Penal Code-Deadly Force on 06/07 Property

[K.Mooneyham]

I wouldn't have to find out because I am very careful to look for .06/.07 signs, and refuse to enter those places that don't want my money in the first place. If I MUST enter one, such as a posted hospital, then I will begrudgingly disarm for the time that I must be there. As horrible as it may sound, though I have never had more than a speeding ticket, I am almost as afraid of the legal system as I am of criminals. Neither cares about me or mine, and either of them will be happy to grind me up and toss me aside as suits their purposes.

Before I get jumped about my above statement, please note that I am NOT comparing anyone in law enforcement to any "bad guy" in the least, I know that most LEOs are just trying to do their jobs the best they can. I simply think "the system" in this nation is broken, and is more about "deals" than actual justice being served. Which is why I wouldn't want to tempt the fates by relying on one portion of penal code to save me from violating another portion.

[thetexan]

This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.

Incorrect. The moment you pass a compliant, properly posted sign, you are committing a Class C Criminal Trespass, BY DEFINITION. Do not let the fact that refusing to thereafter leave after subsequently being told to leave thus elevating it to a Class A Criminal Trespass, BY DEFINITION, confuse you into believing that committing the first trespass by walking past the sign is a gimme. You do not get two chances. Walk past a sign and at the least you are a Class C criminal and then refuse to leave when asked and you become a Class A criminal.

And, being in a state of committing a criminal offense, you have to defend yourself resulting in shooting someone, you will not receive a legal presumption that your belief that deadly force was immediaitely necessary was "reasonable" and you will have to defend and justify that element at trial which could result in 20 years for manslaughter rather than acquittal.

In addition, since you are present at a location where you have no right to be, by virtue of the criminal trespass, you do not have the right to not retreat. You must retreat before engaging in deadly self-defense. 9.32c

tex

[ScottDLS]

This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.

Incorrect. The moment you pass a compliant, properly posted sign, you are committing a Class C Criminal Trespass, BY DEFINITION. Do not let the fact that refusing to thereafter leave after subsequently being told to leave thus elevating it to a Class A Criminal Trespass, BY DEFINITION, confuse you into believing that committing the first trespass by walking past the sign is a gimme. You do not get two chances. Walk past a sign and at the least you are a Class C criminal and then refuse to leave when asked and you become a Class A criminal.

And, being in a state of committing a criminal offense, you have to defend yourself resulting in shooting someone, you will not receive a legal presumption that your belief that deadly force was immediaitely necessary was "reasonable" and you will have to defend and justify that element at trial which could result in 20 years for manslaughter rather than acquittal.




In addition, since you are present at a location where you have no right to be, by virtue of the criminal trespass, you do not have the right to not retreat. You must retreat before engaging in deadly self-defense. 9.32c

tex

I don't think the LAW says you MUST retreat. Only that if you meet the criteria you statutorily DON'T have a duty to retreat.

There may however, be some previous case law that suggested or established a duty to retreat, as I think Charles had suggested was the reasoning behind the wording in 9.31/32.

[thetexan]

You are correct. You don't HAVE to retreat. You can stand there and let him beat you to death.

One can infer from the inverse of the statement...

"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."

...that one IS REQUIRED to retreat BEFORE using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be automatically presumed reasonable by virtue of the trespass.

You must retreat and return to a condition of not engaging in criminality, not provoking and not being present at a location where you have no right to be before you are "justified" in using deadly force. The test is simple, just before pulling the trigger pause the frame and ask if, at that instant, one is trespassing, provoking or, engaged in criminal activity. If the answer is yes you must retreat BEFORE pulling the trigger. So you retreat and raise the gun to fire...is that person trespassing, provoking or engage in criminal activity. Yes...still...so he retreats still. This test continues to fail until, at some point, the person can state that he is not trespassing, not provoking and not engaged in criminal activity. At that point, and not before, can that person be justified in using deadly force WITHOUT RETREATING (assuming he of otherwise justified under 9.31).

As to the trespassing issue...it's hard to imagine how one would make a defense to a jury that one was justified in killing someone in self defense when, by all legal standards, one could not even be legally present at the location in the first place!!! And, had one respected the trespass prohibition, one would not have been in the scenario requiring self defense in the first place!

THAT'S why one should not carry past a 30.06 or 30.07 sign! Your ability to defend yourself without ending up with a manslaughter charge is greatly if not completely reduced if you do not retreat BEFORE (there's that word again) using deadly force.

tex

[dlh]

Do not forget there may be many instances where you simply cannot retreat if the attacker rushes you by surprise, for example. There is only a duty to retreat in our hypothetical if you "can" retreat.

[ScottDLS]

...that one IS REQUIRED to retreat before using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass and one does not retreat BEFORE using the deadly force. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be presumed reasonable by virtue of the trespass.

There is no centuries old doctrine in common law or case law, that one has the "DUTY TO RETREAT" in the face of an attack, prior to responding with deadly force. There is some case law that supports a duty to retreat, but the circumstances are not necessarily those that are specified in the statute. The statute states when there is affirmatively NO DUTY TO RETREAT. Only another statute, or case law relating to the specific circumstances (trespass by LTC) would specifically establish this duty. So you should be very careful when contemplating deadly force when violating 30.06, but there is currently no DUTY TO RETREAT. Perhaps a judge could find one...

[thetexan]

...that one IS REQUIRED to retreat before using deadly force if one is committing one of the listed conditions, namely, criminality, provocation, and trespass and one does not retreat BEFORE using the deadly force. This is in keeping with the centuries old doctrine of duty to retreat and its associated castle doctrine. Many states have nullified the retreat requirement by providing the enumerated nullifying conditions listed in this statute. Of course, in addition, your belief of immediate necessity will NOT be presumed reasonable by virtue of the trespass.

There is no centuries old doctrine in common law or case law, that one has the "DUTY TO RETREAT" in the face of an attack, prior to responding with deadly force. There is some case law that supports a duty to retreat, but the circumstances are not necessarily those that are specified in the statute. The statute states when there is affirmatively NO DUTY TO RETREAT. Only another statute, or case law relating to the specific circumstances (trespass by LTC) would specifically establish this duty. So you should be very careful when contemplating deadly force when violating 30.06, but there is currently no DUTY TO RETREAT. Perhaps a judge could find one...

I just watched a 2 hour NOVA or some show that was precisely on the history of the doctrine concerning retreat.

Yes. There has been a centuries old doctrine concerning this.

We can all read the words of the statute. One must not be trespassing, not be provoking, and not engaged in criminality If one does not have a duty to retreat before using deadly force.

tex

[ScottDLS]

...


I just watched a 2 hour NOVA or some show that was precisely on the history of the doctrine concerning retreat.

Yes. There has been a centuries old doctrine concerning this.

We can all read the words of the statute. One must not be trespassing, not be provoking, and not engaged in criminality If one does not have a duty to retreat before using deadly force.

tex

OK there is a multiple millennia old doctrine that says I may gouge someone's eye out if they gouged mine out... I watched a 5 part series on A&E about it.

But it's not relevant to the 9.32 statute. You are claiming that because the statute says that you DO NOT HAVE a duty to retreat...if you meet condition x, y, z...That you affirmatively DO HAVE a duty to retreat, if you don't meet all the conditions, before you may claim justification under 9.32.

Yet I see nothing in the plain words of the statute (that we can all read) that says such. There is case law in some states and maybe even in Texas that creates a DUTY TO RETREAT, but not necessarily for any or all of the reasons in the statute, which doesn't explicitly do so.


Hypothetical...you are shoplifting and the proprietor begins beating you with a baseball bat, so hard as to easily cause death. You have a duty to retreat, before striking back with enough force to be considered deadly?

A person is trespassing past a 30.05 sign by skateboarding in a no skateboarding posted shopping mall. An attacker begins shooting the individual with a .22 rifle. The (armed) individual retrieves her lawfully carried handgun and without retreating returns fire? Did she lose her justification under 9.32 because she first failed to retreat? Would she have been otherwise justified in not retreating if she wasn't skateboarding?

[thetexan]

Here is my point

The rule states that if you do not do a, b, and c then you do not have to do d.

So when do you have to do d? And what can we deduce from the previous statement?

Whatever triggers d is not a, b, or c.

Something either triggers d or d can not be triggered by anything. What we do know is that whatever the answer d is not triggered by a, b, or c.

If nothing can trigger d then there is no need for this part of the statute...a simple "there is no requirement to do d" will do. Therefore we can also now deduce that there IS a need for that part of the statute. In other words there IS something that triggers a need to do d.

The context of that part of the statute is to tell us what doesn't trigger d. The only conclusion we can arrive at is that were it not for the triggers of a, b, or c that the need to do d is implied.

We have a rule in aviation that says I can't fly faster then 250 knots below 10000 ft. There is no rule saying that there is no speed limit above 10000 ft. I can infer that I am not restricted above that.

There is another rule that states that of an aircraft is holding on the localizer, on the protected procedure turn side of the localizer, at the intermediate or final approach fix, at or above the segment altitude...I do not have to issue an altitude with the clearance. That is interpreted to mean that I must issue the altitude otherwise.

The purpose of this part of the statute is meaningless if there is not a clear implication of the inverse of the rule.

One doesn't have to retreat BEFORE using deadly force if yada yards yada.

Come on Scott....

tex

[ScottDLS]

I'm not getting the logic as it applies to the penal code...or aviation for that matter.

If you meet conditions A, B, C, you definitely have no duty to do D (retreat)... You may have a duty to do D if you don't meet the conditions...

But that must be specified somewhere in statute, common law (where applicable), or case law. It is not automatically implied that you always have a duty to do D, only that you assuredly DON'T have a duty...

The law prohibits something....assaulting someone with deadly force, or killing someone. 9.32 provides a Defense.... If you raise it at trial, the prosecution must prove beyond a reasonable doubt, that:
...
(2) when and to the degree the actor (did not) reasonably believes the deadly force (was) 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.

You then even have section (d) which says...

(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.


You can CONSIDER it in determining (whether the actor) "reasonably believed" IF they don't meet all the criteria in section (c), but there is no direction that you must find the belief "unreasonable". The prosecution must establish (with certainty), to the finder of fact that your belief was NOT reasonable. Otherwise they have not refuted your Defense.

Whether you failed to retreat or not CAN go to determining your reasonableness IF you don't meet all the section (C) criteria, BUT doesn't absolve the prosecution of their requirement to additionally refute your section a(1) &(2) Defense.

[LucasMcCain]

Not to get in the middle of you two, but if I were hypothetically carrying in a posted location and saw some crazy pull out a knife and start stabbing someone, I don't believe that I need to run away before shooting the knife wielding nut in defense of his victim. I don't see anything in the law that says that, and I don't think any jury in the world would convict me for saving the person.

If someone attacked me, I believe it would be in my best interest to retreat to cover or escape if possible. That's the case anywhere. If I can't, I think I would be justified in shooting. I understand that I lose the automatic presumption of not having to retreat, so whether I could have will be considered, but if I couldn't retreat and had to act immediately, I don't think I'm automatically going to be convicted because I didn't run three steps backwards first.

Is there specific case law to show that I'm wrong? I would genuinely like to know.

The other day, I went to a friend's child's birthday party at some pizza place. I can't remember the name. The place had very darkly tinted windows all across the front. I decided to conceal because I didn't know most of the people there. Checked for signs on my way in and didn't see any. On the way out, I saw that there was an otherwise compliant 30.07 posted with letter stickers on the inside of the window next to the door. Because of the tinting, it was invisible from the outside. I went out and pointed it out to my wife; she looked right at it and said "what sign?" Had it been a 30.06 and I had to use my gun, one of these "crusading DAs" I keep hearing about might have argued that the sign was valid. These types of situations are what make me interested in knowing exactly what the legal ramifications could be.

[locke_n_load]

Here's what I have:

Sec. 9.31. SELFDEFENSE.
(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.

What's bolded states that you can use force against any other type of unlawful force. If it does not fall under the subsections (1)(2)(3), you lose your automatic presumption of reasonableness, but it can still be found to be reasonable.

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.

What's bolded here is that deadly force is lawful if you are found reasonable under 9.31, and if someone is committing one of the specific acts listed in (2)(A)(B). The use of deadly force for any other act against you is not lawful, period. Your use of deadly force can still be found reasonable even if you don't meet the automatic presumptions in (b), as long as something in (2)(A)(B) is occurring against you.

As far as duty to retreat, section (d), it says that if you meet those requirements the jury can't consider whether or not you failed to retreat. However, it does not say that you have a duty to retreat if you don't meet that clause.

[casp625]

This sounds like a perfect case of a grand jury delivering a "no bill," if the prosecutor even decides to bring it before a grand jury.

[thetexan]

Any time the subject of the imputed presumption of reasonableness is discussed in the statute or when I have mentioned it.....and I have explained this many times before....it means that, assuming that you meet the disqualification, your belief WILL NOT be presumed as reasonable. This is not to say that it IS NOT reasonable. It is to say that it will not be PRESUMED reasonable.

You will have to defend your belief as reasonable at trial. Maybe the jury will believe you, maybe they won't.

When the statute states that the finder of fact can not use you failure to retreat, it is referring to subsection a which is about the determination of reasonable belief.

Ok. I've given my reasoning. I want to hear an answer to this....

If you are present at a location where you don't belong, or if you are committing a crime, or if you are provoking the guy, as to duty to retreat....

a) you do not have to retreat before using deadly force? or
b) you have to retreat before using deadly force?

which one?

tex

[Lambda Force]

you have to retreat before using deadly force

I can't find the duty to retreat in the penal code.