13 December 2022

Fist or Firearms

A high-profile murder case kicked off here in my local courthouse. A former police officer stands accused of shooting a woman in her home. The case turns on the issue of self-defense. I have no involvement with the case and have no specialized knowledge about it. I have, however, fielded a number of questions about the right to protect oneself. I’d like to devote today’s blog to a quick, substantive overview of self-defense.

            Quick disclaimer: although every jurisdiction acknowledges a right of a person to protect him or herself, the rules in your jurisdiction may vary from those here in the Lone Star State.

            Quick disclaimer #2: Lethal and non-lethal force have their own separate sections in the Texas Penal Code. The general rules are the same, so I’m lumping them together for the purposes of this column.

The Rule

A person is justified in using force against another when, and to the degree, the person reasonably believes that the force is immediately necessary to protect against the attacker’s use of unlawful force.

That’s the Texas law regarding self-defense. It seems straightforward, but volumes have been written exploring it. We will touch upon only a few points.

1.      Like must meet like:

The response must be proportionate to the threat. Locally, we distinguish between force and deadly force. If I attempt to slap you, you don’t get to shoot me. And here, we open the door to a whole bunch of “what-ifs.” That’s where the defense bar makes its living.

2.      Words alone don’t make an adequate threat.

In my jurisdiction, we have a load of phrases we commonly call “fighting words.” The title doesn’t make them so. I might say that I want to slap you. That doesn’t give you the right to punch me. Some other action must accompany my words. A general fear of being physically harmed is not enough to trigger self-defense. But see 3.

3.      The defender doesn’t have to wait.

Bullets don’t need to be flying in your direction before you are entitled to respond. The line distinguishing #2 and #3 can easily become murky. It gets resolved on a case-by-case basis. Usually, the trial testimony involves the victim making some threatening statement. He then reaches into a pocket or plunges his hand toward his waistband. Perhaps, earlier in the day, someone witnessed him loading a firearm. How much activity demonstrates an immediate threat is decided by the jurors.

4.      The defendant can’t provoke his/her use of self-defense.

I sneer and say I’m going to hit you. In response, you stand, ball your fists, and prepare for the onslaught. I can’t let a punch fly and claim that I was pre-empting your obvious assault. I don’t get the benefit of self-defense if I start the trouble.  

5.      A defender gets to use force until the threat is extinguished. This has a variety of implications for the application of self-defense. If I start something and then surrender or retreat. You don’t get to keep hitting me. Once the danger to you is over, so is the right to protect yourself from it. But you get to persist with your defense until the end of the perceived threat.

Often, during a murder trial, the prosecution will try to stretch this. The government may argue that the defendant shot the victim multiple times. Assuming the legitimacy of his right to self-defense, the defendant is entitled to keep shooting. John Holmes, the former Harris County district attorney, expressed the concept succinctly, “if I have the right to shoot you dead, I have the right to shoot you dead, dead, dead, dead.” Once legally permitted to fire, a defendant may keep firing until the threat is extinguished. An after-the-fact claim of excessive force won’t nullify the right.

6.      Unlawful force

A defender has a right to protect themselves from illegal contact only. Most times, this element is a no-brainer. I don’t get to punch or shoot you. But some contact is not illegal. Police officers get to lay hands during the apprehension of criminals. As a society, we don’t recognize the right to fight back. Even among civilian-to-civilian contacts, some touching is neither harmful nor offensive, thus not necessarily illegal. I do not get to respond to it with violence.

7.      Applying the standard

The lens through which all this conduct and counter-conduct is evaluated is a mixed subjective/objective standard. What would a reasonable person standing in the shoes of the defendant think? The requirement does not make allowances for the defendant being drunk or high. Delusional thinking or paranoia might fall under a different defense, but they aren’t a part of self-defense. What a defendant had been told about the character of the victim is generally admissible. That seems reasonable. If you’ve been told that I’m a crazed murderer who wants to decapitate you, it might well influence your perception of my actions as I approach.

8.      Finally, before using force, English common law had a duty to retreat behind castle walls. The Castle Doctrine crossed the Atlantic with the colonists. The duty to retreat faded as settlers moved westward. When I started practicing law, Texas recognized that prior to deploying deadly force, a defendant had a duty to retreat if it could be done safely unless the assault occurred in his own home. The Texas legislature has since eliminated the Castle Doctrine. Assuming you’re someplace you’re entitled to be and not engaged in illegal behavior, a person is free to stand his/her ground.

There you have it. We’ve reduced a highly contentious, oft-litigated area of the law down to eight points. The main idea should be that self-defense in the courtroom is very fact specific. It depends on skilled advocacy and the careful articulation of details. Cases of seemingly similar facts may result in different outcomes. The brief summary may not be specific enough for the reader to begin trying criminal cases, but hopefully, it will help in digesting the morning news or plotting the next story.

Until next time.  


  1. Very interesting. I remember a cartoon in the old British Andy Capp strip in which the copper is writing down Andy's defense for striking someone "I thought he was going to hit me so I hit him back first."

    1. It sounds like "apparent danger" said with a British accent.

  2. So all these people who threaten to put in a complaint of assault because someone touched their elbow have no leg to stand on because it's not illegal contact?
    And a truly manipulative person could gaslight someone into believing that a third party is a threat in order to get them to kill that person with impunity?

    1. 1.Around here, offensive touching (not rising to the level of bodily injury) is a ticketable offense. There is still a reasonable person standard.
      2. Sounds like you've got the start of a story.

  3. Oh, Rob, I remember that cartoon very well.
    Meanwhile, as I said in a blogpost (Treason's True Bed - here https://www.sleuthsayers.org/search?q=Treason%27s+True+Bed )
    women are usually denied the right to stand their ground, especially if that means shooting a domestic abuser. And that's specifically written into most, if not all, Stand Your Ground laws: SYG specifically denies people prosecutorial immunity under SYG if “[t]he person against whom the defensive force is used or threatened has the right to be in or is a lawful resident of the dwelling, [or] residence . . . such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision of no contact order against that person.” (Much of this comes from the American Criminal Review.)

    1. I think the book, Stand Your Ground by Carolyn Light explores the issues you've touched upon.

  4. Mark, you're absolutely right about Light's book. A real eye-opener.

  5. This comment has been removed by a blog administrator.

  6. It's always unsettling when a high-profile murder case unfolds in our local community. This case involving a former police officer and the question of self-defense is bound to draw significant attention. While I'm not personally involved and lack specialized knowledge, it's crucial for justice to prevail through a fair and impartial process.


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