Armed citizens commonly believe that if they use force in self defense, they are certain to be sued. That has not proven true in the Network’s experience of assisting 29 members who defended themselves and their loved ones since we started the Network in 2008. None have been sued. Nonetheless, fear of a lawsuit is of great concern to most Network members. In this Attorney Question of the Month column, we asked our affiliated attorneys for their opinions and comments on this question:
If a person uses force in self defense, are they likely to be sued for damages? This is a pervasive fear amongst armed citizens many of whom believe that it is a near certainty. What is your opinion?
Have you had a client or clients who were sued after self defense? How did it turn out?
131 S. Weber St., Colorado Springs, CO 80903
In Colorado, any person who uses force in defense of a dwelling can be legally immune from prosecution for a crime, as well as for civil damages, if they demonstrate certain factors at a hearing before a judge. C.R.S. section 18-1-704.5(4) states that “any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.”
Roland Harris IV
Cohen | Harris, LLC
40 York Rd Ste 400, Towson, MD 21204
Of the more than a hundred self-defense cases we have done, we had at least two cases involving a payout where self defense was used in response to the opposing party’s actions, and in both we were able to reach a settlement.
We have not had a case where we were retained specifically to defend a tort case for use of force.
Timothy A. Forshey
Timothy A. Forshey, P.C.
1650 North First Ave., Phoenix, AZ 85003
I’m so glad we got around to this question because I think this may correct one of the most subtle and pervasive misunderstandings among the membership. It seems that nearly every student in my CCW class is convinced that even if they are not prosecuted, they will be sued out of existence if they use lethal force. Thankfully, it just ain’t so.
Let’s get this out of the way early—us lawyers are leaches. Some of us are (hopefully) nicer leaches than others, but we all suck blood from society. Hopefully, we all do some pro bono work, but it can’t be our focus if we want to feed our own families. Thus, we won’t take cases, or file suits against people, unless we are darned sure we will get paid for the very considerable effort involved. Suits against people who were acting intentionally are known as “intentional tort” suits. They are as rare as hen’s teeth—for good reason. Let’s delve into it.
Lawyers take on cases like this on what is known as a “contingency fee” basis. The lawyer gets paid a percentage (usually somewhere between 25-40%) of the amount recovered on behalf of the client. In a case filed under a negligence or reckless theory of liability, there will likely be some insurance policy, often homeowner’s, renter’s or even an auto policy, which will pay in the event of a favorable settlement or judgment. Guaranteed. Lawyers are happy to take on such cases as long as the liability is clear, and the damages warrant the effort involved.
In the event of an intentional tort, however, there will be no insurance coverage to pay the judgment. Nearly every insurance policy written since the revolutionary war has specifically excluded intentional acts from coverage. To cite an example nearly everyone is familiar with, look to the 1997 O.J. Simpson civil verdict, the judgment from which now exceeds $70 million. Despite the huge verdict, no insurance payments were made to the plaintiffs for the above-referenced reason. That means the only recovery possible would have to be against the defendant’s personal assets. A very, very tough nut to crack.
The plaintiffs (the Brown and Goldman families) have received essentially nothing from that highly publicized verdict. Mr. Simpson was, to put it succinctly, filthy rich prior to that verdict. He fully exploited his options regarding shielding of assets, bankruptcy, etc., and the attorneys did not recover enough money, I would bet, to even recover their out-of-pocket expenses spent to present the trial. So, since there is no way to “get blood out of a turnip,” why did a brilliant guy like Daniel Petrocelli (the Brown’s and Goldman’s attorney) take on a case with essentially zero chance of recovery? Because we all vividly remember his name and the victory over Simpson nearly 30 years later! Such notoriety and publicity is priceless. That trial was televised live on CNN every day for weeks and was watched by millions of people. Thus, any of our members that are extremely rich and famous and commit the most heinous “crime of the century,” with an accompanying unprecedented media frenzy, may, in fact, get sued.
For the rest of us, with no insurance for our intentional acts, and modest assets which do not even require shielding until an actual trial proceeds, we should be just about as worried about being hit by space debris as a civil suit for an intentional use of lethal force.
Take the rare win. Let’s worry about braced AR pistols some more instead!
Steven M. Harris
14260 W. Newberry Road - #320, Newberry, FL 32669
In Florida, it is not a “near certainty” or even likely that a person who has threatened or used defensive force will become a defendant in a civil action for damages. (An antecedent criminal conviction of the civil defendant may inform a different conclusion).
A statute (Fla. Stat. § 776.032) provides immunity from civil suit for any person who lawfully uses or threatens force as permitted in the defense of self/others (Fla. Stat. § 776.012), in “home protection” (Fla. Stat. § 776.013), or in defense of property (Fla. Stat. § 776.031). Immunity from suit includes suits “by the person, personal representative, or heirs of the person against whom the force was used or threatened.” Civil immunity is determined in a proceeding separate from the pretrial immunity determination made in any related criminal case. Kumar v. Patel, 227 So.3d 557 (Fla. 2017).
If a court finds a civil defendant immune, the court must “award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred” by the defendant in defense of the civil action. Most plaintiffs and lawyers are probably deterred by the prospect of being found liable for such amounts.
Another statute (Fla. Stat. § 776.085) has been said to provide that “a person may not be held liable for damages for personal injury or the wrongful death of a person who attempted, or who was attempting, to engage in a forcible felony at the time the injuries were sustained.” Professional Roofing and Sales, Inc. v. Flemmings, 138 So.3d 524 (Fla. 3d DCA 2014). A conviction establishes the defense. Fees, costs, and other compensation are also mandatory in favor of a successful defendant under this provision.
I participated in two cases, and am aware of several others, where a claim was asserted against a force user after the state made a no prosecution decision or dismissed a criminal case without formal filing of any charge. A civil lawsuit was not filed in those cases.
Donald O. Chesworth
Tully Rinckey PLLC
400 Linden Oaks Suite 110, Rochester, NY 14625
I have not had any cases involving self defense shootings. I do believe that in New York any such incident would be reviewed by a grand jury and if there is a no bill, that would be a very significant benefit to the individual who was the shooter. If it is the other way around and the shooter is charged criminally, it is likely that there will be a subsequent civil suit assuming death or serious injury and damages.
P.O. Box 3, Shelton, WA 98584-0003
I’ve not had that happen. However, it is a possibility and can’t ever be ruled out. My advice is the same as for using deadly force: use it only where someone’s life is in immediate danger and there are not other options.
Thank you, affiliated attorneys, for sharing your experience and knowledge. Members, please return next month when we have a new question for our affiliated attorneys.