A Misstatement
In my last newsletter, I mistakenly called Jerrold Nadler a representative from New Jersey. Nadler is a representative from New York City.
I deeply regret the error.
New Jersey gets a bum rap. Most Americans’ vision of New Jersey is formed by the stink of I-95, and by the New York City-dominated media. If you listen to the sort of sociopaths who thrive in the city, of course New Jerseyites are boorish and unpleasant. We all are. It’s a lie, though. (Most of New York City is a lie, because lying about how the shitty place you live is not a shitty place to live is a coping mechanism.)
I find New Jersey people to be friendly and kind, and their towns and cities to be much more pleasant than New York or Boston.
Lubbock People, However
Three weeks ago in Lubbock, Kyle Carruth, who was in the process of getting divorced, was with Chad Read’s ex-wife when Chad came over to Kyle’s place looking for his child so he could begin his court-ordered custody.
Kyle goes inside. While he’s in there Chad’s ex (contemptuously browsing Facebook) tells him him he’ll have to wait till the evening. Chad, visibly upset at his ex’s interference with his child custody, tells his ex that he is going to drag her and Kyle’s wife, Ann Marie Carruth (who happens to be a recently appointed District Court judge) to court.
Kyle comes out with a gun. The two men bump chests. Chad mouths off, Kyle lets off a round at Chad’s feet in what sure looks like a warning shot.
Chad tosses Kyle away, and Kyle, from maybe ten feet away, shoulders the gun, aims, and puts two rounds in Chad, killing him.
Castle Doctrine
Kyle’s lawyer, David Guinn, in his statement about the case referred to the Castle Doctrine:
It is my opinion, because of their knowledge of all the facts and the Texas Castle Doctrine and having done a thorough job, LPD knew this was a justifiable homicide.
Texas’s castle doctrine provides a presumption that force was immediately necessary if the person using the force:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
Kyle had no apparent reason to believe that Chad was atempting to do any of the unlawful things that trigger the Castle Doctrine. Guinn’s reference to Castle Doctrine appears to be obfuscatory.
Stand Your Ground
The Castle Doctrine is often confused with Stand Your Ground:
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
Kyle probably had no duty to retreat—he had the right to be there; lawfully carrying a weapon on your own property cannot be provocation to violence; and he was not engaged in other criminal activity at the time he pulled the trigger. But he still had to have a reasonable belief that Chad was about to use deadly force against him to justify the shooting.
Guinn wrote:
It was only after Mr. Read said ‘I’ll take your gun,’ and slinging him across the patio like a scarecrow — then stepped toward him — that Mr. Carruth pointed the gun at Mr. Read.
It’s doesn’t look to me like Chad stepped toward Kyle before Kyle shot Chad. The fact that Kyle had time to shoulder his gun and aim suggests that there wasn’t a sense of urgency, and from where Chad’s corpse landed on the porch it doesn’t appear that he was close to Kyle.
In another murder case, after Kyle Rittenhouse killed two guys in self-defense, people who really wanted him to be guilty of something repeated, over and over, “He crossed state lines with an assault rifle.” It happened not to be true (he didn’t) but if it had been true it would have been irrelevant. Crossing state lines with an assault rifle is not a crime, and if it were a crime, having committed a crime does not deprive you of your right to self-defense.
“Fired a warning shot” is the Carruth case’s equivalent of “crossing state lines with an assault rifle.” It appears that true, but firing a warning shot is not in itself a crime, and if it were a crime, having committed it did not deprive Carruth of his right to self-defense as the dynamic situation developed.
Let’s break that down.
Carrying a gun is legal, whether on your property or not.
If someone is physically aggressive toward you, getting in your face and bumping chests, it’s probably reasonable to believe that they mean to do you harm. If someone bumps chests with you when you are displaying a weapon, that means the weapon is not deterring them, whcih is greater cause for concern that they mean you harm.
Section 9.04 of the Texas Penal Code provides:
The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
As long as your intent is only to threaten, you can threaten death or serious bodily injury by production of a weapon or otherwise in response to a threat of bodily injury. (This is, as far as I know, a rule unique to Texas.)
A warning shot is by definition a threat of serious bodily injury or death. If Kyle was afraid of being assaulted on his front porch by the much larger Chad, and the presence of a weapon didn’t deter Chad, Kyle was legally justified in firing a warning shot. (He might not have been justified if he had accidentally shot Chad in the foot, even if his purpose had been to fire a warning shot.)
(I was informed by one nonlawyer that “you don’t get to commit a felony and then claim self defense.” More on this below the payline.)
A problem with section 9.04 is that if the threat doesn’t deter an assault, you may be stuck, because fear of a simple assault (at common law, a “battery,” but Texas doesn’t use that term) doesn’t justify deadly force. If you fire a warning shot and still get punched, you aren’t necessarily justified in shooting your assailant. (But your assailant’s willingness to assault you even in the face of deadly force might itself create a reasonable belief that he intends to use deadly force.)
So it was in this case: the warning shot didn’t make Chad back off. Instead he flung Kyle across the little man’s own yard, not simply threatening but actually using force against Kyle.
At this point, Chad had committed a criminal trespass (by not leaving when told) and an assault by contact (by tossing Kyle). A class B and a class C misdemeanor, respectively. Kyle had—presuming that he was in reasonable fear of unlawful bodily injury—not yet broken the law.
Then Kyle fired.
If Chad had been advancing on him, he might have been justified—a much larger attacker, on one’s own property, undeterred by a warning shot, might reasonably put one in reasonable fear of serious bodily injury or death. And maybe that’s actually what happened—if Kyle and his girlfriend swore that he was, I couldn’t gainsay that.
The problem for Kyle is not that he provoked use of force against him: provocation only negates self-defense if it is “reasonably calculated or intended to provoke a difficulty or an attack by deceased upon the defendant.” Getting a gun and firing a warning shot were patently intended to deter further difficulty. A warning shot is—again, by definition—intended to do so.
The problem for Kyle is that he talked afterwards, and that’s not what he said happened.
This looks like a bad shoot to me, not because Kyle went in and got his gun (he could do that) nor because he fired a warning shot (he could do that) nor even because Chad doesn’t appear to have been advancing when he was shot (he may have been), but because the first thing Kyle said after killing Chad was not, “He was coming at me!” but “I told you. I told all of y’all to leave.”
Even in Texas you don’t get to use deadly force against mere trespassers. You can use less-than-deadly force, but if your trespasser is too big for you to remove without deadly force, you’re going to have to get help or you’re in the wrong.
Kyle may have been in shock at having ended a life. I think a prosecutor is going to argue that what he blurted out, and that the story he tells on the stand—the story of self-defense that Guinn has started telling already, in hopes of getting a grand jury to no-bill his client—is not.
Below the line:
Everyone Can Be Wrong,
Felonies and Self-Defense, and
The Slow Death of Humanness.