Would Trayvon Martin Have Been Safe in Texas? Revisiting Texas Self Defense Laws

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Since Saturday's verdict acquitting George Zimmerman in the death of Trayvon Martin – and even before then – there has been no shortage of excellent analysis on the reasons behind the verdict, implicating everything from lack of evidence to inherent racism in the jurors to inherent racism in our criminal justice system.  

I give you three of my favorites: one from Emily Bazelon at Slate, in which she discusses the state of the law in Florida; another from Justin Peters, also at Slate, written before the verdict and articulately laying out the truly difficult burden facing the prosecutors; and finally a trenchant and wide-ranging reflection from Ta-Nehisi Coates at The Atlantic.  

Read more about Texas' own stand your ground law after the jump.

Last year, we wrote about Texas' own Stand Your Ground law.  As we wrote last year, Texas' version of the law – and, we note, it is not an exact match – is codified at §9.31, et seq. of the Texas Penal Code.  The law as we know it was first passed in 1973, with the most recent amendments to it being enacted by the legislature in 2007.  

The notion of standing one's ground as a tenet or maxim of the law is not particularly new.  What's relatively new and particularly Texan is just how much ground one can stand.  

Borrowed from English common law, American common law permitted one to stand one's ground in the face of attack but incorporated a duty to retreat if it could be done safely. If a retreat could not be accomplished safely, then the person under attack could use deadly force to protect him or herself against death or serious bodily injury.  Traditionally, there was one exception: there was no duty to retreat in one's own home.  One's home was one's castle.  

Texas common law and then Texas criminal statutes pared back this duty to retreat.  Section 9.31(a) of the Penal Code reads thus:

“(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.”

Section 9.31(e) explicitly eliminates the requirement to retreat, and Section 9.31(f) states that under this section, neither judge nor jury may consider whether the person retreated, while determining criminal culpability.

Section 9.31(d) then goes on to limit the use of deadly force to an ostensibly discrete set of circumstances also found in Subchapter C of the Penal Code.  Those alleged limits, however, are simply the situations found in Section 9.31(a), but where the person reasonably believes that not just any force will do – deadly force must be employed (Section 9.32); instances of protecting a third person (Section 9.33); and preserving another's life in an emergency (Section 9.34).  

The Texas law departs radically from the traditional notion of self defense.  In the age-old tension between dignity of the person and dignity of life, it seems to err on the side of dignity of the person.  Where the traditional notion of self-defense gave a person the right to use deadly force once he had retreated “to the wall,” and where the wall was often confined to one's home, Texas expands the scope of where a person may use deadly force: to the home, to the car, to the person's own business, and even to the person's place of employment, as well as to anywhere where they may be to prevent various violent crimes.

Notably, the law gives an enormous amount of discretion to the actor who seeks to use the force in any of these situations.  The standard employed is reasonable belief.  Therefore, if a person uses deadly force, and she is entirely mistaken about the actions or intentions of the person against whom she uses the force, but she was reasonable in her belief (and mistake), there is no culpability.  Further, the statute and case law also permit a person to use deadly force and not just do so while retreating or merely standing his ground; he can actually pursue the person against whom he seeks to use the force if doing so is consistent with the rest of the law, or even depart from the retreat in order to retrieve a weapon to fight back.  

The statute also presents other issues.  If a person is engaging in criminal activity, he cannot avail himself of the protections of the statute.  In a sense, this is like a trial before a trial.  Before a person has been convicted of engaging in criminal activity – even in her own home – she must surrender any protections she may have had to defend herself under this law.  Section 9.34 is perhaps the least intuitive and least interpreted section of the Texas law.  For instance, a person may use deadly force to preserve the life of another in an emergency.  

The protection of the law is not without limits, however.  Generally, a person cannot claim to stand his or her ground and use lethal force merely to protect property. Lethal force can be used, however, if while protecting property, the person's life is in danger.  Also, the person cannot create the situation.  Last year, a Houston jury convicted a firefighter of murder after he attempted to invoke the stand-your-ground defense.  The defendant in that case had gone to his neighbor's house to complain about noise, and a confrontation ensued in the street; the defendant recorded the event.  The defendant then shot one of the men at the party; the man was unarmed.  The defendant, apparently, had been armed with a recording device and a firearm.

An interesting coda to this story.  Last year, it was reported that economists at Texas A&M had found a correlation between rates of homicide and states that have stand your ground laws.  That report may be viewed here.

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