Should you be able to use deadly force in response to non-deadly force? Generally speaking, the answer under Texas law is no. One of the requirements for using deadly force to be justified is that it is in response to another’s use or attempted use of deadly force.
Classic Example: You can’t bring a knife to a fist fight.
The next question, then, is what is deadly force, and does it necessitate the use of a weapon? As defined in the Penal Code, deadly force does not require the actor to use a weapon. Deadly force is defined as force that is intended or known by the actor to cause, or in the manner of use or intended use is capable of causing death or serious bodily injury. This is the question I expected to present to a jury at a trial earlier this year. A link to the austin American Statesman’s blog entry can be found here: Not Guilty Verdict
The story in the Statesman is short, and doesn’t quite give you a full understanding of the case. According to court documents and the testimony at trial, Mr. Lee, a female companion, and the victim were all driving together in the St. Johns area of Austin. The victim had become a recent acquaintance of Mr. Lee. The trio had set out that evening to purchase and smoke crack cocaine. Mr. Lee and his companion suspected the victim may have been setting them up for a robbery. Unprovoked, the victim punched Mr. Lee in the jaw, snapping the wires which were holding his broken jaw together loose. He then began to attack the female companion driving the car. Mr. Lee grabbed a knife that was lying on the floorboard of the car, and stabbed the victim once in the calf as the victim was kicking toward Mr. Lee. This one stab wound turned out to be fatal, severing an artery. It was undisputed that the victim did not have a weapon during his attack.
The jury was asked to determine guilt or innocence on the charge of intentional murder. That is, did Mr. Lee intend to kill the victim when he stabbed him in the leg? Ultimately, the verdict was not guilty, and the reason given by a few of the jurors who spoke with me was that they just did not believe he intended to kill. As a result, they never made it the question of self defense.
What would you have done if you were a juror on this case, and you were given the option of a charge that read: “A person commits an offense if he recklessly causes the death of an individual.” In other words, take the intent element out of the equation. I think most people would agree that stabbing a person in the leg, while not indicative of intent ot kill, is reckless. The next step as a juror would then be to evaluate my query as to whether someone in the circumstances described above is acting in self defense. With the definition of deadly force in mind, was the victim’s use of force deadly force? Can a man striking another man in his wired-shut, broken jaw, and then attacking the driver of the vehicle while it is moving be considered deadly force? Was Mr. Lee’s use of deadly force justified?