Texas Law on Castle Doctrine and Stand Your Ground

Richard Ellison — Fri, 13 Apr 2012 16:25:00 GMT

The law has long recognized that “a man’s home is his castle,” where he has the right to use deadly force to protect himself, his family and property. The “stand your ground” or no retreat laws extend the protection to lawful persons outside their homes.

Texas law on self-defense is found in Chapter 9 of the Penal Code (Justification Excluding Criminal Responsibility). The Texas Castle Doctrine went into effect on 9/1/2007 with the passage of SB 378, authored by Sen. Wentworth. From the Author’s/Sponsor’s Statement of Intent:

In 1973, the 63rd Texas Legislature imposed a duty to retreat in the face of a criminal attack, permitting the use of deadly force only if a reasonable person in the situation would not have retreated. This, in effect, placed the burden on the victim to retreat in the face of an impending lethal attack and reversed what had been the longstanding practice of recognizing the right of a person to stand his or her ground in the face of an attack. In 1995, the 74th Texas Legislature created an exception to the duty to retreat before using deadly force in response to an unlawful entry into the habitation of the actor, but the duty still applied in any other location where a lethal attack might occur.

Under Chapter 9 (Justification Excluding Criminal Responsibility), Penal Code, a person is justified in using force and, in some instances, deadly force to repel an aggressor. In deadly force situations, the person must reasonably believe that the force is immediately necessary to protect his or her person from the exercise of unlawful deadly force by the aggressor or to prevent the imminent commission of an aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Current law provides an affirmative defense to a civil action brought by an attacker for damages for personal injury or death resulting from the use of force or deadly force, but only in cases involving home invasions. As a result, a person who justifiably uses force or deadly force outside of the home and is not guilty of any crime may still be open to a civil action filed by the criminal or the criminal’s family.

In addition, the Texas Penal Code contains no presumption of reasonableness in defending a home, vehicle, place of business, or place of employment against unlawful intruders. Instead, Texas juries must decide after the fact whether a victim’s actions to protect the victim and his or her family were reasonable or necessary under the circumstances.S.B. 378 explicitly states in law that a person has no duty to retreat if the person is attacked in a place where he or she has a right to be present, if he or she has not provoked the attacker, and if the person using force is not engaged in criminal activity at the time the force is used. In addition, the jury is instructed to presume that the victim’s actions were reasonable if the victim brings forth evidence that he or she is entitled to the presumption, unless the state can prove otherwise beyond a reasonable doubt. Finally, the bill expands the existing affirmative defense to a civil action brought by an injured criminal attacker or his family to apply to any force or deadly force conduct authorized by Subchapter C (Protection of Persons), Chapter 9, Penal Code.

George Zimmerman may have been justified in shooting Trayvon Martin, but his life will never be the same. He’ll be racked with self doubt and guilt that he shot an unarmed man. I feel some sorrow when I shoot a deer for the meat; I’d hate to have the burden of knowing I ended a human life. And practically, in any case a prosecutor can find some evidence to take the case to a grand jury, and grand juries usually rubber stamp the prosecutor’s decision.

Zimmerman faces the expense and trauma of a criminal trial, followed by a civil wrongful death suit, and he’s the most hated man in America. The jury will be under pressure to convict, worried about race riots like the one that occurred after the Rodney King verdict. If the state court jury acquits, the Obama/Holder Justice Department will probably go after him.

This is a fairly complex law, even for judges and lawyers to understand. Anyone who is going to arm him or herself needs to take the concealed handgun license class, at a minimum. They should get advanced training in the mechanics of handling firearms, and practical training in deciding whether or not to shoot.

If you’re going to carry concealed, you should think about what you would do in different scenarios, and what you would do after you pulled the trigger. There are a number of excellent books on these subjects, by Massad Ayoob, who also writes regular columns for the gun magazines, and the late Jeff Cooper, who is almost a guru in this area.

As the police say, you may beat the rap but you can’t beat the ride.

Stand Your Ground/Deadly Force

Richard Ellison — Tue, 03 Apr 2012 12:08:00 GMT

From an article in Washington Times by David Kopel

http://www.washingtontimes.com/news/2012/apr/2/debunking-the-stand-your-ground-myth/

The assertion that Florida law allows shooting whenever someone believes it to be necessary is a flat-out lie. The actual law of Florida is that “a person is justified in the use of deadly force” if “(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony” (Florida Statutes, Section 776.012).

The second part of the law provides special provisions for self-defense against violent home invaders or carjackers. Neither of those is relevant to the Zimmerman case.

Despite what the gun prohibition lobbies claim, the no-retreat rule has deep roots in traditional American law. At the Supreme Court, the rule dates back to the 1895 case of Beard v. United States, in which the great Justice John Harlan wrote for a unanimous court that the victim “was not obliged to retreat, nor to consider whether he could safely retreat, but was entitled to stand his ground, and meet any attack upon him with a deadly weapon, in such a way and with such force as, under all the circumstances, he, at the moment, honestly believed, and had reasonable grounds to believe, were necessary to save his own life, or to protect himself from great bodily injury.”

The great progressive Justice Oliver Wendell Holmes also expressed the unanimous opinion of the court “that if a man reasonably believes that he is in immediate danger of death or grievous bodily harm from his assailant he may stand his ground and that if he kills him he has not succeededthe bounds of lawful self-defense. … Detached reflection cannot be demanded in the presence of an uplifted knife” (Brown v. United States, 1921).

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Kerrville Lawyer — Tue, 17 Jan 2012 23:50:00 GMT

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