While many Texans have weapons to protect themselves, does the average person know what his or her rights are when it comes to using deadly force? The lawyers and officers who spoke with EverythingLubbock.com said “not necessarily.”
The Lubbock Police Department said that while citizens don’t often use weapons to protect themselves from threats, there are a handful of people in the Hub City who’ve used deadly force to protect themselves.
Two such cases occurred in October.
Barry Joachim was getting ready for bed on October 4 when he got an alert on his home-security system. After checking his video monitors, he saw that three individuals were in his driveway where one was breaking into his vehicle and the other two were standing watch.
Joachim had lost property to thieves several other times at his house, so he’d thought through how he would handle the situation in advance.
He grabbed his gun and yelled, “Freeze!” at the thieves from his balcony.
Then he waited for the first two individuals to run off of his property and fired at the third suspect as the suspect was about to leave his property.
“And that was the last moment that I felt comfortable that he was on my property and legally I could
take action. If I had waited longer, I wouldn’t have felt comfortable [firing],” Joachim explained.
Joachim did not strike the suspects, and immediately assisted police in tracking down the suspects, leading to their arrest.
Police told Joachim he had acted within his rights.
“In this situation, I didn’t do anything wrong. Nobody was hurt as far as I know, and that’s why they didn’t pursue any charges towards myself,” Joachim said.
Three weeks later in a different part of Lubbock, Orlando Abril awoke to hear someone breaking down his window with a brick. A man had dislodged his window frame and knocked down Abril’s dresser in an attempt to enter the house.
“It’s just like I’m laying on the bed, and all of a sudden he bursts into my world, my privacy, my home,” Abril said of the incident on October 22.
Abril got out of bed, fired his gun at the suspect and missed. Then he chased the suspect into his backyard and yelled “Don’t move!” at the suspect.
The suspect turned to charge at him, so Abril tried to fire a second shot, but his gun jammed. The suspect escaped on foot, but Abril was able to chase him down, leading to the suspect’s arrest.
He says he doesn’t regret shooting at the suspect.
“Thank God here in Texas you have the right to bear arms. That’s one of the things I like about living here and this is my home. I can defend it will full force, deadly force. I hope it never would happen again, but it could happen, and if it does, I’m not gonna think twice [about shooting],” Abril said.
Abril said he’s been told by public officials that the man who broke into his house was bonded out of jail and has since broken his bond. Abril says he constantly worries that same thief, or a different thief could try again to invade his family’s privacy.
As a licensed handgun owner, Abril tries to stay educated on his rights, but he worries about the gray areas within his rights to use deadly force.
“Me being the victim, I can end up being the bad guy and I get in trouble. So, you gotta think about what you’re gonna do before I pick up that gun and pull that trigger. Am I in the right?” he said.
Lubbock Police said that both Joachim and Abril were acting within their rights, but their stories made us wonder, what exactly are your rights in Texas when it comes to using deadly force?
Lieutenant Ray Mendoza with the Lubbock Police explained that legal protections are contained within the Texas Penal code. They are sometimes referred to as “Castle Law” or “stand your ground.”
“We’re all about the citizens rights and being able to protect yourself because we know what it’s like as far as somebody breaking into a home. We’ve seen countless times someone being victimized and not being able to protect themselves,” Mendoza said.
He explained that these laws are designed to protect your home from invaders and to protect your property from being stolen. But there are nuances as to when you can use deadly force versus non-deadly force.
“You can’t use deadly force to prevent trespassing, but you can use deadly force in the protection of your home if someone is actually entering your habitation, where you live and where you sleep. Then you are justified in using deadly force if they were going to commit theft burglary, robbery anything like that,” Mendoza said.
For Joachim, it made a legal difference that he was defending his property at night. Mendoza explained that he’s protected by a section in the penal code that outlines how you can use deadly force to protect your property.
“There’s statutes that cover that if somebody is committing theft in the night time, deadly force can be justified, if it’s in the day time and you see someone breaking into your car, you’re not going to be justified in using deadly force unless you yourself are in the car and it’s happening,” Mendoza clarified.
Mendoza added that it’s the so-called “Castle Law” which protected Abril in his right to fire a weapon.
“In short what the castle doctrine says, is that you are entitled to use some degree of force in response to somebody confronting you in your home, your car or your workplace. Whether or not you get to use deadly force or non-deadly assault depends on the situation,” explained Tracy Hresko Pearl, Visiting Assistant Professor at Texas Tech, who teaches the Castle Law to TTU law students.
“I would say Texas has a much more liberal castle law than other states, and I say liberal not in the political sense, but in the sense that it’s much more expansive,” Pearl explained.”So, in Texas for instance, you are permitted to use deadly force in certain situations to protect your home, your car and your workplace, in other states, that right is limited to just your home.”
Pearl added that the Castle Law in Texas does not protect you in using deadly force while in areas on your property that are not where you sleep. So you are not protected by the Castle Law if you fire a weapon at someone in your detached garage or in a shed behind your home, Pearl said.
“This is a very common misconception: that the moment a very unsavory character walks on your lawn, then you can shoot them on your property, we see this in the movies when the person who appears on their front porch ready to shoot,” Pearl said. “And actually that would be a terrible idea, legally speaking, and that’s because the castle doctrine doesn’t apply to people merely stepping foot onto your property. The castle doctrine is really about the castle on your property, the structure where you sleep.”
Pearl added that if you’re in the process of committing a crime, you are also not justified to use deadly force under Texas law. Similarly, provoking a dispute can also undercut your right to fire at another person, she said.
“If you’re in a situation where you’re arguing with someone, you’re provoking them you’re luring them onto your property, that would all erode your rights to use deadly force, or even just force against them,” she explained.
Rob Hogan agreed that there are a number of situations that erode your rights to use deadly force. Hogan is an attorney who has been a licensed concealed handgun instructor for 20 years.
Hogan doesn’t believe that most Texas gun owners understand the laws in the state penal code, because the penal code is very complex. That’s why he recommends that gun owners seek out training to help prepare them to think about the legal ramifications of firing a weapon.
While you can read the Texas penal code (here) Hogan recommends finding principles about weapon use that are easy to remember when you’re on the spot.
“When you’re in an emergency situation, that’s not the time to be pulling out your penal code book and going down the check list before you use deadly force,” Hogan chuckled.
He gives his students this rule-of thumb which he said is based on the principle of the Castle Law:
“If you can articulate that you or someone else was in fear of your life, or that you were afraid that someone else was going to get hurt or someone in your family, then you might have the ability to use deadly force, if you have trouble articulating that or you could not say that you’re in fear of your life or that someone else might be hurt, then you should think twice because you’re probably are not justified in using deadly force,” he explained.
When it comes to scenarios where your property is being stolen from you, Hogan recommends exercising caution.
“A big question is, whether there’s any other way to recover the property, it’s very difficult to think of potentially taking another life over property,” he said.
Hogan also took some time to clarify a few misconceptions about using deadly force to protect yourself:
“I have always taught that that you should never fire a warning shot for a couple of reasons, then you’ve got a situation where you’re not justified in using deadly force. And you’ve put a bullet into the air, and you never know what’s going to happen to that bullet,” Hogan explained. “But more importantly, if the situation changes and you’re justified in using deadly force (later on), now you have one less bullet that you’re armed with, because you’ve wasted a round. “
Hogan added that from a legal perspective, if someone has already stolen from you and you can no longer prevent the crime, it’s best not to fire or chase down the suspect.
“You should always stay on your property and wait for the police, you should never pursue if someone leaves your property, if (you are) abandoning the encounter, that’s going to have very great consequences on whether you’re justified in using deadly force or not,” he said.
Hogan recommended that after you’re in a situation where you do wind up using deadly force, take time to cool off and seek legal counsel immediately. He added that even while protecting yourself, taking someone else’s life is not something to be taken lightly.
“I have come into contact with police officers, others in the past who have used deadly force, and even where it’s justified, it’s something that stays with them for the rest of their life,” Hogan said.
Joachim and Abril both added that you need to consider the personal and emotional consequences of your actions before you shoot.
“You think about all the stuff that’s going on, and it’s the last thing on your mind that’s gonna happen to you, until it does happen to you, and then it’s on your mind every day,” Abril said.
“You’ll lay there (at night) and think about it, because I didn’t even shoot anybody, but I lay there and think about it,” Joachim said.