The facts are straightforward. A woman arrives home in the middle of the day, and while taking her children into the house, is accosted at her front door and grabbed by two men wearing black clothing with masks covering their faces, and carrying handguns and zip ties. The man hears the screams of his fiancé and emerges from the house with his handgun. He begins to fire shots at the attackers, who then let go of her and run away. The man follows them into the street and continues firing as they run away. In the course of this event, the man fires 10 to 12 rounds.
The police are called to the scene, and at some point in the investigation, the police start paying more attention to the man’s tattoos than actions of the criminal actors. The police claim that the man is a member of a recognized criminal street gang and that both he and his fiancé are uncooperative during the investigation. At the conclusion of their on-site investigation, the police arrest the man for the criminal offense of felony deadly conduct.
The crime of deadly conduct under Texas Penal Code Sec. 22.05(b) states, “A person commits an offense if he knowingly discharges a firearm at or in the direction of: (1) one or more individuals, or (2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.”
In order to establish an arrest, the police only need enough evidence that shows probable cause that a crime was committed. A suspected person bears the burden of demonstrating that their actions were legally justified. Further, in a situation where multiple shots are fired, each shot can be looked at individually to determine if a justification existed at the moment it was fired.
Let’s analyze the facts and progression of these events. Is the use of deadly force justified for self-defense or defense of a third person in this situation? Since the fiancé was outside of the dwelling, the Texas “castle doctrine” does not apply. However, Texas law states that a person is legally presumed to be reasonable in the use of deadly force if the person knew or had reason to believe that deadly force was immediately necessary to prevent the imminent commission of a murder, sexual assault, aggravated sexual assault, or aggravated kidnapping. The undisputed facts show that the man clearly had reason to believe that his fiancé was the intended victim of one of these crimes.
Is “deadly conduct” a crime for which self-defense or defense of a third person is available? Yes, a justification under Chapter 9 of the Texas Penal Code, including the defensive use of deadly force, is available as a defense for any crime, so long as there is some evidence presented at trial.
Is deadly force justified in self-defense or defense of a third person if there is no longer an imminent threat? No, once a reasonable person would believe that deadly force was no longer immediately necessary to prevent an imminent threat, the justification ceases. This could happen at any point during the incident because the circumstances are fluid and can change instantly.
Therefore, the man has an excellent argument that any shots fired while his fiancé was under attack are legally presumed to be justified. However, once the perpetrators abandoned the attack and ran from the scene, each shot fired could be considered unjustified if a reasonable person would believe that a crime was no longer imminent. Many factors would go into this analysis, such as: what was the distance between the man and the perpetrators, how many shots did the man fire, were the shots fired in a reckless manner, did the perpetrators have the ability to fire back, did it appear that the perpetrators were not abandoning the attack but instead looking for cover to regroup, and was there a risk that an innocent third party could be injured if firing the gun was reckless?
Does being a gang member disqualify a person from being justified in using a firearm for self-defense or defense of a third person? No, a person’s status as a gang member does not disqualify them from being justified in using deadly force if the circumstances allow. Further, as long as the person is not disqualified from possessing a firearm (i.e. a felon or a person under an active protective order), that person can use a firearm for self-defense.
The police have told the media that they were concerned about innocent persons in the neighborhood being injured because the man shot down a “crowded” street. This would explain why the man was arrested for deadly conduct against the public instead of aggravated assault against the two perpetrators. However, the burden would be on the state to prove beyond a reasonable doubt that each shot fired was unjustified. This would be a very difficult task especially since the man can argue that after watching his fiancé be brutally attacked by two masked men, a reasonable person would be under such an alarmed state that even while the attackers were running away, he continued to be in an alarmed and fearful state.
Outcome: A judge failed to find there was probable cause for the man’s arrest and has released him from custody. — Gordon Cooper, Senior Legal Contributor, Texas & U.S. Law Shield Blog; attorney at Walker & Byington