Bills filed in Austin to shoot first, retreat later in self-defense

[Judi Lynn]

Feb. 12, 2007, 1:50PM
Bills filed in Austin to shoot first, retreat later in self-defense

By JIM VERTUNO
Associated Press

AUSTIN — Castle Doctrine sounds like a medieval warning to invaders: Cross this moat and suffer the consequences.

A pair of Republican state lawmakers now want to use it to revise Texas' modern-day self-defense laws.

Sen. Jeff Wentworth of San Antonio and Rep. Joe Driver of Garland have sponsored bills to have Texas join more than a dozen states with the so-called "Castle Doctrine," a sort of shoot-first, retreat-later approach to defending hearth, home, truck and business.
(snip)

Jerry Dowling, a criminal justice professor at Sam Houston State University, said state law already protects self-defense of life and property, particularly in one's home, or castle.

"I've lived in Texas 30-plus years and I would be astounded to hear of a Texas jury that convicted someone who blasted a guy who was in his house," Dowling said. "It would just be anathema to the culture down here."
(snip)

But critics deride it as a "shoot-to-kill" bill that allows for more violence and removes a tool from prosecutors.

"It's not Castle Doctrine. That's in the home and you have a right to defend the home," said Peter Hamm, spokesman for the Brady Campaign to Prevent Gun Violence. "This is the Kingdom Doctrine and you can kill someone anywhere in public. That's a far cry from the home."
(snip/...)

http://www.chron.com/disp/story.mpl/metropolitan/4547130.html

[Megahurtz]

1. I thought they already did that in Texas.

:sarcasm:

[Dr.Phool]

5. Nah, thats Floriduh

You're free to shoot someone if you feel threatened by them.

[benEzra]

15. No, you're not...

Florida self-defense law is now pretty much the same as California's. Prior to last year, Florida had a quirky duty-to-retreat provision that said that even if you were the subject of a violent attack likely to result in death or serious bodily harm, you could still be charged with murder if you didn't try to outrun your attacker before defending yourself, IF the prosecutor thought in hindsight that you could have. Florida was one of the few states with such a provision, and eliminated the duty to retreat provision last year.

Shooting someone you "feel threatened" by is still 2nd-degree murder or manslaughter in Florida, just like anywhere else.

[bluedog]

18. are you sure of that? I found this

The New Florida Law

The new Florida Shoot First law eliminates the duty to retreat and allows a person not engaged in unlawful activity who is attacked in a public place to "stand his or her ground" and use deadly force if "he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or to another person or to prevent the commission of a forcible felony." Thus, even if the shooter could have safely avoided the threat by walking away or seeking refuge elsewhere, the Shoot First law permits him to shoot the assailant and gives him immunity from criminal prosecution and civil suit if he does so.

The Florida statute was passed over the strong objections of law enforcement officials and prosecutors. Broward County Sheriff Ken Jenne opposed the law because "it's easy to say after the fact, I felt threatened." Willie Meggs, President of the Florida Prosecuting Attorneys Association, said prosecutors are "concerned that it will provide a defense to someone who uses force that doesn't necessarily have to be done."


http://www.shootfirstlaw.org/law/

[benEzra]

19. Yes, I'm sure.

Until three years ago, I was a Florida resident, and had to study Florida self-defense law in order to be authorized to carry a firearm; I have followed Florida self-defense law with interest even after leaving the state. FWIW, the definitive text on Florida firearms law is Jon Gutmacher, Florida Firearms: Law, Use, and Ownership, 6th ed., which happens to be the text used by most Florida police academies on firearms law, AFAIK:



You can find the text of the Florida self-defense statutes here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0776/ch0776.htm

FWIW, the site you found is a PR site by the gun-control lobby (Brady Campaign, I think).


Here is what Mr. Gutmacher says about the new law:

http://www.floridafirearmslaw.com/faq001.shtml

(U)nless you are acting under the protections of F.S. 776.013 (ie: dwelling, residence or occupied vehicle against unlawful and forceful intruder); F.S. 776.013(3) and F.S. 776.012 say you must still retreat unless you reasonably believe your use of deadly force is necessary to prevent the imminent commission of a forcible felony, or prevent imminent death or great bodily harm. This is pretty much a rehash of the law as it existed before except the elimination of that portion of the previous “retreat rule” which required you to retreat if you could do so without increasing the danger to yourself. However, under these last two sections, since there are no presumptions, if you fail to retreat, and the State Attorney takes the position that your belief in the need to use deadly force was not “reasonable”, you will likely be prosecuted.

So that part didn't change much, just made it a little easier for legimate cases of self-defense to avoid being charged as murder for failure to try to outrun the assailant. Mr. Gutmacher does have some criticism of some vague wording in spots that could be used to harass legimate claimers of self-defense, but on the whole his comments flatly contradict the shootfirstlaw.com press release.

I think that to understand the new law in its entirety, a primer on self-defense law is in order. The general criteria that must be met for a homicide to be ruled justifiable are pretty much the same in every state. The best phrasing I have found so far is in Steve Johnson, Concealed Carry Handgun Training, North Carolina Justice Academy, 1995, pp. 3-4, but these criteria would apply in every state, and definitely apply in Florida. (Note that like Florida, North Carolina is a Castle Doctrine state.)

(1) Justified Self-Defense

A citizen is legally justified in using deadly force against another if and only if:

(a) The citizen actually believes deadly force is necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(b) The facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault, AND

(c) The citizen using deadly force was not an instigator or aggressor who voluntarily provoked, entered, or continued the conflict leading to deadly force, AND

(d) Force used was not excessive -- greater than reasonably needed to overcome the threat posed by a hostile aggressor."

(Emphasis added.)

Note that ALL FOUR conditions must generally be met in order for a shooting to be ruled justifiable (there is an exception for someone kicking your door in, but we'll get to that in a minute). Some states add a FIFTH criterion to the list above, that of running away from the imminent lethal threat before turning to defend yourself (and hoping the attacker doesn't kill you while your back is turned). Florida used to have such a provision, and eliminated it with the new law; most states have never had such a provision to start with.

Where the shootfirstlaw.com site is trying to spin you is their glossing over the term "reasonably believes." Reasonable belief is a legal term, and its definition in the context of self-defense law is paragraph (b) above--that "the facts and circumstances prompting that belief would cause a person of ordinary firmness to believe deadly force WAS necessary to prevent an imminent threat of death, great bodily harm, or sexual assault." Merely "feeling threatened" isn't reasonable belief; the belief has to be objectively rational, i.e. there is in fact a guy standing in front of you holding what appears to be a knife in a threatening posture.

Also, it is important to understand that a claim of self-defense is not an automatic exemption to the laws against homicide. Rather, it is what is known as an "affirmative defense"; unlike the regular innocent-until-proven-guilty standard applied to a criminal act, the onus in a self-defense shooting is on the shooter to demonstrate that the shooting WAS indeed justifiable self-defense. In other words, in a self-defense case, the standard is "guilty unless shown innocent," and if the shooting is questionable, it is much more likely to swing against the person claiming self-defense than it is to swing in their favor.

There are a few other conditions that may constitute justifiable self-defense; for example, there is a provision in U.S. legal tradition called the Castle Doctrine that says that if someone is making an illegal forced entry into your home (whether by door or window, whatever), you are authorized to use whatever force is necessary to stop them and it would ordinarily be ruled justified; the presumption is that if the guy is kicking your door down, he's not there to sell magazine subscriptions. A majority of states explicitly spell out the Castle Doctrine in their laws, I believe, but the principle is there in every state, even Massachusetts. Florida, and most other states, also allow the use of lethal force to stop a "forcible felony," i.e. rape, aggravated assault, armed robbery, etc.

OK, back to the Florida law. The Florida law's primary effect was to eliminate the "duty to run away" provision, which was very subjective and had been abused by overzealous prosecutors; as I mentioned, most states don't have them, and a truly questionable scenario (you could have walked away in complete safety, but didn't) would fail points (a) and (c) anyway. The new also law reaffirmed the Castle Doctrine as it applies to your home, and also extended it to your car, so that if somebody actually tries to carjack you, you can use force to stop them as if they were breaking into your home (a response to South Florida carjackings which I think is reasonable). Finally, the new law states that if somebody attacks you and you use force in self-defense, and your use of force is ruled justifiable, the attacker cannot turn around and sue you for the injuries you caused him (yes, that happens).

You can find the text of the Florida self-defense statutes here:

http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=Ch0776/ch0776.htm

[bluedog]

21. The 2005 Florida Statutes

The 2005 Florida Statutes

Title XLVI
CRIMES Chapter 776
JUSTIFIABLE USE OF FORCE View Entire Chapter

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--

(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

(2) The presumption set forth in subsection (1) does not apply if:

(a) The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person; or

(b) The person or persons sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used; or

(c) The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or

(d) The person against whom the defensive force is used is a law enforcement officer, as defined in s. 943.10(14), who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.

(3) A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.


http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=Ch0776/Sec013.HTM



******I lived here 25 years years now.......and now we have the new title of the "wild West"

I have 2 family members who just took a training course and applying for concealed weapons permit.......

[benEzra]

22. The portion you cite is law in most states

as I mentioned in my post. That's the Castle Doctrine; if someone is illegally breaking into your house, you have the legal right to use force to stop them, period. In California, in Florida, in Massachusetts, pretty much wherever.

******I lived here 25 years years now.......and now we have the new title of the "wild West"

Only because the Brady Campaign is running a fundraising/PR campaign based on fearmongering. Castle Doctrine laws are neither new, nor unique to Florida. Would you consider California to be "Wild West"? How about New Hampshire? Vermont?

I have 2 family members who just took a training course and applying for concealed weapons permit.......

Only 2 states in the nation (Wisconsin and Illinois) don't have procedures to authorize the law-abiding to carry concealed weapons. My wife and I both obtained CHL licenses when we lived in Florida, and I am licensed in NC as well.

Again, look past the Bradyite PR, and read the actual law. Not much new here, except the extension of the home-defense doctrine to cover defense against a carjacker.

[aquart]

2. Do they get that this would cover abortion?

[PLF]

9. "That goddamn fetus was harassing me, I had to shoot 'em."

LOL! :rofl:

[Deep13]

3. Opposite extreme: retreat rule

In Ohio lethal force is only justified to protect against loss of life. One has a duty to retreat before resorting to lethal violence. This effectively means that the crime victim must prove to the jury that under the circumstances, he or she had no other choice. While there is generally no duty to retreat from ones home, the rule allowing lethal force to protect ones life only still applies. If someone is in the process of burning my house down, I cannot use lethal force to stop him if I can leave without risk of serious injury.

[jobycom]

4. Cool. Sounds like dueling will soon be legal again!

If both parties draw at about the same time, then each could reasonably argue that his life was in danger, and he fired only in self-defense. No need to retreat or look for a way out.

[sodenoue]

6. "By God, the reasonable Texan never retreats."

[Jackpine Radical]

8. Reasonable Texan?

Molly died. Hadn't you heard?

[Jackpine Radical]

7. How 'bout if the people you shoot in the process of kicking down your door

turn out to be members of the local narco goon squad out doing a no-knock entry at the wrong address?

[PLF]

10. good point

[Doctor_J]

11. It could serve to reduce the population of TX

so maybe it's not ALL bad.

[Jackpine Radical]

12. .

:popcorn:

[Devils Advocate-TX]

17. Thanks...

As a resident of Austin, I appreciate your support of me getting taken out by Hillbilly Jim because he thinks I'm too close to his pickup truck...

[benEzra]

20. See post #19...

that referred to Florida, but the same would be true of Texas law, EXCEPT that Texas is currently one of the few states that also allows defense of property in certain circumstances (always has). Except for that, Texas self-defense law isn't much different from the laws of any other state.

[Dover]

13. Sounds like the wealthy are getting a little gitterish...can't take their gated communities w/them

The GOP is always providing a solution in need of a problem.

[rainbow4321]

14. There's a reason that Texans

sleep better when our state lawmakers are NOT in session....once they ARE in session we never know what new/proposed laws we will wake up to.
Thankfully, they ONLY get together once every 2 years (for a few months at a time)!!

[Thothmes]

16. In Session

Think Ben Franklin said that no man's life or property were safe as long as the legislature was in session