More on Self-Defense

Of Self-Defense and Texas

In the comments to my last post, we struck up a conversation about self-defense and the "castle rule." I talked about an nineteenth-century Vermont case that discussed the common law rule as applied over several centuries; I've put the relevant text here.

The subject of Texas also came up. I've been doing just a little reading on the subject and wanted to share it. Justifiable homicide in Texas is covered by Penal Code 9.31 and 9.32(a). Under the current law, of which there is a good, brief discussion here, Texas already has a version of the duty to retreat/castle rule used by Louisiana and Vermont, and as listed in section 9.32(a)(2). You don't have to retreat if a reasonable man would not (because retreating would put you in more danger); but you do have to retreat if a reasonable man would do so (or at least, you lose the mantle of "self defense" if he would and you don't). Subsection (b), which removes the duty to retreat outright if the other is unlawfully entering your home, was added in 1995.

On September 1 of this year, the new version will go into effect. This specifically removes the duty to retreat, provided the person who acts has a right to be where he is. But the old law (section 9.32(b)) specifically provides that the duty to retreat doesn't apply when you're at home and the person you kill is unlawfully entering (otherwise, the fact that you were at home was still a factor in deciding whether retreat was "reasonable"). In other words, Texas didn't just enact the castle rule last week, but has had some version of it for years. The Texas Bar Journal published an article on the subject in 1967 ("Showdown on Art. 1225," 30 Tex. B.J. 339); I don't have the right kind of law library handy to read the article right now. States do differ in their self-defense rules, but the differences aren't as great as some people think.

In comments to the previous post, some have expressed a hope that this will reduce the incidence of lawsuits for wrongful death. Be careful. If you're dealing with a killing by a police officer, as one commenter was, the question of whether he used excessive force is a matter of federal constitutional law (shooting a man is treated as a "seizure" of his person by the state for Fourth Amendment purposes). No statute can change the standards for that. The standard, however, was and is "reasonable under the circumstances." A lot of those cases never see a jury because the undisputed facts simply don't create an issue as to whether the shooting was unreasonable.