OT Texas Castle Doctrine

[rimrock]

Let the flames begin, but I'm just presenting my observations.

On p. 26 of the 2010 Guns & Ammo Handguns Annual, Massad Ayoob discusses court issues concerning self-defense with firearms. He mentions how one Texan was probably exposed to $60,000 in defense costs for an apparent justified use of a handgun which took place before the Texas Castle Doctrine was placed in sec. 83.001 of the Civil Practice & Remedies Code. The results are probably going to be similar for people having to defend themselves from lawsuits in Texas after the castle doctrine became effective because, according to the Texas 9th Court of Appeals and Texas Supreme Court (prior to ruling on a motion for rehearing) they reaffirmed long standing Texas law. The castle doctrine, like several other Texas laws, provides an affirmative defense to liability but does not provide any immunity from the lawsuit according to a legal opinion concerning the use of deadly force by Paul Smith in Montgomery County, Texas. The second amendment correctly allows self defense, but there are consequences of just about every action as has been clearly stated by many courts reviewing first amendment claims. Therefore, you need to be extremely comfortable with the decision you make about the level of force you choose to exert in a situation. To me, the Handguns Annual article makes me reflect again about the gravest extreme of taking a human life that Mas discusses in one of his books about the use of force.

[Terry Murbach]

IT IS EASY, RIMROCK. YOU JUST LET YOUR ASSAILENT KILL YOU AND YOU ARE OFF SCOTT FREE WITHOUT A CARE IN THE WORLD.

[Iron_Marshal]

I have to wait for the case to be settled to comment, and for the suspect to have no opportunity for appeal, but I may be named in a suit where the suspect pointed a weapon at an officer...the officer drew and fired as I arrived. The suspect went down and I cuffed the guy. Even though I did NOT FIRE a round the suspect has been saying that I shot him twice in the back. Can't wait to see how this comes out.

[gundownunder]

+1
what Terry said.

You die and he deals with the consequences, or
He dies and you deal with the consequences

It really is a no brainer I would think.

Here's a thought
After you fight your way through the courts and you are vindicated could you sue his family for the costs and aggravation?

[Ysabel Kid]

+1
what Terry said.

You die and he deals with the consequences, or
He dies and you deal with the consequences

It really is a no brainer I would think.

Here's a thought
After you fight your way through the courts and you are vindicated could you sue his family for the costs and aggravation?

That would clear up a lot of the junk lawsuits in this country. It makes a lot of sense - which is why it won't happen here. The lawyers bought and paid for the Democrat party here a long time ago. The Dem's - and a heck of a lot of the Republicans - will simply not pass any serious tort reform. Too much of a bite into the lawyers income...

[Warhawk]

Don't bet on it, I've been in Texas for about 5 years now and pay attention to such things as homeowners shooting intruders.

I have yet to see a case where the homeowner was not "No-Billed" by the grand jury in a legitimate case of self defense. I don't know where you live, but things are different down here.

[awp101]

Here's what we were told in my CHL class given DEC08 in Dallas:

The school approached a law firm and asked about the Castle Doctrine and a clean shoot. If the victim or victim's family wanted to sue the homeowner, the law firm would require $40K up front from the plaintiff and would tell them they had no chance.

[RSY]

I have yet to see a case where the homeowner was not "No-Billed" by the grand jury in a legitimate case of self defense. I don't know where you live, but things are different down here.

Sure, but I was told by my CHL instructor six years ago that even a no-bill trip to the Grand Jury was going to cost around $20k in legal fees. I'm sure it's even more now.

At the very least, such an incident is going to cost some big bucks...but it sure beats being dead.

Scott

[Warhawk]

I have yet to see a case where the homeowner was not "No-Billed" by the grand jury in a legitimate case of self defense. I don't know where you live, but things are different down here.

Sure, but I was told by my CHL instructor six years ago that even a no-bill trip to the Grand Jury was going to cost around $20k in legal fees. I'm sure it's even more now.

At the very least, such an incident is going to cost some big bucks...but it sure beats being dead.

Scott

Six years ago we didn't have the Castle Doctrine.

[rimrock]

it could be possible to counter sue in some cases, and if that is successful the recovery can offset all the legal fees. usually, in this situation the defense tries to keep from appearing heavy handed in the eyes of the jury. I do agree its better to be judged by 12 instead of being carried by 6. My point really is tries to get you to think about situations where deadly force is authorized under the law, but maybe not warranted by the events at hand. I'm fully aware of the possibility that a crook may want to return to the scene to steal some more stuff, but you have to decide if a couch is worth all the legal fees you will likely face if you kill the crook. Sometimes, hind sight will teach you that it was not worth it.

[Hobie]

I have established rules of engagement so that I don't have to "reason" my way through an encounter. IOW, certain actions get a certain response. These are calculated to ensure that if I shoot somebody it is because I am in fear of my life or must act to protect the lives of others. I expect to be sued. I have determined that I will resist any such suit to my last dime and then turn around and sue all the parties involved for all damages even down to the loss suffered in however many rounds of ammunition were expended, time off from work, etc. So far this plan has worked. I would rather not get to the ultimate point but I am as prepared as I can be.

[O.S.O.K.]

I believe the discussion was about civil suits - "wrongful death" suits, etc. .

Regardless, this is why we need a "loser pays" law in this country. You can counter sue but if the scumbag's family are destitute (which they often are) then there's nothing to gain... A "loser pays" law will eliminate about 80% (my guess) of frivilous law suits which is why the "Association of Trial Laywers" and such are dead set against it - they will lose most of their source of income. Which proves that they are in actuality, leaches on society.

I am not one to point to Europe for examples but this type of law has been on the books over there apparently for some time and has worked very well.

[kimwcook]

I believe the discussion was about civil suits - "wrongful death" suits, etc. .

Regardless, this is why we need a "loser pays" law in this country. You can counter sue but if the scumbag's family are destitute (which they often are) then there's nothing to gain... A "loser pays" law will eliminate about 80% (my guess) of frivilous law suits which is why the "Association of Trial Laywers" and such are dead set against it - they will lose most of their source of income. Which proves that they are in actuality, leaches on society.

I am not one to point to Europe for examples but this type of law has been on the books over there apparently for some time and has worked very well.

There in lies the rub. Most of the families that bring lawsuits against people protecting themselves in their own homes because someone shot their loved one (or not)don't have a pot to p_ss in or a window to throw it out of. Their attorneys the case contingent they win the suit. No win, no pay, but the defending party still has to pay for their defense. And, if you were to counter sue what are you going to get? You won't even get the pot even if you do get a judgement.

[Charles]

Hoo Boy! "Massad Ayoub wrote...", "My CHL Instructor said...". The world is filled with curbstone lawyers and others who are cluless about the issues on which they comment. They all have an adgenda, but a clean and clear telling of the law doesnt seem to be among them. So here goes.

!. It cost 20K to get no-billed. This is nonsense, the Grand Jury meets in secret and outside lawyers are not allowed to watch and the person in question can testify if they wish, but they wave their 4th ammendment rights to do so, and mostly it is a stupid move. Once the Grand Jury hands down a True Bill, then the lawyer's meter will start to run.

Before the Grand Jury meets, a lawyer will meet with you and hear your story, put you in contact with the folks who can make bail and tell you to keep you mouth shut. That is about a 1K bill or less.

2. The Texas Castle Law does provide an "affirmative defense" to lawsuits if the shooting falls within the circumstances of the Castle Law. An affirmative defense, is a defense the defendant in a lawsuit asserts that if proven stops the lawsuit and the plantiff takes nothing.

In such a shooting, I think I could prevent the lawsuit from going to trial. I would waive a jury and ask for Bench Trial where the judge is the decider or both the law and the facts. I would file a motion for summary judment based on the affirmative defense within the Castle law. The judge would have a hearing on the motion and I would present my evidence and if it was a valid Castle Law schooting, the judge would grant the motion for summary judgment, dismiss the lawsuit and we would all go home. This would involve a half day in court and would not be cost prohibitive. If a lawyer wanted an ungodly amount up front for a flat fee, tell him/her you want to engage them on an hourly basis. You don't need Perry Mason on this kind of stuff.

If I didn't waive a jury and have a bench trial, then the jury would be the decider of disputed facts and would have to hear the evidence to decide if the shooting came under the Castle Law and that could draw thing out and could indeed become costly.

The bottom line is an Affirmative Defense is not to be sneezed at, for if proven is a total bar against recovery by the plantiff.

Anyway... That is my take on the issue at hand.

P.S... I held a Texas Law License for 40 years and early on both defended and prosecuted criminal cases. Today, I teach in the Legal Studys Deparment at a branch of the Unversity of Texas and one of the courses I teach is Texas Criminal Law and Procedure, so I am current on the issues at hand.

[O.S.O.K.]

Charles, please pm me with your email addy or some other contact information - I want to put that on file should I ever need advice!

And what do you think of the "loser pays" law? Are you familiar with the European versions?

[76/444]

Thank you Charles,..... thank you, thank you, thank you!!!

I have been preaching to fellow gunnies for decades that the slogan," Only a fool defends himself," ...is nothing less than legal propaganda in conjunction with left liberal propaganda to convince the self defense tool carrying segment of this nation that their RIGHTS are not worth the COST!!

Every year these costs are published going higher and higher, creating more and more of these so called Gun gurus to come out with publications supporting and favoring the BAD GUY, rather than the patriot.

LAW,... is not rocket science, gentlemen! If you have a high school education, reading up on this specific segment of case law, and preparing yourself, is not all that hard. If you DON'T educate yourself,... then you will have to pay another to do it for you!

YOUR CHOICE!

What we need is a precedent setting case where THE plaintiff LAWYER who takes a case for a scumbag criminal's family,... who was killed while trying to kill a home owner,.... is declared the primary defendant in a surviving victim's suit to recover all costs.

When the LAWYERS, have defense costs come out of their pockets for frivolous suits,... things will change in a heart beat!!!



just one man's opinion.

[RSY]

Hoo Boy! "Massad Ayoub wrote...", "My CHL Instructor said...". The world is filled with curbstone lawyers and others who are cluless about the issues on which they comment. They all have an adgenda, but a clean and clear telling of the law doesnt seem to be among them.

I'm just passing on what I had been told and thought to be the case. Over my seven years here, I've come to realize that opinions and secondhand information are rarely, if ever, peddled on this august forum of factual experts. So, my apologies for breaking the streak of infallacy here.

[76/444]

Never liked Ayoub,... never.

There is just something about him that rubs me the wrong way. Mainly I feel he likes talking to, and fishing for admiration form fools who can't seem to think for themselves.

[rimrock]

The irrational case gets thrown out, hopefully. The illogical case will easily avoid summary judgment on such fact issues as who provoked who. I'm not a lawyer, but I'm the one who prepares the lawyer for trial and here's what I see as close to reality.

An example of an irrational case--defending one's family against a drugged up BG and BG is justifiably killed in the home while attempting to attack one of the family members. I suggest this would be a hard wrongful death case to prove which might be subject to summary judgment early in the case thus legal fees for defendant would be less than if full blown trial.

An example of an illogical case--slightly drunk dud who has hardening of the arteries comes to the door to "discuss" an issue. Question is who provoked who which almost always prevents summary judgment because there is at least a triable fact. Defendant gets no billed for the crime, and wins the civil affirmative defensive but has no counter-claim to assert which could form the basis of an award of attorney fees to the defendant's lawyer. So, defendant still looses because he has to pay his attorney a lot. And' it's this kind of issue that makes me say that no one wins when a lawsuit is filed except the lawyers. The chance to win may be small, but the American system is far better than most in the world where you simply disappear if you disagree. I think a narrowly drawn rule on loser pays such issues should be considered as the present system does not recognize any fairness or justice. It focuses too much on transfers of wealth based on advocacy which allows only half-truths to be considered.

Nothing wrong with Hobie's mind set, and certainly mine where defense of myself or another person is involved. I'm just not as certain that I would have the same thinking if just stuff was involved--some of which needs to be thrown away anyway.

So now, I'm sure I'm banished to the corner. I'm done with my observations on this topic, and I'll try to come up with a levergun topic for my next thread.

[Warhawk]

Are you a Democrat, a Republican, or a Redneck?

Here is a little test that will help you decide.

The answer can be found by posing the following question: You're walking down a deserted street with your wife and two small children.

Suddenly, an Islamic Terrorist with a huge knife comes around the corner, locks eyes with you, screams obscenities, praises Allah, raises the knife, and charges at you.

You are carrying a Colt Model 1911 45 cal. automatic pistol, and you are an expert shot...

You have mere seconds before he reaches you and your family. What do you do?

THINK CAREFULLY AND THEN SCROLL DOWN:










Democrat's Answer :
-Well, that's not enough information to answer the question!
-Does the man look poor or oppressed? Have I ever done anything to him that would inspire him to attack?
-Could we run away?
-What does my wife think?
-What about the kids?
-Could I possibly swing the gun like a club and knock the knife out of his hand?
-What does the law say about this situation?
-Does the pistol have appropriate safety built into it?
-Why am I carrying a loaded gun anyway, and what kind of message does this send to society and to my children?
-Is it possible he'd be happy with just killing me?
-Does he definitely want to kill me, or would he be content just to wound me?
-If I were to grab his knees and hold on, could my family get away while he was stabbing me?
-Should I call 9-1-1?
-Why is this street so deserted?
-We need to raise taxes, have paint and weed day and make this happier, healthier street that would discourage such behavior.
-This is all so confusing! I need to debate this with some friends for few days and try to come to a consensus.

............................................................................


Republican's Answer:

BANG!
.......................................................................

Redneck's Answer:

BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG!
Click.... (Sounds of reloading) BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! BANG! Click
Daughter: 'Nice grouping, Daddy!
Son: 'Can I shoot the next one?!'
Wife: 'You ain't taking that to the Taxidermist

[Bogie35]

There in lies the rub. Most of the families that bring lawsuits against people protecting themselves in their own homes because someone shot their loved one (or not)don't have a pot to p_ss in or a window to throw it out of. Their attorneys the case contingent they win the suit. No win, no pay, but the defending party still has to pay for their defense. And, if you were to counter sue what are you going to get? You won't even get the pot even if you do get a judgement.

You're absolutely right Kim. You have rights in this country ONLY if you can afford the court costs.

bogie