(Texas) Governor Signs Bill Expanding Deadly Force Rights

[Blackadder1916]

The wild, wild west. 



Governor Signs Bill Expanding Deadly Force Rights
http://www.chron.com/disp/story.mpl/front/4664986.html

By KELLEY SHANNON  Associated Press March 27, 2007, 4:42PM

AUSTIN — Gov. Rick Perry signed into law today a bill that gives Texans a stronger legal right to defend themselves with deadly force in their homes, cars and workplaces.

Both chambers of the Legislature overwhelmingly approved the measure earlier this month. The bill, backed by the National Rifle Association, states that a person has no duty to retreat from an intruder before using deadly force.

"The right to defend oneself from an imminent act of harm should not only be clearly defined in Texas law, but it is intuitive to human nature. You ought to be able to protect yourself," Perry said, surrounded by lawmakers who pushed for the law.

This is the first bill-signing this legislative session by the Republican governor. The law takes effect Sept. 1.

"This is reasonable legislation," Perry said.

The building or vehicle must be occupied at the time for the deadly force provision to apply, and the person using force cannot provoke the attacker or be involved in criminal activity at the time.

Some refer to the measure as the "castle doctrine," drawing from the idea that a man's home is his castle and that he should have the right to defend it.

Fifteen other states have passed similar laws. Texas is the first state to pass such a law this year, said Rep. Joe Driver, a Garland Republican who sponsored the measure.

Sen. Jeff Wentworth, a San Antonio Republican who pressed the issue in his chamber, said the law changes previous Texas law that in some cases requires a person to retreat from an intruder.

The new law will also provide civil immunity for a person who lawfully uses deadly force in any of the circumstances spelled out in the bill. Police and prosecutors can still press charges if they feel deadly force was illegally used, legislative sponsors said.
———

The "castle doctrine" bill is SB 378.

 

[Yrys]

/shrug

After all, Texas IS the states where blind can hunt...

http://forums.army.ca/forums/threads/54596.0.html

original article :

http://news.bbc.co.uk/2/hi/americas/6173535.stm

Republican Edmund Kuempel proposed an amendment to existing law that would permit
"legally blind" people to use a laser-sighting device when hunting.

 

[BernDawg]

I think they're on the right track.  Not that they had it wrong before but why should you have to run away from someone in your own home.  Our self defence laws suck plain and simple.

 

[edgar]

I think they're on the right track.  Not that they had it wrong before but why should you have to run away from someone in your own home.  Our self defence laws suck plain and simple.

I think that's the key difference right there. There was a court case down there I read about too where the judge said they have the right to defend themselves "without retreat", even in a public place. As I understand it in Canada we are legally obligated to retreat if that option exists. This is fine in the sense that taking life needs to be the absolute last resort, but it seems to effectively give the home invader the "right" to drive you from your home. Although maybe your right to resist robbery with reasonable force can apply. If running away can be seen as being deprived of your property rights to your house. Now I confused myself. Is there a lawyer in the house? Maybe there is an actual court case in Canada that decided this already.
Anyway, there's little kids in my house. I can't just run off. Probably the judge has kids too.

 

[BernDawg]

I read this on a T-shirt once.
"I would rather be tried by 12 than carried by 6."
I too have children and I'll be damned if any harm will come to them.

 

[tank recce]

Googling the CCC, I find:

Defence of Person
Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault is justified in repelling force by force if the force he uses is not intended to cause death or grievous bodily harm and is no more than is necessary to enable him to defend himself.

Extent of justification

(2) Every one who is unlawfully assaulted and who causes death or grievous bodily harm in repelling the assault is justified if
(a) he causes it under reasonable apprehension of death or grievous bodily harm from the violence with which the assault was originally made or with which the assailant pursues his purposes; and

(b) he believes, on reasonable grounds, that he cannot otherwise preserve himself from death or grievous bodily harm.

R.S., 1985, c. C-46, s. 34; 1992, c. 1, s. 60(F).


(and )



Defence of dwelling

40. Every one who is in peaceable possession of a dwelling-house, and every one lawfully assisting him or acting under his authority, is justified in using as much force as is necessary to prevent any person from forcibly breaking into or forcibly entering the dwelling-house without lawful authority.

R.S., c. C-34, s. 40.

Defence of house or real property

41. (1) Every one who is in peaceable possession of a dwelling-house or real property, and every one lawfully assisting him or acting under his authority, is justified in using force to prevent any person from trespassing on the dwelling-house or real property, or to remove a trespasser therefrom, if he uses no more force than is necessary.

Assault by trespasser

(2) A trespasser who resists an attempt by a person who is in peaceable possession of a dwelling-house or real property, or a person lawfully assisting him or acting under his authority to prevent his entry or to remove him, shall be deemed to commit an assault without justification or provocation.
R.S., c. C-34, s. 41.

(End quotes)

I'm not a lawyer, don't even play one on t.v, but my take on the above is that, while you are expected to run away if you can, if you cannot run (because you're protecting, say, your children sleeping in the next room), you are allowed to use DEADLY force, if YOU think that's what is needed to prevent grave bodily harm. If I'm not mistaken, "grievous injury" also entails sexual assault.

Note the operative phrase in s.40, Defense of Dwelling- "as much force as is necessary". Not "reasonable". Necessary.

True story (no cite, of course) - a few years back, in Ottawa I believe, two gentlemen tried really really hard to make the acquaintance of a fellow watching tv in his apartment, breaking down the door in the process. This fellow had his licensed target shooting pistol to hand (don't we all take them out to admire, from time to time?), and used it to prevent the two gentlemen from carrying out whatever it was they had in mind.

Double-tap to the head, for both. The Crown, naturally, threw the book - murder, unlawful discharge, unsafe storage, barratry on the high seas.

The judge threw it out at pretrial(?), asking the Crown WTF this case had progressed past the arrest report...

 

[Blackadder1916]

Here are some links to the law being discussed:

This from theTexas legislature which has the text of the bill that was passed.
http://www.legis.state.tx.us/tlodocs/80R/billtext/html/SB00378F.htm
http://www.legis.state.tx.us/BillLookup/Text.aspx?LegSess=80R&Bill=SB378 (more legislature stuff here)

For comparison purposes here you can find the text of the Texas Penal Code section that referred to personal defence as justification prior to it being amended by this new bill.  See Sections 9.31 and 9.32 (the sections being amended).  Sections 9.41, 9.42 and 9.43 may also be of interest.
http://tlo2.tlc.state.tx.us/statutes/pe.toc.htm


Part of a statement previously released by the NRA in support of this legislation (more at link)
http://www.nraila.org/News/Read/Releases.aspx?ID=8824

…..The proposed reforms of Texas’ self-defense laws would accomplish three things:
- The bill would establish, in law, the presumption that a criminal who unlawfully enters or intrudes into your home, occupied vehicle, or place of business or employment is there to cause death or great bodily harm, and you may therefore use any manner of force, including deadly force, against that person.
- The bill would explicitly state in law that you have no “duty to retreat” if you are attacked in a place where you have a right to be present, if you are not the original aggressor, and if you are not engaged in criminal activity.
- The bill would protect persons using force authorized by law from lawsuits filed by injured criminal attackers or their families.  …..

Excerpts of an article in the Dallas Morning News that has some of the differing views among Texans concerning this issue.  (more at link)
http://www.dallasnews.com/sharedcontent/dws/dn/latestnews/stories/032007dntexcastle.2b5ab61b.html

The legislation, pushed by gun-rights advocates in several states, will allow any law-abiding citizen who feels threatened by someone to kill that person without first trying to get away, prosecutors say.

The bill is an extension of the current "castle doctrine" in Texas, under which a homeowner has the right to shoot an intruder to protect himself. The new legislation extends that to anywhere a person "has a right to be," according to the bill.

Prosecutors say that means cars, jobs, parks, malls, street corners or anywhere else a person might feel threatened. Lawmakers say that interpretation is too broad.
…………

The bill makes three major changes to current law. First, it extends the "castle doctrine" beyond the home. Second, it protects a person from being sued by his attacker – or the attacker's family – for injuries if the shooter was found to have been acting in self-defense.

Presumes self-defense
And it creates a "presumption of self-defense" much like the presumption of innocence, but applied in deadly-force cases.

It's the third part of the bill that supporters say is most important to protect law-abiding gun owners who aren't afraid to use deadly force. That's also the part that worries prosecutors and gun-control advocates.

The bill would require a jury to presume that a defendant who has hurt or killed someone was acting in self-defense as long as the defendant wasn't breaking the law at the time, didn't provoke the attack and had reason to believe that the other person wanted to rape, kidnap, kill or rob him. .......

Prosecutors' fears
But prosecutors point to this section of the bill as having the potential for unintended consequences, such as gang-style murders that leave no witnesses and trigger-happy people who kill a panhandler for approaching them on the street with his hand in his pocket.

They say that prosecutors rarely file charges on someone with a clear case of self-defense but that the new bill will make it easy to beat a murder rap and, in some cases, impossible to convict.

"There will be a presumption that their actions were reasonable, and 99.99 percent of the people that's going to apply to are going to be murderers, capital murders, shootings at the bar, aggravated robberies and that sort of thing," said Randall Sims, a district attorney whose jurisdiction includes Amarillo. "They can't give me one example of someone who's been wrongly convicted under the current self-defense laws. ... They're trying to fix a series of laws in Texas that aren't broken."

Bill sponsors say its intent is to protect innocent gun owners. A prosecutor should have a difficult time convicting an innocent person who used a gun in self-defense, said Rep. Joe Driver, R-Garland. .....

As they say down there "Texas is a whole other country" (can't express the drawl right by typing).  But they are not the most recent state to enact "castle doctrine" legislation.  It would be interesting to see what effect it has had in other jurisdictions since adoption.  But it does make me nervous thinking of some Texans that I know who are probably at this moment strapping on their firearms before heading out to HEB for their groceries.

 

[edgar]

Was it Florida that applied the "Castle Doctrine" to cars as well because they were tired of carjackings?

Anyway, reasonably and necessary are not a dichotomy. Reasonably is how you decide what is necessary and what the jury will consider as well, it's always there between the lines.

This reminded me of another question for the lawyers out there.

re: Defence of Person
Self-defence against unprovoked assault

34. (1) Every one who is unlawfully assaulted without having provoked the assault...yada yada

How does somebody provoke an assault? Does he have to assault you first? Is it like instigation in hockey? If you provoke somebody they get a couple free shots?