You can be indicted for murder even if deadly force is justified

It's surprising how naive some gun owners are about what can happen after they use a gun in self defense.

Again and again, we hear people say that they have a "right" to defend themselves and that the "law says" they can shoot someone if their life is at stake. So they think "why should I worry about legal consequences?"

While the law varies in the details from place to place, this is generally true. But the point isn't what the law says as much as it is how things can play out in the real world, whether you're justified or not.

Here's a news story from San Angelo, Texas that clearly shows the risk you face when you use deadly force to defend yourself. Take special note of the part in bold.

In March 2012, Robert Wayne Bain came home to find his wife packing her belongings at their home in the 1200 block of E 25th St. The two had been having marital problems, and when Bain went into the bathroom of the residence, he was met by a fully-clothed man, Steve Gutierrez, standing in the shower. Gutierrez then allegedly lunged at Bain, who drew a firearm and fatally shot the man in the chest, He died before emergency personnel arrived on scene.

Bain was later indicted on a charge of murder, and despite having stated that he did not see a weapon when he shot Gutierrez, a jury in Judge Weatherby’s 340th District Court acquitted the man of homicide in May 2013. The shooting was deemed justified under the Texas Penal Code Chapter 9, which outlines three situations in which a citizen can exercise deadly force: self-defense, defense of a third party, and protection of property.

The contentious Bain case is the most recent homicide to be tried in Tom Green County in which a jury found that the defendant had acted within the confines of the law. While most of the county’s killings in recent years have been the direct result of domestic violence, 51st District Attorney Allison Palmer says there have been a handful of cases where homicide was justified under state law.

“It’s not common, it’s not frequent,” Palmer said. “It’s rare, but it does happen. The majority of homicide cases that I have reviewed are not justified. There have been a handful of others that I agreed and perhaps a grand jury agreed [were justified] and there were no indictments. I would say less than 10, but probably approximately five [in the past five years].”

Justifications are not a license to kill, criminal defense attorney John Stacey Young said. If a jury finds a certain set of circumstances applied to the incident at the time of the killing, then they would find by law that the use of deadly force was legally justified and therefore not criminal.

Emphasizing the word ‘jury’, Young said, “…there is the old law enforcement…saying, ‘You can avoid the rap but not the ride’. There’s a good chance you’re going to get arrested even if you’re justified. There’s a better-than-good chance. Secondly, there’s an almost certainty you’re going to have your case submitted to a grand jury.”

Anytime a homicide occurs, the case is stringently investigated and scrutinized, Palmer said, whether it appears to have been justified or not. The law provides a specific set of circumstances for each of the three justifications that, if present, acquit a person from criminal charges. Present in all of those circumstances, however are two complex concepts.

“There are two big components…in each of these three deadly force applications,” Palmer said. “What the legislature is always going to require is that you’re reasonable…and [that deadly force was] immediately necessary. In other words, you’ve got a timing component to it too.”

Timing is generally more easily understood than reasonableness in these cases because reasonableness is a subjective judgment passed by a third party, Young explains.

“Everything in chapter 9, the justification concept, is based upon the mythical, reasonable man standard,” he said. “I’m going to tell you I’ve never met the reasonably prudent person. I don’t know who he is. It’s a person or a concept that the law creates that says that if a…reasonably prudent person were in the same or similar circumstances, looking at it from the eyes of the shooter…was his view (or his action) reasonable? What do you measure that by? Necessarily, it’s going to be what those 12 people on a jury or a grand jury believe is reasonable.”

The idea of being indicted for murder when a shooting is justified perplexes many gun owners who don't understand how the law works.

The myth is that if you meet the qualifying standards for using deadly force, the police just bag the body and let you go on your merry way. But the reality is that even when the evidence appears to support justifiable use of deadly force, you may have to work your way through the legal system anyway.

The very last paragraph of this story is a quote from Tom Green County Texas Sheriff David Jones about exercising your right of self defense and the risk you face.

"That moment from exercising that justification through the grand jury is the most harrowing, overwhelming, scary days in a person’s being," Young said. "There are very few other circumstances that are more scary, that are more overwhelming to the individual than being charged with a crime, having to go through the police custody interviews and then…even if the police don’t formally charge you, very likely it’s going to go to a grand jury and that is a scary, scary thing when 12 people you don’t know have the balance of your life in their hands. Those 12 people decide whether or not you’re going to face a trial that could result in you being sentenced to prison for the rest of your life or whether your justification is believed."

The moral of the story? Hope for the best and prepare for the worst.