Defensive Shooting in School Zone still Prosecuted?

[TexasGal]

I get Stephen Wenger's "Duff Digest" newsletter. In his August 29 edition, one thing he relays is the story of a Texas CHL holder who drew on a man attacking a woman who was picking up her child outside a school. He was within 1000 ft of the school. He states that if the guy had actually fired his weapon even if justified, he could have been prosecuted under federal law since it has no exception for self defense inside a gun free zone even when the person is legally carrying there as a Texas CHL holder. If this is accurate, then I missed this somewhere. You can carry, but you will still be prosecuted under federal law if you have to shoot? One would think being able to legally carry there entails also being able to have a defense to prosecution if deadly force is necessary. Not true?

Mr Wenger stated:

"... (Assuming that the CHL was issued in Texas – the state in which the school is located – the bystander cannot be prosecuted by the feds for carrying a firearm within 1,000 feet of a gun-free school zone. However, if he had been forced to fire, it could be a different story because the federal law contains no exemption for discharging a firearm in self-defense or defense of another within 1,000 feet of a gun-free school zone.)..."

http://www.woai.com/news/local/story/Ar ... EBOTQ.cspx

[LSL]

This thread causes me to pause -

My home is directly across from a school -- certainly less than federal 1,000 feet.

What about this?

If ever I were to need to act defensively -- from BG(s) -- on or within my property -- who shall I worry more about?
BG(s) or federal prosecution?

Is this a case of GFZ -- where my home is not a castle?



Or, do I have No Worries -- because BG(s) won't venture into that 1,000 foot zone?

[Beiruty]

The author of the news letter is an ignorant person. Before writing in his newspaper he should write to US District Prosecutor and ask for clarification. Let him write to the US department of Justice.

[ELB]

In the past, when looking into GFSZA prosecutions, nearly everyone prosecuted for a GFSZA violation was already also being charged with something else very serious, like drugs or murder. While technically it looks like one could be prosecuted under the GFSZA for discharging a weapon in self-defense, it seems unlikely. (The one CHL holder I know of who was prosecuted for having a handgun in a GFSZA won his case at both trial and appellate levels.)

It would not be much fun for the guy being prosecuted, but if some USDA was to try it, I could see this leading to an eventual decision by the SCOTUS that the right of self-defense protected by the 2A does in fact include the right to discharge a legally carried gun. That is, as long as one of the saner Justices is not replaced during an Obama 2nd term (hint hint... elections have consequences).

So far this administration, Eric Holder in particular, has been loath to attack the 2A head on... it resorts to "under the radar" sleaziness like Fast and Furious...


The text:

(q)
(1) The Congress finds and declares that—
(A) crime, particularly crime involving drugs and guns, is a pervasive, nationwide problem;
(B) crime at the local level is exacerbated by the interstate movement of drugs, guns, and criminal gangs;
(C) firearms and ammunition move easily in interstate commerce and have been found in increasing numbers in and around schools, as documented in numerous hearings in both the Committee on the Judiciary [3] the House of Representatives and the Committee on the Judiciary of the Senate;
(D) in fact, even before the sale of a firearm, the gun, its component parts, ammunition, and the raw materials from which they are made have considerably moved in interstate commerce;
(E) while criminals freely move from State to State, ordinary citizens and foreign visitors may fear to travel to or through certain parts of the country due to concern about violent crime and gun violence, and parents may decline to send their children to school for the same reason;
(F) the occurrence of violent crime in school zones has resulted in a decline in the quality of education in our country;
(G) this decline in the quality of education has an adverse impact on interstate commerce and the foreign commerce of the United States;
(H) States, localities, and school systems find it almost impossible to handle gun-related crime by themselves—even States, localities, and school systems that have made strong efforts to prevent, detect, and punish gun-related crime find their efforts unavailing due in part to the failure or inability of other States or localities to take strong measures; and
(I) the Congress has the power, under the interstate commerce clause and other provisions of the Constitution, to enact measures to ensure the integrity and safety of the Nation’s schools by enactment of this subsection.

(2)
(A) It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.
(B) Subparagraph (A) does not apply to the possession of a firearm—
(i) on private property not part of school grounds;
(ii) if the individual possessing the firearm is licensed to do so by the State in which the school zone is located or a political subdivision of the State, and the law of the State or political subdivision requires that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license;
(iii) that is—
(I) not loaded; and
(II) in a locked container, or a locked firearms rack that is on a motor vehicle;
(iv) by an individual for use in a program approved by a school in the school zone;
(v) by an individual in accordance with a contract entered into between a school in the school zone and the individual or an employer of the individual;
(vi) by a law enforcement officer acting in his or her official capacity; or
(vii) that is unloaded and is possessed by an individual while traversing school premises for the purpose of gaining access to public or private lands open to hunting, if the entry on school premises is authorized by school authorities.

(3)
(A) Except as provided in subparagraph (B), it shall be unlawful for any person, knowingly or with reckless disregard for the safety of another, to discharge or attempt to discharge a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the person knows is a school zone.
(B) Subparagraph (A) does not apply to the discharge of a firearm—
(i) on private property not part of school grounds;
(ii) as part of a program approved by a school in the school zone, by an individual who is participating in the program;
(iii) by an individual in accordance with a contract entered into between a school in a school zone and the individual or an employer of the individual; or
(iv) by a law enforcement officer acting in his or her official capacity.
(4) Nothing in this subsection shall be construed as preempting or preventing a State or local government from enacting a statute establishing gun free school zones as provided in this subsection.

[C-dub]

The problem I see with that argument is that I don't see anything in the GFSZA that mentions the discharge of a firearm.

[The Annoyed Man]

This thread causes me to pause -

My home is directly across from a school -- certainly less than federal 1,000 feet.

What about this?

If ever I were to need to act defensively -- from BG(s) -- on or within my property -- who shall I worry more about?
BG(s) or federal prosecution?

Is this a case of GFZ -- where my home is not a castle?



Or, do I have No Worries -- because BG(s) won't venture into that 1,000 foot zone?

So long as it would have been legal in your home outside that zone, it is legal if you live within the 1000 ft zone. That's not the specific wording, but it is the net effect.

[RPB]

I see the distinction in ELB's post

paragraph 2, it's ok to possess it if licensed, but in paragraph 3 an offense to discharge it
That's just stupid.
Texas law would justify the shooting, and Feds call it an offense.
That's just stupid.

We need new Feds.
Texas has been under 6 flags to date ...7 is a good number, there's 7 days in a week , 7 dwarves, ...

[C-dub]

The problem I see with that argument is that I don't see anything in the GFSZA that mentions the discharge of a firearm.

I'd like to amend my earlier statement.

The key word in there might be "reckless".

[Thomas]

You can carry, but you will still be prosecuted under federal law if you have to shoot? One would think being able to legally carry there entails also being able to have a defense to prosecution if deadly force is necessary. Not true?

You can be prosecuted for anything just like you can be sued for anything, getting it to stick though is another story. In Texas we have "Necessity" in the law books:

§ 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly appear.

[FishInTx]

Didn't somebody draw on a knife attacker, today at a school parking lot, in San Antonio? Wonder if any charges will be filed?

[TexasGal]

The author of the news letter is an ignorant person. Before writing in his newspaper he should write to US District Prosecutor and ask for clarification. Let him write to the US department of Justice.

I thought I should give a link to his credentials:

http://www.spw-duf.info/credentials.html

[Jumping Frog]

You can be prosecuted for anything just like you can be sued for anything, getting it to stick though is another story. In Texas we have "Necessity" in the law books:

§ 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly appear.

However, the GFSZ charge is a federal charge and the Texas law on necessity is meaningless.

So let's look at what would happen if some idiot USADA wanted to charge someone for protecting life in federal court instead of Texas court. Since Texas is part of the Fifth Circuit, this is what would apply:

United States Fifth Circuit Court of Appeals, Pattern Jury Instructions
1.36 JUSTIFICATION, DURESS, OR COERCION

The defendant claims that if he committed the acts charged in the indictment, he did so only because he was forced to commit the crime. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should nevertheless be found "not guilty" because his actions were justified by duress or coercion.

The defendant's actions were justified, and therefore he is not guilty, only if the defendant has shown by a preponderance of evidence that each of the following four elements is true. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lesser burden of proof than to prove a fact beyond a reasonable doubt. The four elements which the defendant must prove by a preponderance of the evidence are as follows:

1. The defendant was under an unlawful present, imminent, and impending threat of such a nature as to induce a well grounded fear of death or serious bodily injury to himself [or to a family member]; and
2. The defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; and
3. The defendant had no reasonable legal alternative to violating the law, that is, he had no reasonable opportunity to avoid the threatened harm; and
4. A reasonable person would believe that by committing the criminal action he would directly avoid the threatened harm.

[C-dub]

So let's look at what would happen if some idiot USADA wanted to charge someone for protecting life in federal court instead of Texas court. Since Texas is part of the Fifth Circuit, this is what would apply:

United States Fifth Circuit Court of Appeals, Pattern Jury Instructions
1.36 JUSTIFICATION, DURESS, OR COERCION

The defendant claims that if he committed the acts charged in the indictment, he did so only because he was forced to commit the crime. If you conclude that the government has proved beyond a reasonable doubt that the defendant committed the crime as charged, you must then consider whether the defendant should nevertheless be found "not guilty" because his actions were justified by duress or coercion.

The defendant's actions were justified, and therefore he is not guilty, only if the defendant has shown by a preponderance of evidence that each of the following four elements is true. To prove a fact by a preponderance of the evidence means to prove that the fact is more likely so than not so. This is a lesser burden of proof than to prove a fact beyond a reasonable doubt. The four elements which the defendant must prove by a preponderance of the evidence are as follows:

1. The defendant was under an unlawful present, imminent, and impending threat of such a nature as to induce a well grounded fear of death or serious bodily injury to himself [or to a family member]; and
2. The defendant had not recklessly or negligently placed himself in a situation in which it was probable that he would be forced to choose the criminal conduct; and
3. The defendant had no reasonable legal alternative to violating the law, that is, he had no reasonable opportunity to avoid the threatened harm; and
4. A reasonable person would believe that by committing the criminal action he would directly avoid the threatened harm.

Huh? No defense of a third person? No wonder it has been decided that the police have no legal responsibility to protect us.

[TexasGal]

That's what I picked up out of that. If your family member is being stabbed, you can act. But if some poor woman you don't know is being murdered right in front of you, you can not legally act to defend her. That is twisted.

[RPB]

That's what I picked up out of that. If your family member is being stabbed, you can act. But if some poor woman you don't know is being murdered right in front of you, you can not legally act to defend her. That is twisted.

Looked just like Aunt Sally to me, guess I was mistaken what with all the mess and stuff from the wounds, but Idda swore it was Aunt Sally, I had a reasonable belief it was Aunt Sally; If you, as a reasonable person, thought it was your Aunt Sally, you'd have have acted in good faith and tried to save her too.


Kidding with that statement, but I don't see how a Jury in a Federal Court near Texas would convict someone for saving or trying to save another's life. Jurors still come from here and I'd hope they are sensible enough to realize a smaller offense resulting in good or preventing harm is a good thing, not to be rewarded with punishment.. Like grabbing a prohibited carrying weapon club/machete to kill a snake about to strike someone in a weapon-free-zone.