1/08 For Gun Owners, Added Protection

For Gun Owners, Added Protection
Some worry new castle law will make people quicker on trigger

by Michael E. Young
As published in The Dallas Morning News

The shootings came fast, a bang-bang-bang cluster of cases starting in early autumn that quickly had police, prosecutors and the media wondering about the sudden impact of Texas’ new castle law.

A business owner who lives at his West Dallas welding shop killed two men in three weeks as they tried to break in.

A 79-year-old homeowner in east Oak Cliff, awakened by his dog, struggled with an intruder before grabbing a shotgun and wounding the man.

A retired Army warrant officer managed to kill a gun-wielding robber at a Far East Dallas dry cleaners after his wife surprised the intruder and handed her husband their own 9 mm handgun.

Texas has long had a reputation as a shoot-first-ask-questions-later place, dating back to its frontier days.

But the spate of shootings begs the question: Did the castle law — which gives people the right to use whatever means necessary to protect themselves and their property without fear of civil liability — unleash a flurry of gunfire?

Perhaps just as important, has the law changed people’s perceptions about fighting back? Are they more likely to shoot first even when safe retreat may be an option?

“I think the castle law has more citizens thinking about fighting back, knowing they’re protected from being sued later,” said Dallas homeowner Dennis Baker.

He shot and killed a burglar in October after seeing the man enter the garage where he stored thousands of dollars worth of tools.

But Dr. Gary Kleck, a professor of criminology at Florida State University, doesn’t think the castle law governs someone’s thinking when they hear a window softly opening late at night, or the crash of a door coming down in a home invasion.

“In situations in which people would be making a decision to use defensive violence, it’s very unlikely they’d be thinking about laws and penalties,” he said. “That would be the furthest thing from their mind.”

Certainly the castle law has become a high-profile addition to the Texas statutes since it took effect Sept. 1, but police and the district attorneys association argue that it brought little substantial change.

While it appeared to apply to each of these cases, so did a batch of other laws, along with the tradition of Texas juries giving people every benefit of the doubt when protecting themselves, their families and their property.

None of these property owners was charged. Police referred a few cases to the Dallas County grand jury, which declined to indict. In others, police determined that the shootings were justified.

Police’s take

And they see the rash of shootings as part of a normal cycle, not a trend.

Dallas police homicide investigators said they’ve yet to encounter a self-defense situation since the castle law took effect that would have been barred under previous laws.

“There may come a time when that’s not the case,” said Lt. Craig Miller. “But I would have to look at each of those under its own merits.”

Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, said he didn’t know of a single Texas case in which the castle law would have made a difference.

“The reality is Texas grand juries routinely no-billed deadly force cases under the old law, which was very lenient,” he said. “Many of the cases that you read about center on defense of property laws, which were always very, very lenient in the use of deadly force.

“That’s just how Texas is.”

Dr. Kleck said some states, including Texas, have legal systems with broad definitions of self-defense.

“There was a study of homicides in Houston sometime back,” he said, “and a huge percentage of those cases were defined as justifiable.

“But in the Northeast, another study showed that almost none of the cases there were justifiable under the law.”

Neighbor fights back

One Texas case in particular has attracted national attention, in part because of the circumstances: It was a neighbor, not the homeowner, confronting and killing a pair of burglars Nov. 14.

And the neighbor mentioned in a 911 call that a new law gave him the right to protect himself if he confronted the burglars.

The 61-year-old Pasadena man, Joe Horn, told the police operator: “The laws have been changed in this country since September the first, and you know it.”

“You’re going to get yourself shot,” the operator warned.

“You want to make a bet?” Mr. Horn said. “I’ll kill them. They’re getting away!”

“That’s OK. Property’s not worth killing someone over, OK?” the operator said. “Don’t go out of the house. Don’t be shooting nobody.”

The burglars emerged from the house, carrying “a bag of loot,” Mr. Horn said.

“Which way are they going?” the operator asked.

“I can’t … I’m going outside, then I’ll find out,” Mr. Horn said.

“No, I don’t want you going outside,” the operator said.

“Well, here it goes, buddy,” Mr. Horn replied.

Seconds later, Mr. Horn can be heard saying, “Move, you’re dead,” followed by two shots and then a third.

“I had no choice,” Mr. Horn said in a second 911 call. “They came in the front yard with me, man.”

Was the castle law designed to cover those circumstances?

No, said the law’s author, state Sen. Jeff Wentworth, R-San Antonio.

“You’re supposed to be able to defend your own home, your own family, in your house, your place of business or your motor vehicle,” he said — but not your neighbor’s.

But Mr. Edmonds said other property laws could provide a defense for Mr. Horn, whose case is under investigation.

“The laws governing the use of force to defend property instead of a person are very broad and very favorable to someone who wants to use that force,” Mr. Edmonds said.

Chapter 9 of the Texas Penal Code describes deadly force as justified to prevent arson, robbery, theft or criminal mischief at night, or to prevent a suspect from fleeing if the property owner “reasonably believes the land or property cannot be protected or recovered by any other means; or the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.”

“You hear someone stealing something off your front porch. You come out there with a gun, and they’re running off. It’s nighttime. The law in Texas allows you to shoot them,” said former Dallas County prosecutor Toby Shook.

Juries’ leniency

Texas grand juries have traditionally given people carte blanche to take whatever steps they need to keep their property, Mr. Edmonds said. “In the Pasadena case, as egregious as the facts may be,” he said, “the law may still excuse that person’s conduct.”

He pointed to a case near Waco in the 1990s when the owner of a car saw a group of teenagers stealing his hubcaps late one night.

“He shot at them from his apartment and killed one of them” Mr. Edmonds said. “The grand jury no-billed it.”

Jim Cornehls, an attorney and professor of urban and public affairs at the University of Texas at Arlington, said he defended a man a few years ago in similar circumstances.

The man lived in an apartment complex where kids left their bikes in a central courtyard.

“There had been a rash of bike thefts,” Dr. Cornehls said, “and when this man got home from work late one night, he saw a guy out there purloining a bike.

“He whipped out his .22 and shot him. He didn’t kill him, but he wounded him, and the prosecutors let that one slide. In his case, it wasn’t even his property. It was a random bike.”

Law necessary?

But if Texas law already allowed people to defend themselves, their families and their properties against a whole array of crimes, did the state really need the castle law?

Absolutely, Mr. Wentworth said.

“I read in the newspaper a couple of years ago that Jeb Bush, the governor of Florida, was signing the castle doctrine there to allow residents to defend themselves in their own homes,” the senator said. “And I thought, ‘Isn’t that silly? We in Texas have always had that right.’

“But when I checked, I discovered that through legislative and judicial action in the 1970s, we’d changed the law. Before that, there was no fear of indictment or civil suits if you defended yourself in your home. But we lost that in 1974.”

Rather than using whatever means necessary to protect yourself and your family, he said, Texans “didn’t have a right to stand and defend themselves, but an obligation to retreat.”

And if that was impossible, he said, the resident had the obligation to ascertain whether the intruder was armed — and with what — and respond only with the appropriate level of force to match the threat.

“I believe you have the right to defend yourself with any means necessary without fear of being indicted or sued by the intruder or his or her survivors,” Mr. Wentworth said.

Tried every measure

Mr. Baker believes that, too.

He had lived in his modest neighborhood just north of Dallas Love Field for 15 years without a problem when burglars began stealing his equipment — five times in two months.

He stored his tools in his garage, protected behind a locked six-foot gate and next to a back yard bathed by a light so bright that a friend said it looked like the Texas Rangers’ ballpark.

It wasn’t enough to deter the thieves.

On an early October morning, Mr. Baker heard a noise — his Mexican red-headed parrot, Salvador, had squawked an emphatic “Hello,” something he does whenever someone passes by. Mr. Baker flipped on a closed-circuit monitor and saw a man walk into his garage.

Mr. Baker said he had seen the man before, on tapes of the earlier burglaries.

“If he needed a fast fix, he’d go into my garage and grab something and take it to his drug connection,” Mr. Baker said earlier this month.

That night, he decided to confront the intruder, identified as John Woodson, 46, of Dallas, who had a criminal record for various offenses, including burglary.

“I went out the front door and came through the gate, and when he started walking from the back of the garage toward me, that’s when I shot him,” Mr. Baker said.

When police arrived, a homicide detective watched the video and told Mr. Baker, “This is by the book.”

The case received international attention, largely because of Salvador, the parrot. But Dallas grand jurors treated it as Texas juries usually do: They declined to indict.

That’s one of the reasons county prosecutors argued against the castle law in committee hearings before it was approved. It really wasn’t necessary, they said, because more than a half-dozen self-defense provisions already existed in Texas law. And Texas juries almost always sided with the person protecting his own.

“In 25 years, I’ve never known a Harris County court to prosecute a homeowner or businessman for killing a burglar or robber,” Harris County Assistant District Attorney Bill Delmore told legislators. “We don’t do that.”

Jana McCown, an assistant district attorney for Williamson County, echoed that in her remarks.

“I can assure you that we don’t try to arrest homeowners or crime victims for protecting themselves against crime,” she said.

But the Legislature overwhelmingly supported Mr. Wentworth’s bill, and it was quickly signed into law.

In the courtroom

Now judges and prosecutors need to figure out how to deal with it in the courtroom.

“Prosecutors who were concerned about the law were concerned about how it will operate in court, not in the street,” said Mr. Edmonds of the district and county attorneys association.

The castle law says the use of force or deadly force is presumed to be reasonable if someone unlawfully and with force enters an occupied home, business or car. Further, if the force used against the intruder was reasonable according to the statute, the occupant is immune from civil liability for injuries or death.

For Mr. Baker and many in Texas, the right to defend family, home and property only makes sense.

But others, including Marsha McCartney of Dallas, a member of the Brady Campaign to Prevent Gun Violence, say the law becomes a death sentence for criminals who would never face that in court.

In practical terms, Ms. McCartney said, there doesn’t even need to be an explicit threat of attack to justify a shooting over property. In several local cases, she said, property owners didn’t appear to be in any danger, yet shot and killed unarmed intruders.

“I find that shocking — killing people over things,” she said. “The question you have to ask is: Does the punishment fit the crime?

“People don’t get the death penalty for breaking and entering. Defending your family, defending yourself against someone who is armed is one thing. But now it’s like we don’t need to call the police anymore.”

Steven Jansen of the American Prosecutors Research Institute in Alexandria, Va., said the so-called “no-retreat” castle laws largely take away discretion from local district attorneys, even in cases with questionable circumstances.

“The law always was that you had a right to defend your home and your person, and the prosecutor had discretion at that point to look at the facts and decide what a prudent person would do,” said Mr. Jansen, a former prosecutor in Detroit.

“But the castle doctrine laws extend that right to self-defense to places outside the home — almost anywhere a person has a legal right to be — and providing for criminal and civil immunity for the person using the lethal force.

“That isn’t even extended to police officers who use their guns in the line of duty.”

Emotional backlash

Still, there can be a price to pay for taking the life of another.

Dr. Heidi Vermette, medical director for mental health at the Veterans Administration in Dallas and an assistant professor of psychiatry at UT Southwestern Medical Center, said a person who shoots another human could suffer from acute stress disorder, or even post-traumatic stress disorder.

“Acute stress disorder lasts for a few days to four weeks or so,” she said, “and people with it tell you they feel numb as they recall the event. They say things like, ‘I was in a daze,’ or ‘It was as if time was standing still.’

“And afterward they might not be able to remember the event. Or they re-experience the event. Nightmares are common and feeling distressed.”

Mr. Baker said a friend, a child psychologist, called him after the shooting at his house.

“She talked with me for hours, and she said, ‘When this is over, when the attention is gone, this will work on you mentally,’ ” he said.

“But then another friend of mine told me that every occupation has an occupational hazard. A fireman can die in a fire. A coal miner can die in a mining accident. And a burglar can die in someone’s garage in the dark of night.

“I guess I was his occupational hazard.”

But a few minutes later, he sat quietly in an office chair, looking down.

“It’s hard to look at some things because he was a human being,” Mr. Baker said. “But he had a drug problem.

“The people closest to him should have gotten him some help.”