Representative Rafael Anchia’s HB987 (2017) is a Bill that makes any thinking person shake their head in disgust. The Bill is designed to protect the most violent of criminals, at the expense of honest Texans. Why on earth would anyone file such a bill?
HB987 would repeal protections enacted in 2007 with the passage of SB378. SB378 was commonly referred to as “Texas Castle Doctrine Bill,” but that was nothing more than a title that was somewhat inaccurately attached to that much-needed Bill. In the ten years since its passage, SB378 has proven both the wisdom of the Texas Legislature and the effectiveness of the then-new law. In order to fully understand how bad Rep. Anchia’s Bill is, we need to take a trip back in time to have a look at Texas law as it existed over the years. Then we will be able to dissect HB987 with much greater clarity of its impact on law-abiding Texans and how it would help criminals.
A short history lesson
When the Texas version of a “Castle Doctrine Bill” (SB378) passed in 2007, it addressed two areas of criminal law and one area of civil law. SB378 got its unofficial name because it dealt with the duty to retreat before using force or deadly force against a criminal. However, the so-called “retreat duty” was only one area of criminal law addressed by SB378. The other area dealt with the elements of self-defense using non-lethal force or deadly force.
The retreat duty in Texas
If one were to carefully read every word in tens of thousands of pages of Texas criminal and civil laws, one would not see term “Castle Doctrine.” However, one could read any edition of Black’s Law Dictionary and find “Castle Doctrine” defined much like this:
- A man’s home is his castle and, hence, he may use all manner of force including deadly force to protect it and its inhabitants from attack.
The feminists in the audience need not get wrapped around the axel over that definition; it applies equally to men and women alike.
There is another legal doctrine that comes into play and it is called the “True Man Doctrine.” I know, two male-chauvinist definitions in a row, but hey, those are long-recognized Doctrines that are relevant to this discussion. So feminists just pour another glass of wine and read or listen on. The “True Man Doctrine” extends the concept of the “Castle Doctrine” outside one’s home allowing an intended victim to defend themselves wherever they may be unlawfully attacked, without the need to first retreat.
Prior to about 1975, Texas was a “True Man State” meaning one could defend themselves whenever and wherever they were unlawfully attacked. They had no duty to retreat or attempt to retreat prior to using force or deadly force, so long as the legal elements of self-defense were present. (See Tex. Penal Code§9.31 & §9.32.) In either 1975 or 1977, Texas law changed and for the first time in Texas history, people had a duty to retreat before using force or deadly force, even if all of the elements of self-defense were present. Unbelievably, this duty applied even inside one’s home!
In 1995, the Texas Legislature passed HB94 by Rep. Kamel. This Bill repealed the retreat duty, but only if a person was lawfully using force or deadly force to defend himself or herself inside their own home. The duty to retreat remained everywhere else, whether one were 500 miles from home, or standing on their front porch. Therefore, Texas was technically a “Castle Doctrine” state from Sept. 1, 1995 until Sept. 1, 2007 when SB378 went into effect. This is why I say that SB378 was somewhat inaccurately called a “Castle Doctrine” bill. Yes, it dealt with the retreat duty, but only outside of one’s home.
Elements of self-defense
The other area of Texas criminal law addressed by the Texas version of a “Castle Doctrine” bill dealt with the statutorily-required elements of self-defense, whether using non-lethal force or deadly force. In order to be justified in using force against another person, one must 1) have a reasonable belief; 2) that force (or deadly force) is immediately necessary; 3) to defend against another person’s use or attempted use of unlawful force (or deadly force). A person claiming self-defense must also meet the “when and to the degree” element of both Tex. Penal Code§9.31 and §9.32. There are other significant factors related to self-defense that may come into play, but a full discussion of this topic is not necessary for purposes of evaluating the impact of SB378. (It would also be far beyond the scope of this article!)
Frivolous civil lawsuits
Although not common, an additional problem some Texans faced when forced to defend themselves was frivolous lawsuits filed by criminals against whom force was used, or their surviving family members. Such suits were often politically-motivated and relatively rare, but statistics are irrelevant when an intended victim of a violent attack survived the attack only to find themselves paying an attorney to defend against a frivolous lawsuit.
Enter SB378 – the Texas version of a “Castle Doctrine Bill”
The word “reasonable” is hardly a shining example of clarity, nor are the words “immediately” or “degree.” Yet those words make up the legal foundation of lawful self-defense. As noted earlier, a full discussion of the Texas law on self-defense is neither necessary nor possible in this article, but it would be helpful to read Tex. Penal Code§9.31 as it existed prior to the passage of SB378 in 2007. It read, in pertinent part, as follows; “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.” All Tex. Penal Code§9.32 does is add the word “deadly” in front of “force.” Essentially, in order to use deadly force, one must be in imminent danger of death or serious bodily injury.
Although the Texas Penal Code applies to all people in the State, it was applied quite differently in some counties and courtrooms. What a prosecutor, grand jury, or jury considered “reasonable” and/or “immediately necessary” in one county was often considered unreasonable or not immediately necessary in another. In theory, Texas law was the same for everyone, but its application was not.
SB378 was passed to provide equal justice for everyone and to prevent an honest person who acted in self-defense from surviving the deadly attack only be fall victim to the legal system. The protections of SB378 are narrowly crafted and contain safeguards to prevent abuse. The details of SB378 will be discussed below, but in summary SB378 1) repealed the retreat duty everywhere in Texas under specific circumstances; 2) created a presumption of “reasonable belief, if immediate necessity” in specific situations; and 3) granted immunity from civil liability when force was justified pursuant to Chapter 9 of the Texas Penal Code.
Current Texas law of self-defense & crime prevention
Quick, ugly and violent – this summarizes most attacks
When one talks with people who have been forced to defend themselves against a violent attacker, the common thread in these discussions is the element of suddenness. The intended victim rarely has time to reflect on their circumstances and to contemplate a response. People often refer to the attack and their response as a blur, an instinctive reaction to the deadly threat. The vast majority of self-defense shooting, whether in the law enforcement community or among citizens, follow what is known as the “Rule of 3’s.” Three rounds are fired in three seconds from a distance three feet. Obviously, there are self-defense shooting that do not contain one or more of these three elements, but the element of suddenness is almost always present.
The old adage of “walking a mile in someone’s shoes” is never more appropriate then when trying to evaluate the actions of a person acting in self-defense, or when defending another innocent person. Try as one might, it is simply impossible to put oneself in the mindset of an intended victim who had only seconds, or perhaps a split second, to make a life or death decision. It is impossible and grossly unfair for anyone to spend days, weeks or even months “evaluating” the actions of someone forced to defend themselves by making a split-second decision.
Presumption of “reasonable belief of immediate necessity”
To prevent the unequal application of Texas self-defense laws, and to prevent the second-guessing of such critical life or death decisions one must make under the worst imaginable circumstances, SB378 created a rebuttable legal presumption. There are safeguard built into the law to prevent its abuse.
The presumption applies to both non-lethal force and deadly force under Tex. Penal Code§9.31 and §9.32. The presumption applies only in one’s home, business or car, or when a person acts to prevent specific violent crimes. The presumption applies only when the following elements are present:
- When and to the degree, the person using force knew or reason to believe that the person against whom force was used;
- Unlawfully and with force entered or attempted to enter the victim’s occupied home, business or motor vehicle;
Unlawfully and with force removed or attempted to remove the victim from their occupied home, business or motor vehicle; or
Was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
- Provoked the person against whom the force was used; and
They must not be engaged in criminal activity, other than Class C misdemeanor traffic violations, at the time the force was used.
- Unlawfully and with force entered or attempted to enter the victim’s occupied home, business or motor vehicle;
Repeal of the retreat duty outside one’s home
As noted, prior to 2007, Texas law did not require people to retreat before using force or deadly force inside their home. SB378 removed the retreat duty outside one’s home, so long as certain legal requirements are met. The Bill did not go so far as to return Texas to a “True Man State.”
If the elements necessary to use force or deadly force we have already covered are present, then a person can use force without retreating or trying to retreat so long as the person:
- Has a right to be present at the location where the force is used;
Did not provoke the person against whom the force is used; and
Was not engaged in criminal activity at the time the force is used.
The one element of Texas civil law that was addressed in the Texas version of the Castle Doctrine Bill dealt with potential civil liability to a criminal or their surviving family members. If someone uses force or deadly force that is justified under Chp. 9, Tex. Penal Code, then they are immune from civil liability. Contrary to what many folks initially believed, this does not mean that they cannot be sued. It simply means they should win. Any attempt to prevent the filing of suit would violate the open courts provision of the Texas Constitution and the law would be struck down.
Rep. Anchia’s HB987 helps criminals and hurts honest Texans
Rep. Anchia’s HB987 repeals every element of SB378 that has protected Texans for almost a decade.
Why would any member of the Texas Legislature file such a despicable bill? Who is he trying to protect? It certainly isn’t a criminal’s intended victim! Now for a few examples of the application of HB987.
If a woman is attacked even in her home and she defends herself by using force or deadly force, she will once again be subject to Monday morning quarterbacking by people who cannot possibly put themselves in her shoes. Yes, the duty to retreat would not apply in her home, but the presumption of reasonableness would not exist. The act of breaking into her home, without more, would not justify the woman’s use of force to defend herself, if Rep. Anchia has his way.
Let’s look at another example of the absurdity of Rep. Anchia’s goal. A 21 year old college student is heading home after an evening class. At a red light, a would-be rapist and murderer jerks her door open and starts dragging her from her car. If Rep. Anchia’s Bill passes, this would not be enough for the woman to use force in self-defense. She would have to show “more” but how much “more” would be enough to satisfy those who would spend the next weeks or months evaluating her split-second decision? Why would any decent person put this woman in such a horrendous position? The only answer is that Rep. Anchia cares more about criminals than their intended victims. This is shocking, utterly shocking. Undoubtedly he will claim otherwise, but his protestations will fall on deaf ears and the beneficiaries of HB987 are undeniable.
The damage caused by HB987 is not limited to repeal of the much-needed presumption of reasonableness. It would also reinstate the retreat duty outside one’s home. Here is another real-world example of the application of HB987. A man is walking his dog in the evening when he is attacked by a knife-wielding robber. Few if any people would argue that the elements of self-defense are not present. Even though the intended victim would have a “reasonable belief of immediate necessity,” that pesky retreat duty Rep. Anchia wants to resurrect could take a reasonable act of self-defense and turn it into a prison sentence for the victim. If people evaluating the man’s actions were to feel that he could have and should have simply run away, then he could be convicted of a felony for defending himself. Again, one must ask why on earth Rep. Anchia would return to the days when such a result could be possible?
Here is one last example of the world we could live in again, if HB987 were to pass. Convenience stores have always been prime targets for hijackers. In decades past, the robber would typically take the money and leave without hurting anyone. In recent years however, the preferred procedure for these sociopaths seems to be include killing the clerk to eliminate a witness, or simply to satisfy their lust for blood.
With this background, here is our scenario under Rep. Anchia’s vision of the future. A person with a License to Carry a Handgun (LTC) is in the back of a convenience store looking for a snack for his road trip. Suddenly, a hijacker bursts into the store and shoves a gun into the face of the female clerk demanding money and threatening to kill her. Under current Texas law, if the LTC chooses to intervene and protect the clerk, the presumption of “reasonable belief of immediate necessity” applies to his actions because he would be preventing the commission of aggravated robbery and perhaps even murder.
It would be a markedly different legal situation facing the LTC if Rep. Anchia’s HB987 were to pass. The presumption would no longer exist and the LTC would have an incentive, perhaps a strong incentive, “not to get involved.” Yes, Tex. Penal Code§9.33, allows one to come to the aid of a third person under certain circumstances. However, one of the required elements is that the “rescuer” not only reasonably believe that deadly force is immediately necessary, Tex. Penal Code§9.33(2) requires that he also believe that he must be the one to use force to defend that third person. The clerk’s family could well be deprived of a husband and father, wife and mother, son or daughter because their potential rescuer had second thoughts.
Rep. Anchia’s HB987 must not pass. Indeed, it doesn’t even deserve a hearing in committee. If HB987 appears to gain any traction, which is unlikely, then everyone should contact their Representative and ask them to oppose this terrible Bill.