imported post
Citizen wrote:
The elements of Castle Doctrine are already present in most common law--right to self-defense, ability-opportunity-jeopardy, immediate and otherwise unavoidable danger...
Yes, those are the requirements, but what a codified Castle Doctrine does that is of greatest importance is shift the burden of proof where it should be. In claiming self-defense or other personal defense justification, you must first admit to the crime, and then prove it was justifiable. With Castle Doctrine as codified in most states, the shooter is presumed innocent even though they have admitted to the crime, and the prosecution if they wish to press chargesmust prove that the shooting does not meet the requirements for protection under CD.
In Texas, which has a pretty good CD law, the shooting is justifiableas personal defenseif the shooter has reasonable belief thatforce or deadly forcewas necessary to protect the actor;a third person who would, if able, be justified in using force; or to prevent the commission of certain violent crimes such as kidnapping, murder, sexual assault or robbery. The shooter'sbeliefthat force/deadly forcewas necessaryis presumed to be reasonableif theperson shot wasunlawfullyand forcibly enteringthe shooter's home, vehicle or business,or if the shooter waswitness toan aboveviolent crime. A shooting is also justifiable in defense of property, if the shooter believes deadly force and nothing less is necessary to prevent the commission of arson, burglary, robbery, nighttime theft, or nighttime criminal mischief against the shooter, or to prevent the escape of a criminal with property gained by burglary, robbery, or nighttime theft against the shooter. Deadly force is justifiable to protect a third person's property if the third person would have been justified in using the same force, and if the shooter had permission or a legal duty to protect the third person's property, or if the third person is a close relative, live-in, or ward of the shooter.
All that hoopla means is that in Texas you are PRESUMED to be justified when you shoot:
- to protect yourself while in your homeor vehicle against forcible entry into or removal from said home or vehicle,
- to protect yourself against robbery, rape, murder or kidnapping,
- to protect a third party against any of the above being committed against them,
- to protect your property from nighttime theft,robbery,burglary, arson or nighttime vandalism if there is no other way to stop the crime without exposing yourself to serious bodily harm,
- to recover your property whilein immediate pursuit of a person who has committed nighttime theft, burglary, or robbery IF there is no other way to recover the property without exposing yourself to serious bodily harm, or
- to protect or recover a third party's property from criminal theft, damage or destruction if thethird partyhas given you permission, you have a legal duty to do so, or the third party is your parent, child, spouse, or ward.
The prosecution, in refuting this defense, must
prove that the shooting was not justified because of a failure to meet the requirements of the statute; you are presumed to have met them upon asserting your defense, and therefore innocent until proven guilty.
Additionally, common and case law generally require that the person attempt to retreat, because generally deadly force should be the very last option. Castle Doctrine as coded in Texas removes this obligation:
[PC Sec 9.32] (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.
if you are justified inusing deadly force to protect yourself or a third party personally,it holds regardless of whether you first tried to escape, and failure to attempt to escape cannot be considered against your reasonable belief that your use of force is justifiable.
Lastly, Texas law protects defendants in civil cases.AlthoughPCChapter 9specifies:
§ 9.06. CIVIL REMEDIES UNAFFECTED. The fact that
conduct is justified under this chapter does not abolish or impair
any remedy for the conduct that is available in a civil suit.
the Civil Practice and Remedies Code Chapter 83 specifies:
§ 83.001. CIVIL IMMUNITY. A defendant who uses force or
deadly force that is justified under Chapter 9, Penal Code, is
immune from civil liability for personal injury or death that
results from the defendant's use of force or deadly force, as
applicable.
CPRC Sec. 83.001 is the newer code and therefore should, for all actions after Sept 1, 2007,pre-empt PC Sec. 9.05.