The Right to Civil Justice When Shooters Invoke ‘Stand Your Ground’

Stand Your Ground laws provide broad immunity to those who have used force in self defense, even when they could have safely avoided conflict and even (in some states) to those who were initial aggressors. These laws often leave victims and survivors without any recourse in the criminal justice system. However, victims and survivors may be able to seek justice through the civil legal system, by bringing a lawsuit against their assailant and anyone who aided and abetted that person. While some states purport to bar these civil lawsuits (in addition to providing criminal immunity from prosecution), broad civil immunity is often on shaky legal ground that may allow for challenges under many state constitutions.

Understandably, much of the commentary on Stand Your Ground laws has focused on their criminal immunity provisions. As a result, there has been little discussion of the role that civil immunity plays in the Stand Your Ground context. In fact, over 20 states also grant immunity from civil liability to those whose use of force is deemed justified under Stand Your Ground laws.

But even in states with civil immunity provisions, there may be paths to recovery. While the civil justice system cannot impose prison sentences, it can provide financial recompense to victims and survivors. This post explores the ways in which the civil legal system may still provide a measure of justice for victims of assaults or homicides later found to have been “justified” in the criminal process under a Stand Your Ground law.

By way of background, the civil and criminal legal systems work in tandem to punish those who violate societal norms and to compensate victims for financial and emotional injury they have suffered. When the criminal justice system stumbles, the civil legal system can fill in. So, for instance, if someone is acquitted of a violent crime because key evidence was obtained illegally and therefore suppressed, or even because the jury just didn’t want to convict despite strong evidence, the victim (or the victim’s survivors) can still sue the aggressor seeking a civil judgment.

None of this is to say that a civil judgment can replace the criminal justice system. But when the criminal justice system fails or does not have an adequate or appropriate punishment for wrongful behavior, the civil legal system can be one method of obtaining justice and recompense.

So in this context, what can a victim of a shooting (or other violent assault) do if a prosecutor or court has determined that the assailant was entitled to criminal Stand Your Ground immunity? The answer depends on whether the shooting occurred in a state with criminal-only Stand Your Ground immunity, or whether the state has also enacted civil Stand Your Ground immunity.

First: in states where there is no statute providing for civil immunity, the victim (or the victim’s surviving family) can sue the assailant for wrongful death or assault and battery, seeking civil damages. An attorney should evaluate this personal injury case just as they would any other. While a defendant will no doubt try to bring up any prior Stand Your Ground determination, plaintiffs’ lawyers should treat this as they would any other parallel criminal proceeding — it is not determinative of the question of civil liability.

Even in states with Stand Your Ground laws that have some sort of parallel statutory civil immunity provision, it still may be possible to bring civil lawsuits against those whose violent actions have caused injury or death.

In some states with civil Stand Your Ground immunity, Stand Your Ground laws provide only an affirmative defense in civil litigation (as opposed to providing complete immunity from civil suit). So, while a defendant may raise a prior determination by a grand jury or a court as a defense, this typically does not prevent a case from proceeding through discovery and to trial.

In Texas, for example, after a man was allegedly shot and killed by his neighbor in a dispute over reckless driving, his widow sued the neighbor for wrongful death. After the suit was filed, a grand jury declined to indict the neighbor. In that case, an appellate court ultimately held that the grand jury’s decision not to indict the defendant did not entitle him to immunity from civil suit; the court ruled that Stand Your Ground immunity could only be raised as an affirmative defense, which allows civil litigants to take discovery and present their case to a jury. Thus, in Texas (and in some other states), a civil plaintiff will have the opportunity to prove up their case — and to take advantage of the lower burdens of proof in civil cases — notwithstanding any prior determination in a criminal proceeding.

Even in cases in which a court determines that a civil defendant is entitled to immunity from liability under a state Stand Your Ground statute, litigants should consider facial or as applied challenges to civil immunity provisions under state constitutional provisions protecting the rights of litigants.

Florida — the birthplace of Stand Your Ground — offers a roadmap for how one might bring this kind of challenge to civil Stand Your Ground immunity. Florida’s Stand Your Ground statute bestows civil and criminal immunity upon a person who uses force (even if that person could have retreated safely and easily) if that person “reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force.” In addition, the Stand Your Ground statute provides that a defendant may seek fees, “compensation for loss of income,” and expenses if a court finds the defendant is entitled to Stand Your Ground immunity. This statute appears to be designed to deter victims from seeking justice in the civil legal system after a Stand Your Ground determination in the criminal system.

Like many other states, Florida’s constitution contains a provision that creates a right of access to courts and a right to the redress of wrongs. In an early case, the Florida Supreme Court explained the protections as follows:

The law cannot possibly remedy all the evils which affect mankind. But this much can be said, in construing this section of our Bill of Rights, that for any act of another which constitutes an injurious invasion of any right of the individual which is recognized by or founded upon any applicable principle of law, statutory or common, the courts shall be open to him and he shall have remedy.

Thus, the right to sue for “injurious invasions” of individual rights — which encompasses the right to sue for assault and battery, as well as negligence — is protected by Florida’s founding legal text. This provision limits the ability of the Florida Legislature to abrogate a state common law cause of action “unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.” Florida courts have cited this provision of the state constitution in striking down and narrowing various “tort reform” laws that were passed in an attempt to limit the rights of civil plaintiffs.

Because Florida’s civil Stand Your Ground immunity provision narrows and restricts the common law tort of battery (by broadening the class of conduct that is deemed to be justified), it interferes with the rights of Floridians to access the courts. That alone should be enough to raise serious questions about the constitutionality of the Stand Your Ground law. But Florida’s Stand Your Ground immunity law goes even further and uses a “loser pays” fee shifting mechanism to deter victims from seeking justice in the courts where they anticipate that the defendant may seek to argue that their conduct was justified. These provisions (and similar provisions in other states) close the courts to those who seek a remedy for battery, assault, and other invasions of their physical integrity — and, as a result, they are vulnerable to challenges under state constitutions.

Today, nearly 15 years after the first Stand Your Ground law was passed, the effect of these laws has been to change norms about the appropriate use of force in self defense and to encourage a “shoot first, ask questions later” culture. Civil lawsuits alone cannot fix this situation, but they can be a part of a broader strategy to combat the pernicious influence of these laws and to shift societal consensus about acceptable uses of force.