As part of January’s general grab-bag of weirdness, a Texas man is being charged with murder after he shot an armed home intruder. I know what you’re thinking: What about the castle doctrine? Not to mention it’s Texas. So what’s going on?
The comment section on the rather vague news reports are filled with opinionated social media experts claiming this guy will be out in no time and that he should totally sue local law enforcement for wrongful imprisonment. So, what’s the truth?
The truth is the castle doctrine isn’t absolute. That means you can’t do whatever the heck you feel like in your own home. Rules, people…there are rules.
Disclaimer: As always, please remember that I’m not an attorney and this isn’t legal advice. It’s simply information (and a dose of supposition) based on experience.
The Shooting
On January 9, local law enforcement in Big Spring, Texas responded to a shots fired call. It isn’t clear who actually made that call, which is interesting. Most sources simply state police responded to the call. One claims Joel Adrian Florez (the alleged shooter) who made the call.
When law enforcement arrived they found Florez and an as-yet-unnamed female standing outside the home. Florez told the police he’d shot an armed intruder and when they entered the house, sure enough, there was Phillip Lozano, Jr., dead right there.
Less than 24 hours later, Big Spring police had arrested Florez and charged him with murder (apparently the arrest took place around 8:57pm on January 10th). No details have been released to explain the probable cause behind the charge, and we’re well past the 72-hour period. What we do know is Florez has been charged and the investigation is ongoing. That’s it.
Theories, Rumors and Gossip
After spending more time digging and reading than I care to admit, all I can say is that the Big Spring shooting is surrounded by a lot of rumors. Here’s some of the speculation and supposition that’s swirling around the story . . .
- Gang activity
- A drug deal gone bad
- A love triangle involving the unnamed woman at the scene
- Long-standing mutual dislike between the men
- Little green men beamed down and staged it all, because aliens
You get the idea. These are the standard sorts of rumors that surround a case like this, so take it all with a Madison Boulder-sized grain of salt. I’d recommend simply waiting for details to be released as time passes. It almost always does. But the case is a good reason to think about the castle doctrine and its limitations.
The Truth About the Castle Doctrine
Like I said, the castle doctrine isn’t absolute. Most states have some version of it in place, it just isn’t always called the castle doctrine.
Some states also have stand your ground laws. Remember, though, that while the two can support each other depending on the circumstances, castle doctrine and stand your ground laws are not the same thing. To keep it simple, we’re just going to hit the high notes on castle doctrine in a “generally speaking” manner. This isn’t specific to Texas or any other state, just a quick look at what it really means.
I won’t bore you guys with the age-old history of the legal concepts behind castle doctrine, and I won’t wade into the legalese that’s best reserved for curing insomnia. In layman’s terms, the castle doctrine reinforces your legal right to do defend yourself in your place of residence…within reason. What’s considered your residence depends (again) on the state, so check your local laws. In some states that extends to hotel rooms, places of business, and even occupied vehicles.
Nope, You Can’t Do That
There are a few key issues that could result in you catching a murder charge in what might appear to be straightforward castle doctrine-protected defensive gun use. Here’s a quick breakdown on some yes and no issues:
- You must be inside your residence. If you’re not, the only legal justification for going inside after an intruder is if you have good reason to believe there’s someone else in danger in there (a child, a spouse, etc.). No, your dog doesn’t count.
- The threat must be imminent and clear. That means it isn’t enough for a person to just be in your house. Before you get all cranky about that, stop and think about it. It’s entirely possible to have an elderly Alzheimer patient, a drunk neighbor, or a random Girl Scout wander right into your home. My first suggestion is to keep your doors locked, but the second is to take time to properly identify an actual threat.
- The home invader doesn’t have to be waving a gun in your face to reasonably be considered a threat. There are many factors that come into play with a credible threat, and the truth is that almost anything can be a weapon, including a person’s own body when there’s a disparity of force issue.
- Edison (Swan, Davy, Latimer) didn’t invent the lightbulb for funzies. You need to see the threat to identify it and to be sure it isn’t your college-age daughter showing up unannounced at 2:00am because their boyfriend dumped her (yes, it’s happened in multiple cases and it’s resulted in the kid’s death).
- Don’t put the home invader’s boots on and go kick your door in after the fact. You’ll get caught and not only is it illegal, it’s stupid. I don’t care if your Uncle Fred who’s a cop said you should do that. Just…don’t.
- When the threat stops, you need to stop. This isn’t Hollywood, and there are no coup de grace headshots to prevent an untimely resurrection. You shoot to stop the threat and when the immediate threat ends, so does your shooting.
- Home defense isn’t for defense of property, not even in Texas. Yes, I’m sure you’ve heard Texas allows shooting in defense of property, but that doesn’t make it a good idea. If some dude is stealing your truck out of the driveway, call the police and let him drive away. Creating a deadly confrontation by waltzing out your front door with a gun isn’t going to look reasonable to a prosecutor or a jury because, well, it’s not.
- Even in castle doctrine states, your defensive actions must be considered reasonable.
- If you’re breaking the law when you decide to shoot someone under what you think is the absolute power of castle doctrine, you’re going to have a bad time. You can’t be committing a crime at the time and you must be legally allowed to be in the residence. (Think about a soon-to-be-ex-husband under a temporary restraining order barging into what was the marital home where his soon-to-be-ex-wife still resides).
- Generally speaking, you can’t wantonly shoot through the front door. For the millionth time, this isn’t a movie or Joe Biden’s vacation home.
- You can’t invite someone to your house for the purpose of shooting them. Just saying.
What Good is the Castle Doctrine?
As with all aspects of self-defense, there are a lot of factors to take into consideration. That’s just one reason it’s so important to be well trained, not only in the use of your firearms but also in the legal side. There’s no shortage of “experts” on social media and cases like the one in which Joel Florez has been charged certainly bring out the most confident among them. It’s mostly a toxic blend of ignorance and misplaced confidence, but you can’t deny they’re absolutely convinced of their rightness.
The castle doctrine is a legal protection that gives you legal backing for defending yourself and your loved ones from a home invader. It’s important to remember, though, that it isn’t absolute and it certainly isn’t a Get Out of Jail Free card. It’s a legal layer of protection for lawful gun owners in reasonable self-defense situations. Think of it as a legal net that’s in place to catch you if the worst should happen…assuming your actions are considered after the fact as reasonable and justified.
Remember that when you decide to own a firearm for defensive purposes, you’re taking on a major responsibility. Your gun shouldn’t be your instant, knee-jerk reaction to conflict. It’s a tool for the application of lethal force, and it should be treated with respect. Far too many people, people who I could call out by name, obviously believe if they’re ever involved in a self-defense shooting they’ll be just fine because they’ll be “right.”
Sorry, guys, that isn’t how this works. Americans have greater freedoms than any other nation on Earth, but this isn’t the wild west, and you don’t have carte blanche to do as you please with your gun. Be smart. Know the law. And don’t make me repeat the law of three stupids again.
Well said.
Why is my simple comment above, “well said,” automatically awaiting moderation?
Site Administrators: please fix whatever is broken and causing ALL of my comments (no matter how short and polite) to automatically go to moderation.
uncommon,
Objection, Counselor, assuming facts not in evidence. You are assuming, arguendo, that they WANT the moderation system to work, and be rational. Why do that, when you can be arbitrary and capricious, instead?? Like TTAG, they CLAIM to have a ‘moderation policy’, but in reality their policy boils down to, “If we don’t like it, we’ll take it down”. I have challenged BOTH SNW and TTAG to simply . . . publish their moderation policy. Tell me what I am and am not allowed to post, and then make at least a modest effort to consistently apply that policy. Neither site is willing to do so. But they continue to lie, and assert that they have a “policy”, and that they apply it consistently, and that it doesn’t vary from moderator to moderator (or what the moderator had for breakfast).
They don’t want robust discussion and debate, they want ‘moderator-approved’ discussion and debate. I am prepared to observe any policy they publish (IF they consistently apply it), or, if I find it too obnoxious, simply move elsewhere. There are some smart, insightful commenters on both sites, and I enjoy the insights even of the ones I disagree with (Debbie Dimwit and MajorSkidmarks excepted). But I guess rationality and consistency is too much to expect.
What happened to my comment? It vanished, been there for hours, did not go to moderation or ghost post, actually posted but now its gone.
“You must be inside your residence.”
More correctly and less generally:
You must be inside your residence OR in the boundaries of your curtilage.
Curtilage is the area immediately surrounding a home and legally considered an extension of the home itself. Under the castle doctrine, one is allowed to use reasonable force, up to and including deadly force if necessary, to defend against intruders/attackers in certain circumstances. Examples of curtilage include porches, decks, fenced in backyards, detached garage, or driveway and depending on the state may even include anywhere in your yard. No, castle doctrine, in terms of curtilage, does not mean you can shoot anyone legally outisde the home but still on your property. For example, you can’t shoot that guy (a ‘solicitor’) going door to door dropping off leaflets for some event and trying to get donations and he walks across your yard, but if your yard is considered curtilage in your state and that guy goes nuts and starts threatening you with bodily harm then charges at you then you can shoot them under castle doctrine. Its has to be a valid threat, its always a valid threat when someone breaks into your home but in some states that same person who would have broken into your home the law might not consider them a valid threat you can use deadly force against if its on other sections of the property unless you are physically attacked.
But what is or is not considered curtilage varies from state to state, so consult your state definition of what is or is not considered curtilage. For example, where I live a persons yard (fenced or not) is considered curtilage for castle doctrine but right across the state line a few miles from where I live although its basically the same it has to be a fenced yard to be considered curtilage for castle doctrine purposes so in that state if your, for example, backyard is fenced in then its curtilage for castle doctrine inside the fenced area but an unfenced yard section (i.e front yard, side yards, outside the fence in the back yard) would not be curtilage for castle doctrine. Yet in both states one can defend their self anywhere on the own property yard or not under stand-your-ground and if inside the home also under castle doctrine.
Under state law where I live curtilage is the area next to (immediately surrounding a home) a person’s home and includes the yard (no matter how big it is – fenced or not), gardens, porch, patio, driveway, any detached garage (an attached garage here is considered a physical part of the home its self), sidewalks or ‘stoned’ pathways or ‘steps’ leading to or away from the home or other areas on the property, and other areas (on the property) for any outbuildings and the areas ‘immediately’ around such outbuildings, but its also areas on the property that are afforded privacy protections under the law (i.e. privacy fenced areas or areas on the property where a person can be where they would not normally seen from, say, the road way – here the law does not define where on a persons property such privacy protection areas may exist in terms of curtilage so say, for example, if there is a wooded area on your property starting at the edge of your mowed lawn and if you could not normally be seen in that wooded area from the road way then that too is an area afforded privacy protections under the law thus curtilage.).
But, even though the state law says this – courts apply a four factor test from the Supreme Court case United States v. Dunn on a case-by-case basis to determine what is or is not curtilage so its possible an ‘area’ that under state law is curtilage may not be curtilage for castle doctrine for the specific situation of defense. For example, if RayRay tries to break into your home and he stops and runs off elsewhere in the property and you decide to go make sure he has not broken into that outbuilding 100 yards away from your home where you keep your expensive ‘something’. When you get to the outbuilding you encounter RayRay but hes not breaking into the outbuilding but he starts threatening you and then charges you and you shoot him – so it happens that you need to go to court over this and you claim a castle doctrine defense because the state law says its curtilage but the court may apply the four part test and decide that castle doctrine did not apply in terms of curtilage because the area of the outbuilding although curtilage under state law in the specifics of the situation 100 yards away from the home may not qualify it as curtilage for castle doctrine purposes (although under stand-your-ground you would be ok).
.40 cal,
Well, being a nitpicky ex-lawyer, my response is “it depends”. Depends on the exact terms and wording of your state “castle doctrine”, and even more on ‘how is it applied?’. Many (most?) ‘castle doctrine’ states do extend it to the ‘curtilage’, but not all. In a rational world, it should be a federal law, in support of the 2A – if I can’t defend my home, property, and family, what the hell does the 2A even mean??? But, we live in a world of roughly 50% Leftists/fascists, so whaddayagonnado???
If you think you are going to get a conviction in Texas against a guy who shot an armed intruder in his own home, whatever the circumstances, you are crazy. 12 Texans to agree that you are not allowed to shoot an armed intruder, gang or no, lover’s spat or whatever, if an armed man forces himself in, ain’t no way in hell you are going to get a conviction.
Tim,
One word response: “Austin” (Houston and San Antonio pretty much suck, too).
I am a lawyer. Still not giving legal advice, but offering a bit more background.
Let’s talk common law, which is the baseline in the US (and the UK and most countries formerly part of the British Empire)–the common law is generally what governs if some authority hasn’t made some statutory change. Most states haven’t moved far from common law principle.
At common law, a person may lawfully use defensive force (up to and including deadly force) to prevent an assailant from unlawfully causing serious bodily harm or death to the person or another subject to the following conditions:
a) the person using such defensive force must not have been the initial aggressor in the current altercation (that is, you can’t start a fist fight, and then, when you start to get your ass kicked, pull out a gun and claim self defense). In theory, this gets reset when the aggressor stops his aggression and clearly withdraws from an altercation. In real life, it’s going to be hard for you to successfully claim self defense if you shoot someone right after you’ve started a tussle with them, no matter how explicitly you’ve tried to withdraw, unless you’ve entirely left the scene (and even then).
b) one must reasonably believe that serious bodily harm or death is imminent–that is, about to happen right now. Not five minutes from now, not next week. Right now unless defensive action is taken. You can still make a self defense claim if you are mistaken about the threat (e.g., if the robber turns out to have a convincing toy gun rather than the real thing), but that mistake must be one a reasonable person of average intelligence would make in a similar situation.
c) the force used must be reasonable–that is, it must be reasonably likely to prevent the harm and it must be the least possible degree of force necessary and available to prevent the harm. So if a five-year-old charges at you with an aluminum bat, you can use force to wrench it out of his hand. Depending on your stature, you might even get away with smacking him or something similar to keep him from hitting you. What isn’t going to fly is shooting him, because that’s a degree of force that is way out of line with the threat posed by any five year old and you almost certainly had lots of less devastating options short of shooting him that would suffice. Similarly, if you see a train barreling down on a school bus that’s stuck on the railroad tracks, you claim defense of others (or even self defense if you’re on the bus) because despite the imminent risk of catastrophic harm, shooting the engineer isn’t going to mitigate that risk, so it’s not a reasonable use of force.
d) if it’s possible to avoid the harm by retreating, you must do so (or attempt to do so) before resorting to defensive force. This element (and only this element) is mitigated by the Castle Doctrine (if you’re lawfully in your own home and your assailant is not also lawfully there). With various nuances, it’s also mitigated by stand-your-ground laws in states that have them. The UK has all but entirely renounced the Castle Doctrine, which, imo, is a very bad policy move. Note, btw, that stand-your-ground laws were initially conceived to protect battered women who could not avail themselves of the Castle Doctrine defense when they shot their abuser because he lived with them and was lawfully present.
e) The assailant has to be acting unlawfully. You can’t shoot the executioner at a state-sanctioned execution, or, again, the engineer on that train that’s about to hit the school bus.
As a general proposition, self defense is a much harder defense to successfully claim than it appears on TV. Quite often, even successful self defense claims are vindicated after and indictment and trial (which will bankrupt most of us). There are lots of ways to blow it, one of the most common being escalating to gunfire before it’s reasonably necessary. That seems to surprise a lot of people who have bought into the mythology of “if he’s in my house I can shoot him.” Being too trigger happy can land you in prison for life, and worse, it can result in the death of some innocent. I’m 100% in favor of defensive use of firearms, but I urge everyone to make it a last resort. Know what you’re shooting at and be sure you don’t have other options.
I’m going to be very wary of five-year olds now.
Barry Jacobs,
Pretty good summary. I could pick some nits, but overall, pretty solid and concise! The underlying problem is that (in most cases where a DGU is subsequently prosecuted), you are judged by 12 people (how many of them own guns, or have ever even fired a gun???), in the calm environment of a courtroom (guarded by armed LEOs). A little different than facing an intruder in your house at night, eh???
“You must be inside your residence” I think you meant to say “You must already be inside your residence.” Which, depending on the actual language – that’s the “words” used in the law of that particular state and their legal definitions – Castle Doctrine applies – again, based on the particular language in that state’s law – everywhere you are legally allowed to be.
And, before depending on one’s own interpretation of the law – those “words” again – it is highly advisable to consult with an attorney licensed to practice law in the jurisdiction where the question arises who practices criminal law, and specifically, the self defense portion of criminal law. Not that you can trust his, or her, word as “gospel” because prosecutors are different and sometimes (Blue states) extremely different but if the attorney has courtroom experience defending clients against criminal charges arising from self defense that experience and the knowledge gained from it provides useful information (extra points if those courtroom defenses have been predominantly successful. And, as a side note, attorneys who routinely manage to get charges dismissed well prior to anything arriving in a courtroom are higher value than those who usually win cases inside the courtroom).
In Oklahoma we have the property protection act which extends the Castle Doctrine to your property line, it also allows you to display a firearm or even go as far as pointing it at someone on your property.
If they are stealing something that can be used as a weapon and you feel threatened then the use of deadly force is justified.