Can You Be Sued After a Self-Defense Shooting? Understanding Civil Liability

Even if a shooting is determined to be justified, no criminal charges are filed or you are acquitted in criminal court, you may still face a civil lawsuit.

That may surprise a lot of responsibly armed Americans. They naturally assume that if they acted lawfully in self-defense, the legal process should be over. Unfortunately, criminal and civil cases are different proceedings, and the burden of proof is lower in civil court.

Shockingly, there are instances where criminals file lawsuits against individuals they tried to harm or kill, which can lead to the loss of poessessions, money or homes after a self-defense shooting. Understanding that possibility before a self-defense incident can help you prepare for what may come afterward.

Can You Be Sued Even If You Acted in Self-Defense?

Imagine a scenario where an intruder forcefully enters your home by breaking through the back door. This intruder is armed with a pistol, and the grip of the firearm is wrapped with duct tape. As he bursts through the door, demanding your money and property, you draw and fire your pistol, wounding him.

You call to your spouse to dial 911. The sheriff arrives and handcuffs the intruder, and the paramedics haul him off to the hospital to treat his injuries. You give a brief statement, and the sheriff assures you that you acted properly.

Other than testifying at the intruder’s bail hearing (before he pleads guilty), you believe this is the end of the frightening experience and try to put it behind you.

But a few months later, your friendly neighborhood sheriff’s department — the same one who hauled away the intruder — drops by to hand you a summons.

“I thought the criminal case was over,” you tell the deputy.

“It is. This is a different case,” he says.

You’re being sued.

This is the problem in believing that the rest of the world thinks just like you do. If you had been shot while stealing from someone else’s house, you would probably think those injuries you suffered were on you (and you’d be right).

But many criminals think, “Maybe I can hire a lawyer and obtain with a briefcase what I couldn’t obtain with a gun.”¹ And now you’re facing a lawsuit from the same person who invaded your home.

As you read the document, you realize that you’ve never thought of yourself as the awful person the pleading makes you out to be. You had no idea the intruder’s firearm was inoperative. Even if you’d known, he was 6 feet, 9 inches tall and weighed 275 pounds. You’re 5 feet, 4 inches and weigh under 200 pounds. He has at least 75 pounds on you.

But the pleading says you intentionally shot him out of malice because you didn’t like people with satanic tattoos. It also claims you jumped out from behind a bookcase (which you don’t even own) and sprang an attack on the poor man. It alleges you negligently discharged your weapon.

It accuses you of defamation, stating you said a lot of awful things about the intruder to the sheriff that were not true, damaging his reputation. And even though the intruder pleaded guilty to home invasion and was sentenced to two years in prison, he now says he entered your home because he was lost and asking for directions from someone he thought might be a “nice person.”

Sound far-fetched? Every year, cases just like this are brought by people who are engaged, for one reason or another, in criminal acts such as burglary, robbery, and assault and battery. In the commission of those acts, the perpetrators are injured by their intended victims. These criminals complain about the wretched treatment they received at the hands of their victims, and, rather than serve their jail sentences, they serve a summons and engage in recreational litigation in a misbegotten attempt to punish their victims and score some free money. The vast majority of these cases are dismissed in the first few months. But not all of them are.

Criminal and Civil Liability

A criminal case and a civil case are not the same thing.

In a criminal prosecution, the government must prove guilt beyond a reasonable doubt. That is a much higher evidentiary burden than applies in a typical civil case.

A civil case generally asks whether one party is legally responsible for damages to another. The lower burden of proof means that the favorable outcome of a criminal case does not automatically guarantee that a later civil lawsuit will end the same way.

That distinction is why a responsibly armed citizen should not assume that an acquittal, dismissal or decision not to prosecute necessarily ends every possible legal consequence of a self-defense incident.

Civil Lawsuits Filed by an Attacker

The case of Matthew Beasley illustrates just how differently the same shooting can be presented once civil litigation begins. He worked at the Full Spectrum Smoke Shop in Albuquerque, New Mexico.

In 2012, two men broke into the shop. Beasley fatally shot one of the intruders. The police called the shooting justified. The intruder’s widow, however, was having none of that. She found an attorney to recast the events of the shooting.

The attorney claimed that on Oct. 19, 2012, Beasley watched the two men enter the smoke shop on video surveillance and believed they would attempt to rob the store. He chose not to immediately call the police or to remove himself from the premises.

Instead, he ambushed the men as they entered the shop, and shot and killed one of them. Beasley later alleged that the man he shot pulled a gun on him and that he had acted in self-defense. Beasley then shot at the other man three times before turning his gun on the wounded man a second time, shooting him two more times after he was down and unresponsive. Beasley removed the man’s weapon and placed it on a desk.

Beasley then lit a cigarette and got on the phone. He gave incorrect and inconsistent statements to Albuquerque police officers, his friends, his relatives, various acquaintances and the media, defaming the character and misrepresenting the actions of the deceased man. Beasley also made false, incorrect and inconsistent statements about his actions surrounding the circumstances of his death.²

That’s one way to see it if you’re attempting to portray Beasley and not the intruder as the villain. Notice how there’s no mention of attempted armed robbery? The intruder was just “entering” the smoke shop. Lawyers have some discretion in how they characterize an incident in pleadings. But, at a minimum, the facts presented have to be accurate, and they should not be self-refuting. Indeed, the intruder’s widow verified the complaint, stating under oath that it was true to the best of her knowledge.

The widow sued Beasley, the smoke shop, the shop’s owners and the Albuquerque Police Department. Among her claims was an allegation that Beasley had defamed her husband through statements about the robbery attempt and shooting.³ Fortunately for the defendants in the case, the lawyer representing his widow was either very new or very gullible and had not done adequate research.

The defendants pointed out significant legal problems with those claims. More importantly for the self-defense question, New Mexico law provided civil immunity when damages resulted from the commission or attempted commission of a crime and the use of force was justified under state law.⁴ The suit terminated on favorable terms for all the defendants — but not until after significant legal bills were incurred by the smoke shop and the city.

Self-Defense Immunity and Civil Lawsuits

The Beasley case demonstrates that statutory immunity may provide important protection in some jurisdictions.

It also demonstrates why the details matter.

New Mexico had a specific crime-victim immunity statute that applied to Beasley’s conduct. The statute provided that a person would not be liable for damages resulting from the commission or attempted commission of a crime when the force or deadly force used was justified under state law.

That helped end the lawsuit.

But treatment varies by jurisdiction, which is why one state’s outcome should never be treated as a universal rule. The protections available after a self-defense incident depend on the laws that apply where the event occurred.

Civil Lawsuits During Criminal Proceedings

Sometimes the civil lawsuit begins before the criminal defendant has even finished dealing with his own prosecution.

An armed criminal busted down the door of 90-year-old Jay Leone’s home in Marin County, California. He tied up the retired deputy sheriff and Second World War veteran and began rummaging through the house looking for property he could steal and sell.

Leone freed his hands and convinced the burglar to allow him to use the bathroom. Leone then grabbed a handgun he kept in the bathroom and confronted the burglar. A gunfight ensued. The burglar shot Leone in the face, above the jaw, but not before the old man shot him three times in the abdomen. Despite being wounded, the burglar eventually wrestled Leone’s gun away from him. He held the gun to Leone’s head and pulled the trigger, but it was empty. The burglar then fled the scene.

While facing trial in 2012, the burglar, who survived his wounds, sued Leone, claiming it was a negligent discharge and had caused him severe pain and suffering.⁵ He filed the suit in October. The burglar was convicted shortly thereafter for his crimes and sentenced to 86 years to life. Two months after filing his outrageous suit, the court dismissed it.

Civil Liability for an Injured Bystander

Self-defense against the attacker does not necessarily resolve every potential claim arising from a shooting.

Henry Clements was managing a Louisiana pool room when a patron warned him that an unhappy customer was returning to cause trouble. Clements armed himself with a .25-caliber pistol.

When the customer returned with a knife or meat cleaver held behind his back and began to approach, Clements warned the man not to come any closer. The man brandished the knife over his head and continued to advance in an obvious attempt to harm Clements, so Clements shot him three times in the chest, killing him. One of the shots, however, also struck an innocent bystander, who later sued Clements and the pool hall.

The circuit court dismissed the lawsuit because Clements was justified in defending himself from the disgruntled customer. The wounded bystander appealed, and the appeals court reversed the dismissal. The court reasoned that when Clements — the employee in charge of the pool room — failed to warn the other occupants of impending danger, he violated the duty of the operator of a public place to use reasonable care for the protection of his patrons and was therefore negligent.

Clements would have been immune from liability from the rowdy customer, but the bystander had a cause of action against him.⁶ This is why marksmanship and frequent training are so important.

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Warning Shots and Civil Liability

Similarly, Ohio resident Gene A. Davidson broke one of the cardinal rules of self-defense … and it cost him dearly. After having his barn in rural Ohio burglarized and equipment stolen, he told police he would shoot the next person who tried to steal from him. When his neighbor called to report a truck with its engine running and lights out on the road near his barn, Davidson grabbed a .38 revolver and swung into action. He opened the kitchen window and, from that vantage point, told the men to stop. Instead, they ran.

Davidson fired four shots, which he told police were “warning shots” over the two burglars’ heads. One of those shots, however, struck one of the burglars under the arm, traveled laterally through his chest and killed him almost instantly. While Davidson was not charged criminally (even though he had been warned by police not to use deadly force to protect property), the burglar’s father, acting as the administrator of his son’s estate, sued Davidson. The plaintiff secured a judgment against Davidson.⁷

Davidson appealed, and the 11th District Court of Appeals reversed that judgment. Then the burglar’s estate appealed that order to the Ohio Supreme Court. Thereafter, the Ohio Supreme Court, apparently not fully appreciating the impact its decision would have, said that public policy did not prevent a felon from recovering from his crime victim.⁸ In other words, it told felons to bring their lawsuits.

The case must have been what prompted the family of a deceased robber to sue an Ohio security guard named Bayard Betleyoun for wrongful death. Two men planned to rob Betleyoun, a security guard for Summit Check Cashing LLC. But the best-laid plans don’t usually involve air pistols, and the armed Betleyoun shot and killed one of the robbers when he pointed the air pistol at him.

Unfortunately, the lawyers representing the robber’s estate did not read far enough into the Davidson case to recognize how the law applied to him. Citing the case, the 9th District Court of Appeals said, “The Ohio Supreme Court has recognized that ‘a defendant may be relieved of liability for tortious conduct by proving that such conduct was in self-defense.’” In the robber’s case, Betleyoun honestly and reasonably believed the robber’s gun was real, and he reacted accordingly. Betleyoun shot and killed him, and the court held that self-defense extinguished the right of the estate to claim damages.⁹

Four Lessons From Civil Self-Defense Cases

From the cases mentioned, we can discern certain principles as they apply to civil liability for shooting, wounding or killing a felon in the commission of a violent act.

Accuracy Still Matters

First, be certain to hit that at which you aim. While self-defense will usually prevail against a criminal, it may not prevail against an innocent bystander — and, of course, you could face criminal liability for such an accident in many jurisdictions.

Video Evidence Can Matter

Second, having video evidence of what actually transpired is very helpful in getting to the correct result. Video surveillance systems are relatively inexpensive. (Costco and Sam’s Club routinely place them on sale.) Arlo and Blink cameras available at big-box stores also provide phone notifications when the motion-activated cameras begin to record. The plaintiff’s claims of being “ambushed” in the smoke shop incident were promptly laid to rest by the video from the store’s security camera. That video was described by the defendants in the motion for summary judgment in this way:

The video evidence conclusively establishes the events in question and demonstrates that it was the intruder who first threatened Beasley with deadly force by pointing a gun directly at him at close range. From the various camera angles of the events in question, there is no dispute that Beasley’s actions were in self-defense and were a direct, split-second response to the intruder’s imminent threat of deadly force. The video entirely contradicts the allegations of Plaintiffs’ Complaint and demonstrates that there are no genuine issues of material fact.¹⁰

A Criminal Conviction Can Affect the Civil Case

Third, the prosecution in the criminal case needs to secure a conviction. Because the evidentiary burden is higher in a criminal case (beyond a reasonable doubt) than in a civil case (more likely than not), a criminal conviction means that the plaintiff in such a case cannot later claim he or she clumsily fell through the back door, crowbar in hand. A conviction makes it much more likely that the felon will not be able to secure a judgment against the self-defender by claiming to be an errant seller of Girl Scout cookies asking for directions.

Experienced Legal Representation Matters

Fourth, the lawyers on both sides are often a determining factor. In the smoke shop case, the plaintiff’s attorney was threatened with sanctions for essentially lying in the plaintiff’s pleaded description of the incident. The video, which the plaintiff had seen, clearly showed how the entire incident went down. Lawyers are required to make a reasonable inquiry into the facts; that apparently did not happen. They are also required to correct misstatements to the court if they discover the pleading information is incorrect. That too didn’t happen.

Protection After Self-Defense

Most serious practitioners on the plaintiff’s side of the bar despise cases like the smoke shop because it makes their jobs that much harder. It makes anyone who sues look like some money-hungry knucklehead in search of a quick buck. But that doesn’t mean you can treat such civil litigation as not important.

As my Aunt Naomi used to say, “Even a blind pig finds an acorn now and then.” The defendant, therefore, has to be represented by a competent firm of attorneys selected for their expertise in that area of practice. A self-defender needs someone who can, if necessary, conduct an investigation, interview witnesses, coordinate with law enforcement investigators, locate expert witnesses, comply with discovery deadlines and work to eliminate the case as quickly (and inexpensively) as possible.

The problem, of course, is that it has been frequently observed that “talk is cheap until you hire an attorney.” In the state of Delaware, senior attorneys in large firms bill in excess of $1,800 per hour in some cases. In the District of Columbia, the Laffey Matrix, used to measure the reasonableness of lawyer fees, says attorneys with 20 or more years’ experience can charge in excess of $900 per hour for their services.

It does a self-defender no good to defend his or her home and family if, by the end of the experience, the individual has to sell that home to pay the attorney’s fee or is no longer able to feed his or her family. For that reason, I recommend all responsibly armed Americans consider some form of concealed carry insurance.

Legal ramifications are so very important to consider before you’re forced into a situation where defense of life is required. It is also a good reason to remember that avoiding a confrontation by securing yourself in a back bedroom behind locked doors and calling 911 will almost always yield a better outcome than charging out with guns blazing.

Survival is the immediate objective. Preparing for what may happen afterward is part of responsible self-defense too.

Endnotes

[1] With apologies to Mario Puzo for mangling the quote.
[2] Estate of Sedillo v. Full Spectrum Smoke Shop, Inc., No. 1:13-cv-00448-JAP/RHS (D.N.M. Feb. 5, 2014), Document 2-1.
[3] Nancy Laflin, “Robbery suspect’s widow sues shop, city,” KOAT.com, Oct. 23, 2014, KOAT.com/article/robbery-suspects-widow-sues-shop-city/5059940.
[4] New Mexico Statutes 1978, Chapter 31, Article 23, Section 1.
[5] James Nye, “90-year-old shot in face during burglary is SUED by burglar because World War Two veteran fired back,” DailyMail.com, Oct. 25, 2012, DailyMail.co.uk/news/article-2223125/90-yearold-shot-face-burglary-SUED-burglar-World-War-Two-veteran-fired-back.html.
[6] Anderson v. Clements, 284 So. 2d 341 (La. Ct. App. 1973).
[7] Goldfuss v. Davidson (1997), 79 Ohio St.3d 116.
[8] For the record, this is bad public policy. The court justified it as “not encouraging vigilantism,” which fails to recognize that, in rural areas, homeowners are their own first responders.
[9] Ashford v. Betleyoun, 2006-Ohio-2554.
[10] Estate of Sedillo v. Full Spectrum Smoke Shop, Inc., Document 27.