Is Texas considering a "Castle Doctrine" law?

[Sam Adams]

Sorry if this has been discussed elsewhere - but I've looked and found nothing on point.

The "Castle Doctrine" laws that have passed or which are being proposed in various states do the following:

1) They remove the "duty to retreat" in the face of attack - you have the ability to protect yourself from a threat anywhere that you have the legal right to be at that moment;

2) They create the presumption that an attacker or intruder intends to do great bodily harm and therefore force, including deadly force, may be used to protect yourself, your family and others in the face of attack;

3) They prohibit prosecution for defending that which you have a right to defend and prohibit civil lawsuits by criminals or relatives of criminals when criminals are injured or killed while attacking law-abiding people.

Now, it can be argued that for points 1 & 2 such a law is not necessary in Texas; however, it is most certainly needed for the 3rd point listed. There are several notable anti-gun jurisdictions in Texas, starting with Houston, so prosecution is always a concern. As far as lawsuits are concerned, these can bankrupt anyone very quickly, and I'd personally like to see them prohibited by law.

Does anyone know if such a law has been proposed in Texas?

 

[Bartholomew Roberts]

I believe the legislature is out of session right now; but I'd be real surprised not to see a bill like this offered in 2007.

 

[Sam Adams]

Thanks.

BTW, for those of us who are Latin-impaired, what does your signature say?

 

[SolaScriptura139]

Which states have "Castle Doctrine" laws? Or where could I go to find out? Cause I'd be real interested to see if West Virginia had such a law.

 

[Brad Johnson]

Without actually looking it up (and someone suredly will) I think the basis for most Texas defense law in regards to use of deadly force is based on the criteria of "imminent serious bodily injury or death". If that criteria is met, you have every right to used any and all means, including deadly force, to stop the aggressive behavior.

Please, someone correct me on this if I am wrong.

Brad

 

[beerslurpy]

His sig says:

Fear, not kindness, restrains the wicked.

 

[Sam Adams]

If that criteria is met, you have every right to used any and all means, including deadly force, to stop the aggressive behavior.

I'm not so much worried about making a good shoot vs. a bad shoot - I think that I've got enough presence of mind not to shoot someone across the street asking me for the time, for example. What I'm concerned about is the prosecution for such action by an anti-gun/anti-self-defense prosecutor, and the inevitable lawsuit from the perp or his family.

 

[DKSuddeth]

I'm not so much worried about making a good shoot vs. a bad shoot - I think that I've got enough presence of mind not to shoot someone across the street asking me for the time, for example. What I'm concerned about is the prosecution for such action by an anti-gun/anti-self-defense prosecutor, and the inevitable lawsuit from the perp or his family.

really depends on what county you're in. Most of texas courts won't hear a case that involves a self defense shoot. They'll dismiss the civil claim as frivolous but harris county is an iffy place. sort of 50/50 i hear.

 

[Aguila Blanca]

Texas has a "Castle Doctrine" law. What you are asking about is whether or not Texas may enact a "stand your ground" law that removes the duty to retreat before employing lethal force in self-defense when outside of the castle (your home).

 

[MudPuppy]

For some reason, the new stand your ground has began to be refered to as castle doctrine--ever since the latest Florida law.

The NRA's magazine, America's Freedom, had an article--I think about 6 or 8 states have bills in on this currently. Texas wasn't listed, but, as noted, is not in session.

However, the law in texas is already fairly clear and I'm not sure how they could improve that aspect. I'd agree with the statement that not every DA feels beholdin' to the law--the Harris DA gave a big "FU" to the state when the right to carry in a vehicle law was passed last year, saying basically, he didn't care and would still prosecute.

 

[gezzer]

the Harris DA gave a big "FU" to the state when the right to carry in a vehicle law was passed last year, saying basically, he didn't care and would still prosecute.

When he does this it is called malicious prosecution that is a violation of your civil rights. This is a federal felony that can require jail time and/or monetary fines. When he gets nailed also in the civil suit the guy he prosecutes will have hit the lottery.

 

[waterhouse]

I'm just hoping they throw one of those "neither the criminal nor his family can sue you if it is ruled a good shoot" clauses into the law. As much as we hope for open carry, the no lawsuit clause is much more important to me.

 

[Bartholomew Roberts]

Yes, the one big thing Texas doesn't have that states like Florida have is that there is no protection from civil liability in a justified shoot. Currently, you can still be sued in civil court even if you were well within your rights.

 

[TX1911fan]

B R, you are correct. In fact, Texas Penal Code Section 9.06 states specifically that just because you are justified in shooting in self defense does NOT immunize you from civil liability. Texas has some of the Castle Doctrine, in that you do not need to retreat. However, we really need immunity from criminal and civil prosectuion, AND an award of attorneys' fees if someone prosecutes you or sues you in violation of the Castle Doctrine. I will be contacting my local representative when the Legislature is back in session to encourage passage of such a law.

 

[Bartholomew Roberts]

The US Supreme Court has ruled you are under no duty to retreat, so don't worry, be happy, you will be exonerated eventually despite local laws to the contrary and $175,000-$250,000 in legal fees later.

That information is flat out wrong. There are several jurisdictions where you do have a legal duty to retreat. The Supreme Court has not overruled any of those local laws.

 

[Baron Holbach4]

There have been several U.S. Supreme Court cases ruling on whether there is a duty to retreat. Click on the link and do a search for the word, "retreat":

http://www.gunlaws.com/Supreme Court Summaries.htm

Some of the cases make for fascinating, although convoluted, reading.

 

[Deavis]

What you are asking about is whether or not Texas may enact a "stand your ground" law that removes the duty to retreat before employing lethal force in self-defense when outside of the castle

If the use of deadly force is permitted by law then there is no duty to retreat in Texas. However, you must meet the qualifications to use deadly force and a be reasonable.

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person
is justified in using deadly force against another:
(1) if he would be justified in using force against the
other under Section 9.31;
(2) if a reasonable person in the actor's situation
would not have retreated; and
(3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use or
attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.
(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.

In your house, np, no retreat. In other situations, you have to be able to prove that a reasonable person would not have retreated and you are under the circumstances of (a)(2)(A) or (B). They go over this in your CHL course and the jist of it is, again, if you are justified in using deadly force then you will have satisfied the conditions of this subchapter. Shooting someone in the back while they are running away isn't reasonable.

 

[mbt2001]

I thought I might post all of the relevant TX law. Pretty much we have a no retreat and castle doctrine, I would like it to be a little more aggressive and a little clarified and civil liabilities squashed in a self defense shooting.

§ 9.01. Definitions


In this chapter:


(1) "Custody" has the meaning assigned by Section 38.01.

(2) "Escape" has the meaning assigned by Section 38.01.

(3) "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
Amended by Acts 1997, 75th Leg., ch. 293, § 1, eff. Sept. 1, 1997.



--------------------------------------------------------------------------------

§ 9.02. Justification as a Defense


It is a defense to prosecution that the conduct in question is justified under this chapter.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.03. Confinement as Justifiable Force


Confinement is justified when force is justified by this chapter if the actor takes reasonable measures to terminate the confinement as soon as he knows he safely can unless the person confined has been arrested for an offense.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.04. Threats as Justifiable Force


The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.05. Reckless Injury of Innocent Third Person


Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.06. Civil Remedies Unaffected


The fact that conduct is justified under this chapter does not abolish or impair any remedy for the conduct that is available in a civil suit.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

SUBCHAPTER B. JUSTIFICATION GENERALLY


--------------------------------------------------------------------------------

§ 9.21. Public Duty


(a) Except as qualified by Subsections (b) and (c), conduct is justified if the actor reasonably believes the conduct is required or authorized by law, by the judgment or order of a competent court or other governmental tribunal, or in the execution of legal process.

(b) The other sections of this chapter control when force is used against a person to protect persons (Subchapter C), to protect property (Subchapter D), for law enforcement (Subchapter E), or by virtue of a special relationship (Subchapter F).

(c) The use of deadly force is not justified under this section unless the actor reasonably believes the deadly force is specifically required by statute or unless it occurs in the lawful conduct of war. If deadly force is so justified, there is no duty to retreat before using it.

(d) The justification afforded by this section is available if the actor reasonably believes:


(1) the court or governmental tribunal has jurisdiction or the process is lawful, even though the court or governmental tribunal lacks jurisdiction or the process is unlawful; or

(2) his conduct is required or authorized to assist a public servant in the performance of his official duty, even though the servant exceeds his lawful authority.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.22. Necessity


Conduct is justified if:


(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

SUBCHAPTER C. PROTECTION OF PERSONS


--------------------------------------------------------------------------------

§ 9.31. Self-Defense


(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

(b) The use of force against another is not justified:


(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:


(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or


(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:


(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.


(c) The use of force to resist an arrest or search is justified:


(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.


(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
Amended by Acts 1995, 74th Leg., ch. 190, § 1, eff. Sept. 1, 1995.



--------------------------------------------------------------------------------

§ 9.32. Deadly Force in Defense of Person


(a) A person is justified in using deadly force against another:


(1) if he would be justified in using force against the other under Section 9.31;

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary:


(A) to protect himself against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.


(b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1983, 68th Leg., p. 5316, ch. 977, § 5, eff. Sept. 1, 1983; Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
Amended by Acts 1995, 74th Leg., ch. 235, § 1, eff. Sept. 1, 1995.



--------------------------------------------------------------------------------

§ 9.33. Defense of Third Person


A person is justified in using force or deadly force against another to protect a third person if:


(1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and

(2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.34. Protection of Life or Health


(a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

(b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

SUBCHAPTER D. PROTECTION OF PROPERTY


--------------------------------------------------------------------------------

§ 9.41. Protection of One's Own Property


(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:


(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.42. Deadly Force to Protect Property


A person is justified in using deadly force against another to protect land or tangible, movable property:


(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:


(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and


(3) he reasonably believes that:


(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.43. Protection of Third Person's Property


A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:


(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

(2) the actor reasonably believes that:


(A) the third person has requested his protection of the land or property;

(B) he has a legal duty to protect the third person's land or property; or

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.



--------------------------------------------------------------------------------

§ 9.44. Use of Device to Protect Property


The justification afforded by Sections 9.41 and 9.43 applies to the use of a device to protect land or tangible, movable property if:


(1) the device is not designed to cause, or known by the actor to create a substantial risk of causing, death or serious bodily injury; and

(2) use of the device is reasonable under all the circumstances as the actor reasonably believes them to be when he installs the device.


Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1975, 64th Leg., p. 913, ch. 342, § 6, eff. Sept. 1, 1975. Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

 

[Bartholomew Roberts]

There have been several U.S. Supreme Court cases ruling on whether there is a duty to retreat.

A better way to state that accurately would be that there have been several U.S. Supreme Court cases ruling on whether there is a duty to retreat in specific circumstances.

Saying that there is no duty to retreat under any circumstances anywhere in the United States is factually incorrect and I can point you to several cases, including cases inside a home, where the defendant was convicted based on the theory he had a duty to retreat.

Only about 13 states and the District of Columbia have a duty to retreat IIRC, and even those states have no duty to retreat inside your own home. However, courts have interpreted "home" in some unusual ways to get around that and those decisions were not overturned. To use one example, a man was confronted by his neighbor in the doorway of his apartment. The neighbor had repeatedly threatened to kill him and had already stabbed him once previously. During this meeting the neighbor once again stated his intention to kill and reached into his pocket. The man hit his neighbor in the head with a pipe, killing him. The state of New York ruled that he had a duty to retreat and should have tried to shut the door first because the doorway of an apartment opening on a common hallway isn't your home.

 

[HankB]

. . . the inevitable lawsuit from the perp or his family.

IANAL, but I've been told repeatedly by police and CHL instructors who ought to know that, assuming it's a good shoot in the first place, as a rule it will be much more difficult for the next of kin of a deceased bad guy to collect (or even get a lawyer to represent them) on a civil case than if a surviving bad guy in a wheel chair moans and groans in front of a civil jury for a while.

No doubt the politics of the situation may enter into things - specific jurisdiction, any statements made to police, the specifics of the case, etc.

 

[Aguila Blanca]

If the use of deadly force is permitted by law then there is no duty to retreat in Texas. However, you must meet the qualifications to use deadly force and a be reasonable.

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person
is justified in using deadly force against another:
(1) if he would be justified in using force against the
other under Section 9.31;
(2) if a reasonable person in the actor's situation
would not have retreated; and
(3) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to protect himself against the other's use or
attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of
aggravated kidnapping, murder, sexual assault, aggravated sexual
assault, robbery, or aggravated robbery.
(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.

In your house, np, no retreat. In other situations, you have to be able to prove that a reasonable person would not have retreated and you are under the circumstances of (a)(2)(A) or (B). They go over this in your CHL course and the jist of it is, again, if you are justified in using deadly force then you will have satisfied the conditions of this subchapter. Shooting someone in the back while they are running away isn't reasonable.

If you have to prove that a reasonable person would not have retreated, then you are subject to a duty to retreat.

 

[Double Naught Spy]

Deavis said,

In your house, np, no retreat. In other situations, you have to be able to prove that a reasonable person would not have retreated and you are under the circumstances of (a)(2)(A) or (B). They go over this in your CHL course and the jist of it is, again, if you are justified in using deadly force then you will have satisfied the conditions of this subchapter. Shooting someone in the back while they are running away isn't reasonable.

Hawkmoon said,

If you have to prove that a reasonable person would not have retreated, then you are subject to a duty to retreat.

Okay guys, if Texas does not have laws saying a person must retreat before using self defense, then how is it the court is will base the justification to use lethal force on whether or not a reasonable person would have retreated in that situation. What is the justification for stating that the determination for justification is based on an attribute of the situation that isn't stated in the law, specifically, whether or not a reasonable person would have retreated.

Deavis, you are right. They are supposed to go over such matters when folks take their CHL courses, although the shooting situation we are talking about in the home or on home property does not require a CHL. If, by chance, you learned that shooting another person in the back would not be considered reasonable, then you need to contact the DPS and report your CHL instructor as incorrectly representing use of lethal force laws.

What is your legal basis for stating that it is not reasonable to shoot somebody in the back? To my knowledge, there are no laws that stipulate lethal for not being justified based on where shots land on the opposition. Furthermore, shooting somebody with a back turned to you does not mean that they no longer fall within the guidelines of Texas law for lethal force.

I don't know when you did your CHL training, if you did get it, and if you currently have a CHL, then there are at least 2 cases come to mind about which you might have been taught where the opposition was shot in the back and in both cases, the shooting was justified. In both cases, there was no consideration of the need to retreat. Why? Because Texas does not require a person to retreat. More over, in the two cases, the shootees were unarmed. Even more striking is the fact that in one case, the shootee wasn't a threat and turned out to be a teenage boy.

In the later case, in 2001, a man outside of San Antonio heard noise, investigated and spotted at least 2 burglars fleeing with his property (fighting cock poults) in the late night/early morning. He opened fire and killed one. Subsequently, he wasn't even arrested. Why? Because under Texas law, he had the right to stop a crime at night regarding the reasonable belief that if he didn't shoot, he might not get his property back from the bandit. The shooter had no reason to retreat but wasn't in fear for his life.
http://www.thefiringline.com/forums/showthread.php?t=64313&highlight=fighting+cock
http://www.thefiringline.com/forums/showthread.php?t=64826&highlight=fighting+cock

As far as castle doctrine goes, it would not have applied here as the burglars stealing the cocks didn't break into the guy's house. I don't care whether or not YOU think shooting a person in the back is reasonable. What YOU think doesn't matter per se as the law does not preclude the use of lethal force in said circumstances of using lethal force against a nonthreat taking property. It is part of the reason it is quite dangerous to be a repo man in Texas as the person from whom a vehicle is being repo'd can claim he thought the repo person was stealing the vehicle.

So if you don't have to retreat before using lethal force against a person stealing your property and shot location doesn't determine reasonableness, why would you have to retreat from a person who posed a risk to you?

The second case pertains directly to a CHL holder who was on 6th Street in Austin back in 1998.

http://www.thefiringline.com/forums/showthread.php?t=27129&highlight=shot+burglar+Austin

The CHLer and his female companion found their car being burgled. The burglar and the couple exchanged words. The CHLer apparently drew his gun and ordered the burglar to stop. He did not. The burglar turned into an alley and was followed by the CHLer and his companion who was on the phone with 911 and reporting what was happening as she was summoning help. If you think it is stupid to shoot people attempting to flee from you when you were never threatened, then you will think this guy quite the moron. He wanted the burglar arrested and pursued the burglar into an alley. STUPID! Then the burglar made some furtive moves and the CHLer shot him twice in the back. So not only did the CHLer not retreat, he pursued a non-lethal threat and shot the guy in the back at a location having nothing to do with the home of the CHLer or his companion. Even more stupid was pursuing the burglar with a .380. However, Texas law does not make stupidity illegal.

Of course, the CHLer did not know the burglar was a non-lethal threat. Because of the burglar's actions/movements in the alley, the CHLer thought the guy was drawing a gun and so he shot the burglar in self defense.

So there are TWO cases of bad guys shot in the back legally. They are also two cases where shooting was done and not attempt made at retreat. In both cases, the shooters were the aggressors. In both cases, the shootees were unarmed. Castle doctrine would not actually apply in either case as neither case involved defending one's home. The first might in the sense that the shooter was defending his home property, but the second case took place in public in downtown Austin.

So y'all, give it a fricking break. Texas does not have retreat laws for use of lethal force. Impact location of shots does not determine whether or not the shooting is reasonable or legal. In both cases, the critical points are that lethal force WAS USED within the parameters of the law where it was justified.


DKSuddah said,

really depends on what county you're in. Most of texas courts won't hear a case that involves a self defense shoot. They'll dismiss the civil claim as frivolous but harris county is an iffy place. sort of 50/50 i hear.

Somehow, that sounds hokey. Texas doesn't seem to be a state that throws out or fails to hear too many civil cases.

HankB said,

IANAL, but I've been told repeatedly by police and CHL instructors who ought to know that, assuming it's a good shoot in the first place, as a rule it will be much more difficult for the next of kin of a deceased bad guy to collect (or even get a lawyer to represent them) on a civil case than if a surviving bad guy in a wheel chair moans and groans in front of a civil jury for a while.

Sorry Hank, but the police and CHL instructors really cannot be counted on being in the group of those "who ought to know" when it comes to civil law and bringing suit.. They might know, but their positions and titles don't mean that they do know. Keep in mind that few cops or CHL instructors have law degrees. The legal training of CHL instructors may be limited to their 5 day class in Austin where they gain knowledge, get tested on that knowledge, and qualify with a revolver and semi-auto handgun in order to become CHL instructors.

I wish it was the case that what you said was true. Threat of lawsuit even for a justified use of lethal force keeps many folks from using said lethal force and sadly they mistakenly don't use it out of said fear and lose their lives as a result. The poster child for this sort of poor logic, I think, is McKown from the Tacoma Mall shooting. Granted, it isn't Texas, but he noted in his hospital room interview how he was afraid that drawing his own gun during the shooting would make him guilty of brandishing and get him arrested. So he wasn't afraid of civil suit, but criminal suit. McKown had carried a gun for years, apparently, but was clueless on relevant laws. Out of fear of being arrested for brandishing, he stood up and addressed the gunman verbally with no gun drawn and was shot 5 times. Heck, the gunman even kept firing on McKown as he was falling. The gunman felt McKown to be a threat and wasn't burdened by the notion of breaking the law.

In the discusions of various real life events such as the theft of fighting cocks, take a look at the posts where people mention how barbaic the law is to allow the use of lethal force in non-lethal situations. My personal favorite complaints are those that refer to human life as being sacrad and/or more important than material things. I could not agree more. However, those bleeding hearts feel that since human life is sacred and is more important than material things, then those using lethal force in non-lethal situations should not be allowed to use said force and should be prosecuted for their use of lethal force. My opinion differs. The burden of sacred human life is in the hands of the morons committing crimes in a state such as Texas where lethal force can be used against them. If their lives are so darned sacred, then they don't need to be breaking into homes, stealing property at night, etc. In short, they voluntarily agree to enter into situations where lethal force may be used against them and they have done the cost-benefit analysis and decided that their chances of getting killed are so unlikely as to making the criminal acts they are performing profitable. Is said person thinks so lowly of his/her own life, who am I to argue.

I have no intent at this time to use lethal force, even if within the law, to settle a non-lethal problem. With that said, I fully appreciate having the right to make the decision to use lethal force in said situations as I see fit within the fairly broad parameters of Texas law. Like many of you, I really don't appreciate the government putting too many limits on my behavior or telling me what I can or cannot do in defense of my family and property.

As noted in my CHL class, you may not ever want or need to use lethal force to defend property, but there are those out there for whom their material property is the basis for their livelihood and lives. For example, in a mom and pop operation, the burgled loss of key machinery, computers, etc. could result in collapse of the business, followed by bankruptcy and and the fun that comes with defaulting on everything. Not everyone can afford the insurance to offset such losses. Is lethal force justifed if you are the one charged with providing food and shelter for your family? Is the garbage stealing your critical property worth more to you than the years of hardship that might follow for you and your family if you don't use lethal force to stop him? Hell, most of y'all don't like to pay taxes, so why would you be willing to give up so much of what you own that is used for your family's food and shelter to preserve the life of the one taking all that from you?

 

[HankB]

The CHLer and his female companion found their car being burgled . . . Then the burglar made some furtive moves and the CHLer shot him twice in the back.

In this case, Ronnie Earle, the renegade Travis County DA, did a lot of arm-twisting in order to get an indictment of the CHL holder. Case went to trial, and ultimately set a record for the shortest jury deliberation on record resulting in a felony acquittal . . . much to Ronnie Earle's dismay.

Sorry Hank, but the police and CHL instructors really cannot be counted on being in the group of those "who ought to know" when it comes to civil law and bringing suit.. They might know, but their positions and titles don't mean that they do know. Keep in mind that few cops or CHL instructors have law degrees.

I've heard this evaluation from numerous LEOs and others who've seen the "in court" results of shootings, and they've been unanimous on this - it's harder for the next of kin of a bad guy to collect on a civil case than for an injured bad guy himself. Provided, it was a good shoot. Certainly this doesn't constitute legal advice (remember, IANAL) and nothing is certain when it comes to courts, but I believe it to be true.

(If it's NOT a good shoot, you're in both criminal and civil trouble, regardless of whether or not the presumed BG survives.)

 

[wdlsguy]

I'm just hoping they throw one of those "neither the criminal nor his family can sue you if it is ruled a good shoot" clauses into the law.

I'm not sure it covers all the bases, but check out chapters 83 (Use of Deadly Force in Defense of Person) and 86 (Liability for Certain Injuries to Convicted Persons) of the Texas Civil Practice & Remedies Code.

 

[Double Naught Spy]

So Hank, what you are saying then is that even with an aggressive DA who apparently really wanted a conviction on this case, the aspects of shooting another person in the back did not create a sufficient argument that the shooting was not self defense. Cool.

So how do you know this is the fastest felony acquittal on record in Texas. Where would you look up said information. Just how long did they deliberate? It isn interesting that the acquittal was fast given that it came 3 hours after the jury notified the judge they were deadlocked. So they had been deliberating for some time before that.

So you know some cops who have been in the criminal trials for shootings and who have told you that it is harder for the next of kin to win a civil suit when the bad guy person in question is killed. Do these cops know this because they have been involved in the cases on which they are reporting to you? Have they researched cases in which they were not involved? Just what is it about the cases that makes winning a suit harder? I see that in the previous post you said it was cops and CHL instructors who ought to know had informed you it was harder to collect, but now you just have it from cops.

After all, just how many of these cops who have informed you have been in more than one or two criminal trials about such a shooting that then were in the following civil trail of the bad guy's relatives suing? Just how many can say they were in X number of cases where the bad guy's family was suing on the behalf of the dead bad guy versus a suit where the bad guy is alive.

My father was a cop for 21 years in Dallas. Several of our family friends are cops, in part because of contact via my father. Several have worked self defense shootings where the bad guys were injured or killed by a good guy. Even in Dallas, it isn't like any have worked all that many cases where the "good guy" wasn't also a criminal and the self defense shooting wasn't over some sort of illegal acitivity such as drug trafficking. It seems that the families or the surviving bad guys usually don't sue the "good guys" who defended themselves when the good guys turn out to be felons in prison as well.

I am guessing that in Austin, like Dallas, when the "good guy" in a gun battle is also a felon, they don't get sued either by the suriving felon bad guy or the deceased felon bad guy's family. Heck, Austin doesn't come close to have the crime of Dallas, not the number of shootings, so I can't imagine that your cops informants have sample sizes that are statistically valid.

Just how many have actually being involved in good guy self defense shooting investigations that resulted in them later being involved in civil court? How many have been involved in 5 or more civil cases of good guy self defense shootings where your sample of cops does not involve overlap of 2 cops working the same case?

What you have reported on behalf of your cops who should be in the know on such matters seems tough to substantiate. It may be true. It may not be true. Even with Austin growing, there simply are not going to be that many cases where non-felon good guys who defend themselves from bad guys (who are not dead or not) that result in lawsuits and so there isn't going to be a good sample for the success rate of sucessful versus failed suit that can be correllated with whether the bad guy is dead or alive.

Now, if you do have some real data, I would love to see it. That is very cool information if it can be substantiated. Otherwise, it just seems to be unsubstantiated CHL folklore.