A 41-year-old Austin man has been charged with first-degree murder in the fatal shooting of a black teenager. Jason Roche allegedly shot Devonte Ortiz, 19, after an argument over fireworks in the early morning of July 4. According to an affidavit, Roche claimed the shooting was in self-defense, but witness testimony and cellphone video conflict with that account.
The shooting has come under public scrutiny, drawing everything from comparisons to the shooting death of Trayvon Martin to a call for tighter gun laws. Roche’s fate will ultimately be determined by a lengthy court process, but there is one question that consistently arises when shootings like this occur: How exactly do self-defense laws work in Texas?
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Here are four things to consider.
Texas has gradually broadened self-defense laws.
In 1973, Texas imposed a “duty to retreat” law when it came to self-defense. Essentially, to justify deadly force, an individual had to show that a reasonable person could not have avoided the violent encounter by moving to a safe place and therefore had no other option but to defend him- or herself violently. This requirement was sometimes referred to under common law as a “retreat to the wall” requirement.
But in 1995, Texas law loosened, adding a “castle doctrine," which said that an individual didn’t need to run away if he or she was defending his or her own home or property. This law expanded in 2007, when the Texas Legislature changed the measure to say that individuals didn’t need to retreat at all, instead needing only to prove they had a legal right to be present during the act of defense. This policy is commonly referred to as a “Stand Your Ground” law.
Right now, 27 states have codified “Stand Your Ground” laws, with another half dozen states following such laws in practice.
Texas law also has a number of provisions about using force to stop various crimes in progress and even allows for the use of force during criminal mischief – but only at night.
The burden is on the defendant to prove self-defense.
A self-defense law isn’t a get-out-of-jail-free card. In fact, it’s a defensive argument that is typically brought up after an individual has been arrested, charged and indicted.
“In most situations, the police will arrest and ask questions later,” says Millie Thompson, an Austin-based defense attorney.
Thompson says that in most criminal proceedings, the burden of proof is on the prosecution, which has to provide evidence beyond a reasonable doubt that a defendant committed a crime. In the case of self-defense, however, the defendant has to provide the evidence.
“When raising an affirmative defense, you have to come up with some proof – somewhere, somehow – that this defensive theory applies,” she says. “Then the state has to disprove it.”
Of course, this all applies if a case goes to court, because ...
Sometimes self-defense cases never make it to trial.
According to the FBI’s Uniform Crime Report, justified homicides between citizens are relatively rare, with 2016 marking just 331 killings.
In 2015, Guns.com, a news website dedicated to firearms culture, found that out of 146 self-defense shootings nationwide, only 12 individuals faced charges. Its analysis found that Texas had the most shootings (45 incidents), but only two people were charged.
There seems to be a level of regularity behind those numbers. In fact, a Dallas woman recently shot a carjacker who tried to steal her SUV with her children inside. Police have said charges won’t be filed in that case.
Under state law, police and district attorneys have wide discretion when it comes to deciding what cases to pursue, and if the evidence early on shows a clear path to self-defense, a district attorney may simply drop the case altogether.
“The DA would have an ethical duty not to charge if they believed that it was truly self-defense,” says Daniel Betts, an Austin-based defense attorney. “[It is] their duty as a prosecutor to uphold their oath to seek justice, not convictions.”
There is a booming business around self-defense legal defense.
In the last decade, a number of for-profit groups have popped up to provide legal support for those facing charges in self-defense cases.
In 2009, a group of Houston attorneys founded Texas Law Shield, where for an annual fee of $131, a member gains access to a 24/7 legal hotline, experienced self-defense attorneys and discounts on firearms courses and classes. The company was so aggressive in its tactics to gain members that it faced a class action lawsuit.
The National Rifle Association has a foot in the game as well, sponsoring an insurance service that seeks to protect litigants financially if they find themselves looking at civil liability in the aftermath of a shooting, warning potential customers not to “get caught in a legal nightmare."