Using Guns for Self Defense: Laws, Consequences & What You Need to Know
Using Guns for Self Defense: Laws, Consequences & What You Need to Know
It may seem simple enough in your mind. If someone attacks you, you defend yourself. However, the law might not always agree with that sentiment. It might depend on maintaining your presence of mind. You’ll need to know when to stop, and when guns are involved, you need to know your rights.
If you carry a gun for self-defense — or if you have one in your home to protect your family and your property — it’s important to know your rights, as well as your limits, before you use your gun for self-defense.
Essentials of the Right to Self Defense
While the right to keep and bear arms is enshrined in the Constitution of the United States, the right to defend oneself has its roots in English Common Law. Although the various states enact and enforce laws differently, a US citizen generally has the right to self-dense with reasonable force against an act of violence when the victim has a reasonable fear of personal injury, death, sexual assault or property loss.
In some situations, a person who is subject to such an attack has a legal responsibility to flee from the situation, if a reasonable means or avenue of escape is available. This is known as a duty to retreat. However, many state laws adhere to the so-called “Castle Doctrine,” which comes from the old saying that your home is your castle and refers to the right to defend your home.
In Castle Doctrine states, citizens have the right to protect themselves from violent aggression — with deadly force, if necessary — in places where they have a legal right to be, such as their homes, vehicles or places of employment. This doesn’t necessarily free residents of those states from the duty to retreat in all situations.
Even though there may be conflicting interpretations of the Second Amendment’s association of the right to gun ownership with “a well-regulated militia,” the US Supreme Court affirmed the right to protect your home with a legally owned handgun in the 2008 District of Columbia v. Heller decision. It is legal to keep an assembled handgun in the home as a means to take action in the event of a home invasion.
All of this doesn’t mean that if someone attacks you and you, in turn, beat the attacker into submission or kill the attacker, by any means, that you won’t be arrested. The police officer on the scene doesn’t have the jurisdiction to decide whether or not the violence you returned upon your attacker is justified. You may be tried and acquitted by a jury, or a prosecutor may decide not to charge you.
You could also be convicted by a jury of a range of potential crimes. This is why it’s so important to understand your rights under, as well as the legal limits of, any potential self-defense laws. “Self-defense” is essentially a legal defense. A jury may determine that your act of force was legally justified, and you could go free. That same jury could determine that your act of force was only mitigated by the attack.
This means that, even though you were defending yourself, you could be convicted of a crime. You may be found guilty of a lesser charge, manslaughter instead of murder or simple assault instead of aggravated assault. This is what’s at stake when you take the chance to fight and defend yourself.
Generally, an act of force in self-defense must be proportional to the attack. If someone is merely shoving you, it would not be a proportional response to shoot that person. Indeed, merely letting that person know that you have a concealed weapon would probably suffice to de-escalate that situation. It’s not always a matter of “push comes to shove.”
If the situation develops into a physical altercation, you have the upper hand, and your attacker indicates that he is giving up, you generally have a responsibility to cease your counterattack. If you don’t, you could be charged with assault, anyway, even though you were defending yourself.
You also have the right to defend yourself if you have a reasonable fear of an attack, and the key word is reasonable. If someone is wielding a knife on the sidewalk in a threatening manner, you mostly likely have a duty to retreat, if possible. However, if you’re cornered or backed into a barrier or wall by that same person, you will probably be legally justified in defending yourself.
On the other hand, if you’re nearing someone on the street, and you see him pull out a pocket knife to cut slices from an apple, a prosecutor or jury probably would not agree that you had a reasonable fear of injury from that person. What is “reasonable” may not always be easy to agree upon. That’s why it’s important to know the laws governing self-defense before you have to defend yourself.
If you use a gun to defend yourself, the stakes may be even higher, depending on the various state laws. In Texas, you have the right to own a gun — with certain limitations. Using that gun to defend yourself without knowing those limitations can cost you your freedom and someone else a life.
Depending on various state laws, you may also be justified to use force, or even deadly force, to protect your property or a third person. Again, know your laws, before you act.
Gun Laws in Texas
In the State of Texas, you have the right to defend yourself with a legally owned and carried firearm. There is no waiting period to purchase a firearm, and there is no need to register a firearm in the state. However, to carry a firearm, you must take the following into consideration:
- To carry a handgun on your person, you will need to have a concealed carry permit.
- You cannot carry a handgun on your hip unless you work in law enforcement or meet a similar exception to this rule. You can carry a gun in this manner on your personal property.
- Rifles or shotguns can be carried without concealment or a permit, but they must be carried in a manner that will not cause alarm, such as a low ready position.
- You can transport loaded firearms in your vehicle. They can be within reach for use in an emergency, but handguns must be concealed.
Texas Self-Defense Laws: The Use of Force or Threat of Force
There are relatively broad allowances for self-defense in the State of Texas. You can justifiably confine someone, if necessary to defend yourself or your property, but you must reasonably attempt to release that person once it’s safe — or turn that person over to law enforcement.
It may also be reasonable to threaten force, even deadly force. You may produce a weapon or otherwise threaten death or injury to prevent an act of violence or assault. If this is a feasible way to diffuse the situation, then make that reasonable threat. If you have a concealed carry permit, and someone finds out that you’re carrying, your problem may be solved quickly and safely.
It’s important to remember that even though you may be legally justified in using force against another person if your actions recklessly cause injury or death to an innocent bystander, you can be charged with a crime.
Before you’re ready to carry that handgun, you need to be comfortable with it in your hands. You probably won’t need to fire off every round. With each round fired, you increase the chance for a stray bullet that can recklessly injure or kill an innocent person.
You’re justified in using force or threat of force in self-defense when you reasonably believe it’s necessary to protect yourself against someone who is illegally forcibly entering or attempting to enter your home, vehicle or place of employment, or who is illegally forcibly removing or attempting to remove you from any of those locations.
And if someone is attempting to kidnap, murder, sexually assault or rob you, you have the right to defend yourself with force. Again, if you have a gun, merely showing it may work to save you, but the more violent the aggressor is, the greater your chance of having to use your firearm to protect yourself.
Texas Self-Defense Laws: Deadly Force
In situations where the use of force is justified in Texas, the further use of deadly force is also justified if you reasonably believe that the use of such force is immediately necessary to protect yourself from another person’s use or attempt to use illegal deadly force. If it’s reasonable to believe — reasonable for a jury to believe — that you needed to use your gun to protect yourself, you will be justified in using it.
Deadly force may also be justified if you reasonably believe that it’s necessary to protect yourself from the imminent act of kidnapping, murder, sexual assault or robbery. And if you believe that deadly force is immediately necessary to protect yourself from someone who is illegally and forcibly entering or attempting to enter your home, vehicle or place of employment.
Again, as with the use of force or the threat of force, you can protect yourself with deadly force if you reasonably believe it’s necessary to prevent your illegal and forced removal from your home, vehicle or place of employment.
It’s important to note that not everyone will agree on what may be reasonable. It may be the most stressful moment of your life, but your life may very well depend on your presence of mind when you’re defending yourself.
When Is the Use of Force Not Justified?
The use of force, deadly or otherwise, cannot legally be justified if you have provoked the other person or if you were engaged in criminal activity (other than misdemeanor traffic violations). You also can’t respond with force to mere verbal provocation.
If you’re unlawfully arrested or searched by a law enforcement officer, you can’t use force to resist unless the officer is using greater force than is necessary and you reasonably believe that you must use force to immediately protect yourself from that greater than necessary force. As escalating this situation could easily go against you, be very careful.
Duty to Retreat in Texas
There is no duty to retreat if you have a right to be at the location where you have used force or deadly force to defend yourself, as long as you did not initiate the incident with any provocation and you weren’t engaging in any criminal activity. Additionally, the fact that you did not retreat from the situation cannot be used against you.
Does a Person’s Criminal History Affect the Right to Self-Defense with a Gun in Texas?
A person with a criminal history has the same rights to self-defense with force, deadly force, or the threat of force as anyone else. The Texas law covering self-defense doesn’t refer to any type of weapon that can or can’t be used. Indeed, the weapon used could conceivably be just about anything that’s handy.
As well, the only crimes mentioned about people who are defending themselves are crimes that are occurring at the same time as the act of self-defense. However, Texas’ gun laws do have sections that impact people who have been convicted of a felony — and some misdemeanors.
If someone has been convicted of a felony, that person can’t possess a firearm until after the fifth anniversary of the release from incarceration or release from parole or community supervision, whichever is later. However, that firearm can only be possessed in the home. So, that firearm can be used for self-defense but only for crimes committed against the individual at home.
If someone has been convicted of a Class A misdemeanor involving domestic violence — and has no history of a felony conviction — that person must wait until after the fifth anniversary of the release from incarceration or the release from community supervision, whichever is later. Afterward, there are no further restrictions on gun ownership or possession.
Do You Need to Plead Self-Defense for a Homicide or Assault Charge?
You were only protecting yourself. You needed to protect yourself. But it’s not always that simple as far as a prosecutor is concerned. Charges may have been filed, but just like you had the right to defend yourself against an attack, you have the right to defend yourself in court. At Morales and Sparks, you will be treated like family, and you will be defended like family.
We’re your self-defense attorney in Georgetown, Texas, and we know how to help you plead self-defense to an assault or homicide charge. You may have seriously injured someone or even killed someone, and that could have been the worst moment of your life. You don’t need to pay for that moment with your freedom.
You have the freedom to defend yourself. If you or someone you know is facing charges of assault or homicide related to self-defense, let us know. We can defend you now.
Disclaimer: The purpose of this post is to provide general information and is not to be constituted as legal advice. If you need help with a specific issue, please seek the advice of an attorney. Morales & Sparks does not condone the use of violence at protests.