Make My Day

I'm not sure Tim Sandefur's guest blogger Eric Anderson has this right:

In the United States, one may only employ lethal force in the defense of life, and only when the ability, opportunity, and intent of the adversary to inflict serious bodily injury are simultaneously present. I think Texas was among the last of the states to keep legal the use of force in defending one's property, though it too has caved in to the times.

According to the Texas Penal Code, a person may use deadly force:

(1) if he would be justified in using force against the other under [the section of the code covering self-defense];

(2) if a reasonable person in the actor's situation would not have retreated; and

(3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself 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.

If the person uses deadly force against a person who is in the process of breaking into the person's home, then the reasonableness standard of subsection (2) doesn't apply. See Texas Penal Code sec. 9.32. This is much like Colorado's "Make My Day" law which allows an occupant of a home to use "any degree of physical force, including deadly physical force" against an intruder when the occupant reasonably believes that the intruder "has committed a crime in the dwelling in
addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant." See Colorado Revised Statutes sec. 18-1-704.5.

I haven't researched any other western states' laws, but at least these two states don't require much justification for a homeowner to waste an intruder. Disclaimer: Although I am an attorney and am licensed to practice law in Texas, I am not a criminal lawyer, and more importantly, I am not your lawyer. So don't do anything in reliance on this off-the-cuff assessment of these statutes.

Update: We see now why I'm not a criminal defense lawyer. . . Both commenter Michael Parker and the Curmudgeonly Clerk correct Eric and point to the more relevant "Make My Day" provisions (9.41-9.44) in the Texas Penal Code.

Posted by JohnL at January 15, 2004 09:11 PM