Forums
New posts
Search forums
What's new
New posts
New media
New media comments
Latest activity
Classifieds
Media
New media
New comments
Search media
Log in
Register
What's New?
Search
Search
Search titles only
By:
New posts
Search forums
Menu
Log in
Register
Navigation
Install the app
Install
More Options
Advertise with us
Contact Us
Close Menu
JavaScript is disabled. For a better experience, please enable JavaScript in your browser before proceeding.
You are using an out of date browser. It may not display this or other websites correctly.
You should upgrade or use an
alternative browser
.
Forums
The Range
Law & Order
Civil Immunity After Shooting?
Search titles only
By:
Reply to Thread
This site may earn a commission from merchant affiliate links, including eBay, Amazon, and others.
Message
<blockquote data-quote="Dave70968" data-source="post: 1774514" data-attributes="member: 13624"><p>We all know that 21 O.S. §1289.25 (F) makes immune to civil suit in the case of a justified shoot. As provided in the statute, immunity does not attach unless the force was "pursuant to the provisions of subsections B [castle doctrine] and D [stand your ground] of this section." At what point, then, is immunity pierced?</p><p></p><p>I've seen talk about the Zimmerman case that, under Florida's law, immunity is pierced at the time of <em>arrest</em>, not necessarily at <em>conviction</em>. The relevant language from the Florida statute is:</p><p></p><p></p><p></p><p>The language doesn't specifically state that immunity is lost when the defendant is arrested, but it's a reasonable inference: the law provides for both civil and criminal immunity, so if the defendant is arrested or charged, then probable cause must exist to believe that the defendant did not use force in accordance with the law, and thus he has no immunity. The trouble I have is that, while there has to be a certain amount of wiggle room to bootstrap a criminal case (if a conviction is required to pierce immunity, and immunity forbids charging, then immunity would be absolute as conviction comes <em>after</em> charging), it seems to render liability in a civil suit subject to the subjective judgment of an officer, rather than a trier of fact (the trial court).</p><p></p><p>Oklahoma's statute states, in relevant part:</p><p></p><p>Similar concept, though different language. The arrest in this case is specifically conditioned on probable cause, though, so I would argue that by separating them, the Legislature intended that mere <em>arrest</em> wouldn't pierce immunity. That still leaves us asking whether being <em>charged</em> is sufficient.</p><p></p><p>Again, due process would seem to require that a competent trier of fact render judgment that the force was, in fact, outside of the statutory provisions before civil liability attached (the same "bootstrapping" argument as above applies to the criminal case). Civil liability shouldn't be subject to the question of whether a prosecutor <em>thinks</em> he has enough evidence to win a case (or to score political points, or what-have-you), but rather on the <em>fact</em> that the evidence is there.</p><p></p><p>(As an aside, Florida's statute has both an integrated <em>and</em> a separated arrest clause: <em>(2)&#8195;A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.</em> That makes it even more interesting.)</p><p></p><p>Lawyers, what do you think? At what point does the shooter need to be adding a civil defense attorney to his team alongside his criminal defense attorney?</p></blockquote><p></p>
[QUOTE="Dave70968, post: 1774514, member: 13624"] We all know that 21 O.S. §1289.25 (F) makes immune to civil suit in the case of a justified shoot. As provided in the statute, immunity does not attach unless the force was "pursuant to the provisions of subsections B [castle doctrine] and D [stand your ground] of this section." At what point, then, is immunity pierced? I've seen talk about the Zimmerman case that, under Florida's law, immunity is pierced at the time of [I]arrest[/I], not necessarily at [I]conviction[/I]. The relevant language from the Florida statute is: The language doesn't specifically state that immunity is lost when the defendant is arrested, but it's a reasonable inference: the law provides for both civil and criminal immunity, so if the defendant is arrested or charged, then probable cause must exist to believe that the defendant did not use force in accordance with the law, and thus he has no immunity. The trouble I have is that, while there has to be a certain amount of wiggle room to bootstrap a criminal case (if a conviction is required to pierce immunity, and immunity forbids charging, then immunity would be absolute as conviction comes [I]after[/I] charging), it seems to render liability in a civil suit subject to the subjective judgment of an officer, rather than a trier of fact (the trial court). Oklahoma's statute states, in relevant part: Similar concept, though different language. The arrest in this case is specifically conditioned on probable cause, though, so I would argue that by separating them, the Legislature intended that mere [I]arrest[/I] wouldn't pierce immunity. That still leaves us asking whether being [I]charged[/I] is sufficient. Again, due process would seem to require that a competent trier of fact render judgment that the force was, in fact, outside of the statutory provisions before civil liability attached (the same "bootstrapping" argument as above applies to the criminal case). Civil liability shouldn't be subject to the question of whether a prosecutor [I]thinks[/I] he has enough evidence to win a case (or to score political points, or what-have-you), but rather on the [I]fact[/I] that the evidence is there. (As an aside, Florida's statute has both an integrated [I]and[/I] a separated arrest clause: [I](2) A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1), but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.[/I] That makes it even more interesting.) Lawyers, what do you think? At what point does the shooter need to be adding a civil defense attorney to his team alongside his criminal defense attorney? [/QUOTE]
Insert Quotes…
Verification
Post Reply
Forums
The Range
Law & Order
Civil Immunity After Shooting?
Search titles only
By:
Top
Bottom