instructor needs to stop giving legal advice...there are a couple problems with this...

1) This assumes you know the identity of your assailant.

2) This assumes that your assailant is going to hang around long enough for the police to show up, thus allowing the cops to get his identity. Even if you shoot him he can still run.

3) If you swear out a criminal complaint against your assailant, assuming you know who he is, are you going to follow through when you're summoned to testify against him? If you, the complaintant don't show up in court, he walks and the complaint is a total waste of time.

A better piece of advice would be: be the first to call 911. The first to caller to reach 911 is usually considered the complaintant, or in the case of assault, the victim.

That's all your instructor should have said.

 

[HayesGreener]

States are different. You need to know the law in your state. In Florida you are immune from lawsuit or prosecution if it is found you acted in self defense or to stop commission of a forcible felony (which are defined in state statute-see Florida Statutes Chapter 776). You also cannot be arrested in Florida if there is not probable cause that you committed a crime and you acted in self defense or to stop a forcible felony, and you have recourse against the plaintiff if they take civil action against you after using justifiable force. As far as suing the assailant whom you used force against, well, that may be an exercise in futility if he doesn't have a pot to pee in or a window to throw it out of. My advice is to have an expert legal team on speed dial, like U.S. Law Shield or Second Call that you can call immediately after the bang, and get expert advice suited to your circumstances. Having a prepaid expert legal service available for a small fee is something everyone who carries a gun should consider, in addition to liability insurance.

 

[ken158]

Hopefully, you would have had legal representation soon after the event where as you would be best suited to develop a plan for any potential criminal and civil actions that may arise.

 

[dullh]

Hopefully, you would have had legal representation soon after the event where as you would be best suited to develop a plan for any potential criminal and civil actions that may arise.

That's a dicey proposition, too...because...

Most criminal defense attorneys normally defend people who are guilty of something!

If your state has a network of attorneys who know the business of defending innocent people, you'd be best to get in with one of them ahead of time...

 

[Ole Wild]

Not always true. if you live in a state where immunity from civil liability comes after a no bill, acquittal or ruling by the DA of justifiable homicide, this can't happen.

Louisiana is one of those states. If they file suit anyway, they are responsible for all of your cost associated with the suit including your attorney fees and the case is basically dismissed on summary judgment.

 

[RalphMP9FS]

Louisiana is one of those states. If they file suit anyway, they are responsible for all of your cost associated with the suit including your attorney fees and the case is basically dismissed on summary judgment.

Illinois is another.

 

[RobertJ.]

Hey, thank you for all the insightful replies!

It's something I've pondered for a while. I've only read second-hand stories about lawsuits by the grieving families, I don't know anyone personally that has happened to.

We all know the phrase, "The best defense is a good offense", so it seemed to make sense considering it if a situation like that was to happen. Like I had said, I wouldn't be expecting any money, just to call it a draw!

But some really good points about making contact with undesirables was brought up. I hadn't even considered that! That would certainly be the number one thing keeping me from any kind of first strike. Thanks again for the help with my food for thought!

 

[model70hunter]

Sometimes it is not wrongful death but what was used.

For a while as a deputy I carried a 6.5 inch nickle 29-2. Yes post Dirty Harry. The Chief Deputy carried the identical gun except it was a 57.

A LE in Texas had shot and killed a criminal in the line of duty with a 44 mag and was cleared. His family sued the department for allowing officers to use guns that produced overkill and won. You know, little Marvy only wanted to rob someone, shoot the policeman, get a gallon of milk and bag of crack home to the fam.

The high sheriff told John and I to park the big mags. I went back to my Python and John went to a 25-5.

I will say that criminals would look at the 29 or 57 instantly recognize it and say is that a 44 Mag? Why yes it is thanks for asking. None of them wanted a make my day bedtime story. Total respect on their part. John never explained the difference between a 41 mag and a 44 mag.

 

[Autococker07]

Your CCW instructor needs to stop giving legal advice...there are a couple problems with this...

1) This assumes you know the identity of your assailant.

2) This assumes that your assailant is going to hang around long enough for the police to show up, thus allowing the cops to get his identity. Even if you shoot him he can still run.

3) If you swear out a criminal complaint against your assailant, assuming you know who he is, are you going to follow through when you're summoned to testify against him? If you, the complaintant don't show up in court, he walks and the complaint is a total waste of time.

A better piece of advice would be: be the first to call 911. The first to caller to reach 911 is usually considered the complaintant, or in the case of assault, the victim.

That's all your instructor should have said.

Just to clarify...

The person in question is not "my" CCW instructor, simply a rather good one around our parts who I have been able to observe giving his class.

Maybe my words were poorly chosen, or misunderstood, This gentleman DOES NOT give legal advice, and makes sure everyone knows he is unqualified to do so, while providing the numbers for a couple of prepaid legal services that he recommends. Certainly, he stresses calling 911 first, but he also reccomends that an official complaint be lodged when the responding officer shows up, both of these actions show you have nothing to hide, and are eager for the truth to be told.

And finally, you can bet your sweet donkey that if I (me here, i cannot speak for anyone else) feels like I need to lodge a formal complaint against someone, I will be in court will bells on. I also would expect this to happen if my CCW ever needed to be used (God Forbid).

Sorry if my language was a bit misleading, it was not meant to be. I appreciate your input.

 

[Springfeildkid585]

Anybody else think this is a terrible idea? I mean in the case of personal defense, it had to be done, but seriously, you killed their family member. This is a lot for anybody to handle whether the perp was deserving or not. Also, there are few cases in which one person is held liable for another's actions, so not only are you a jerk, but you're a jerk who is going to be out a lot of money if you succeed in taking it to court. What I could see is counter-suing. You don't waste as much money and you don't have to worry about your image as much.

 

[The Big D]

Truly bad idea!

Truly bad idea...and the simple fact 'preponderance of evidence' is the legal standard in civil cases makes it highly risky. Further, I can envision some shooter's testimony appearing they were happy they have taken a life.

Ask OJ Simpson.

Be safe.

 

[Erich]

I'm a lawyer, but this isn't advice - no one could possibly give advice on a hypothetical situation. If anyone has a real situation come up, s/he should talk it through with an experienced member of their local bar, who knows the law of their jurisdiction. Anyhow, I haven't thought your through for very long, but a couple of major concerns stand out in the original post's proposition.

1. First of all, isn't the whole idea to try to stay out of court? Just being the first guy to court doesn't magically render the potential outcomes only favorable to you (see "counterclaim"). Say you sue his estate - you're now in court, with an active lawsuit, involving some people who are now not only grieving but also now irritated. Oh, and you have now become someone that the community to which these folks belong will think is a bully/jerk. What do you want to bet that there might be a plaintiff's lawyer in that community of people? Who'd be interested in just maybe trying to get a portion of a recovery from the homeowner with the insurance policy - especially since he'll gain standing in his community by defending these poor grieving people even if he doesn't win?

2. Besides, where are you going to find a plaintiff's lawyer to represent you in your initial suit? "Hey, Jimmy! I know you work for 1/3 of what you recover - I want to hire you to sue the estate of a dead felon that's worth probably $65. That's over twenty bucks in it for you!" Or are you planning to try to find someone (and I know hundreds of lawyers and can't think of anyone whom I would refer for such work) to run your plaintiff's suit on an hourly basis?

3.

Then you could bring to light his entire criminal history, and not just focus on the event that forced this to happen.

Maybe not: Some (not all) jurisdictions apply 404(b) evidentiary exclusions in civil cases.