After reading our May interview with Attorney Jim Fleming, members have been asking questions about stand your ground and duty to retreat laws in their own states. As a result, we reached out to our affiliated attorneys seeking their thoughts on their state’s stand your ground or duty to retreat statutes and case law. We asked--
Do your state’s laws give immunity from prosecution and/or lawsuit if one’s actions are found to have been reasonable and necessary by reason of self defense? What is the court process to access those protections?
If your state does not have a stand your ground law, what can the citizen who uses force in self defense do to avoid prosecution, or avoid conviction, or a lawsuit seeking damages?
Emanuel Kapelsohn, Esq.
Lesavoy Butz & Seitz LLC
1620 Pond Road Ste. 200, Allentown, PA 18104
610-530-2700 - Home office 484-504-1345
The Commonwealth of Pennsylvania, where I live, has both a “Stand Your Ground” statute and a “Castle Doctrine” statute. While I inform those who attend my classes that these statutes exist, I teach them, regardless of the state in which I am teaching, my own rule that I strongly recommend they follow. This is because, in my experience, (1) an individual cannot know what state he or she will be in when the need to make a stressful, split-second deadly force decision arises; (2) the retreat statutes of many states, including Pennsylvania’s, have too many complex exceptions, ones that attorneys and judges often take hours, days and weeks arguing over; (3) the individual cannot possibly know and apply the retreat statutes of every state he or she might be in when the need for self-defense arises; (4) the nuances of any state’s retreat statute can change at any moment, with any new court decision or legislative act; and (5) regardless of the words of the statute, juries often do what they think is reasonable and just in the individual case.
Accordingly, my rule is simple, and is unchanging from state to state or day to day: “In any situation, anywhere, in which you believe you can retreat with safety to yourself and all innocent others, RETREAT rather than using deadly force.”
The use of deadly force is a grave, life-changing event, likely to have extreme consequences – legal, financial, emotional, societal and other. The only time one should use deadly force is when there is no other reasonable alternative. Anyone who thinks otherwise is ignorant or foolish. In the movie Conager, actor Sam Elliott, who plays the old, flea-bitten cowboy Conager, responds to his friend who asks Conager why he didn’t just shoot a younger, stronger cowboy who was viciously beating Conager to a pulp in a barroom brawl, “Any man who kills another when he can do otherwise is crazy – just plumb crazy.”
That being said, the reader should understand that when I say one should always retreat rather than using deadly force when one believes he “can retreat with safety to himself and all innocent others,” I’m not saying one should necessarily retreat when doing so will allow one’s attacker to reach a position of advantage, or gain access to a weapon, or move to a location where the attacker will be able to place innocent others in jeopardy. A home invader moving down the hall toward your child’s bedroom probably needs to be shot, even if he is moving away from you at the time. But the armed citizen, alone in a parking lot, who “stands his ground,” in apparent exercise of his state’s statutory right, and shoots a man armed with a knife instead of simply stepping inside and closing the door of a nearby building, or getting into his car, locking the door and driving away, is in my view a fool who is likely to pay an extreme price for his avoidable use of deadly force.
Tennessee may be thought of by some as the “patron state of shooting stuff” (the movie Shooter) but its laws are far from being gun owner friendly. Indeed, one major project of the state’s primary lobbying organization, the Tennessee Firearms Association (https://www.tennesseefirearms.com) is to improve Tennessee laws for gun owners and those who resort to justifiable self defense. A major change in Tennessee’s self defense and immunity protections was enacted in 2021 and while it is a substantial improvement on the prior law, it still leaves more work to be done.
In 2021, the Legislature enacted House Bill 0025 which makes important changes to the state’s civil immunity laws for those who resort to justifiable self defense. The new law will do a few things. First, it prohibits the filing of a civil action for damages in a situation that involves a justifiable use of defensive force. If a civil action is filed before any possible criminal investigation is concluded, this new law will require that the trial judge in the civil action stay the proceedings until the criminal investigation or case is concluded. The purpose of this stay is to protect the individual who resorted to force in self defense from having to be distracted with the costs and expense of a civil case while dealing with the criminal proceedings. In addition, if the individual who uses justifiable self defense wants a preliminary ruling on the civil immunity issue they can request it and it is handled on an expedited basis. In that hearing, the individual who claims self defense must present sufficient admissible evidence to “fairly raise the issue” of whether this was self defense. If the “court finds that the permissible use of force has been fairly raised, a presumption of immunity is created and the burden of proof shifts to the plaintiff to demonstrate that civil liability is not barred by this section.” If the court finds that civil immunity exists, the court shall order the plaintiff to pay the defendant’s legal expenses related to the civil immunity proceedings.
What Tennessee law does not do and must be amended to address is the burdens on the state in the criminal proceedings to rule out self defense before bringing criminal charges. In Tennessee in the criminal context the issue of self defense is an affirmative defense to be raised at trial. While the law enforcement and prosecuting attorneys can evaluate it long before trial, and should, there is no law that requires that analysis prior to presenting the case to the jury. There is also no law in Tennessee which affirmatively requires law enforcement or the district attorney to seek out, develop and preserve evidence supporting a self-defense theory (which they frequently do in officer-involved shootings). Tennessee law needs to be improved in this area and that is a topic that the Tennessee Firearms Association and its legal/legislative advisors have been working on for several years.
Separate from the issue of immunity from civil or criminal prosecution, the question arises of what can a citizen do to minimize risks. That full discussion is beyond the scope of this brief overview but there are steps to be taken. These steps include:
- Get regular and professional classroom and range training on civilian use of force because that training and evidence of that training could be important considerations for a jury as well as being an important factor in helping you to recognize and avoid situations that might progress to a self-defense event;
- Get “stress training” where your judgment and shooting skills are tested under high-stress environments such as low light, obstacles, rain, etc.;
- Be selective and cautious about what types of firearms, ammunition and carry systems you use for every day carry since these factors may be important to jurors who are not comfortable with the civilian’s right to carry and use deadly force under certain circumstances;
- Be very selective about who you use as an instructor because these are the individuals that may be called as expert witnesses in later trials;
- Develop with the assistance of an attorney an asset protection plan for the laws in your state which will help, if possible, shelter your assets from execution in the event of a judgment;
- Develop a plan to be able to fund the legal expenses involved in defending a criminal investigation, a criminal trial and/or a civil trial if necessary;
- Make sure you have audio and video recording capacities on your cell phone and that you know how to use them;
- Get training and instruction on how to respond in the event of a shooting if you are the one that calls 911 services and how to deal with officers on the scene – if nothing else remember to keep your mouth shut until you talk with your attorney; and
- Get a will and have an estate plan just in case you don’t survive the event.
Finally, develop a relationship in advance with an attorney who is skilled in these areas and who knows well the self-defense laws in your jurisdiction.
Join and support the in-state associations that dedicate resources on improving state laws that impact your daily life and the laws related to self-defense. Don’t rely on the national groups to be experts on the laws in each state – they often are not.
Alex M. Ooley and E. Michael Ooley
Ooley Law, LLC
P.O. Box 70, Borden, Indiana 47106
In addition to potential criminal liability for the use of force, there is also the potential for civil liability. However, in 2019, Indiana passed House Enrolled Act 1284 which provides immunity from civil suits to people who have used justifiable force in self-defense. This bill has been codified as Indiana Code § 34-30-31-1.
Before Indiana Code § 34-30-31-1 went into effect, individuals could be successful in their assertion of self-defense under criminal statutory standards but still face civil liability under civil statutory standards. Thus, individuals could be free from jail time/criminal liability but could be liable for paying the family or the criminal who was shot during the use of force encounter. Thus, the passing of this act now allows for protection from both criminal and civil liability when using justifiable force in self-defense.
The law also provides for the possibility of early dismissal of a civil lawsuit based upon the creation of a rebuttable presumption that use of force is justified if a defendant was not prosecuted for the use of force. Additionally, the new law requires a court to award reasonable attorney’s fees and costs to a defendant when the justified use of force immunity is successfully raised in a civil case. Hopefully, this law will end instances where criminals or their families sue victims of crime when the victim lawfully defends the innocent.
If you are interested in the history of this legislation, it stems from an incident out of Ohio County, Indiana, where Kystie Phillips heroically shot a man attacking an Indiana conservation officer. The Dearborn-Ohio County Prosecutor declined to criminally charge Phillips because Phillips had lawfully acted in defense of a third person. Nonetheless, Phillips was sued by the family of the man shot. Because of this case, House Enrolled Act 1284 was proposed and eventually passed into law, and the lawsuit against Kystie Phillips was dismissed.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
In my state (Georgia), there is both civil and criminal immunity for someone who validly uses self defense. How it is raised varies by whether it is a civil case or a criminal case. In a criminal case, the defendant can file a motion for immunity after he is indicted. He is entitled to a hearing on the motion before he is tried. If the court finds he validly used self defense, he is immune from prosecution and cannot be tried, so the case is dismissed. The burden is on the defendant to prove he validly used self defense. Even if he loses the motion, though, he is still able to claim self defense at trial (so he gets a second chance). At trial, the burden is on the state to prove beyond a reasonable doubt that he did not validly use self defense.
In a civil case, the defendant can raise immunity from civil liability the same as any other defense. That means it likely would be resolved in a motion to dismiss or a motion for summary judgment (and before trial).
We extend a hearty “Thank you!” to our affiliated attorneys who contributed comments about this topic. Reader, please return next month when we discuss a new question with our affiliated attorneys.
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