We recently polled our members regarding what questions they would like to hear answered from a prosecutor. Emily Taylor, Independent Program Attorney with Texas Law Shield, and attorney at the law firm of Walker & Byington, sat down to help us hash out legal fact from fiction.
Q: If a police officer shoots a family pet, such as a dog or other animal, if a person believes that their life is in danger as well, are they legally able to use means of force to protect themselves, including deadly force?
Emily Taylor: Any scenario that involves shooting a police officer is a bad one. Even if you feel like you are 100% justified, I guarantee that the officers who investigate your case will not agree. Further, once you’ve been labeled a “cop killer,” the District Attorney’s office will hit you with the full force of the law, and will pull out all the stops to convict you. Remember that DAs are elected, and it looks great to the general public to campaign on a platform of convicting cop killers. With that said, if you know the person is a police officer, you can only use force when:
BEFORE YOU OFFER ANY RESISTANCE, the police officer uses “greater force than necessary” against you to make the arrest or search; AND
You reasonably believe the force is immediately necessary to protect yourself against the use or attempted use of the greater than necessary force.
As you can see, these requirements are pretty strict. I know I love my dog more than any other human being on the planet (my cat, on the other hand, I could do without), and I would be heartbroken if he was killed. But unfortunately, that fact alone does not rise to the level needed to use deadly force against a police officer.
Q: In Texas it is legal to build your own firearm as long as it’s not for sale? What about teaching other people to build their own firearms?
Taylor: It is perfectly legal to build your own firearms; however, you will not be able to sell them. Teaching other people is also legal, but you should definitely make sure to have them sign a waiver of liability; imagine teaching someone how to build a rifle, they mess up and blow off their hand, and they sue you for millions of dollars!
What if you teach someone to build a firearm, then that person takes that knowledge and builds an arsenal to shoot up a movie theatre? Fortunately, you do not have any responsibility in that scenario. The student’s independent criminal act cuts off your liability.
Q: How legal exactly is the bump-stock for an AR15?
Taylor: The bump stock is perfectly legal. An item becomes a machine gun when, by a single depression of the trigger, it dispenses two or more bullets. The bump-stock doesn’t change this fact, it just accelerates your ability to pull the trigger, which is not regulated. If it was, fast shooters would have to register their index finger (though with the way the government is going these days, may not be too far off).
Keep in mind that your bump-stock is one of those things a prosecutor might try to use against you in court if you had to defend yourself with this weapon. Anything to make you look like a trigger-happy madman could be fair game. It’s then up to your defense attorney to explain to the judge and/or jury that the DA’s argument is ridiculous!
Q: Why has the 2nd amendment been redefined for civilians (i.e., we can’t own post-ban machine guns) yet for military purposes anything goes?
Taylor: The problem with case law is that it’s criminals who usually define the rules. In the case that defined what was an “ordinary” firearm (and upheld the NFA law requiring registration for machine guns, short-barreled firearms, etc.), two mobsters were caught with a sawed-off shotgun. Well, these were not particularly successful mobsters, as they couldn’t afford to pay their attorney. In fact, the attorney didn’t even show up to the supreme court hearing! I urge everyone to pressure their state representatives to push the laws you want to see, as leaving it in the hands of the Supreme Court is a roll of the dice.
Q: If I catch someone at night stealing my neighbor’s tires and wheels can I legally shoot them?
Taylor: First, to even have a shot at this act being lawful, you have to have a reasonable belief the neighbor wanted you to defend their property. If your neighbor said, “Watch my stuff when I go on vacation,” or wrote you a note saying “I authorize and desire you defend my property,” you have fulfilled that requirement.
Second, the crime has to have occurred during the nighttime. You cannot ever use deadly force to prevent or terminate a simple theft if the sun is shining!
Finally, you have to reasonably believe that the deadly force is immediately necessary to prevent this theft during the night time; that you cannot protect the property by other means; and that the use of less than deadly force would put you at a substantial risk of death or serious bodily injury. What’s worse, is you will have to prove you believed all this to a jury.
As you can see, there are a lot of questions you will be putting in the jury’s hands to decide. As someone who spent many years picking juries and seeing the people who appear for jury duty, I can tell you that this is probably a hard sell. Jurors, as a general rule, do NOT like to see someone’s life ended over a simple theft of property.
Q: Can I use deadly force on a vicious dog charging at me?
Taylor:Yes; but your legal defense hinges on something called “the defense of necessity.” This means you will have to convince a jury that the harm you prevented (getting eaten by the dog) was greater than the harm you committed (shooting a dog). Sounds easy, right? Well, if the dog is a 70 pound pit-bull getting ready to take your leg off, your use of deadly force was probably necessary! If the dog is a 15-year-old toothless Chihuahua peeing on the bushes and you obliterate it from 300 yards out with your Barrett .50, your trial is not going to go well.
Keep in mind that most DAs offices have an entire division made up of prosecutors who pursue nothing but animal cruelty cases. It is often a hot button issue, and the DAs office may go after your use of deadly force especially hard, even if your shooting satisfies the defense of necessity!
Q: Want to go to the range and blast some paper?
Taylor: Sure you’ll be able to keep up?
Q: Want to go on a date, are you single, etc.?
Taylor: I’m not sure how my boyfriend Mason would feel about that!
Q: As it pertains to the Garrity Warning, what should an officer do when threatened with termination, regardless of justification in an OIS?
Taylor: Unfortunately, that question is too complex and too fact specific to address here. If this happens, call the Law Enforcement Officer Program emergency hotline immediately. The responding attorney will consider your exact circumstance and advise you properly in that moment.