Texas Has Broad Self-Defense Laws. Here's How They Can Be Applied In Deadly Shootings.

Jul 28, 2020

Austin police say they're still gathering witness statements and video from a deadly shooting downtown Saturday night. Garrett Foster was marching in a Black Lives Matter protest when he was shot to death

The shooter told police they shot Foster after he approached their car and pointed a rifle. The person was detained and released after questioning – but that doesn't necessarily mean criminal charges won't be filed.

RELATED | 4 Things You Should Know About Self-Defense Law In Texas

While detectives have not reached any conclusion about the incident, the shooting has put the focus on Texas' broad self-defense laws. Jennifer Laurin, a professor of criminal law at UT Austin, spoke with KUT about how they came to be.

This transcript has been lightly edited for clarity.

In Texas as elsewhere, self-defense basically has two components. An individual, to assert self-defense, has to have actually believed that it was immediately necessary to use deadly force in order to prevent the use of deadly force or a serious violent crime against themselves. Secondly, they also have to have had a reasonable belief in that regard. In that respect, as I said, Texas law is like the law in virtually every other jurisdiction.

It's also the case, though, that Texas goes a little bit further than some other jurisdictions, and in some cases many other jurisdictions in protecting the right to use force in self-defense. For one, Texas does not require that an individual retreat to safety, even if they could before using otherwise justified defensive force. This is sometimes called "stand your ground." And Texas, along with a slight majority of jurisdictions across the United States, have this stand-your-ground provision of self-defense law.

Texas goes beyond a number of other jurisdictions in terms of protecting the right to use force in defense not only of one's self, but also of property, and also in creating certain presumptions that allow a defendant a little bit more evidentiary leeway in making the case that their belief in the need to use force was, in fact, reasonable.

KUT: So how did these laws become so broad?

Laurin: Well, it's interesting, in Texas, they started narrower than they are. The state did a sort of comprehensive reform of its penal code in 1973. The Legislature enacted a self-defense provision that did not have the stand-your-ground provision in it. In fact, it did require a defendant who wanted to assert self-defense to establish that it was not safe for them to retreat before using it.

That duty to retreat got narrowed by the Legislature in 1995, first when they adopted something known as the castle doctrine. It basically said, well, you usually have to retreat, but if you're in your home, if you're in your castle, on your property – you don't have to retreat under those circumstances.

Then about 12 years later, the Legislature again broadened the protection of self-defense and removed any duty to retreat anywhere. So, the answer to sort of how the law of self-defense became as broad as it did in Texas is it was a matter of legislative choice in the amendments to the statute that sets out the elements of self-defense.

KUT: Under Texas law, if someone provokes a conflict, do they still have the right to use deadly force to defend themselves?

Laurin: No, they don't. So, what will amount to something that the law would consider to be provocation is obviously very fact dependent. But an individual who essentially brings about a reaction from someone else that then endangers them loses the right to assert self-defense. Again, as you said, that's the doctrine known as provocation. An individual essentially can't have provoked the conflict or the altercation that leads to them having the need to protect themselves.

KUT: If someone is released after a shooting like the one that occurred Saturday, is that an indication police think it was a self-defense shooting or could that person be charged and arrested later?

Laurin: Well, particularly at such an early stage of the investigation, I think it would be a mistake to read anything conclusive into a decision to release an individual. For starters, police have to have probable cause before they can arrest an individual for a crime. And if they have some affirmative evidence concerning self-defense, that's going to start to go into a mix of factors about probable cause.

But if they're still investigating the case, that means they may develop a sort of, you know, evolving view of whether they have enough facts to ultimately arrest. Furthermore, police aren't obligated to arrest immediately upon probable cause existing. In other words, they may, for any number of reasons, make decisions about the timing of when to announce a final view of the case or to make an arrest.

So, you really can't read anything into a conclusion about what the police currently believe simply by a decision not to arrest, and a decision not to arrest now certainly doesn't foreclose the police from making a decision to arrest down the road.