You ask any Texan about home defense and 9 out of 10 will lead off with the phrase “castle law”, “castle doctrine” or some description relating to such. Due to the current level of discourse in our nation, I’ve had neighbors and business owners ask about their right to protect their vehicles and businesses. It’s a shame that folks have to imagine such terrifying possibilities and prepare for drastic measures, but this unfortunately seems to be the times we’re currently living in.
I want to preface this little write up with the following; this information I’m about to go over does not give you free reign to start shooting or hurting people for exercising their 1st amendment right, and for peacefully protesting to bring attention to systemic racism that still plagues our country. This text is meant to inform people of their rights in regard to protecting themselves, their community, their neighbors and property. Hopefully, this also reaches folks that are kicking around the idea of being a part of any potential rioting and/or looting. I pray that those who may stupidly and selfishly attack innocent civilians and businesses heed the warning that there can be dire consequences to such actions.
Let’s go straight to the law for guidance. Title 2, Chapter 9 of the Texas Penal Code covers Justification Excluding Criminal Responsibility. This is where the Castle Doctrine, which was brought into law by Senate Bill 378, passed in 2007, is defined. Section 9.2 explains that “it is a defense to prosecution that the conduct in question is justified under this chapter”. Jumping over to Section 9.31 concerning protection of persons, we read the following:
SECTION 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 the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the 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 aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(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.
Next, we move on to 9.31(b), to when force is not justified:
(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.
Next, we move to when someone may be justified in resisting an arrest:
(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.
Now, comes the mention of deadly force, which will be covered more in a moment;
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
Next, we come to whether or not there is a duty to retreat:
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
That’s quite a bit to digest, but I’m going to continue on to the use of deadly force. It should go without saying that deadly force should always be a last resort. The following covers the use of deadly force:
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.
(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.
(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.
If you are further interested in rights pertaining to protecting property, please refer to Texas Penal Code Section 9.41 and 9.42 using the following hyperlink: https://statutes.capitol.texas.gov/docs/PE/htm/PE.9.htm
Whether you plan on exercising your constitutional right to free speech and want to know the safeguards you have against rouge police violence, or you are a citizen or business owner who is concerned with the possibility of violence from fringe groups, I hope this brief summation has shed light on any questions you have regarding your rights.
Remember, if you find yourself facing charges stemming from a possibly justifiable action, up to the taking of a life or an assault arising out of a wrongful detention or arrest by a lone bad seed officer, you have rights and I would encourage you to consult with an attorney. Here at the Law Office of Zachary J. Morris, we love defending the rights of our neighbors and fellow citizens, and we are just a phone call away.
Finally, I want to encourage you to find compassion and unity in your fellow American. We are at a critical point in our young nation’s history to where we are seeing politicians from both parties turning us against each other. We are also being let to a polarized focus based on the actions of lone actors or militant fringe groups on both sides of the aisle, rather than seeing the good in our fellow man. There are still many upstanding citizens and officers out there, and we need to bare that in mind in this time of turmoil. Be safe and kind y’all and thank you for taking a few minutes to read this blog post.