Defending Yourself After You Defend Yourself: Self-Defense Immunity in Civil Lawsuits
By: Eric C. Lyons, Member - Meridian Law
In 2021, the Tennessee state legislature amended Tennessee’s self-defense law to create a unique, burden-shifting procedural mechanism with the potential to fast-track a lawsuit dismissal against someone who can show that they acted in justifiable self-defense.
This paper provides a brief overview of this new tool in the defense attorney’s arsenal, and the benefits and risks to both sides.
Background
Tennessee is a “stand your ground” state that has long recognized immunity from civil lawsuits for individuals who have acted in self-defense under qualifying circumstances. Until 2021, however, individuals who acted in self-defense and later found themselves at the receiving end of a lawsuit did not have a quick way to prove to the court that this civil immunity applied in their favor.
Instead, a defendant would have to rely on a Rule 12 motion to dismiss, a Rule 56 motion for summary judgment, or a trial for their case to be dismissed. Civil immunity or not, none of these mechanisms offered a defendant the means to quickly dismiss a lawsuit on the merits. Moving to dismiss under Rule 12 requires that the plaintiff’s complaint contains a pleading deficiency, and most courts would allow a plaintiff to amend and fix any such basis for dismissal. Both moving for summary judgment under Rule 56 or taking the case to trial would require the defendant to engage in potentially years of extensive written discovery and witness depositions.
Following the 2021 amendment, however, a defendant who has been sued for injuries resulting from an act of self-defense can immediately respond to the complaint with a motion to dismiss under T.C.A. § 39-11-622. This motion authorizes the defendant to request an evidentiary hearing, in the very short term, for courts to make a judgment call on whether the defendant “used or threatened the use of force” in a manner permitted by certain Tennessee self-defense statutes.[1]
This procedure is unique insofar as it allows a circuit trial court to decide on the merits at the very start of the case, typically before exchanging any discovery. The procedure is much more akin to a small claims court hearing than any other mechanism in Tennessee’s civil trial courts.
As of this writing, no published Tennessee Court of Appeals case has weighed in on the interpretation of this T.C.A. § 39-11-622, likely because most of the lawsuits in which it has been implemented are still making their way through the trial court level. As a result, lawyers have little to go on other than the text of the statute itself and any legislative history.[2]
Who Qualifies
To be able to take advantage of T.C.A. § 39-11-622, a defendant in a civil lawsuit must be able to show that he or she used force in self-defense as permitted by one of the following Tennessee laws:
· Defense of self under T.C.A. § 39-11-611;
· Defense of a third person under T.C.A. § 39-11-612;
· Prevention of suicide or self-inflicted injury of another under T.C.A. § 39-11-613;
· Defense of one’s own real or personal property under T.C.A. § 39-11-614;
· Prevention of certain specific serious crimes under T.C.A. § 29-34-201; and
· Certain uses of force by school employees to correct, restrain, or prevent harm to students under T.C.A. § 49-6-4107.
If a defendant can meet the above standard, no plaintiff can bring a civil lawsuit against him or her based on the “same facts or set of events” that resulted in the justified self-defense.[3]
However, meeting this standard is not a foregone conclusion, as each of these statutes contains its own specific elements and exceptions. Please note that this paper will not attempt to detail what conduct does and does not satisfy each of these statutes (entire books could be written on these subjects). That said, it is important to remember that to qualify for self-defense civil immunity under T.C.A. § 39-11-611, a defendant must be able to show that he or she:
· Was not committing a felony or Class A misdemeanor,
· Had a right to be in the location where the self-defense occurred, and
· Reasonably believed the force was immediately necessary to protect against another person’s use or attempted use of unlawful force.
What force is deemed reasonable or necessary will vary on a case-by-case basis.
Additional Exceptions Under § 39-11-622
Crucially, in addition to being able to satisfy one of the above statutes, a defendant who wants to move to dismiss under T.C.A. § 39-11-622 must also not fall into the following two categories:
· First, the defendant cannot have used force against a law enforcement officer, provided that the officer was identified as such or the defendant knew or should have known the person was a law enforcement officer.[4](Please note that using force against a law enforcement officer may also expose an individual to additional criminal penalties.)
· Second, the defendant cannot have used force in a way that resulted in property damage, injury, or death to an innocent bystander.[5]
The statutory text leaves the scope of these exceptions unclear. For instance, consider a scenario where a homeowner uses justifiable force to defend himself against a home invader. The defendant’s act of self-defense injures the homeowner but also causes damage to a neighbor’s property. Under the statute, the neighbor could sue the homeowner for property damage, and the homeowner could not claim civil immunity as to that property damage. However, does the mere fact that the neighbor suffered property damage mean that the homeowner also loses immunity from a lawsuit filed by the home invader, even though the use of force against the home invader was otherwise justifiable? Such a result would seem to defy the statute’s intent and perhaps even common sense. However, until a court or the Tennessee legislature addresses this scenario, the safest course of action is to assume that any action that would trigger either of the above exceptions may potentially cause a defendant to lose any right of civil immunity.
Timeline
Once the defendant files a motion to dismiss, the statute instructs the court to “expedite the hearing,” and both hold a hearing and issue a decision within 40 days of the motion.[6] If that expedited timeline is unworkable, either party to the case can ask the court for additional time beyond the 40 days to prepare.[7]
In practice, this 40-day period is unlikely to give sufficient time for the parties and the court to address the matter. A motion under T.C.A. § 39-11-622 is filed at the beginning of the lawsuit when the parties and their lawyers are still learning about the case and getting their bearings. On top of that, 40 days often do not give the parties sufficient time for the parties, their lawyers, all their potential witnesses, and the court itself to find a mutually workable day to hold the evidentiary hearing —particularly given that the evidentiary hearing can take multiple days. Because of this, many courts will likely prefer to set the hearing on its own day rather than adding it to a preexisting motion docket. For these reasons, a party seeking to file a motion to dismiss under § 39-11-622 should be prepared to spend time on the front end working out the logistics of getting the motion heard. In many cases, it may be advisable to go ahead and include in a request for additional time beyond the 40-day window in the initial motion.
Mandatory Nature of Hearing
Although the statute states that an evidentiary hearing is to be “requested” by the defendant, the statute does not appear to give the court any discretion on whether to permit the evidentiary hearing to go forward.[8]
Stay on Discovery
Once the § 39-11-622 motion has been filed, “all aspects of and procedures relating to the civil action shall be stayed.”[9] Although there is no case law on point at this time, courts are likely to construe the pause on “all aspects and procedures” to include a pause on discovery. In other words, once the motion is filed, arguably, all the parties’ game pieces on the board must stop, frozen in time. This can be a double-edged sword, as a pause on the discovery process means that neither side can gain new information about the other by the typical means. Arguably, however, this does not stop the parties from negotiating a voluntary exchange of evidence to make the process go more smoothly, and counsel may, at their discretion, determine whether that is in their clients’ best interests.
Participation of Co-Defendants
Although the statute contemplates that the filer of the motion to dismiss will likely be the individual who acted in self-defense, the statute permits all parties to the lawsuit to “appear and present evidence at the hearing.”[10] For example, an employer at risk of being held vicariously liable for the conduct of an employee may wish to present evidence at the hearing to increase the likelihood that the employee is found civilly immune in the hopes that a judgment in favor of the employee helps the employer obtain a dismissal.
Burden of Proof
In litigation, the “burden of proof” refers to the legal standard that one side must meet to win their side of the case. It’s the standard that tips the scales of justice one way or the other. For instance, you may have heard that in a criminal case, the state’s burden is to prove guilt “beyond a reasonable doubt”—the jury must be virtually certain of guilt to convict. In comparison, the civil burden of proof is typically the much lower preponderance of the evidence standard, meaning that the jury chooses sides based on which seems more likely than not.
In § 39-11-622 cases, the burden of proof will initially be on the shoulders of the defendant—the person who used force in self-defense.[11] To satisfy this burden, the defendant must “fairly raise the issue of whether the use of force was justified” under one of the statutes cited above.[12]
Although Tennessee courts have not interpreted what it means to “fairly raise” self-defense under this civil immunity statute, this phrase appears to be borrowed from the much more often tested standard used by criminal courts to determine whether a jury should hear general defenses. In the criminal context, courts have observed a “fairly raised” defense must be supported by “more than the ‘slightest of evidence’”[13] and that “[t]he quantum of proof necessary to fairly raise a general defense is less than that required to establish a proposition by a preponderance of the evidence.”[14] Practitioners will not know the standard for certain until the Court of Appeals considers a § 39-11-622 case, but for now, it seems like the defendant has a relatively low standard to satisfy on the front end.
Next, once the defendant satisfies that “fairly raised” standard, the burden of proof shifts back to the plaintiff to prove that the defendant is not civilly immune for any number of reasons.[15] The court will then apply a preponderance of the evidence standard—i.e., a “more likely than not” standard—to determine whether or not the defendant is immune from the lawsuit.[16] This is the same civil standard that typically applies in civil lawsuits.
Interaction with Criminal Investigations
The statute allows a defendant to request that the court stay—that is, pause—a civil lawsuit if the defendant’s use of force is currently under criminal investigation or prosecution.[17] Depending on the nature of the criminal inquiry, this may enable a defendant to put a hold on the civil lawsuit until law enforcement, or even a criminal trial court, has had a chance to fully review and decide on the acts in question.
If the Defendant Wins the Hearing:
If the court finds that a defendant is civilly immune, the court will dismiss the lawsuit with prejudice—meaning the plaintiff cannot file the same lawsuit again.[18] In addition to dismissing the case, the statute also instructs the court to give the defendant a monetary award for the defendant’s attorney’s fees, court costs, and expenses, as well ascompensation for any loss of income associated with the lawsuit.[19] Compared to most procedures for obtaining the dismissal of a lawsuit, this procedure is fairly generous to the defendant and may reflect a legislative desire to disincentivize suits arising from arguable self-defense. A plaintiff who wishes to bring a claim for an injury resulting from arguable self-defense must take a potentially expensive bet on the success of their case because the consequences of losing to a § 39-11-622 motion to dismiss could be costly.
If the Defendant Loses the Hearing:
Conversely, if the defendant loses the § 39-11-622 motion, the civil lawsuit will continue as usual, and discovery will resume.[20] Despite losing the motion, the defendant can still re-assert civil immunity later in front of a jury of peers.[21] Thus, § 39-11-622 effectively equips a defendant with a means to quickly test the mettle of the plaintiff’s case on the front end without losing the opportunity to conduct discovery later.
Takeaways
Responding to a complaint with a motion to dismiss under § 39-11-622 permits a defendant to go on the offensive straight out of the gate and potentially put an end to a lawsuit shortly after it has begun. However, not every lawsuit will be well-suited for this kind of motion. Trial courts tend to prefer to allow cases to complete the discovery process, and it is no small task to convince a judge to cut off a plaintiff’s chances of recovery before discovery. Additionally, even a successful § 39-11-622 motion will require significant work and resources on the front end.
Still, defendants who find themselves sued for what they believe to be a justified act of self-defense should consult with counsel to determine whether a § 39-11-622 motion may be successful. Employers whose employees’ job duties put them at a heightened risk of needing to use self-defense (such as bouncers, security guards, and the like) should also consider the extent to which such a motion may be successful and in the best interests of all parties.
The § 39-11-622 motion is a unique development in Tennessee law to the extent that it potentially forces the plaintiff to prove a key part of their case in front of a judge at a very early stage in the litigation—making this potentially very effective for the defense and risky for the plaintiff.
We Can Help
If you or your business are facing an injury lawsuit, the experienced team at Meridian Law can protect your rights and interests up to and through trial. Please do not hesitate to contact our team with questions at (615) 229-7499, by email at info@meridian.law, or through our contact form at www.meridian.law.
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from Meridian Law, PLLC, or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
[1] T.C.A. § 39-11-622(d), (e)(3).
[2] This also means that virtually all of the statements in this blog post represent the thoughts of one attorney—not binding precedent from Tennessee courts—and can only be taken in that context with all of the accompanying limitations.
[3] T.C.A. § 39-11-622(d).
[4] See T.C.A. § 39-11-622(a)(1)(A)–(C).
[5] See T.C.A. § 39-11-622(a)(2).
[6] See T.C.A. § 39-11-622(e)(1).
[7] Id.
[8] Cf. id. The statute provides that “[i]f a hearing is requested [ . . . ] the court shall expedite the hearing . . .” Id. Typically, the use of “shall” suggests that a court does not have the discretion to differentiate from the statute’s instructions. See, e.g., JJ & TK Corp. v. Bd. of Comm’rs of City of Fairview, 149 S.W.3d 628, 631 (Tenn. Ct. App. 2004).
[9] T.C.A. § 39-11-622(e)(2).
[10] T.C.A. § 39-11-622(e)(3).
[11] T.C.A. § 39-11-622(e)(4).
[12] Id.
[13] State v. Benson, 600 S.W.3d 896, 905 (Tenn. 2020).
[14] State v. Hawkins, 406 S.W.3d 121, 129 (Tenn. 2013).
[15] Id.
[16] Cf. id.
[17] See T.C.A. § 39-11-622(c)(1).
[18] T.C.A. § 39-11-622(e)(5)(A).
[19] T.C.A. § 39-11-622(f).
[20] T.C.A. § 39-11-622(e)(5)(B).
[21] Id.