Network members have questions about self-defense shootings that occur in and around cars. Late last summer, news reports about a spree shooter who killed seven people and injured more than 20 while driving around Odessa, TX, before he was shot by police gave rise to questions that we posed to our affiliated attorneys. We asked:
Setting aside the many tactical and marksmanship issues associated with shooting from vehicles, if an armed citizen faced a similar situation in your state, do laws that prohibit shooting from or across roads and from vehicles make an exception for self defense?
What legal issues could you envision arising from shooting back if caught in a moving attack?
Manasseh Lapin, Esq.
Lapin Law Offices, P.C.
P.O. Box 802234, Dallas, TX 75380
This article analyzes the hypothetical situation of whether a person who is properly licensed to carry a handgun in public (Armed Defender) would violate Texas state law by discharging that firearm, in the context of an otherwise lawful self-defense (including defense of others) shooting, while upon, or across, a roadway, or from, or at, a motor vehicle.
“A person commits an offense [of disorderly conduct] if he intentionally or knowingly discharges a firearm on or across a public road.” 1 Discharging “a firearm on or across a public road” is a Class C misdemeanor; 2 however, discharging “a firearm in a public place other than a public road” is a Class B misdemeanor.3
Regarding the discharge of a firearm from, or at a motor vehicle:
A person commits an offense [of Aggravated Assault] if the person commits assault as defined in Sec. 22.01 and the person: (1) causes serious bodily injury to another, including the person’s spouse; or (2) uses or exhibits a deadly weapon during the commission of the assault.4
An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if: the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and: knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle; is reckless as to whether the habitation, building, or vehicle is occupied; and in discharging the firearm, causes serious bodily injury to any person.5
Felonies in the second degree are punishable “by imprisonment in the Texas Department of Criminal Justice for any term of not more than 20 years or less than 2 years” and by a fine not to exceed $10,000.6
Felonies in the first degree are punishable “by imprisonment in the Texas Department of Criminal Justice for life or for any term of not more than 99 years or less than 5 years” and a fine not to exceed $10,000.7
In our hypothetical situation it appears our Armed Defender would appear to have some exposure with regard to the Texas law that proscribes discharging “a firearm on or across a public road,” a misdemeanor.8
Additionally, if our Armed Defender was even mildly successful in terminating the felonious aggression that was being committed by the assailant, it is likely that our Armed Defender would also have some exposure under the statute which criminalizes Aggravated Assault, 9 a second-degree felony. 10
If our Armed Defender discharged his firearm from a motor vehicle and was successful in neutralizing the threat by inflicting “serious bodily injury” on the assailant, our Armed Defender would seem to have a very good argument that our Armed Defender did not commit a felony in the first degree, as our Armed Defender’s actions were not “reckless.” Indeed, our Armed Defender intended to–and did–stop the deadly threat posed by the assailant, which by definition, is not reckless conduct.
However, if our Armed Defender, while shooting from a motor vehicle, inadvertently injured or killed a hostage or other innocent person, our Armed Defender’s conduct might be deemed “reckless” and thereby expose our Armed Defender to criminal liability for a first-degree felony.
That’s the bad news. The good news is that although our Armed Defender may be exposed to criminal liability, our Armed Defender may also be able to take advantage of one or more affirmative defenses.
An “affirmative defense” is defined as “[i]n pleading, matter asserted by defendant which, assuming the complaint to be true, constitutes a defense to it.” 11
This author, some years ago, attempted to elucidate for a misinformed instructor who taught the statutorily-required course for applicants who were seeking a Texas concealed handgun license, that an “affirmative defense” is not a statement by a criminal defendant that the defendant did not engage in conduct that might constitute a crime; rather, an affirmative defense is an admission that the defendant did, in fact, engage in such conduct, but that the defendant was legally justified in doing so.
This explanation of an affirmative defense might sound like a lot of legal “mumbo jumbo,” but it is, nevertheless, quite important.
The typical criminal defendant goes to court and pleads “not guilty,” and, thereby, compels the government to attempt to prove, beyond a reasonable doubt, that the defendant committed each and every element of the charged offense. The defendant need not say anything in his defense and, indeed, the government may not compel him to say anything.
A defendant who asserts an affirmative defense, on the other hand, admits that he committed the acts that constitute the charged offense, but then asserts that he was legally justified in committing those acts.
Thus, once a defendant asserts an affirmative defense, the focus of the criminal case is no longer on whether the defendant committed the acts that constitute the offense. The focus is now on whether, given that the defendant did commit the acts in question, whether the defendant’s conduct was legally justified.
Texas, in the context of the hypothetical situation faced by our Armed Defender, recognizes and has codified, among others, the affirmative defenses of necessity and self defense.
Consistent with our foregoing definition of an affirmative defense, Texas law provides that “It is a defense to prosecution that the conduct in question is justified…” 12
“Justification,” for the purposes of our Armed Defender, could be established by showing that the acts in question constitute self defense or were otherwise necessary.
Regarding the affirmative defense of self defense, Texas law states that:
…a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor [acted reasonably, within certain statutory parameters that are consistent with well-settled principles of self-defense law]… 13
A person is justified in using deadly force against another if the actor would be justified in using force against the other under Section 9.31; and when and to the degree the actor reasonably believes the deadly force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful deadly force; or to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.14
In setting forth the affirmative defense of necessity, Texas law states that:
Conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm; the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear. 15
The law of self defense can be complicated. The foregoing summary merely “scratches the surface” of the subject. And, as members of the Armed Citizens’ Legal Defense Network likely already know, the responsible armed defender must constantly strive to maintain and increase one’s knowledge and proficiency with the tools of armed defense; foremost among those tools is knowledge of the law and mental preparedness.
Gregory J Miller, Esq.
Miller Law Group
PO Box 680, W. Redding, CT 06896
CT has a series of laws that restrict firing over roadways, discharge of a firearm in an unsafe manner and discharge within city limits. Self defense is an affirmative defense and as such could be raised as a defense to any of these charges. But, how does this work in this scenario?
In CT, self defense of yourself is based on a reasonable belief that you are in imminent risk of serious bodily harm, whereas defense of third persons has no reasonable belief protection.
Also, in CT, a car has no castle doctrine so you have a duty to retreat if you can do so safely. If a guy outside your car has a knife and you can just drive away, the law would require you to do so.
But what if you were protecting a third party who cannot retreat while you are in your car? A very unusual question for civilians although not as unusual for cops. Cops do on rare occasions return fire from within their cars on public roadways and there are similarities.
As a civilian, if you have a clear shot at a reasonable range to stop an imminent threat to a third party who cannot safely retreat, the self-defense provisions could be used. And why would anyone not use a car as cover in a gunfight?
Let us phrase the question this way–You are in a car that is not moving and your windows are down. 20 feet away a man is stabbing an unarmed 4-year-old girl who cannot get away. You are in a public roadway. Could you lawfully take the shot from your car over a public road to protect the child? The answer is yes. What if the child turns out to be a movie prop and while you reasonably believed it was a child, you were wrong? In that case, you have no defense and the charge will likely be murder.
So, the answer is yes, but only in a very narrow range of circumstances. As Clint Eastwood famously said, a man must know his limits.
John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534
In my state (Georgia), it generally is illegal to fire a gun from a vehicle (moving or stationary). There is, however, more than just an exception to this rule for self-defense situations. If you validly use self defense, you are immune from prosecution for violating gun laws. If you are nonetheless prosecuted, if you raise your immunity as an issue, you are entitled to a hearing on the issue of your immunity before you are tried (i.e., you do not have to wait and raise it as a defense in your trial).
The legal issues most likely to arise from shooting back in a moving attack are related to the increased risk of errant rounds when shooting from a moving vehicle. You could be charged with “auxiliary” crimes such as reckless conduct (for people that might be in your line of fire), and other crimes or torts if you happen to hit innocent bystanders.
A big “Thank You!” to our affiliated attorneys for their contributions to this interesting discussion. Please return next month for additional commentaries on the question that we didn’t have room to include in this edition.
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