“IMMUNITY” FROM CIVIL SUIT AFTER LAWFUL USE OF DEFENSIVE FORCE : FACT OR FICTION?

Critics of “Stand Your Ground” (SYG) laws often claim such laws improperly grant the user of defensive force “immunity” from a civil lawsuit for damages.  They sometimes also argue that the “immunity” is better than that given to LEOs.  Neither has yet been shown to be fact.  I doubt either will ever be the general rule. In fact, a state’s “immunity” provision may actually have no relationship to its SYG law.

State “immunity” statutes relating to the use of force are of recent origin and thus, are not yet widely-interpreted by court decisions.  The unanswered questions of interpretation can be rather complicated, but they do not present novel legal concepts. To separate fact from fiction, I “poked around” (a Georgia term for research)  some state statutes. States with statutory provisions which bar civil recovery for damages against a user of reasonable or lawful force include (in no particular order): Georgia, New Hampshire, Michigan, Idaho, Ohio, Pennsylvania, Florida, Colorado, Maryland, Wyoming, Wisconsin, Texas, Mississippi, Kansas, New Jersey, Iowa, and Missouri.

Fact is, a state “immunity” law related to use of force may:

    • Provide “immunity” only against criminal prosecution.
    • Be a contemporaneous enactment of a SYG provision.  (Common law (cases) of a state may have barred a criminal actor’s (or his/her estate’s) recovery before any SYG or “immunity” statute was enacted).
    • Apply upon any or only specified instances of  proper use of deadly and/or nondeadly force.
    • Apply to merely threatening the use of force.
    • Apply when only a particular defensive weapon (for example OC spray) was deployed.
    • Be invoked only when the plaintiff in the civil action was committing a crime at the time the defensive force was used.
    • Allow any plaintiff to file a suit which has to be defended.  (As the saying goes, “anybody can sue”).
    • Provide for mandatory or discretionary recovery of legal fees, other costs or expenses, or lost income, by a prevailing civil defendant.
    • Be triggered as a matter of law after a criminal acquittal based on self-defense, or a prosecutor’s determination not to institute a prosecution because the use of force was deemed lawful.  (I did not find that any appellate court has so ruled).
    • Provide true immunity after a judge’s dismissal of criminal charges based on self-defense in a pre-trial hearing, if such ruling was affirmed by the appellate court where an appeal would be taken from the related civil action.  (It will be a long time until we see that).
    • Apply to an LEO when using force as an LEO.
    • Apply only to use of force when in defense of self or when one is in one’s own dwelling or business premises.

It remains far from certain how state civil “immunity” provisions will be made effective and interpreted by appellate courts.  I believe the statutes will not greatly alter the usual way use of lawful defensive force is asserted by a non-LEO civil defendant (as an affirmative defense which is then tested at trial in most cases).  Such laws may only significantly change the playing field for civil litigation when a defendant is provided a pretrial immunity hearing, and when a civil suit by a plaintiff who incurred injury or damages while committing a crime gets summarily dismissed with automatic fees and costs awarded to the defendant.   It is far from certain whether the courts of states with “immunity”  laws will proceed in that fashion.

At least for now, “immunity” is mostly fiction.  If you’re reading this from Florida, and want to “poke around” like a Florida lawyer, see (here) a recent appellate opinion requiring a pretrial evidentiary hearing be given in a civil case.

Disclaimer: No MSW post creates an attorney-client relationship with, or constitutes legal advice to, a reader. 🙁

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About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

16 thoughts on ““IMMUNITY” FROM CIVIL SUIT AFTER LAWFUL USE OF DEFENSIVE FORCE : FACT OR FICTION?

  1. This is the applicable law here in Texas:

    Texas Civil Practice and Remedies Code (T.C.P.R.C)

    TITLE 4. LIABILITY IN TORT

    CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON

    Sec. 83.001. CIVIL IMMUNITY.

    A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s use of force or deadly force, as applicable.

    Chapter 9 of the Penal Code is the section of the law detailing what is justified use of force/deadly force. It sounds like this law would provide immunity with the caveat that a determination may need to be made (trial/pre-trial/grand jury?) that the use of force/deadly force was justified.

    Am I reading that correctly?

    • Here’s a link to Texas CHL forum that discusses the immunity statute you cited
      http://texaschlforum.com/viewtopic.php?f=7&t=40326

      The issues discussed in the thread are similar to some of my bullet points and other narrative above. One would have to check Texas case law to determine whether a civil defendant gets a pretrial immunity hearing or has to suffer a trial to establish the defense provided by the immunity statute (that the force was justified under Chap. 9 of the Penal Code). A Texas attorney who is familiar with self defense cases likely knows the answer without having to research it.

  2. Highly recommend Andrew Branca’s Law of Self Defense for further reading.

    • Thanks for the kind mention, dustyvarmint.

      Another great post, Steve! My perspective on some of these issues does vary a little bit from yours around the edges, but that’s what makes the world go round. Two points:

      (1) In your second bullet point you seem to equate “SYG” and “self-defense immunity.” This is understandable given that you’re a Florida attorney, and in Florida both provisions were adopted at the same time. As a result it is very commonplace for Florida lawyers and courts to refer to both “SYG” and “self-defense immunity” using the term “SYG.”

      Of course, those same Florida lawyers and courts also are fully aware that “SYG” and self-defense immunity are not, as a matter of law, the same thing at all–they’re merely using the same term for both as a convenient convention. No harm.

      Unfortunately, to a lay person the use of the same term for both may lead folks to think they are the same, which of course is not correct.

      “Stand-Your-Ground” simply serves to remove an otherwise existing legal duty to retreat before using force in self-defense (if all conditions are met). Period. The legal concept of “Stand-Your-Ground” has nothing to do with the legal concept of “self-defense immunity.” A state may well be an effective “Stand-Your-Ground” jurisdiction (no legal duty to retreat) but have no self-defense immunity provision whatever. Conversely, a state may well have a self-defense immunity law, but be a “Duty-to-Retreat” state. Or it may have both, or neither.

      Two different legal concepts, entirely unrelated to each other (other than, perhaps, in the superficial sense that these two different concepts were adopted at the same time). Even under Florida law, as I know Steve knows well, the “Stand-Your-Ground” language appears in statutes 776.012 (defense of person), 776.013 (defense of premises), and 776.031 (defense of property, others), whereas the self-defense immunity provisions appear in 775.032 (which doesn’t mention “Stand-Your-Ground” or any other issue of retreat at all). Totally separate statutes.

      I know Steve is fully aware of this point, I just wanted to clarify for folks who might not share his expertise in the area.

      (2) Personally, if had to choose between a robust “Stand-Your-Ground” statute and a robust self-defense immunity statute, I’d choose the self-defense immunity statute every single time. Why? Because the prospects of “Stand-Your-Ground” (meaning, the legal duty to retreat before using force in self-defense) actually playing a key role in a self-defense case is actually quite small, whereas the prospects of getting sued after using force in self-defense is very, very high.

      Think about it–all “Stand-Your-Ground” does is remove an otherwise existing legal duty to retreat before using force in self-defense. But that legal duty to retreat only EVERY exists in the first place if you have a totally safe avenue of retreat–you are never required to increase your jeopardy in an effort to retreat.

      So, unless there is a totally safe avenue of retreat available at the time you act in self-defense, “Stand-Your-Ground” does nothing for you, because there was no duty to retreat anyway. (Much the same applies if there is no duty to retreat because of some other reason, such as the Castle Doctrine, however extensive that might be in your state–some include curtilage, businesses, vehicles, etc.)

      Keep in mind that the only time you are legally authorized to use or threaten deadly force in self-defense is if you are facing an unlawful threat of death or grave bodily harm that is imminent–about to happen RIGHT NOW. (There are some pseudo-exceptions from this general requirement in defense of premises cases.)

      There may be circumstances in which a person is facing an imminent threat of death or grave bodily harm about to happen RIGHT NOW and STILL have a totally safe avenue of retreat available to them, but they don’t readily come to mind. Indeed, the very availability of a totally safe avenue of retreat would seem to undercut the needed imminence.

      In contrast, it hardly needs stating that the prospects for getting sued for using or threatening to use deadly force against another person are enormously high in our litigious society. And whereas in a criminal trial the outcome is binary–guilty or not guilty–in a civil trial this is not necessarily the case. Responsibility can be apportioned between the parties.

      So imagine–you’ve shot someone, paralyzing them, in self-defense, and were acquitted at your criminal trial on that basis.

      Now at civil trial the plaintiff–the “victim”–is present every day in his wheelchair and ventilator, and is clearly going to need life-long care. Even if the jury believes it was overwhelmingly his own fault–let’s say 90%–you can still be financially ruined. Because if they sue you for $10 million, and you’re even just 10% responsible–well, I don’t know about you, but a $1 million hit would be pretty devastating to my household finances.

      Even if you’re found 0% liable in the civil trial, the mere prospect of a million dollar payoff is going to bring plaintiff’s attorneys down upon you like wolves on an injured elk. The cost alone of defending yourself will be utterly financially destructive–and if you’re expecting your traditional insurance policies to cover you, you might want to check that fine print carefully. Insurance policies generally cover accidents, not intentional acts–and self-defense is by definition an intentional act.

      So, with all that as context, a self-defense immunity statute that enables a person who acted in self-defense to request a relatively low-cost pre-trial hearing, be awarded both criminal and civil immunity, with the bonus that if they are sued prior and immunity is found their legal expenses SHALL be reimbursed by the state, is just pure awesome. (As an aside, the ability to avoid the criminal trial will also result in enormous cost savings–do the math on the Zimmerman defense and you’ll see that it surely far exceed $500k and likely approached $1MM).

      And self-defense immunity FAR more likely to find application in a real-world defensive use of force situation than is “Stand-Your-Ground.”

      At least, that’s the modest opinion of this small-town MA lawyer. 🙂

      –Andrew, @LawSelfDefense

      • I did not intend to equate SYG and immunity laws. (I wrote: “In fact, a state’s “immunity” provision may actually have no relationship to its SYG law.” In the second bullet point, I indicated a state’s law on self-defense “may” contain both provisions, simply enacted at the same time, hence my use of the word “contemporaneous”).

        I agree with you, I would rather have an “immunity” provision than SYG in my state’s law. Of course, the layman’s concept of true immunity is not what is conferred. And in the case of a recent statutory enactment, when/how it comes into play remains unclear except in a couple of states.

      • Andrew – I listened to your podcast. I did not write to disparage civil immunity statutes, just to correct the common misconception that they offer the “immunity” many think they do (i.e., one cannot be sued or gets an automatic summary disposition because there were no criminal charges brought or an acquittal in a prior criminal case). I would like to see a civil immunity statute that gives a prevailing defendant fees, loss, damages, and costs against the plaintiff and the plaintiff’s attorney, with the split to be determined by the court.

        More importantly, your podcast on defense of others is A-plus top shelf. Far and wide!

  3. Arizona Revised Statutes, Title 13, Chapter 4(Justification), Section 13 states:

    “ARS 13-413. No civil liability for justified conduct

    No person in this state shall be subject to civil liability for engaging in conduct otherwise justified pursuant to the provisions of this chapter.”

    http://azleg.gov/FormatDocument.asp?inDoc=/ars/13/00413.htm&Title=13&DocType=ARS

    However, I have been told by at least one member of the Arizona bar that ARS 13-413, as interpreted through the filter of AZ caselaw, does not actually bar a plaintiff from filing suit for damages resulting from the intentional tort of using deadly force against the plaintiff – but if and when such a civil suit is filed, the defendant is entitled to assert as an affirmative defense, that his actions were justifiable.

    That said, if the defendant prevails and the plaintiff loses:

    “ARS 13-420. Attorney fees; costs

    The court shall award reasonable attorney fees, costs, compensation for lost income and all expenses incurred by a defendant in the defense of any civil action based on conduct otherwise justified pursuant to this chapter if the defendant prevails in the civil action.”

    See also the Revised Arizona Jury Instructions, http://www.azbar.org/media/58805/intentional_torts_2013.pdf

    “Included in the Intentional Torts section are instructions relating to claims for assault, battery, false imprisonment, intentional infliction of emotional distress, abuse of process, malicious prosecution, and aiding and abetting tortious conduct. Also included in this section are several instructions outlining the elements of affirmative defenses that may be applicable to an intentional tort claim. In particular, Intentional Torts 3, 4, 5, 6, 7, 8, 9, 10, and 12 set forth justifications for conduct that would otherwise constitute an assault or battery and are based upon statutes that provide comparable protection from criminal liability. See A.R.S. § 13-413.”

    • Ref. PFEIL v. SMITH, No. 1 CA-CV 93-0491. 183 Ariz. 63 (1995), 900 P.2d 12
      http://www.leagle.com/decision/1995246183Ariz63_1239

      “Plaintiff then filed this civil suit against defendant, alleging alternatively negligence and assault. Defendant moved for summary judgment, arguing that her acquittal in municipal court was based on a justification defense and, therefore, pursuant to A.R.S. section 13-413, she could not be held civilly liable for the same conduct. The trial court reluctantly agreed, stating in its minute entry:

      While the Court may disagree with the legislature’s reasoning in banning a civil action after a not guilty decision in a criminal action, it cannot be argued that they have done so. [sic] It does indeed seem strange that a person can lose a civil right or claim because a criminal right or claim has been litigated, but that seems to be the legislature’s intent. Therefore, this Court, while it disagrees that that should be the law, is bound by the law.
      The court granted summary judgment to defendant and dismissed plaintiff’s claim. Plaintiff has timely appealed.

      The sole issue on appeal is whether this statute bars plaintiff’s civil suit.

      We recently addressed A.R.S. section 13-413 in Weekly v. City of Mesa, 181 Ariz. 159, 165-66, 888 P.2d 1346, 1352-53 (App. 1994), in which we held that, before the trial court could dismiss a civil suit because of A.R.S. section 13-413, a defendant must establish the elements of the applicable justification defense. We did not reach the issue presented in the instant case, however, because there had been no prior criminal proceeding against the Weekly defendants.

      In the instant case, defendant provided evidence that she had argued justification as a defense to the criminal charge and that she was acquitted. She contends that, pursuant to A.R.S. section 13-413, this evidence is sufficient to bar plaintiff’s civil suit against her. We, however, disagree, and hold that a civil defendant cannot conclusively establish her justification defense by merely presenting evidence that her criminal acquittal might have been based on that same justification.

      To begin, we read A.R.S. section 13-413 as doing no more than establishing justification, as it is defined in Title 13, as an affirmative defense in civil lawsuits. See Weekly, 181 Ariz. at 165, 888 P.2d at 1352. There simply is no language in the statute that directs that a criminal acquittal may be used as a shield against a civil claim. Nor can we find any legislative history that would support such a view.

      Next, defendant’s interpretation of A.R.S. section 13-413 ignores the differing burdens of proof in civil and criminal cases. In a civil action, the burden of proof is by the preponderance of the evidence, and the defendant has the burden of proving an affirmative defense. See Weekly, 181 Ariz. at 166 n. 5, 888 P.2d at 1353 n. 5 (“[B]ecause this case involves … a defense of justification under A.R.S. §§ 13-409 and -413, the burden is on the [defendant] to establish the elements of that defense.”); see also Black, Robertshaw, Frederick, Copple & Wright, P.C. v. United States, 130 Ariz. 110, 114, 634 P.2d 398, 402 (App. 1981); Palicka v. Ruth Fisher Sch. Dist. No. 90, 13 Ariz.App. 5, 9, 473 P.2d 807, 811 (App. 1970).

      In a criminal case, though, the state must prove the absence of justification beyond a reasonable doubt. State v. Duarte, 165 Ariz. 230, 231, 798 P.2d 368, 369 (1990); State v. Superior Court, 172 Ariz. 232, 238, 836 P.2d 445, 451 (App. 1992). Thus, even assuming arguendo that a defendant could show that her criminal acquittal had resulted from a justification defense, the most that would establish would be that the state had failed to prove beyond a reasonable doubt the absence of justification. Obviously, that would not meet defendant’s burden of establishing her civil affirmative defense.

      Moreover, because of the nature of criminal proceedings, no civil defendant could adequately show that her criminal acquittal had been based upon a justification defense. Except for verdicts of not guilty by reason of insanity, a jury is not required to state the reasons for its verdict. See Ariz. R.Crim.P. 23.2. Similarly, when a criminal case is tried without a jury, the trial court is not required to make findings of fact and conclusions of law, even when requested by the defendant. State v. West, 173 Ariz. 602, 607-08, 845 P.2d 1097, 1102-03 (App. 1992). Thus, a defendant cannot show that an acquittal resulted from a justification defense rather than a different cause, such as the state’s failure to prove the charge beyond a reasonable doubt.

      In the instant case, the only evidence provided by defendant in support of her motion for summary judgment was an affidavit of her criminal defense attorney, in which he asserted that he had defended her on the grounds that her conduct had been justified. Obviously, this affidavit does not establish that the jury acquitted her for that reason, and could not establish that it would have done so by the preponderance of the evidence.

      We therefore conclude that A.R.S. section 13-413 merely provides that conduct qualifying as a justification defense to a criminal charge may also be the basis for an affirmative defense in a civil suit. Defendant must, however, assert and prove her justification defense in the civil proceeding, just as she would any other affirmative defense.

      CONCLUSION
      For the foregoing reasons, we conclude that the trial court’s summary judgment was in error. We therefore reverse and remand for further proceedings consistent with this opinion.”

    • See also, Weekly v. City of Mesa, 888 P.2d 1346 (Ariz. Ct. App. 1994)
      https://www.courtlistener.com/arizctapp/7UwJ/weekly-v-city-of-mesa/

      Which states that, “Once the factual predicates of [justifiable use of force] are established, § 13-413 provides nonliability for civil damages… a narrow exception of nonliability is provided under A.R.S. § 13-413.

      If the City can factually establish the undisputed elements of a justification defense on the record before the trial court, then judgment may be entered in its favor; however, if it cannot, plaintiff is entitled to pursue his claim for strict liability under the provisions of the statute in effect at the time of his injury. Because the trial court erred in dismissing plaintiff’s claim against the City for failure to state a claim, this case is reversed and remanded for further proceedings consistent with this decision.”

      Basically, don’t expect a civil suit against you to be summarily dismissed unless your use of force has been officially found to be justifiable, for the record – and even then, such a suit may still be allowed to proceed if the plaintiff’s theory of the case meets the lesser standards and burdens of proof required in civil court…

      • PW – I owe you a beer. I did not name all states I found with civil immunity laws, figuring others would (you for Arizona). Thanks, looks like your material has the issues I identified covered. No more recent appellate cases there?

        • Google didn’t show me anything more recent when I searched for “ARS 13-413 caselaw” – there might be something more, I just haven’t dug for it…

  4. I am not a lawyer, but I do read a lot of law, decisions and talk with a lot of lawyers. And what I have always been led to understand is that such immunity laws are largely legally redundant.

    Take California. We essentially have stand your ground (from jury instructions, “A defendant is not required to retreat. He or she is entitled to stand his or her ground and defend himself or herself and, if reasonably necessary, to pursue an assailant until the danger of (death/great bodily injury/ ) has passed. This is so even if safety could have been achieved by retreating.”)

    There is no provision for civil immunity. But I understand that if it is justifiable homicide (or attempted homicide, etc), the act is privileged and there is no tort attached. Someone who is not a tortfeasor cannot be held for a tort.

    The problem comes in that someone may allege a tort (negligence, criminal action, etc), essentially claiming the act wasn’t justifiable. Mere failure to convict or even acquital due to claims of self-defense, or as is often the case lack of criminal charges, does not establish unquestionably that it was justified…only that the state delined to prosecute or made an insufficient case (burden of proof is always on the prosecution to disprove self-defense, says so right in the jury instructions). I suppose an acquittal or a written finding by the DA based on justified defense might be sufficiently strong to win in a civil case most of the time.

    So it all boils down to showing that the action did not constitute a tort, namely that it was justifiable and hence privileged. Such an immunity law would seem to say it is not a tort when it is not a tort.

    Where I think Florida helps is the ability to have a prelimnary hearing determine that it was justifiable, and hence save you from having to defend that in a civil action.

    Or I could be completely wrong.

  5. Not a lawyer, but reading Oklahoma SDA handbook (from OSBI) shows two sections with immunity. One is geared towards the state, its officers, agents and employees. The other states that as long as the shooting is legal, then criminal and civil immunity applies.

    http://www.ok.gov/osbi/documents/SDA_Lawbook_NOV_2013.pdf

    TITLE 21 § 1289.25

    TITLE 21 § 1290.24
    A person who uses force, as permitted pursuant to the provisions of subsections B and D of this section, is
    justified in using such force and is immune from criminal prosecution and civil action for the use of such force.
    As used in this subsection, the term “criminal prosecution” includes charging or prosecuting the defendant.
    The court shall award reasonable attorney fees, court costs, compensation for loss of income, and all expenses
    incurred by the defendant in defense of any civil action brought by a plaintiff if the court finds that the defendant
    is immune from prosecution as provided in subsection F of this section.

    • Thanks for commenting. I think Oklahoma 21-1289.25 is a good example of my premise for writing the post — the confusion about a relationship between “immunity” and SYG statutes.

      The Oklahoma provision grants “immunity” to those who use force pursuant to two SYG oriented enactments, subsection B is an intent presumption provision related to unlawful, forceful entries of business or dwelling, or a carjacking, and subsection D which is SYG any place you are lawfully entitled to be and not engaged in unlawful activity provision. (Those provisions would seem to be derived from Florida’s SYG law). Deadly and lesser force are covered in D, but I am not so sure about lesser force for B.

      I think the Oklahoma law contemplates a judge may determine pretrial that the immunity provision applies (see subsection H, referring to the “court”). I wonder about defensive force used in situations other than those which exactly fit within what is described in B and D.

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