San Antone RR
Well-Known
TXInvestigator wrote this article and forwarded it to me. It has lots of good information and I'm posting it up for you guys to review.
This is not intended as legal advice and you should read the appropriate sections of the TPC to verify.
This writing is based largely on the input of those two attorneys and my own dissection of the laws. Other CHL instructors I have met with in person agree. The question is; what exactly did the Castle Doctrine do when it was passed? What does it mean, in English? I hope to present a detailed, yet simple to understand explanation of the Castle Doctrine.
The Castle Doctrine made a change to Chapter 9 of the penal code. In 9.31 (use of force to protect persons) and 9.32 (use of deadly force to protect persons). Under these two sections, the use of force or deadly force is justified “when and to the degree you reasonably believes the force or deadly force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force, or unlawful deadly force.”. Here is 9.32;
“Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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.”
The phrase in 9.32(a)(2), “when and to the degree the actor reasonably believes” is subjective. Who is to say if your belief was reasonable? A judge or jury will, and they do not have to make a split second decision like most violent encounters require. Our legislatures added a presumption in the Castle Doctrine that would, in some situations, take the subjectivity out of the issue. This is where I have seen the confusion come in. The presumption reads:
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.”
To determine what all that means, let’s examine just one small part, for ease of explanation;
“(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, , the actor's occupied habitation,”
Again, we will focus on just those phrases for ease of reading and explanation.
That means that if a person unlawfully and with force entered your occupied habitation, then the requirement for you to “reasonably believe” that deadly force was immediately necessary has been met. However, that does not preclude the requirement that you must be protecting yourself from the others use or attempted use of unlawful deadly force against you, or from committing one of the crimes listed in 9.32 (a)(2)B.
In other words, having the presumption met does not mean that deadly force is automatically justified. If the person was not using or attempting to use unlawful deadly force against you, or attempting to commit one of those crimes against you, then deadly force is not justified. If it were, then 9.32 would read like this;
“Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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, or
(3) when the other unlawfully and with force entered or attempted to unlawfully and with force enter the actor’s occupied residence, vehicle, business or place of employment.”
As you can see, that is NOT how it is written. It is a presumption for reasonable belief, not a justification for using deadly force. I will emphasize that a Felony Prosecutor stated that this is an accurate representation of the presumption, as did a criminal defense attorney.
The Castle Doctrine also included what in other states is known as a “stand your ground” law. It states that if you have a right to be present at the location where you used force or deadly force, you were not committing a crime at the time, did not provoke the person against whom you used force or deadly force, then you are not required to retreat before using deadly force. It goes on to state that a finder of fact (judge or jury) cannot consider if you retreated.
[FONT]“(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.”
The final leg of the Castle Doctrine was changing the Civil Practices and Remedies code to provide immunity from civil liability if the defendant was justified in using deadly force in defense of a person if the person was justified under Chapter 9, penal code. That does NOT mean that if the grand jury no-bills you that you cannot be sued. It does not even mean that if you are acquitted in a criminal trial that you cannot be sued. The actual law is;
Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.”
A defendant in a “tort” is someone who has been sued. As you can see, this law does not address any criminal actions or how the civil court must rule based in the actions of any criminal court. Under the Castle Doctrine, you can be sued. The civil court will decide if you were justified as required by the statute. While they certainly CAN consider the findings of a criminal court, they are not bound to do so.
It is my hope that this small writing has helped with your understanding of the Castle Doctrine. It is important to note that I am not an attorney and this should not be considered legal advice. You should always seek the advice of a licensed attorney for any specific situation you encounter. Your opinions and comments are welcome.
This is not intended as legal advice and you should read the appropriate sections of the TPC to verify.
The Castle Doctrine.
©Txinvestigator 2011
There has been much discussion and hype since the ill named Castle Doctrine was passed by the Texas Legislature and included into Chapter 9 of the Texas Penal Code and Chapter 83 of the Texas Civil Practices and Remedies Code. I have had discussions of these changes with many CHL instructors, and detailed discussions with two lawyers; one a Dallas County Felony Prosecutor and the other a Criminal Defense Attorney.This writing is based largely on the input of those two attorneys and my own dissection of the laws. Other CHL instructors I have met with in person agree. The question is; what exactly did the Castle Doctrine do when it was passed? What does it mean, in English? I hope to present a detailed, yet simple to understand explanation of the Castle Doctrine.
The Castle Doctrine made a change to Chapter 9 of the penal code. In 9.31 (use of force to protect persons) and 9.32 (use of deadly force to protect persons). Under these two sections, the use of force or deadly force is justified “when and to the degree you reasonably believes the force or deadly force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force, or unlawful deadly force.”. Here is 9.32;
“Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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.”
The phrase in 9.32(a)(2), “when and to the degree the actor reasonably believes” is subjective. Who is to say if your belief was reasonable? A judge or jury will, and they do not have to make a split second decision like most violent encounters require. Our legislatures added a presumption in the Castle Doctrine that would, in some situations, take the subjectivity out of the issue. This is where I have seen the confusion come in. The presumption reads:
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.”
To determine what all that means, let’s examine just one small part, for ease of explanation;
“(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, , the actor's occupied habitation,”
Again, we will focus on just those phrases for ease of reading and explanation.
That means that if a person unlawfully and with force entered your occupied habitation, then the requirement for you to “reasonably believe” that deadly force was immediately necessary has been met. However, that does not preclude the requirement that you must be protecting yourself from the others use or attempted use of unlawful deadly force against you, or from committing one of the crimes listed in 9.32 (a)(2)B.
In other words, having the presumption met does not mean that deadly force is automatically justified. If the person was not using or attempting to use unlawful deadly force against you, or attempting to commit one of those crimes against you, then deadly force is not justified. If it were, then 9.32 would read like this;
“Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor 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, or
(3) when the other unlawfully and with force entered or attempted to unlawfully and with force enter the actor’s occupied residence, vehicle, business or place of employment.”
As you can see, that is NOT how it is written. It is a presumption for reasonable belief, not a justification for using deadly force. I will emphasize that a Felony Prosecutor stated that this is an accurate representation of the presumption, as did a criminal defense attorney.
The Castle Doctrine also included what in other states is known as a “stand your ground” law. It states that if you have a right to be present at the location where you used force or deadly force, you were not committing a crime at the time, did not provoke the person against whom you used force or deadly force, then you are not required to retreat before using deadly force. It goes on to state that a finder of fact (judge or jury) cannot consider if you retreated.
[FONT]“(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.”
The final leg of the Castle Doctrine was changing the Civil Practices and Remedies code to provide immunity from civil liability if the defendant was justified in using deadly force in defense of a person if the person was justified under Chapter 9, penal code. That does NOT mean that if the grand jury no-bills you that you cannot be sued. It does not even mean that if you are acquitted in a criminal trial that you cannot be sued. The actual law is;
“CIVIL PRACTICE AND REMEDIES CODE
TITLE 4. LIABILITY IN TORT
[FONT]CHAPTER 83. USE OF DEADLY FORCE IN DEFENSE OF PERSON
Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as applicable.”
A defendant in a “tort” is someone who has been sued. As you can see, this law does not address any criminal actions or how the civil court must rule based in the actions of any criminal court. Under the Castle Doctrine, you can be sued. The civil court will decide if you were justified as required by the statute. While they certainly CAN consider the findings of a criminal court, they are not bound to do so.
It is my hope that this small writing has helped with your understanding of the Castle Doctrine. It is important to note that I am not an attorney and this should not be considered legal advice. You should always seek the advice of a licensed attorney for any specific situation you encounter. Your opinions and comments are welcome.
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