I'm delighted to pass along this item from T. Markus Funk, author ofย Rethinking Self-Defence: The โAncient Right's' Rationale Disentangledย (2021),ย Understanding the Role Values Play (and Should Play) in Self-Defense Law, 58ย American Criminal Law Reviewย 331 (2021),ย Cracking Self-Defense's Intractable โDifficult Cases,'ย 100ย Nebraska Law Reviewย (2021), andย What US Law Reformers Can Learn from Germany's Value-Explicit Approach to Self-Defense, 73ย South Carolina Law Reviewย 195 (2021).
On January 5, 2023, at around 11:30 p.m., a 46-year-old diner-patron was sitting in a booth at the southwest Houston's El Ranchito Taqueria #4 when aย masked robberย began pacing around the restaurant demanding money from the patrons at gunpoint. As the robber walked past the patron the patron pulled out a handgun. The patron then shot and killed the robber, who has been identified as 30-year-old Eric Eugene Washington.
The handgun later turned out to be a fake (the shooterย can be seenย throwing it against a wall in apparent disgust after the shooting). Yet there can be little question that the employees and customers, some of whom crawled under a table desperately seeking cover, had every reason to fear they would be killed or seriously injured that day. According to the as-of-yet unnamed shooter's attorney, โ[i]n fear of his life and his friend's life [the shooter] acted to protect everyone in the restaurant.โ The attorney further accurately commented that in Texas, โa shooting is justified in self-defense, defense of others and in defense of property.โ
A Texas Grand Jury is nowย reportedlyย considering whether that shooter's conduct qualifies as justified self-defense under Texas law. And although the so-called โsmart moneyโ understandably is on the prosecutor's office not charging the shooter, his situation is perhaps not as entirely clear-cut as it may at first blush appear.
Just the Facts
A January 10, 2023,ย Washington Postย article describes the shooting this way:
The customer with the gun had thrown cash onto the floor as the intruder walked by his booth, collecting money from several patrons. When the attempted robber came back by the booth, walking toward the front door at the restaurant, the customer pulled out his gun and fired.
Unedited video footage shows he shot Washington four times in quick succession.
Then, after Washington fell to the ground, the customer fired four more times, walking toward his body.
He fired the ninth and final shot standing close to the top half of Washington's body, the video shows.
[Note that although there has been some reporting that the robber was shot as he was โleaving the restaurantโ or was โheaded towards the door,โ the surveillance video does not confirm these claims of fact.]
Unsurprisingly, the one thing that is crystal clear is that different commentators have very different perceptions of the shooter; some outlets describe him as aย Bernhard Goetz-style โvigilante,โ while others hail him as a โhero.โ
A Short Primer on Texas' Laws on Deadly Force in Self-Defense
Much has been written on Texas' stand-your-ground/no retreat and castle-doctrine provisions embedded in Texas Penal Codeย ยง9.31ย (governing the justified use of non-deadly force) andย ยง9.32ย (governing the justified use of deadly force). These enhanced protections for law-abiding citizens, however, will likely not feature heavily in this case. Instead, the outcome, here, will likely be governed by a mix of fairly standard self-defense law, combined with a healthy dose of prosecutorial discretion.
Self-Defense.ย Texas Penal Code ยง 9.32ย as relevant here provides that:
A person is justified in using deadly force against another โฆ when and to the degree the actor reasonably believes the deadly force is immediately necessary โฆ [1] to protect the actor against the other's use or attempted use of unlawful deadly force [orย 2] to prevent the other's imminent commission of robbery โฆ or aggravated robbery.
[Note that, perย Texas Penal Code ยง 9.01(3), โdeadly forceโ encompasses serious bodily injury]. These provisions of Texas' self-defense laws generally track the laws in other U.S. states. They are focused on a defender deploying deadly force toย neutralizeย a deadly threat. Intentionally killing an attackerย afterย the threat is neutralized, on the other hand, exceeds what the law allows, tends to fall more squarely in the punishment or revenge buckets, and can result in separate criminal charges, up to and including murder.
Defense of Others.ย Texas Penal Code ยง 9.33ย provides that:
A person is justified in using โฆ deadly force against another to protect a third person if[,] under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using โฆ deadly force to protect himself against the โฆ unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect[,]โand the actor reasonably believes that his intervention is immediately necessary to protect the third person.
Defense of Property.ย Texas Penal Code ยง 9.42, in turn, provides in relevant part that:
A person is justified in using deadly force against another to protect โฆ tangible, movable property [including cash and wallets] โฆ when and to the degree he reasonably believes the deadly force is immediately necessary โฆ to prevent the other's imminent commission of robbery [or] aggravated robbery โฆ; โorย โฆ to prevent the other who is fleeing immediately after committing robbery [or] aggravated robbery โฆ from escaping with the property โฆ.
How Becoming an Unjustified Threat Creates a โGapโ in the Attacker's Otherwise Inviolable Personal Domain. In past writings, one way I haveย tried to conceptualizeย how Texas-style deadly self-preferential force works is to start with the baseline assumption that, all other things being equal, we have an inviolable personal domain that protects us from unjustified physical assault. But with an armed robber all other things are decidedlyย unequal. By becoming an unjustified deadly threat to others, the attacker creates an opening, or gap, in his right not to be killed or otherwise physically injured. That gap remains open while the attacker poses the unjustified deadly threat. This gap, however,ย closesย as soon as the attacker no longer poses such a threat.
So, the key factual question here, as in almost all claimed self-defense cases, is whether, (1)ย at the timeย (2)ย eachย instance of deadly force was deployed (that is, each time the shooter pulled the trigger), (3) a reasonable person would conclude that the attacker posed an unjustified threat (4) of death or serious bodily injury.
Applying Texas Law to the Houston Shooting
Self-Defense and Defense of Others. The robber's gun turned out to be a plastic replica. Nevertheless, a fact-finder applyingย Texas Penal Code ยง 9.32ย will almost certainly conclude that it was objectively reasonable for the shooter, at least when he pulled his gun and fired his first volley of four shots, to believe that the robber posed a real and present (โimmediateโ) threat to both the shooter and the other patrons (Texas Penal Code ยง 9.33ย covers deadly force to protect third persons). Indeed, the panicked reaction of the patrons serves to confirm that they for good reason perceived the robber's threat as very real and very present.
As we know, however, this does not end the inquiry. Let's take a closer look at how the shooter's defensive conduct played out, in each case asking ourselves whether the deadly defensive conduct was immediately necessaryย at the timeย (andย each time) the shooter pulled the trigger:
The first four shots. As noted, the first four shots fired at the robber in close succession while the robber had his back turned to the shooter are likely uncontroversial (there, after all, are noย Marquess of Queensberry Rulesย requiring fair play when defending your life and the lives of others against an armed, morally culpable robber).
The next three shots. The next three shots, again discharged in short succession as the shooter was walking towards the now-downed robber, are also unlikely to raise too many prosecutorial eyebrows. After all, the robber was masked, the gun still relatively near the robber's hand, and the shooter had no way of knowing if the robber was otherwise armed (or how many times the shooter's shots hit their mark).
A competent defense attorney will, therefore, be able to make a persuasive case that the shooter could not reasonably tell the extent to which the threat posed by the robber was, in fact, fully neutralized.
The eighth shot. By the time the shooter pulls the trigger an eighth time the shooter had walked up to the downed robber and is standing over him (the shooter basically discharged a second succession of shots while walking, with the eight shot being his last) . The shooter then appears to aim directly at the robber's head and pulls the trigger. To some observers this shot may look more like aย coup de grรขceย or kill shot than an effort to neutralize a present and deadly threat.
The ninth (and final) shot. This is where begin to get a bit more dicey for the shooter.
More specifically,ย the videoย shows the shooter leaning over the downed robber to retrieve the handgun that the robber dropped when he collapsed. That handgun had skittered across the tile floor and was laying a few feet away. The shooter has the robber's gun in his left hand, stands up, and while stepping back delivers another apparent additional head shot at close range. Notably, and by my calculations, the shooter makes this decision to unload an additional bullet someย four secondsย after the eighth shot.
Of course, we cannot lose sight of the reality that the shooter was operating under the exigencies of the moment, bringing to mind Justice Oliver Wendell Holmes' dictum in 1921'sย Brown v. United Statesย that โdetached reflection cannot be demanded in the presence of an uplifted knife.โ Jurors and prosecutors alike will certainly not lose sight of the reality that the shooter was largely acting on instinct and while operating under extreme emotional pressure. Further, we do not know what the shooter might have perceived while bent over the robber that may be relevant to his decision to resume firing at the robber.
An additional question that is not answerable until the forensic examination of the body is whether the medical examiner can pinpoint the shot or combination of shots that ultimatelyย caused the robber's deathย (was it the eighth shot, the ninth shot, or some combination of shots?). If it turns out that, say, the eighth or ninth shot missed the robber's head, or that the robber had already succumbed to the first seven shots, then this issue likely becomes moot even if the shooter exceeded the bounds of self-defense (though a very aggressive prosecutor may of course consider bringing a Title 4ย attemptedย murder charge where factual impossibility is irrelevant,ย see, e.g., Chen v. State, 42 S.W.3d 926, 930 (Tex. Crim. App. 2001)โthough this would be an exceptionalโand exceptionally unlikelyโ stretch).
Stopping an ongoing robbery and recovering stolen property. The remaining question, largely ignored by commentators, is whether the shooter wasย additionallyย authorized to deploy deadly force to (1) stop an ongoing robbery and/or (2) to ensure that the robber did not get away with the stolen property (money and wallets).
- Stopping a robbery. On the first question we go back toย Texas Penal Code ยง 9.32, which allows deadly force to protect against deadly force or โto prevent the other's imminent commission of robbery โฆ or aggravated robbery.โ Here, by using what appeared to be a deadly weapon the robber will almost certainly qualify as an aggravated robber under the statute (ย 29.03). The robber was in the midst of committing his robbery when he was shot. That said, we are once again confronted by the more challenging question of whether the eighth or ninth shot were reasonably necessary to stop the robbery.
- Defense of property. Turning finally to the defense of property question,ย Texas Penal Code ยง 9.42ย provides a person can use deadly force against another to prevent the other from committing a robbery or aggravated robbery or to preventing the other from fleeing and escaping with the stolen property immediately after committing such a robbery. Here, the shooter's actions both stopped the (aggravated) robbery and certainly prevented the robber from escaping with the stolen property. Nevertheless, it will be an uphill battle for the shooter to argue that he โreasonably believed the deadly force was immediately necessaryโ to stop the robber from escaping with the cash, thereby justifying his decision to pull the trigger the eighth and ninth time.
In the final analysisโฆ.
There is little basis to question the shooter's initial decision to deploy deadly force against the legally and morally culpable robber. The only potential issue for the shooter is whether prosecutors and jurors, appreciating the exigency of the circumstances, will agree that the shooter's discharge of bullets eight and nine into the downed robber were โimmediately necessaryโ to neutralize a deadly threat posed by the apparently incapacitated robber. And as far as the prosecutors go, the cards will be stacked against a prosecutor, especially one in Texas, wanting to exercise prosecutorial discretion in favor of indicting a shooter who without question stopped an ongoing aggravated robbery and who is hailed a hero among broad swaths of the public. Additional factsโas well as factual claimsโwill no doubt emerge that may change the complexion of this situation. But for now, it is safe to say that we are once again confronted with a situation where the facts are a bit messier and the outcome somewhat less certain than they might at first blush appear.
Read the original article in its entirety at reason.com.
6 Comments
Nonsense, that robber got what he was asking for, the robber’s stupidity is not his defense! You bring that patrons case in front of me, it will be innocent, clear case of self-defense!
Jurors like you are an example of why the DA not charging the man is not an indication that he didn’t go beyond legitimate use of force.
Can we do Both : remove threat, kill threat
Win Win
Saved the taxpayers of Texas an expensive trial and lengthy prison sentence.
I don’t feel bad for the fool with the fake gun…but… did the customer really need to shoot him 9 times?!?!? Especially that last one when the fool was down and done!!!
The prosecutorial route is entirely dependent on weather the prosecutor is an anti-gun leftist like in Canada.
In Canada they will even send police officer to Jail for firing to many bullets at the criminal even though it is self defense… and Austin behaves like a typical Canadian city.