SB1349 Guts the Texas “Castle Doctrine Bill” and Protects Criminals at the Expense of Their Victims
By Charles L. Cotton
What is it with some elected officials in the Dallas area? First Rep. Yvonne Davis files a bill (HB3288) that is nothing more than an insult to over 600,000 Texas Concealed Handgun Licensees. (See Why Insult the Most Law-Abiding Texans?) Now State Senator Royce West has filed SB1349 that can only be described as shocking in its impact on law-abiding Texans.
Broadly speaking SB1349 would amend the Texas Code of Criminal Procedure to require prosecuting attorneys to ensure that law enforcement officers thoroughly investigate claims of self-defense, but not the underlying crimes that prompted the need for self-defense. When the investigation is over, the prosecuting attorney would be charged with the responsibility of determining whether the police investigation was “sufficient.”
SB1349 would also require law enforcement agencies to adopt written policies requiring thorough investigation of self-defense claims. Sen. West goes so far as to strongly suggest that any intended victim using deadly force in self-defense be arrested, although SB1349 is not so bold as to expressly require an arrest.
The duty SB1349 would impose on both prosecutors and law enforcement officers already exists. Every law enforcement officer in Texas takes an oath that requires him or her to investigate potential criminal acts. The sole reason prosecutors exist is to investigate and, if warranted, prosecute people accused of criminal acts. SB1349 implies that Texas peace officers and prosecutors simply take the word of someone who claims they acted in self-defense and do not carry out their duties. This is not only insulting, there is no evidence that such a problem exists.
Even more distressing is the fact that SB1349 would require special scrutiny of someone who was forced to defend himself or herself against a violent attacker, while not requiring such scrutiny of the would-be murder, rapist, or other violent criminal. The following example clearly reveals the absurdity of SB1349’s provisions.
A mother is home with her two teenage daughters waiting for their husband and father to get home for dinner. Suddenly, an attacker crashes through the front door and proceeds to rape and murder all three victims. The husband arrives, then shoots and wounds the murder/rapist when he is attacked.
Under SB1349, the father’s actions deserve special scrutiny, while those of the predator who raped and murdered a mother and two teenage daughters do not. One could hardly imagine a more absurd result, but this is precisely the goal of SB1349.
SB1349 would require expensive and unnecessary data collection in all cases where victims defended themselves by using deadly force. The Bill would require the reporting of such information to the Governor, Lt. Governor, Speaker of the House and the Chairman of a House committee.
It is doubtful that law enforcement agencies would be capable of reporting the information vaguely described in SB1349. More importantly, what is the purpose of this data collection and reporting, if not to make it more difficult for innocent people to be able to defend themselves? If the goal is to reduce the number of times Texans use deadly force to defend themselves, does it not make more sense to shift the focus to preventing criminals from attacking people in the first place?
SB1349 would also gut reforms passed in 2007 in SB378 that were designed to protect innocent victims. The Bill essentially repeals a critical presumption found in Tex. Penal Code Section 9.32(b).
Since September 1, 2007, law-abiding Texans are presumed to have reasonably believed deadly force was immediately necessary, when faced with someone unlawfully and with force entering, attempting to enter, or attempting to remove them from their occupied home, business or car. The rationale supporting these changes in Texas law was clear on its face. People spend the vast majority of their lives at home, at work, and in their cars. Those are areas where law-abiding people should not only feel safe but be safe. The legislature wanted to prevent unjust, unfair and inaccurate second-guessing for weeks, months or even years, a decision a would-be victim had only a split second to make and under the worst of circumstances. These provisions also send a clear message to violent criminals: Don’t attack people in their homes, businesses or cars!
SB1349 would neuter these reforms by amending the Penal Code and allowing a jury to ignore the §9.32(b) presumption. The Bill goes so far as to list factors to be considered, none of which are outcome determinative even when the presumption is not available to a victim. In fact, the very factors Sen. West would have a jury consider are those that are virtually incapable of accurate evaluation by someone who was not present during the attack. SB1349 would invite, some would argue “require,” precisely the unjust, unfair, and inaccurate second-guessing the Texas Legislature brought to an end in 2007.
SB1349 would prevent the use of deadly force to prevent someone from escaping “immediately after committing burglary, robbery, aggravated robbery or theft during the nighttime.” The Bill would also prohibit the use of deadly force to protect the property of a third person, even if that property belongs to your “spouse, parent or child,” someone living in your home, or someone “under your care.”
SB1349’s message to burglars and thieves is clear; it’s open season for property crimes because your victims will be too intimidated to intervene for fear of being prosecuted. What rational person would want to send such a message?
It’s painfully clear who SB1349 is designed to protect and it certainly isn’t the innocent crime victim! What possible reason could there be for filing a bill that would encourage criminals to attack innocent people and that would victimize people twice – once by the criminal, then a second time by criminal justice agencies?
Sometimes the only logical response to a bill like SB1349 is to simply shake one’s head and wonder “what were they thinking!?”