No Duty to Retreat

[dogflight]

Sorry this is so lengthy, but it gave me serious pause about my understanding of "duty to retreat" and the way I teach the subject of PC 9.32.

Some folks have posted a "quiz" as a promotion. I am concerned about some of the information conveyed by the quiz and the answers they provide because it calls into question my understanding of the law.

Their question: The "Castle Doctrine" is the popular name for the legal philosophy that provides defendants in self-defense cases with a presumption of reasonableness so long as they meet a certain set of conditions. Which of the following is not a location covered by the Texas Castle Doctrine?
a. Apartment in a multiplex high-rise
b. Barn
c. Place of employment
d. Detached garage
e. Home office
f. Both B and D

Their answer is f, with the following explanation: Texas’ version of the Castle Doctrine is contained in Texas Penal Code section 9.32; it covers your occupied habitation, vehicle, or place of business. (C), therefore, is a place covered by the castle doctrine as it is specifically listed in the statute, and is not the correct answer. (A), an apartment in a multiplex high-rise, is a habitation; therefore it is covered, and is not the correct answer. A home office is a place of business, and by virtue of being in the home is also a part of a habitation, both of which are covered by the castle doctrine; it is also then not the correct answer. A barn and a detached garage are both areas that are not attached to the habitation; while they may be covered elsewhere in the law, they are not covered under the castle doctrine, and therefore (F) is the correct answer.

My concern: The question/answer implies a duty to retreat in places other than your habitation, vehicle, or place of business. I have a problem with that because, first; in my understanding there is no duty to retreat in Texas state law, and second; PC 9.32 clearly defines a presumption of reasonableness based on the three locations, yes, but also if one is preventing the "imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery". Clearly, the latter offenses could be committed in a barn, detached garage, or anywhere else.

I suspect this was by design a trick question ("which is not a location named in PC 9.32?"), but it plants seeds of confusion regarding what some already find a confusing subject.

Or, legal brains, is my understanding of PC 9.32 flawed?

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON.

• (a) A person is justified in using deadly force against another:
  • (1) if the actor would be justified in using force against the other under Section 9.31; and
    (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
    • (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
      (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
  (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
  • (1) knew or had reason to believe that the person against whom the deadly force was used:
    • (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
      (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
      (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
    (2) did not provoke the person against whom the force was used; and
    (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
  (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
  (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

[Middle Age Russ]

It would appear that sections (c) and (d) substantiate the more generalized "no duty to retreat" view. However, for purposes of defined "castle doctrine" locations their question -- and the reasoning of their answer -- seems consistent with how I read this section. IANAL, though.

[sjfcontrol]

I believe you are conflating "duty to retreat" (Stand Your Ground) with the "Castle Doctrine".

'Castle' §9.32(b) says that in the listed locations, the use of deadly force is presumed justified.

'Stand your ground" §9.32(c) says if you're in a location you're legally entitled to be (etc.) you don't need to retreat. Specific locations are not required (place of business, etc.)

[The Annoyed Man]

I believe you are conflating "duty to retreat" (Stand Your Ground) with the "Castle Doctrine".

'Castle' §9.32(b) says that in the listed locations, the use of deadly force is presumed justified.

'Stand your ground" §9.32(c) says if you're in a location you're legally entitled to be (etc.) you don't need to retreat. Specific locations are not required (place of business, etc.)

This.

Charles Cotton teaches in his Use of Force and Deadly Force in Texas seminars that you have a right to defend yourself with force or deadly force (as called for) in ANY place where you have a lawful right to be. The only thing up for grabs is HOW you defend yourself, depending on your location. For instance (and this is just my understanding as I recall from his seminar), if you carried past a compliant 30.06 sign into a hospital, and end up involved in a shooting inside the building, you have a right to defend yourself if you are legally in the hospital, but you don't have a right to carry the gun into the hospital. Consequently, while you probably won't face charges for defending yourself, you probably will face charges for having a concealed handgun inside the hospital. Something along those lines.

[Charles L. Cotton]

Retreat Duty:
There is no duty to retreat inside your home;
There's no duty to retreat outside your home as long as 1) you are legally at the location where you used force or deadly force; 2) did not provoke the person against whom force/deadly force was used; and 3) you were not engaged in criminal activity at the time you used force. TPC §§ 9.31(e) and 9.32(c).

Presumption that force/deadly force was immediately necessary:
A person using force or deadly force is presumed to have reasonably believed that the force or deadly force was immediately necessary if the person using force know or had reason to believe that the person against whom force or deadly force was used:

• 1) unlawfully and with force:
  • a. entered or attempted to enter their occupied habitation, motor vehicle or business or place of employment;
    b. removed them or attempted to remove them from their occupied habitation, motor vehicle or business or place of employment; or
  2) the person was attempting to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; and
  3) the person used force did not provoke the person and was not involved in criminal activity other than Class C traffic violations.

TPC §§ 9.31(a)(1) and 9.32(b).

Chas.

[The Annoyed Man]

Retreat Duty:
There is no duty to retreat inside your home;
There's no duty to retreat outside your home as long as 1) you are legally at the location where you used force or deadly force; 2) did not provoke the person against whom force/deadly force was used; and 3) you were not engaged in criminal activity at the time you used force. TPC §§ 9.31(e) and 9.32(c).

Presumption that force/deadly force was immediately necessary:
A person using force or deadly force is presumed to have reasonably believed that the force or deadly force was immediately necessary if the person using force know or had reason to believe that the person against whom force or deadly force was used:

• 1) unlawfully and with force:
  • a. entered or attempted to enter their occupied habitation, motor vehicle or business or place of employment;
    b. removed them or attempted to remove them from their occupied habitation, motor vehicle or business or place of employment; or
  2) the person was attempting to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery; and
  3) the person used force did not provoke the person and was not involved in criminal activity other than Class C traffic violations.

TPC §§ 9.31(a)(1) and 9.32(b).

Chas.

Thank you Charles. I was hoping you would see this thread and answer.

[o b juan]

The words "Castle Doctrine" and "Stand Your Ground" Are really hard to find in Chap. 9 of the Penal Code.
Unless there is a new Texas Handgun Laws Book

any how " stand your ground" sounds like a challenge and is an over used statement as is "castle doctrine"

Just my opinion and we all know about opining

[sjfcontrol]

The words "Castle Doctrine" and "Stand Your Ground" Are really hard to find in Chap. 9 of the Penal Code.
Unless there is a new Texas Handgun Laws Book

any how " stand your ground" sounds like a challenge and is an over used statement as is "castle doctrine"

Just my opinion and we all know about opining

The names of various laws are usually (?) based on the names of the legislative bills that created them. Once a bill is passed it becomes code. The codes (Penal, etc) do not contain the names of the bills that created them. Nevertheless, it is common to refer to those laws by the bill's name -- Castle Law, Stand Your Ground, Motorist Protection Act, etc.

[Charles L. Cotton]

The words "Castle Doctrine" and "Stand Your Ground" Are really hard to find in Chap. 9 of the Penal Code.
Unless there is a new Texas Handgun Laws Book

any how " stand your ground" sounds like a challenge and is an over used statement as is "castle doctrine"

Just my opinion and we all know about opining

Correct. You won't find "Castle Doctrine" anywhere in Texas jurisprudence. One can find it in Blacks Law Dictionary and it will read something close to this: "A person's home is their castle and they need not retreat before defending their home and anyone in their home." We (NRA) use the term to describe bills in any state that deals with the retreat duty, but what is in each state's bill varies greatly. The Texas version in 2007 (SB378) didn't address retreating in the home directly because there was no retreat duty in one's home in Texas. It did: 1) address the retreat duty outside the home; 2) establish the "presumption of reasonable belief;" and 3) establish immunity from civil liability (not lawsuit presumption).

The term "stand your ground" was never used in Texas when promoting SB378 and I wish that were still the case. It connotes much more than just the lack of a retreat duty and it is almost always used in a negative manner.

Chas.

[dogflight]

Thanks, all, for your insightful replies.

I think many folks (and the media) conflate "stand your ground", "castle doctrine", and "duty to retreat", often using them incorrectly and interchangeably.

So then, if I understand PC 9.32(b) correctly, the rules for your "castle" (home/car/office) are different than your barn or detached garage in that the presumption of reasonableness is granted if you're defending against someone who unlawfully broke/is breaking into or unlawfully took/is taking you from your "castle" (home/car/office), whereas in all other locations the presumption is granted only in defense of the specified criminal acts.

Assuming that describes the "Castle Doctrine", then I now understand the answers to the [pre-paid legal] quiz question.

I wish I'd gone to law school.

[switch]

First, you have a right to defend yourself if you are 'in fear of your life' - period.
Prior to 1973, you had a duty to retreat, even inside your own home. If someone kicked in the front door, you were expected to go out the back (depending on your local DA :( ).
In 1973, they passed the first 'Castle law'. You could defend your home (Castle) w/o being in fear of your life. Back yard, front yard, at work - still had a duty to retreat.
Around 2005-2007, they expanded that definition of Castle to include motor home, travel trailer, horse trailer (w/living quarters), etc. AND OCCUPIED vehicle OCCUPIED business. You can defend them w/o being in fear of your life.
Along about that time, they also passed the TX version of 'No duty to retreat' (w/3 exceptions). However, in those situations, you need to be in 'fear of your life'. One important part of that law was the exemption from civil liability. When first passed, it only applied to 'self-defense' shootings (including robbery). In 2007, the lege changed it to read ALL justified shootings, which added a protection against civil liability in Criminal Mischief and Theft at night, burglary, arson and fleeing w/property. I teach this is the 'Castle law'. It expanded my Castle to include the whole state of TX (I can't be trespassing, the aggressor nor breaking the law), but I still need to be 'in fear of my life'.
My home, occupied vehicle, occupied business is a sub-set of my 'Castle' but I do NOT need to be in fear of my life.
If I confront/shoot someone that has broken into my home, no one is going to ask "Were you in fear of your life?" There is a presumption. If I get into a confrontation at the local bus stop, probably one of the first questions they will ask (at least one of the first phrases that should come out of my mouth or my attorney's mouth), Were you in fear of your life.

[o b juan]

hey switch "'No duty to retreat' "w/3 exceptions"

What are the 3 exceptions?

[Jumping Frog]

My home, occupied vehicle, occupied business is a sub-set of my 'Castle' but I do NOT need to be in fear of my life.
If I confront/shoot someone that has broken into my home, no one is going to ask "Were you in fear of your life?" There is a presumption.

Not trying to nitpick, but only trying to clarify.

The statute does not say one does "NOT need to be in fear of my life", it actually says "The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable ...".

That presumption of reasonableness is a rebuttable presumption. A person can screw it up. Visualize a 6' 3", 250 lb man who is 30 years old shooting a 5' 5", 130 lb, 16 year old who is burglarizing his home. If the blowhard homeowner gets quoted on tape saying something like, "Naw, I wasn't scared a bit by that little piece of garbage. I had prepared myself and gave him what is coming to him."

That rebuttable presumption isn't looking quite as solid anymore. Now the question swings back to:

" when and to the degree the actor reasonably believes the [deadly] force is immediately necessary to protect the actor
against the other’s use or attempted use of unlawful force..."

The phrase "immediately necessary to protect" is a different (and more difficult) defense than "presumed to be reasonable".

Of course, this also ties back into the concept of knowing when and how to keep one's mouth shut!

[switch]

3 exceptions - not trespassing (can legally be there), not the aggressor (did not start it) and not breaking the law (we're talking about robbing a bank and shooting a security guard here, not speeding and creating a road rage incident.)

My point was what most people call the Castle law (only applying to home, car or business) means there is a presumption of reasonableness, not necessarily requiring that you establish beyond a reasonable doubt to 12 jurors. You are right, in can be over come. Shoot him w/one gun to slide lock, go back in your office and get your revolver, return and shoot him in the head, Have the 911 dispatcher record you telling someone "you dumb redneck, you'll never break into another house"....

I prefer to call the TX Castle law, what is known in most states, as a 'Stand your Ground' law, meaning you do NOT have to retreat. It expands my Castle to include the entire state of TX AND provides w/a defense against civil liability.

[Charles L. Cotton]

Pre-1/1/1974: Texas was a "true man" state meaning there was no retreat duty anywhere in Texas.
1/1/1974 - 8/31/1995: There was a retreat duty everywhere in the State, including your home. However, Texas courts watered down the statute somewhat.
9/1/1995 - 8/31/2007: Texas was a "Castle Doctrine" state meaning there was no retreat duty in your home. There was a retreat duty outside your home, subject to limitations set out in court decisions.
9/1/2007: No retreat duty anywhere, subject to the caveats I set out earlier.

Chas.

Edited to correct date from 1977 to 1974.