FIND GUN LAWS BY STATE

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About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More

Civil Liability

I. Introduction

As old as time itself is the question of how to address a wrong inflicted upon another or society at large. Under the American legal system, many civil wrongs have a remedy in court by a monetary award and criminal acts, those against individuals and/or society, at least the significant crimes, may be redressed by incarceration under state or federal law in local, state or federal jails and prisons.

An unlawful use of deadly force by the criminal perpetrator or the “victim” who uses excessive or otherwise unjustified deadly force, may also result in a civil suit by the family of the former criminal assailant or victim who goes too far in self-defense, extinguishing the right to this criminal defense to what would otherwise be a crime.

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II. Insurance

One of the greatest urban legends or myths is that an unlawful use of deadly force will be covered for criminal defense costs and civil litigation costs and any judgment by insurance. In a narrow set of factual and legal circumstances, an insurer may provide a defense, which is paying the legal fees for the most part.

However, in most cases, intentional acts, such as intending to shoot someone, be it as a criminal in the name of excessive self-defense, are excluded from coverage. If this seems strange, think of it this way. If You see an arch-enemy driving down the street and decide to, and do, ram his or her car, this is criminal and an intentional act.

As such, it is very likely that Your auto insurer will deny the coverage for an intentional-acts-exception in Your coverage. In the event You have the same facts, but inadvertently hit this car that happens to contain someone You do not like because of Your care in driving, this is negligence and most likely covered by auto insurance.

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The same set of typical exceptions applies to homeowner’s insurance and umbrella coverage. Thus, if You carry a handgun for self-defense, including under reciprocal licensing, and make a mistake in judgment, it is highly unlikely any general insurance You have will provide even the costs of a defense.

There are citizen-driven defense funds that may provide legal fees and You are well-advised to look into these just as You consider strengthening the right to keep and bear arms by supporting the NRA [http://gunla.ws/nra] or GOA [http://gunla.ws/goa]. The most known is the Armed Citizens Defense Fund [http://gunla.ws/acdf] administered by attorney Marty Hayes.

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III. Intersection of Criminal Defense and Civil Liability

The interaction between a prudent criminal defense, which likely includes exercising the right to remain silent in any allegation and criminal charge of excessive force (i.e., the affirmative defense of self-defense is extinguished), is often confronted with any potential insurance defense. This is where a skilled legal team may help.

Specifically, an insurer who agrees to pay Your defense costs under any potential policy coverage, almost certainly has a cooperation clause in the insurance contract. For this reason, to learn about how much to set aside in the event You lose the civil suit (assuming there is no reservation of rights) an insurer will want to take Your statement and talk with You about the deadly force encounter.

This is generally incompatible with a criminal defense strategy, where a seasoned criminal defense attorney will want You to remain silent and have the state prove their case for a crime (excessive force charged from manslaughter to murder) beyond the very high standard of a reasonable doubt. The more You say, the easier it is for the state to prevail. Thus, You likely will not want to cooperate with any insurer.

But the failure to cooperate may result in denial of otherwise valid coverage. This is a delicate timing act a skilled attorney can help You with. As with making the determination to carry a gun and potentially engage in self-defense, this is also a matter to think about–in advance, not after the fact. If You are not willing to consider these situations, You might do well not to carry a gun at all.

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IV. Reservation of Rights

A term of art mentioned in the prior discussion is a “reservation of rights.”  This is a common term among those in the insurance and legal industry. Insurance is nothing more than a contract to cover certain risks between an insured and an insurer.

Because the events of daily life are not orderly, but disorderly and downright messy, many claims occur that despite the best written insurance contract, may not be able to be determined for coverage at least before a court trial.

As such, an insurer may issue a reservation of rights letter in cases where it is unclear whether the act or omission (such as justified force or unjustified force) is covered in that it is an intentional act or negligent act. With such a letter, an insurer may agree to vigorously defend You, but when and if a judge or jury decides it is intentional, the defense funds and payment of a claim would terminate under the reservation of rights letter.

A reservation of rights letter is thus a double-edged sword. It will provide the legal defense costs–but You had better prevail.

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V. Burden of Proof

At this juncture, it may seem odd that You could prevail in a criminal case–alleging Your use of (deadly) force was excessive and not justified–and still face civil suit. This is because there is a policy in our legal system that it is better a guilty person go free than an innocent person be incarcerated. To ensure this is the case, there is a very high standard of proof in criminal cases–beyond a reasonable doubt (this is indeterminate but probably in the 90% range of guilt on a 1 to 100 scale).

In closer cases, the use of deadly force may not be charged at all. Where it is tried, a judge or jury may acquit the defendant, agreeing the use of (deadly) force was justified. However, a civil wrong has a lower burden of proof. For this reason, a person who is not charged or acquitted may still face a long and expensive civil suit from the “victim’s” family.

The legal theory where death results is that the excessive use of deadly force (unjustified) led to the wrongful death of the now deceased perpetrator. It is possible that in close cases a criminal case may be avoided, but the civil suit proceeds and the un-charged person who exercised deadly force loses a civil case and has to pay monies for the civil tort of wrongful death.

This is the bewildering way the legal system works.  It is less than perfect, but is optimal in light of self-remedy or the old way of shooting it out at sundown. Hopefully, this chapter provides You with the insight to carefully consider the choice to carry a gun and engage in reciprocal carry. This is half the battle.

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VI. Conclusion

In the event You are involved in a deadly force incident, the criminal and civil liability chapters should provide You with a framework to utilize in any particular jurisdiction and circumstance: remain silent and retain a skilled attorney.

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FIND GUN LAWS BY STATE

Table of Contents

About the author
ABOUT THE AUTHOR Bryan L. Ciyou is a trial and appellate attorney at the Indianapolis law firm of Ciyou & Dixon, P.C. He earned his BA with distinction and graduated through the honors program, along with his JD,... Read More