Servicemembers Civil Relief Act Centralized Verification Service

Can a Civilian Sue a Military Member? Legal Rights

Posted by Roy L. Kaufmann

Are you allowed to sue an enlisted member of the US Armed Forces? Suing military personnel isn’t as simple as suing a civilian because of the Uniform Code of Military Justice (UCMJ)’s complex legal landscape.

To pursue legal action against someone in the military, it’s important to understand how civilian and military law intersect. In this guide, we’ll walk you through the proper steps, legal grounds, and considerations involved in suing a service member.

Understanding Civilian and Military Law

A gavel placed over a "Civil Law" document with a map background.

When suing someone from the Armed Forces, you need to understand two basic legal concepts: civil law and military law. Civil law is in charge of cases involving contract disputes, personal injuries, or property damages, which may involve a service member. Meanwhile, military law, which is based on the UCMJ, covers only service members and military offenses, like insubordination.

Civil courts are authorized to handle cases involving off-duty service members in civilian lawsuits. Military courts focus on offenses and crimes within the military. If a case happens abroad, the Status of Forces Agreements (SOFAs) may be involved.

Service members must follow federal, state, and local laws like civilians. However, their military status makes legal action a bit more complicated. For example, if a crime happens on a military base, it can be tough to determine if the case falls under civil law or military law.

What is the Federal Tort Claims Act?

One of the most important laws concerning active duty service members being sued is the Federal Tort Claims Act (FTCA). This federal law permits civilians and military members’ dependents to file a claim against the Armed Forces after incurring injuries or damages. This law also covers federal government employees.

To file federal tort claims through the federal court, the claimant must satisfy the following requirements:

  • They were injured or their property was damaged by a United States government employee, like a service member.
  • The US government employee acted according to their work scope.
  • That employee was acting negligently or wrongfully.
  • Their action caused the damage or injury that the claimant is filing a claim about.

When Can a Civilian Sue a Military Member?

On what legal grounds can a person sue a service member or anyone working for the US government? Here are common cases filed against service members:

1. Negligence by Military Personnel

A civilian can sue a service member if they were injured because of the service member’s negligence while on active duty. This may include vehicle accidents because of military vehicles, property damage because of military equipment operations, and injuries sustained while on a military base.

2. Medical Malpractice Cases

Let’s say a civilian’s child or spouse was authorized to use military or Veterans Affairs medical facilities. If that person gets injured or dies because of medical malpractice, the FTCA can compensate the civilian who files a claim.

3. Wrongful Death or Personal Injury

The Military Claims Act (MCA) permits civilians to sue the military for a loved one’s personal injuries or death. That offense must be due to a service member’s negligence while on active duty service.

4. Constitutional Violations

It’s not easy to file claims for constitutional violations. The Bivens Action permits civilians to file claims against active duty service members, but things can get complicated.

The Supreme Court has made it challenging to file claims against service members in various scenarios. It’s best to confer with a lawyer with substantial experience in military law to navigate these situations.

How to File a Lawsuit Against Military Personnel

A military personnel saluting in front of the American flag.

Following proper protocol when filing a claim against active duty service members is important. The first step is to identify your claim’s legal basis. You must determine whether the case falls under the jurisdiction of the civilian court. This means you must ensure the offense was made while the service member wasn’t performing their military duties.

The next step is to gather all the required proof to support your case. You can collect evidence like witness statements, video footage, and injury documentation caused by a soldier’s actions.

Once you’ve gathered enough evidence to support your case, you must draft and file a complaint with the proper civil court. This complaint should clearly define your allegations against the service member, support legal theories, and what you’re asking for.

Next, you need to serve the service member with a lawsuit notice. Military personnel should receive notice of civil actions so they can respond accordingly. The process should follow state laws, which generally involve delivering the documents to the service member personally, through a process server, or by mail.

After that, you must prepare for the civil trial or mediation. This is the stage where you must present the case before a judge and jury. However, the case can be settled outside the courtroom. Both parties can negotiate to avoid the trial.

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What Happens After You File a Claim?

Let’s say you filed an administrative claim against a service member. That person’s service branch has six months to investigate the claim, and they can deny the claim. This is why getting help from an experienced military lawyer matters.

Moreover, there are many legal protections covering service members. It’s not always easy to file a case against a service member because they can legally delay proceedings.

Timing is vital when suing active duty service members. Why? A federal law called the Servicemembers Civil Relief Act (SCRA) allows service members on active duty to delay civil proceedings for at least three months. This benefit allows them to focus on their military duties. The case can only proceed if the civilian secures a court order.

This delay isn’t strictly limited to three months. The court can choose to delay the case further if needed. That’s why you must confirm that service members’ duties don’t impede their ability to appear before the court.

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Conclusion

It’s possible to sue a service member, but one must understand they have legal protections. The SCRA may delay civil proceedings, so you need to confirm if the SCRA protects the service member you’re suing. SCRACVS can help you confirm military personnel’s active duty status. Open an account today and verify the active duty status.

FAQs

Can you sue an Air Force personnel?

Yes, you can sue an Air Force service member. You can sue a service member like you would sue another civilian, but laws like FTCA might affect your case proceedings.

What does military immunity mean?

Military immunity is protection granted to service members, often under domestic or international laws, from civilian courts under specific circumstances. This involves different kinds of immunity, including combatant immunity and jurisdictional immunity.

Can active duty members sue the US military?

The FTCA bans military personnel from suing the Armed Forces for injuries sustained during active duty service. However, there are exceptions to this rule, such as injuries incurred after one is discharged from the military, medical malpractice, and civilian injuries caused by other military personnel.

What evidence do I need to file a claim against the military?

It would depend on the case you’re filing against the service member. Any supporting evidence, like video footage, statements from witnesses, and injury documentation that resulted from the soldier’s actions, would be helpful.

How long do I have to file a claim against the military?

You have two years to file a complaint against the military. If you miss the two-year window, there’s a risk that your claim may be invalidated.

What should I do if my claim is denied by the government?

First, you should take time to understand why your claim was denied. Next, you must present proof to support your claim. You can file an appeal or take further action, but the next step depends on the case’s circumstances.

Attorney Roy Kaufmann serves as the Director of the Servicemembers Civil Relief Act Centralized Verification Service, located in Washington, D.C. As a recognized authority on the Servicemembers Civil Relief Act, Mr. Kaufmann has published hundreds of articles and hosted many webinars. His teachings help law firms and businesses to remain compliant with the SCRA rules and regulations so as to avoid costly fines.