As all my students know, there are two parts to any gunfight. The first of course is the one with the bad guy. Now presuming that this goes the way we all hope it goes, you then progress on to the second part of the fight, that is, with the legal system. This is the part I want to talk about now.
You can face legal liability for part one of the process in two ways. Either through a criminal prosecution by the state, or in a civil lawsuit by the guy you just shot, or perhaps by his family if he is no longer around to sue you himself. But fear not, say you, because any shoot you will be involved in will be a "good shoot" and thus you have nothing to fear. That guy lying on the ground with a bullet in him doing a reasonable imitation of being the crime victim will be no problem for you, standing there with a gun in your hand doing a reasonable imitation of being the attacker. At least from the initial perspective of the approaching officers. But let's make this easy. Say all the stars are in alignment, and the state decides not to prosecute you. It was indeed a "good shoot" at least from the point of view of the local State's Attorney. (A lot more to say on this, but some other time.) So it's party time. You have been vindicated and all is right with the world. At least until a guy knocks on your door the next day and hands you an envelope. Contained therein, (lawyers talk like this) is a notice that you are being sued in civil court for a bazillion dollars, plus legal fees and costs.
Do you panic? Do you see all of your life long savings and assets being taken from you and given to lawyers and other miscreants? No again say you with a smile. You live in a state that provides immunity from civil lawsuits where the shooting is justifiable. So you tell the plaintiff to go pound sand. Do you think that's how this is going to go down? Really? Well it might, but I wouldn't count on it. Here's the problem, taking Illinois as an example near and dear to many of us. (Other states may have variations on this theme, but their statutes are generally quite similar.)
Illinois law says:
"In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of “aggressor” set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct." (Emphasis mine)
So what's the issue here? Didn't I say that the state decided not to prosecute and that it was a good shoot? Therefore the civil case should be dismissed out of hand. As I said above, I wouldn’t count on it.
Here's the rub. In order for this to work, there has to be some determination that the shoot was in fact justified. From our facts, you don't have that. What do I mean? The state did not prosecute. So what. That does not legally mean there was a finding by some legal authority that the shoot was justified. Mas Ayoob in his excellent new book "Deadly Force" talks about this problem. He recommends that you get a "Closing Memorandum" from the State's Attorney saying at the minimum that the case is closed, and better, that the shooting was found to be justified. Will this work. Yes and no. Yes, if the State's Attorney will provide such a memorandum. And no, because the State probably will not provide such a memo. At least so I have been told. I have discussed this matter with a few former prosecutors that I know well, both on the State (Illinois Cook-County and Indiana-Lake County) and federal level. The answer was the same in all cases. No, they will never put in writing anything that says a case is closed if they decide not to prosecute. As one said to me, what if new evidence comes up some day later? We don't want a written memo out there saying the case is closed. So I asked what procedure do they follow if they decide not to prosecute. One said they just pick up the phone and call the cop and say there nothing here. Another said they might make a "nolle pros" notation on the file, but nothing more.
So now where does that leave you? At the minimum, you may have to convince a civil court judge that the shoot was justified under Illinois law, and then, and only then, and presuming the court agrees, can you move for dismissal. (Some states have established a separate hearing and procedure for this. Illinois and others have not.) Now that is not a slam dunk either. Regardless of the procedure you may now have to follow, this translates into "bring money." Lawyers and court costs, time off from work, and all of the other not so pleasant parts of being a defendant even in a civil case begins to add up quickly.
So, the "good shoot is a good shoot" myth is just that, a myth on the level of the tooth fairy. It’s only a "good shoot" when and if the legal system, arguably both criminal and civil, says so. And that my friends can be a very expensive process.
And this takes me back to the advice I gave you all in my classes. As our friend Wyatt Earp said, how do you win a gunfight? Both parts? Easy. Don't show up. Other than that, things get complicated.
We'll talk later about wining the battle and losing the war, i.e., not guilty in the criminal case and guilty in a civil prosecution. Also, one of these days we really have to talk more about insurance. Until then...have a great day.
You can face legal liability for part one of the process in two ways. Either through a criminal prosecution by the state, or in a civil lawsuit by the guy you just shot, or perhaps by his family if he is no longer around to sue you himself. But fear not, say you, because any shoot you will be involved in will be a "good shoot" and thus you have nothing to fear. That guy lying on the ground with a bullet in him doing a reasonable imitation of being the crime victim will be no problem for you, standing there with a gun in your hand doing a reasonable imitation of being the attacker. At least from the initial perspective of the approaching officers. But let's make this easy. Say all the stars are in alignment, and the state decides not to prosecute you. It was indeed a "good shoot" at least from the point of view of the local State's Attorney. (A lot more to say on this, but some other time.) So it's party time. You have been vindicated and all is right with the world. At least until a guy knocks on your door the next day and hands you an envelope. Contained therein, (lawyers talk like this) is a notice that you are being sued in civil court for a bazillion dollars, plus legal fees and costs.
Do you panic? Do you see all of your life long savings and assets being taken from you and given to lawyers and other miscreants? No again say you with a smile. You live in a state that provides immunity from civil lawsuits where the shooting is justifiable. So you tell the plaintiff to go pound sand. Do you think that's how this is going to go down? Really? Well it might, but I wouldn't count on it. Here's the problem, taking Illinois as an example near and dear to many of us. (Other states may have variations on this theme, but their statutes are generally quite similar.)
Illinois law says:
"In no case shall any act involving the use of force justified under this Section give rise to any claim or liability brought by or on behalf of any person acting within the definition of “aggressor” set forth in Section 7-4 of this Article, or the estate, spouse, or other family member of such a person, against the person or estate of the person using such justified force, unless the use of force involves willful or wanton misconduct." (Emphasis mine)
So what's the issue here? Didn't I say that the state decided not to prosecute and that it was a good shoot? Therefore the civil case should be dismissed out of hand. As I said above, I wouldn’t count on it.
Here's the rub. In order for this to work, there has to be some determination that the shoot was in fact justified. From our facts, you don't have that. What do I mean? The state did not prosecute. So what. That does not legally mean there was a finding by some legal authority that the shoot was justified. Mas Ayoob in his excellent new book "Deadly Force" talks about this problem. He recommends that you get a "Closing Memorandum" from the State's Attorney saying at the minimum that the case is closed, and better, that the shooting was found to be justified. Will this work. Yes and no. Yes, if the State's Attorney will provide such a memorandum. And no, because the State probably will not provide such a memo. At least so I have been told. I have discussed this matter with a few former prosecutors that I know well, both on the State (Illinois Cook-County and Indiana-Lake County) and federal level. The answer was the same in all cases. No, they will never put in writing anything that says a case is closed if they decide not to prosecute. As one said to me, what if new evidence comes up some day later? We don't want a written memo out there saying the case is closed. So I asked what procedure do they follow if they decide not to prosecute. One said they just pick up the phone and call the cop and say there nothing here. Another said they might make a "nolle pros" notation on the file, but nothing more.
So now where does that leave you? At the minimum, you may have to convince a civil court judge that the shoot was justified under Illinois law, and then, and only then, and presuming the court agrees, can you move for dismissal. (Some states have established a separate hearing and procedure for this. Illinois and others have not.) Now that is not a slam dunk either. Regardless of the procedure you may now have to follow, this translates into "bring money." Lawyers and court costs, time off from work, and all of the other not so pleasant parts of being a defendant even in a civil case begins to add up quickly.
So, the "good shoot is a good shoot" myth is just that, a myth on the level of the tooth fairy. It’s only a "good shoot" when and if the legal system, arguably both criminal and civil, says so. And that my friends can be a very expensive process.
And this takes me back to the advice I gave you all in my classes. As our friend Wyatt Earp said, how do you win a gunfight? Both parts? Easy. Don't show up. Other than that, things get complicated.
We'll talk later about wining the battle and losing the war, i.e., not guilty in the criminal case and guilty in a civil prosecution. Also, one of these days we really have to talk more about insurance. Until then...have a great day.
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