Lessons in Civil Liability
An Interview with Attorney Emanuel Kapelsohn
by Gila Hayes
When armed citizens worry about the legal aftermath of self defense, the fears expressed about defending against a civil lawsuit run as deep as concerns about fighting criminal charges. For many Network members the processes of civil litigation are bewildering, so the possibility of being acquitted in criminal court only to be sued civilly looms large in members’ worries.
Recently, we had the opportunity to ask Network Advisory Board member Emanuel Kapelsohn, whose experience as an attorney spans 35+ years, to educate us about being sued for damages after use of force in self defense. How does civil procedure differ from criminal defense? What are the timelines? Can a normal citizen, perhaps a retired guy of limited means, survive being sued by the family of a violent assailant? We switch now to a question and answer format to preserve the clarity of Kapelsohn’s explanations.
eJournal: In your experience what’s the likelihood of a justifiable use of force incident resulting in a civil lawsuit?
Kapelsohn: The likelihood of a civil suit against an individual for use of force depends not only on what occurred, but also on what that individual has in the way of assets. The more you have in the way of assets, the more likely it is that someone will come after you civilly.
If we’re talking about someone we lawyers would call “judgment proof,” meaning they can’t pay a financial judgment because they are just a regular working guy or gal and they get a paycheck and most of it goes to pay the rent or their car payments and their groceries and their utilities and they don’t have a huge amount of money in the bank, and let’s say they also don’t have insurance that would cover the situation, then it is relatively unlikely that they would be sued civilly because there is no pot of gold at the end of the rainbow.
by Marty Hayes, J.D.
This month, I am going to deviate a little from my usual glib and witty riposte and relate a real-life story that we are only now able to tell, about a humble truck driver, pro-gun advocate and friend of the Network, who has lived a nightmare since February 2016.
Network member Bob Mayne, produces Handgun World Podcast on which Paul Lathrop first told the story of his ordeal. In the podcast Paul speaks with Bob and goes into extreme detail about the ordeal he went through, leading up to the ultimate dismissal of the charges in late August. He gives several great, unsolicited testimonials regarding the Armed Citizens’ Legal Defense Network. It is worth your time to listen to Paul’s interview and through it to better understand the philosophy behind the Network and why we are different from our competitors.
Attorney Question of the Month
This month’s Attorney Question of the Month comes from a Network member who is an attorney practicing civil law with a background in insurance. As a state-approved instructor for the TX license to carry, he asked us a very interesting question, which we quickly passed up to our affiliated attorneys. Their comments will run in the next several issues of this journal. Our member asked–
If a gun owner carries a handgun into a prohibited area (designated by statute or signage) and is involved in a self-defense shooting, would the fact the gun owner violated the law by carrying the gun into a prohibited area be admissible as to the mens rea of the shooter?
For example, a gun owner in Texas (with a license to carry and carrying a concealed firearm) knowingly passes a clearly displayed sign prohibiting guns, which meets the statutory requirements. At this point, the gun owner has committed a Class C misdemeanor.
Now suppose that same gun owner uses the gun in self defense. Is the fact the gun owner violated the armed trespass law admissible to the finder of fact in determining an element to murder or manslaughter?
Surviving a Mass Killer Rampage: When Seconds Count, Police Are Still Minutes Away
Reviewed by Gila Hayes
In his latest book firearms author Chris Bird asserts that the term gun free zone is a lie, since “they are only free of law-abiding citizens with guns.” Massad Ayoob, writing the foreword, adds that so-called gun free zones are actually hunting preserves for killers where most of the victims can’t fight back. With these unvarnished truths, Bird’s new book Surviving a Mass Killer Rampage tackles a concern that even armed citizens fear may cost their lives or the lives of loved ones.
News from our Affiliates
Compiled by Josh Amos
August is ending and I want to start my column by complimenting a few affiliates. These are folks that I would like to mention because they are all out there doing good works in their own ways to support armed citizens and we think that is very much worth recognizing.
We received an email and some classroom photos from Randall Brooks from Advanced Firearms Training & Consulting in Carson City, NV. Mr. Brooks has been a Network affiliated instructor for years, and he has set the kind of high standard for quality training that we like to see here in the Network.
by Gila Hayes
One of the duties I cover for the Network is answering requests from the public for detailed information about Network membership. My email in box occasionally produces some pretty interesting explorations of how the Network provides assistance to members after self defense.
In mid-August a gentleman emailed asking to see the fine print explaining how the Network decides to pay a member’s legal fees after they run afoul of the law. He put it in an interesting way:
“So the Network helps with legal action resulting from self defense, but I’m curious how narrow or broad this is applied. Self defense isn’t just shooting someone it’s being prepared (carrying for example) and being proactive (brandishing for example). Are possible charges resulting from these things covered?”