In this interview with WBAP radio in Dallas, Independent Program Attorney Edwin Walker of Walker & Byington discusses the differences between two Texas House bills that are vying to bring permitless carry to Texas. (Audio only).
A recent incident in which a Waffle House waitress was fired after defending herself against an attempted robbery shows that even when people exercise their legal right to self-defense, they can still be terminated by their employers.
According to WSBTV in Georgia, “Deputies said robbers gave a note to a waitress that threatened to shoot everyone unless she gave them money.” Heather Stanley, another waitress at the Newnan, Georgia eatery, went out to her car, retrieved her handgun, and “fired one shot into the air” as the would-be robbers ran to their cars.
Stanley was fired by Waffle House after the incident.
Stanley told WSBTV, “I didn’t know if they had guns. I didn’t know if they were going to their vehicle to get another one and could come back and try to get to the safe, so my instinct was to go to my car and get the gun.” Stanley added, “For trying to protect their Waffle House and trying to protect their money and to get their money back, they let me go.”
In Texas, employers can fire employees for similar policy violations. Independent Program Attorney Emily Taylor of Walker & Byington discusses the limited options fired employees in the Lone Star State have if they violate an employer’s firearms policy:
What happens if you do get fired for violating a firearms policy? Well, unfortunately, Texas is an “employment at will” state so your employer can fire you for virtually any reason, or no reason at all at any time.
So if you’re fired for violating a firearms policy, you don’t really have recourse. Firearms owners in Texas are not a protected class of persons, so you can’t come back then and sue your employer and say you were discriminated against for being a firearms owner. We reserve this protected-class status for things like race, gender, ethnicity, religion, and things of this nature.
There’s one more quirk in Texas firearms law that pertains to employers and employees, and this is having your firearm in your vehicle at work. We have a bill here in Texas that says that the general rule is employers must allow you to do this.
However, that bill doesn’t have a punishment for employers who violate this law, so at the end of the day, if you have your firearm in the car, your employer tells you that you cannot do this, and then they fire you for having your firearm in the car, unfortunately, even though, they are in violation of the statute, you have again no legal recourse because Texas is employment at will.
The news of the leaked white paper for the proposal to deregulate some rules from the ATF has been making it’s way around the web this week.
In an 11-page white paper labeled “not for public distribution,” but which has been obtained by Texas & U.S. Law Shield, Ronald B. Turk, associate deputy director and chief operating officer of the Bureau of Alcohol, Tobacco, Firearms and Explosives, outlines several steps the agency could take to remove many restrictions on gun regulations, including suppressors and stabilizing braces, in the United States. Texas Law Shield Independent Program Attorney Michele Byington walks U.S. Law Shield News Host Sam Malone through the proposals.
What are your thoughts on the deregulation of these accessories?
Texas Law Shield Independent Program Attorney Michele Byington talks about the pros and cons of Judge Neal Gorsuch’s nomination to the U.S. Supreme Court. Will he likely be a friend of the 2nd Amendment, or not? Click to watch the more-in-depth interview to find out.
What are your thoughts on President Trump’s Supreme Court pick?
Originally written by Michael Wisdom, Senior Contributing Editor, Texas & U.S. Law Shield for the U.S. Law Shield Blog.
We’ve all seen the news reports of the mob scenes and riots across the country following recent police shootings and now the election. We feel that it is important that you understand your rights should you find yourself unintentionally caught up in such a situation where an angry mob blocks the roadway.
As a real-life example, we received a call to the emergency hotline from a member who was traveling and found himself and his family confronted by angry rioters in a major city out west. With the threatening mob descending upon his vehicle, the member turned around to make a hasty exit. However, as he was trying to get his family out of harm’s way, one screaming rioter charged toward the member’s car and was struck, landing on the hood before rolling off. Fortunately, the member and his family safely escaped the melee.
To figure out if the member’s act of running into a rioter was legal, we turned to Texas & U.S. Law Shield Independent Program Attorney Michele Byington with the question: Are you justified in hitting or “running over” someone in this scenario?
“The answer? It depends!” Byington said. “Don’t you hate that answer?”
Let’s look at whether an act of running down a rioter would be lawful as a justified act of self-defense.
To begin the analysis, she said we treat this situation just as we would any other use of deadly force in self-defense. Let’s start with some general concepts, and then analyze how the specifics of the law will apply in these scenarios. The concepts to focus on are imminence, reasonableness, and not being the aggressor.
Imminence. Prosecutors love to attack the imminence prong. Does a group of people blocking a roadway pose an imminent threat of death or serious bodily injury to you inside of the vehicle? Blocking a roadway, normally, cannot cause death or serious bodily injury to those inside the vehicle, much less pose an imminent or immediate threat. As a result, using a vehicle to “run them down,” or even to physically push them aside, is unlikely to be justified. However, if there is additional threatening conduct such as the protestors attempting to enter the vehicle, or say, charging toward you with a baseball bat, that is a completely different scenario. If you are placed in reasonable fear of imminent deadly force, you would be legally entitled to use deadly force in self-defense, including the use of your vehicle to neutralize the unlawful deadly force threat.
Reasonableness. What would be required to generate a reasonable fear of imminent death or serious bodily injury? The key here is that it doesn’t matter what your personal beliefs are if a jury would not believe that your fear was reasonable under the circumstances. There are extremes where your conduct will almost always be viewed as reasonable, such as attempts to set your car on fire or flip it over. On the other hand, under many circumstances, it will be extremely difficult to convince a jury that you acted reasonably if you use deadly force against protestors. One example would be injuring or attempting to injure a group of peaceful protestors who are merely blocking a roadway. If the protestors attempt, or reasonably appear to attempt, to forcibly enter blockaded vehicles, you will gain a presumption of reasonableness under the laws of many, but not all, states. You will also have a much better argument that you had reasonable grounds to fear an imminent attack with deadly force. Such conduct could include the smashing of windows or attempts to open doors. Also, you do not necessarily need to wait until the protestors have turned violent against your vehicle if you see it happening to someone else. Remember, you must have a reasonable belief from what you are seeing and hearing around you and not merely speculating about what might occur.”
Byington also noted, “Keep in mind, here in Texas, you may also use deadly force to protect a third party as long as you would be justified in using deadly force to protect yourself in that same situation.
If you intend to use your vehicle against a rioter, it will almost always constitute the use of deadly force – that is, force capable of causing death or serious bodily injury. Deadly force can be used in self-defense to the extent the force with which you are threatened also constitutes deadly force. In other words, deadly force can be met with deadly force, she said. If you are faced with anything less than deadly force, you will face an uphill battle in arguing that your actions were reasonable. To make matters worse, if you respond to a threat that is non-deadly in nature with unlawful deadly force, it would allow the other person to lawfully respond in kind with deadly force against you.
Not the Aggressor. Is the person seeking justification for the use of deadly force in self-defense a victim, or is he the aggressor? State laws may vary, but generally, the defense of justification is not available to the individual who starts the fight and does not stop to convey to the other person their intention to stop the aggression.
So, how might this apply in a protest or riot situation? Byington noted, “Say you are stuck for an hour in the middle of a protest and decide to ‘nudge’ one of these folks with your vehicle so that you can get out of the traffic snarl. If the otherwise peaceful protestor then becomes violent, and you use deadly force to protect yourself, a prosecutor, judge, or jury could easily argue that you were the initial aggressor. You may lose a number of legal protections, and on top of that, appear like the aggressor during the investigation or trial.
Suppose you yell out “Sorry! Didn’t mean to bump you, it won’t happen again!” If the other person continues the assault after having been informed of your intention to stop, at that point you may regain the right of self-defense, although the protestor will almost certainly argue that he/she could not hear you due to the noise of the protest.
A Few Practical Tips:
So, what should you do if you come across such a mob?
STOP. Don’t go any farther. Do whatever is necessary to change direction and get out of the area. If you are alert, hopefully you will see these masses of people far enough in advance so that you can completely avoid the situation, long before being surrounded.
Remember, you can’t legally run people over just because they are in the road. You may think the safest action to take in a situation like this is to keep moving, which may result in hitting people with your car to get them out of the way. That isn’t legal! It could easily be considered an aggravated assault, or worse! Even if people are illegally blocking the road, you will go to jail. It is that simple. Avoidance is key.
However, once the rioters attack you or attempt to enter the vehicle, the game changes, and your legal justification kicks in. With your vehicle surrounded so that you can’t escape and attackers trying to burn your car, flip it over, or attempt to drag you out of it, it is reasonable to assume that you will suffer imminent serious bodily injury or death. It is at this point you may use deadly force. In this moment of adrenaline and pure fear, you must keep your common sense. Do not get out and try to shoot your way out of the mob! You will quickly be overtaken and perhaps have your gun stripped from you. Instead, use your vehicle to get out of that situation by driving away from the surrounding rioters.
An additional point to remember is, should your vehicle come under attack, roll your windows down about half an inch. Experts say it is harder to break a window that is partly down than one that is fully closed. Turn off your ventilation system so you do not draw in any outside air in the event there is tear gas or smoke present. Further, if surrounded and moving slowly, you may want to take off your seat belt to allow a quick exit from the vehicle should it be overturned or set on fire.
“Once again, it is evident that your best course of action is to avoid these, often, pre-planned demonstrations altogether and drive away quickly should you come upon one,” she said.
The law is different in every state. For example, Texas has the “Castle Doctrine,” which gives a person the presumption of reasonableness if he or she uses deadly force against a person attempting to enter or entering their vehicle. Byington said, “It is a HUGE legal tool. Unfortunately, other states may not expand their Castle Doctrine to the vehicle [New Jersey]. With that in mind, I hope everyone can stay safe – and also stay legal! – if you find yourself in any protest or riot situation.”
To help Members in other states, we contacted U.S. Law Shield Independent Program Attorneys to get additional insights. Their comments appear below.
Independent Program Attorney Doug Richards offered this explanation on Colorado’s the law on self-defense. In the book Colorado Gun Law: Armed And Educated, co-authored by Richards, Stanley Marks, and Christopher Ferrero, Richards points out that “a person is justified in using physical force upon another person in order to defend himself from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
“Importantly,” Richards adds, “a person is not justified in using any degree of physical force if he provokes the other person into the use of unlawful force with the intent of using that as a justification to cause the other person bodily injury or death.
Richards also points out that “[D]eadly physical force may be used only if a person reasonably believes that a lesser degree of force is inadequate, and he has reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury.”
For more specific information on this and other Colorado gun laws, click the Colorado Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
For the law on self-defense in Virginia, we turned to U.S. Law Shield of Virginia Independent Program Attorneys Mitchell Wells and W. Edward Riley of Riley & Wells. In the upcoming book, Virginia Gun Law: Armed And Educated, co-authored by Riley and Wells, they point out that a person caught in a demonstration that’s turning violent must reasonably fear that they are in imminent danger of suffering serious bodily injury or death to be justified in the use of deadly force. For more specific information on this and other Virginia gun laws, look for the upcoming announcement as to when Virginia Gun Law: Armed And Educated will be published and available.
Independent Program Attorney Robert Robles added “[T]hat the laws in Oklahoma regarding the use of deadly force in a self-defense situation are pretty well in line with the laws in the neighboring state to the south [Texas] and can be found in the Oklahoma Self-Defense Act, Title 21, Oklahoma Statutes, Section 1290.1, et seq.”
“In Oklahoma, the law gives the presumption that a person held a reasonable fear of imminent peril of death or great bodily harm and therefore deadly force was necessary, if it is used against an individual who was unlawfully or forcibly in the process of entering or entered into an occupied vehicle; or is attempting to forcibly remove another against his or her will from an occupied vehicle. Deadly force is also presumed to be justified to prevent the commission or attempted commission of forcible felonies including murder, burglary, carjacking, and home invasion robberies,” he said.
“Furthermore,” Robles added, “if people are present in any place where they have a right to be, they have no duty to retreat and have the right to meet force with force, including deadly force, if they reasonably believe that it is necessary to prevent death or great bodily harm to themselves or another, or to prevent the commission of a forcible felony.”
For more specific information on this and other Oklahoma gun laws, click the Oklahoma Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
Independent Program Attorney Deborah Alessi summarized Missouri’s law as, “A person cannot use deadly force upon another person unless he or she reasonably believes that such deadly force is necessary to protect himself, or another against death, serious physical injury, or any forcible felony, and is used against a person who unlawfully enters, remains after unlawfully entering, or attempts to unlawfully enter a vehicle lawfully occupied by such person.”
Alessi added that “a person does not have the duty to retreat from their occupied vehicle before using deadly force under the circumstances described, and these laws can be found in RSMo Chapter 563 Defense of Justification, Section 563.0031.1.”
Independent Program Attorney Matt Kilgo expands upon the Texas law to explain how the law of self-defense would apply in Georgia under these circumstances.
Innocence. Is the person seeking justification for the use of deadly force in self-defense an innocent victim, or is he or she the instigator of the confrontation? In Georgia an individual may not claim as justified a use of force against another when he or she initially provokes the initial force as an excuse to commit an act of force; at any time when committing (or attempting to commit) or fleeing the commission of a felony; or anytime he or she was the initial aggressor in a situation or was engaged in mutual “combat by agreement”, unless or until withdrawing from combat and making that decision known to the other individual. See O.C.G.A. §16-13-21(b). If the other party continues an assault after having been informed of your intention to stop, then you may “reacquire” the right of self-defense.
Imminence. Does a group of people blocking the roadway pose an imminent threat of death or serious bodily harm to you inside your vehicle? Simply blocking a roadway cannot normally cause death or serious bodily harm to those inside a vehicle. As a result, using one’s vehicle to “run them down,” or even to physically push them aside, is unlikely to be legally justified unless there is some additional threatening conduct. But suppose the mob begins more direct threats or the use of actual force against you? If you are now placed in reasonable fear of an imminent deadly force attack, then you could be legally entitled to use deadly force in self-defense, including the use of your vehicle to neutralize the unlawful deadly force threat. Remember, the use of force is justified in Georgia when a party “reasonably believes that such threat or force is necessary to defend himself or herself or a third person against such other’s imminent use of unlawful force. . . .” Imminence is vitally important, especially when using a weapon as deadly as a car: the threat must be real and immediate.
Proportionality. Keep in mind, however— should you intend to use your vehicle against anyone— this will almost certainly constitute deadly force, that force “which is intended or likely to cause death or great bodily harm.” Deadly force may only be used to protect yourself or another person when “necessary to prevent death or great bodily injury. . . or to prevent the commission of a forcible felony.” O.C.G.A. §16-3-21(a). Should you respond to a threat that is non-deadly in nature with deadly force (or one that does not constitute a forcible felony, such as murder, rape, armed robbery, or aggravated assault; any felony that contains an element of force), it would allow the other person to respond in kind with deadly force against you. Additionally, you may be the one charged.
Reasonableness. What action would be required of a mob or any of its members to generate a fear of death or great bodily injury that justifies the use of a weapon like a car in the eyes of police, prosecutors, judges, and juries? If the protestors attempt (or reasonably appear to attempt) to forcibly enter your vehicle or the vehicle of others, this could certainly constitute reasonable grounds to fear an imminent deadly force attack. Such conduct would include the smashing of windows or attempts to force open doors. The same applies to attempts to set vehicles on fire, or to flip vehicles over. Generally, a defender need not necessarily wait until the protestors have turned violent against his particular vehicle: If members of a mob have begun threatening or using deadly force against other blockaded vehicles, it could be considered reasonable to believe your own vehicle is likely to be next — you are, after all, legally entitled to defend yourself not just against the danger already occurring to you but also against the danger that is about to occur, that is imminent. But you must draw a reasonable belief from actual evidence around you, not merely speculate what might happen.
Kilgo went on to add, “If you find yourself in a mob situation, remember, you can’t just run anyone over with your car. It’s best to just keep moving, which may result in your bumping people out of the way with your car. However, this may be considered battery on your part, which is a crime. You may be arrested if you strike someone with your car, absent a legitimate threat to your life or the life of others. So it’s best to avoid those situations.”
“Perhaps most importantly,” Kilgo went on to say, “familiarize yourself with Georgia’s laws on the use of force, as well as such important legal concepts as the ‘Castle Doctrine’ and Georgia’s stand your ground law. The law can and does protect you in situations such as this, but you must be aware of what your rights are. While your best course of action is to avoid these often pre-planned demonstrations altogether and drive away quickly should you come upon one, knowing what you may legally do to protect yourself and your family in such a situation is your best protection.”
Independent Program Attorneys David Katz and James Phillips offered this summary of the law regarding the use of deadly force in Florida.
“Under Florida Statute Chapter 776, Section 776.012(2),” says Katz, “A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.”
Phillips added, “If you use or threaten to use deadly force in accordance with this subsection, you do not have a duty to retreat and have the right to stand your ground, so long as you are not engaged in a criminal activity and are in a place where you have a right to be.”
“You are presumed to have held a reasonable fear of imminent peril of death or great bodily harm if the other person was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered your occupied vehicle, or if that person had removed or was attempting to remove you against your will from your occupied vehicle,” Katz pointed out.
For more specific information on this and other Florida gun laws, click the Florida Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
According to Independent Program Attorney Justine McShane, the law of self-defense in the Keystone State is similar to the law in Texas, but different in significant ways.
“The Pennsylvania self-defense statute provides that use of force is ‘justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.’ 18 Pa.C.S. § 505.”
In fact, McShane has written a blog that addresses self-defense law in Pennsylvania. It can be found here.
For more specific information on this and other Pennsylvania gun laws, click the Pennsylvania Gun Law: Armed And Educated book link at the bottom of this post to order your copy.
To learn more, we also encourage you to attend a Gun Law Seminar and get further instructions from our Independent Program Attorneys in your state. Click here to find a seminar in your state.
A legal analysis by attorneys at Texas Law Shield and U.S. Law Shield finds that filmmaker Stephanie Soechtig, members of Soechtig’s staff, and executive producer Katie Couric likely did not violate state and federal firearms-transaction laws during production of a recent anti-gun film — contrary to assertions by some pro-gun groups.
Michele Byington, attorney at the law firm of Walker & Byington and a Texas Law Shield Independent Program Attorney, said, “There’s been a lot of buzz about Katie Couric’s documentary Under the Gun. Some of the buzz is praise by the anti-gun crowd, who are happy to have another biased piece of media to reinforce their pre-existing beliefs.”
Byington said, “The rest of the buzzing is the hornet’s nest Katie Couric’s team kicked using editing tricks in a vain attempt to make responsible gun owners look under-informed. That’s being resolved in the court of public opinion.”
What interested Byington and her colleagues were allegations that Under the Gunstaff members may have conducted illegal purchases of firearms to further their narrative.
“The question is, did anyone on that team actually do anything legally wrong?” Byington asked.
Byington said the documentary shows one individual purchasing guns from other individuals; they do this to illustrate how easy it is to obtain firearms. But then Under the Gun’s director Soechtig gave an interview to TheLipTV that raised four major issues:
That members of her staff may have purchased firearms across state lines;
That members of her staff may have purchased a firearm for someone else, at someone else’s direction;
What a “conspiracy” is under federal law;
And the consequences the producer’s actions could have on the sellers.
At about 1:35 into the TheLipTV video interview, Byington said Soechtig’s lack of gun-transaction knowledge adds a whole different dimension to the entire scenario. Byington said, “The interview states that one of the producer’s employees, who resides in Colorado, had to go to Arizona to purchase the firearms. You may be wondering why they had to leave Colorado to buy these guns for the documentary.”
Byington added, “That’s because Colorado has a universal background check law in place. What their efforts really show are how if someone is determined, they will break the law to get what they want.” Based on the information that’s available in the media, she went further to break down the possible legal violations:
Purchasing a Firearm Across State Lines
Byington explained that the law is strict in regards to purchasing handguns or long guns outside of an individual’s state of residence.
“Long guns can be purchased from a licensed dealer, as long as both your state of residence and state of purchase have no laws prohibiting your purchase,” she said. Handguns, however, cannot be purchased in another state, either privately or from a licensed dealer, and be brought back into your state of residence.
In the TheLipTV interview, Soechtig stated that they purchased a Bushmaster and three handguns from private individuals, Byington said. (Byington also noted that the Soechtig and interviewer both incorrectly referred to the Bushmaster as an “assault weapon.”)
Byington said that while the Under the Gun staff seemingly did purchase the firearms out of their resident state, it only becomes a crime if they take the firearms back to their resident state.
“As dumb as it sounds, they can buy the gun in one state, so long as they don’t take it home, they haven’t committed a crime,” Byington said.
So, the question is, did the Under the Gun staff take the guns to their home state of Colorado?
“It would appear not,” Byington said. The producer, in another interview, stated that the firearms were immediately turned over to Arizona law enforcement officers for use or destruction. “So, no crimes were committed so far,” Byington said.
Byington said straw purchases are defined in 18 U.S.C. § 922(a)(6); this applies whenever you purchase a gun for someone else from a licensed dealer. Byington said, “Because they purchased from individuals, this doesn’t apply at all. So no crime here either.”
“18 U.S. Code Section 371 defines the crime of conspiracy,” Byington said. Byington added that the elements of the crime of conspiracy are simply, 1) Two people conspire to commit a federal offense; and 2) One or more of the conspirators do something to effect that crime.
For allegations of this crime to get traction, the question boils down to, what was their initial plan? Byington explained that, “If the plan was to take the guns back to Colorado, then they were planning to commit a crime, and that would satisfy the elements for conspiracy. But if the plan all along was to turn it over to Arizona law enforcement, they were not planning a crime, and conspiracy wouldn’t stick either.”
Byington also pointed out that in their dishonest quest to purchase firearms, innocent individuals may have been caught in the producer’s wake.
“The worst part is, the producers did not even consider that they had implicated the sellers of the firearms,” Byington said. “Soechtig and members of her staff went out of their way to engineer the perfect situation for the documentary while guaranteeing their own legal safety, but put innocent gun owners at risk.”
It is illegal to knowingly sell a firearm to an individual from another state without going through a licensed firearm dealer, even if they don’t take it back to their resident state.
“So if the producers said, ‘Hey, we’re from Colorado doing a documentary, can you sell us these guns?’, they tricked the sellers into committing federal offenses. If they didn’t say anything at all, then the sellers are legally safe.”
Byington said that, assuming the producer and documentary team — who have continuously lied and misrepresented facts to push their agenda already — are telling the truth about what they did with the guns after their purchase, then they didn’t commit a crime.
Byington said, “In making this documentary, which was trying to illustrate why we need more laws that make it harder to buy guns, the team almost broke existing laws that were supposed to regulate gun purchasing. That is too ironic to miss.”