Stand Your Ground

Open Carry of Guns and Texas Law on Provocation

August 22, 2014 by Steph Stradley Leave a Comment

The word “provocative” has often been used in articles describing the tactics of Open Carry Texas. A Google search of “Open Carry + provocative” leads to about 15,000 results.
For those unfamiliar with them, “Open Carry Texas” is the organization which seeks: 1. to promote awareness that the open carry of long rifles is legal in Texas; 2. to make people feel more comfortable with the safe and legal exercise of that right; 3. to change state law to make less restrictive open carry laws.
They promote their cause by openly carrying rifles at rallies in public places. According to the Houston Press, “Open Carry Texas Says it Still Wants to March in the Fifth Ward.”
An open carry group called the “Huey P. Newton Gun Club” conducted a march in South Dallas recently. Partially in response to the Mike Brown police shooting in Ferguson, Missouri. The purpose according to one of the organizers? To share the view that “all black people have the right to self-defense and self-determination.”
Open carry rallies currently are newsworthy, and some would suggest provocative.
Seeing the word “provocative” in these articles reminds me of the muddled Texas law on self-defense. Self-defense claims happen when a person who reasonably believes he is facing an imminent threat of grave bodily injury or death uses force to defend himself.
In Texas, some sets of facts can result in what is called a “provocation” jury charge. To oversimplify, the jury is asked by the prosecutor to look at the question: “Who provoked the attack that resulted in the shooting?” If a jury decides that a defendant “provoked the difficulty,” then it acts as a complete bar to the defendant being able to claim self-defense.
The theory on this is the law doesn’t want people to be able to manufacture an excuse to shoot someone and then later claim self-defense. Makes sense.
In practical, real world terms, a “provocation instruction” to a jury presents problems for those who try to use lawful self-defense in Texas. If a person has what looks to be a good self-defense claim, the provocation language can give a way for a jury to rule against a defendant if they don’t like him and/or want to support the person and his family who self-defense was used against.
If an entire court room is filled with the friends and family of who the prosecutor says is the victim, there can be immense pressure to find for a guilty verdict instead of lawful self-defense.

Does the Act of Open Carry of Weapons Risk a Provocation Jury Charge?

What I wonder is this: If someone open carrying a weapon actually needs to use his weapon to defend himself, could a prosecutor possibly claim that he “provoked the difficulty,” barring his self-defense claim?
Texas law on provocation is judged on a case by case basis and puts the burden on the shooter to guess whether a jury might later think he provoked the incident. The 1998 Texas Court of Criminal Appeals case, State v. Smith explains the confusion of Texas law on this well:
“Unfortunately, what was true in 1908 is still true today: “[T]here is some uncertainty, if not confusion, in the books in respect to the doctrine of provoking a difficulty.” Young v. State, 53 Tex.Crim. 416, 110 S.W. 445, 447 (1908). “[T]here is often great difficulty in determining just when a combination of facts justifies a charge on the law of provoking a difficulty.” Flewellen v. State, 83 Tex.Crim. 568, 204 S.W. 657, 664 (1918) (Morrow, J., dissenting). “[E]very trial judge of any experience knows that submitting such a charge to a jury is fraught with difficulty and the chance of error is great.” Dirck v. State, 579 S.W.2d 198, 203 n. 5 (Tex.Cr.App.1979).”
There are three factors Texas courts are supposed to look at when deciding whether someone “provoked the difficulty” according to State v. Smith:
“A charge on provocation is required when there is sufficient evidence (1) that the defendant did some act or used some words which provoked the attack on him, (2) that such act or words were reasonably calculated to provoke the attack, and (3) that the act was done or the words were used for the purpose and with the intent that the defendant would have a pretext for inflicting harm upon the other.”
The difficulty is that if you look at Texas case law, the provoking act doesn’t have to be unlawful (as it does in some jurisdictions). It can sometimes just be bad judgment.
“Some act or words.” Could the lawful display of loaded, semi-automatic rifles in places where they are not typically carried itself be considered a provocative act?
Since judges and juries cannot look into people’s hearts and minds to determine intent to inflict harm, circumstantial evidence is used. Seldom is there obvious evidence of bad intent. The Smith court suggested that sometimes the provocative act is bad enough to show intent. Sometimes prosecutors use evidence that otherwise may have innocent explanations but after a shooting could be seen as bad intent.
Also complicating things is the common use of the word “provoke” is different than the legal meaning of “provoke the difficulty” which includes the element of intent to start a dispute in order to harm the other.
Hopefully, this set of events involving open carry becomes no more than a hypothetical. The reality is that provocation charges can complicate claims of lawful self-defense in Texas in any circumstance, guns or no, and result in long and confusing jury charges.
Both candidates for Texas governor support legislation for the open carry of handguns as well. When legislation on open carry or “stand your ground” is enacted by legislatures, it is intended to help those who want to use lawful self-defense. But in practical terms, the Texas law on provocation can make a trial a referendum on character of the people involved in the confrontation.
What one person sees as a lawful exercise of Second Amendment rights for self defense, a jury could be told the person is a “gun nut” looking for trouble.

The Cost to Defend Gun Rights

June 18, 2014 by Steph Stradley 1 Comment

A lot of times when people ask me about unjust legal results, they ask, “Isn’t that unconstitutional?” Or, “How can that be fair?”
If the answer was just answering a law school exam, I’d write out the pros and cons of the constitutionality of a law.
As for fairness, the law like life is often not fair.
The least fair part of the legal system involves the expense of defending your rights. If you think you have a right but don’t have money to defend that right, well then, you have nothing.
You may think have a legal right to do something, but if you are prosecuted for a crime, it costs money to hire a defense attorney and all the expenses in defending your case.
Those who tend to have more money for quality legal representation have the best chance at a good result. That’s just how it tends to be.
Because of the serious nature of what can happen with guns, there can be a very high cost to defend gun rights. When the police arrive at a shooting situation, they usually don’t know anything about you as a person. Their initial response tends to not favor the person who decided to use deadly force.
The following is a great comment that was left by “Jim” who commented on a my blog post involving a CHL holder who used a gun to defend himself against a group of men charging towards him but was found guilty. (The case was appealed and retried with other counsel). I thought the comment was smart enough that it was worth putting in its own post. I don’t agree with every aspect of it, but it is a perspective worth sharing:

“I’m a firearms enthusiast, CHL holder, certified instructor, dealer and occasionally a competitor. As you can imagine, this situation interests me greatly.

I get a lot of training and I’m certified to train others, but there is no way for training to cover every scenario. This is one of the “gray area” cases that we all hate. I don’t know enough about the details to draw a specific conclusion on a case like this; even the jurors, who heard excrutiating details, weren’t actually present and can’t know the emotions of the situation. In this case, emotions are a key factor: was the shooter afraid or angry? The answer can determine his guilt.

One of the things that good trainers talk about is the price of lawful self defense. As a rule of thumb, the first bullet you fire at a human being will cost $20-50,000 in legal fees (criminal and civil) — assuming the law is on your side. The cost of rightful self defense can be so high that avoiding confrontation whenever possible simply makes the most sense. People who read the law but don’t realize the cost of being right often underestimate how bad it can get or how hard they should try to avoid having to prove they were right.

You may have a legal right to stand your ground, but that won’t stop you from spending your life savings proving you were within your rights.

The legal protections afforded for self defense are intended to protect people who are trying to defend their lives. However, their applicability is determined by human beings applying their personal judgment so their boundaries are not as clearly distinct in practice as they are on paper. Most of us are probably better off only having a general sense of these laws rather than knowing their details, as it is a terrible mistake to rely upon the details of the law (stand your ground, fear of harm, etc.) rather than the general principal of self defense (avoid confrontation whenever possible and defend yourself when you can no longer avoid it.)

One of the things I’ve learned in training is this: never fire a gun unless you are prepared to go to jail. There is an old saying: better to be tried by twelve than carried by six. Firing a gun is a last-ditch effort to protect your life. Going to jail is better than dying, but if you assume you will go to jail when you pull the trigger and you are willing to do it anyway, that is a good indication that you are in genuine fear for your life.

It is always important to remember that no one wins a violent confrontation; there are only differing degrees of loss. The best you can hope to take away from a violent confrontation is the same that you brought into it — your life, health and wealth. Unfortunately, you are likely to lose at least some of these regardless of the circumstances.

The more I learn about firearms and self defense, the more I learn about the value of avoiding confrontation whenever possible.”

I appreciate Jim’s comments on this. Avoiding confrontation isn’t always possible or popular but if you want to save your money and your freedom, it is often the best recourse.
Ultimately, a lot of times in fights, whether it involves guns or not, guilt and innocence has less to do with what the often confusing legal standard is and more to do with who got hurt worse and who is perceived as the better citizen by jurors who don’t really know the people involved in the situation.
It is easy for things to get out of control, particularly if there is alcohol involved. Whether the shooters emotion was angry or scared at the moment that self-defense is used isn’t a part of the legal standard but sometimes juries can infer things from it.
Often in fight situations, it is hard for the police to figure out who did what, so it is important to hire legal counsel early to help be your voice. Sometimes attorneys can resolve these issues prior to charges being filed or at the Grand Jury part of the process.

Texas v Rodriguez: ‘Stand Your Ground,’ CHLs, Self Defense – Facts and Law

June 27, 2012 by Steph Stradley 3 Comments

Houston criminal lawyers Neal Davis and my husband Bill Stradley represented Raul Rodriguez, a man convicted of murdering his neighbor in a confrontation relating to loud music from a party. A jury sentenced Mr Rodriguez to 40 years in prison.

There have been many media reports about this case. It is difficult to find ones that are entirely factually accurate.

Public Interest in Stand Your Ground Laws, Gun Policy.

This case has generated public interest for many reasons: 1. The 22:03 minutes leading up to the shooting are all captured on video. 2. Kelly Danaher was a widely-beloved teacher, husband, father who died over something that didn’t have to happen. 3. The very publicized Trayvon Martin case has brought public attention to concealed handgun licenses and stand your ground laws.

I have been following the case and the media coverage very closely. Often with legal issues of public interest, I’ve observed that much of what is reported in the media is usually not quite right or can be misleading.

It’s hard to report legal issues in a way that is accurate, fair, and complete. There are time and space constraints of many media forms. Some outlets do not rely on original reporting but making assumptions based on reporting of others. Sometimes the media doesn’t understand legal rulings and misreports them. Reporters may have limited access to key facts, especially facts from the defense point of view, due to attorney confidentiality during trial preparation. Most media outlets did not show the complete video due to space limitations, and depending on which excerpts you watch, it can make things look differently. Even seeing the video without context can make it appear different.

And sometimes media coverage can be sensationalized to what is most Facebook sharable. I’ve seen this case reduced to things like, “Man shot because of loud music.” It is not my intent to shake my fist at a hostile media as I understand first hand how difficult it is to get the story right, fair, and quickly. I’m just adding a perspective I don’t think has been widely discussed.

If this ruinous case is going to be part of the public discourse on self defense laws, stand your ground and concealed handgun licenses, then at a minimum, people should understand the facts, law before drawing conclusions.

This blog post will serve as an attempt to answer basic questions, clarify key issues relating to this trial. It is based on what I know of the testimony, the law, and the evidence that is all public record. I’ve heard plenty of public comments on this case, and many of the basic and agreed facts are perceived incorrectly.

The final agreed transcript of the video is at the end of this blog post (strong language warning).

Steph Stradley