by Marty Hayes, J.D.
I am pleased to report that currently, we have no members facing criminal charges for acts of self defense. This past month the two cases for which we were funding the defense were dismissed.
In the first–a case where a member was being assaulted and successfully used pepper spray to stop the attack–the member was arrested and charged with a felony crime. This was in a liberal Eastern seaboard state, where apparently the private citizen has no right to protect himself.
In total, the Network paid $50,000 for the attorney to go to court several times, go to the scene, hire a private investigator to research the background of the individual who assaulted our member, and to hire an expert witness to explain to the court why the use of pepper spray was reasonable under the circumstances. After seeing the defense that our member was able to put up, the state decided to dismiss the charges. Avoidance of trial with charges dismissed is the ultimate win.
In the second incident, a member displayed a handgun in the face of presently threatened unlawful force. This was in a liberal-leaning state out West. The Network paid for an attorney to represent our member. After looking at the case, the prosecutor decided not to continue with the prosecution and dismissed the charges without prejudice. That legal term means the state can reinstate the charges if they desire, up to the limits of the statute of limitation. In this situation, it means the case is not 100% over for our member, although the likelihood of the charges being reinstated is extremely slim.
I find it interesting that the first case I mentioned, for which we paid legal expenses of $50,000, wasn’t a firearm-related self-defense case. When we formed the Network in 2008, our funding was primarily to defend after the use of deadly force with a firearm. However, the majority of times our member DID NOT use a firearm, but instead another self-defense tool, or even a make-shift tool. We quickly decided to make no distinction between whether a gun was used or not, and instead look at the individual case and determine if there is a cognizable claim of self defense.
I explain this as a way to help differentiate the Network from some of the other legal assistance programs. Many of the programs only help after an act of self-defense with a firearm, so that would leave out more than half of our incidents. Be VERY CAREFUL reading the fine print/details of whatever program you settle on.
Working With Other Companies?
A question that comes up often is how the Network would work with other programs if the person had more than one post-incident support program, like purchasing an insurance policy or joining as any of the several programs similar to the Network, or subscribing to a pre-paid legal services plan.
First, let’s compare the Network to insurance. The insurance models typically are a reimbursement scheme for the criminal defense, and the insurance company provides the civil litigation defense for a civil tort claim against you. When a Network member has a criminal defense case, if more money is needed after the initial retainer of up to $25,000 is used up, then we pay what is needed to complete the legal defense of a legitimate self-defense claim. This typically entails considerably more money, and our payment is conditioned upon being reimbursed by the member if they are reimbursed from an insurance company for the legal expenses that the Network paid.
This particular situation has not come up yet, but I can envision a time when it might. At that time, I would discuss the matter with the insurance company, and we would draw up an agreement to allow for this. Additionally, if the member was sued and had insurance to cover that lawsuit, the insurance company would very likely want to control the defense of that suit. They would hire the legal team, since they would be the ones who would be out the money if the client lost the civil suit. If the member also has insurance, I do not envision the Network being involved in the civil suit defense at all, except, perhaps, to hire an attorney to represent the member’s interests over those of the insurance company.
Now, in the event the member does not have insurance, then rest assured the Network would participate fully in paying for the legal defense of that civil suit, subject to the practical limit of no more than one-half of the Legal Defense Fund used for any one member’s case. So far, none of our members have faced a civil suit.
If the Network member has also joined a pre-paid legal services plan in addition to the Network, the waters of how the two would work together become murky. Some plans say they will pay for the entire legal defense up front, and others say they will pick up attorneys fees only. Instead of discussing a bunch of hypotheticals, I will just state that the Network would discuss the best way to proceed, giving priority to the member’s interests, and come to a logical conclusion as how to assist, perhaps through provision of experts or other services. From my study of the companies currently offering the pre-paid legal plans, most are run by reasonable people and we would likely come to a mutually agreeable working arrangement.
I cannot predict that, though, with insurance companies. Most insurance companies (at least the ones with which I am familiar), have the best interest of the insurance company at heart, not their clients.
Other Legal Issues?
I’d like to clarify another point about Network membership benefits: With what other kinds of legal challenges would we help the member? Specifically, I am referring to administrative legal issues following an acquittal or dismissal of charges. These include getting the member’s gun back, getting a concealed weapons permit reinstated and a myriad of other possible legal issues that are separate from the criminal defense.
We recently discussed this amongst the leadership of the Network, and have settled on a bright line rule. Our involvement funding the member’s legal defense ends when the criminal or civil case is over. For criminal defense, that means the dismissal, acquittal, plea bargain or guilty verdict. It is my understanding that if a person is found guilty at a criminal trial, they have a right to appeal, and that appeal is either privately funded, or funded by the state. If not funded by the state, the Network would examine the trial record to see if there was a good basis for appeal, and if so, we would fund the appeal. By necessity, that decision would have to be made on a case by case basis, since it only makes sense to draw on the Legal Defense Fund where appealable issues exist and not waste it tilting at windmills just to make a point.
Now, I have not yet addressed the issue of an appeal if a civil lawsuit judgment goes against a member. First, bear in mind that while the Network pays for the trial defense against a civil lawsuit seeking damages, our membership benefits have never included funds to pay off a judgment ordering that damages be paid. A civil case is all about money, and to appeal a civil case would likely use up a considerable amount of our Legal Defense Fund. We believe we can provide the best service to Network members as a whole by reserving the Fund for criminal and/or civil trial representation. As the Fund continues to grow, decisions to fund a civil appeal may become easier to make. But for now, we cannot promise to fund an appeal of a member’s civil trial outcome.
I hope this discussion helps clarify any questions members might have had on use of the Legal Defense Fund. As always, I am available to discuss this or any other questions with members, either by phone or e-mail.
To read more of this month's journal, please click here.