Responsibly armed Americans often wonder whether they can lose their possessions, money or their homes after a self-defense shooting, even if they have been acquitted in the criminal case. Unfortunately, you have to worry about civil lawsuits too. In a criminal trial, the burden of proof is much higher than in a civil case, making it easier to find you guilty in civil court. Shockingly, there are instances where criminals file lawsuits against individuals they tried to harm or kill. Therefore, understanding civil liability after a self-defense incident can help you prepare appropriately.
Sued for Defending Yourself
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.”
You stand there with your mouth hanging open in shock. How can this be?
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 sprung 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.
Take, for example, the case of Matthew Beasley. 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.
According to press accounts, in 2002, the intruder and several of his friends attempted to snatch a purse from an 89-year-old woman. Being unwilling to part with her purse, the woman instead died from injuries suffered from the man dragging her. He had a history as a gang member and should have received a life sentence for the murder, but he ended up spending less than six years in state prison.
His widow sued Beasley, the smoke shop, the owners of the smoke shop and the Albuquerque Police Department.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.
Among the many claims that his widow brought were for defamation, specifically that Beasley defamed her husband by making untruthful statements about the robbery attempt and subsequent shooting (which was captured on video). As the defendants each pointed out, under New Mexico law, defamation claims do not survive death and, perhaps more importantly, cannot be brought by someone other than the person allegedly defamed.
Further, the New Mexico crime victim’s immunity law immunized Beasley’s conduct. It says no one is liable in a civil action for damages if those damages are the consequence of the commission or attempted commission of a crime, and the use of force or deadly force is 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.
Sometimes, however, criminals sue their victims while they are still in the criminal justice system. 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.
While the law has often been fairly generous to crime victims, it isn’t always. Treatment varies by jurisdiction; take the case of Henry Clements. Clements was the employee in charge of a Louisiana pool room. A patron warned Clements that an unhappy customer was returning to cause trouble, so 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.
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 Fundamental Principles of Civil Liability
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.
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.
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
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.
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.
When Betleyoun and Beasley were confronted with a deadly threat, neither victim was thinking about civil liability after self-defense. They were concerned with surviving the next few moments, not waging a legal battle. That’s why 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.
 With apologies to Mario Puzo for mangling the quote.
 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.
 Nancy Laflin, “Robbery suspect’s widow sues shop, city,” KOAT.com, Oct. 23, 2014, KOAT.com/article/robbery-suspects-widow-sues-shop-city/5059940.
 New Mexico Statutes 1978, Chapter 31, Article 23, Section 1.
 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.
 Anderson v. Clements, 284 So. 2d 341 (La. Ct. App. 1973).
 Goldfuss v. Davidson (1997), 79 Ohio St.3d 116.
 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.
 Ashford v. Betleyoun, 2006-Ohio-2554.
 Estate of Sedillo v. Full Spectrum Smoke Shop, Inc., Document 27.