Self Defense Laws

[Texan]

I find Australian self defense laws to be inadequate or maybe just confusing. I'd like to tell you about American (more likely, Texan) self defense laws and hear your explanations of your self defense and deadly force laws. I'll start.

We have 50 states and each state has it's own laws. Most of them are the same but there are differences that you would need to know if you live or travel in America.

The big differences are mostly in the following categories:

1. Castle Doctrine - Your home (and in some states, vehicle) is sacred and anybody who forces their way into your castle is fair game for deadly force. In California for example, you are required to try to leave if someone breaks into your house if possible before confronting them. Not so in Texas.

2. Stand Your Ground - As long as you are legally allowed to be where you are and are not committing a crime, you have no duty to retreat first before using justified deadly force.

There are 14 million people in the US with a license to carry in one state or another. There are 5 or 6 states that don't require a license to carry a gun. You must be able to legally own a gun if you carry on a local and federal level. Anybody who can legally own a gun can keep their gun in their home.

I am most familiar with Texas law, as I have studied it to be a responsible gun owner with a License To Carry. Texas law authorizes deadly force under the castle doctrine and also to prevent murder, aggravated (with a deadly weapon) assault, armed robbery, rape, kidnapping, and arson. Each of these crimes is a threat on innocent life and that is what the law is designed to protect. It's a gray area, but their are considerations for disparity of force. You may be justified to use deadly force if you are threatened by a gang of unarmed thugs, since you have no chance of overcoming them, but a grand jury will be used to decide if charges will be filed if the district attorney has any doubts and it will be your word against all of theirs. You'd better have video or audio evidence backing you up. Starting or accelerating an argument that leads to lethal force will remove any defense to prosecution, so if you carry a gun, you'd better behave and don't start arguments.(road rage or otherwise)

The district attorney will dismiss any case that is an easy slam dunk. For example, if armed men break into your home and you shoot them dead, chances are the police won't even arrest you. They may take the gun you used as evidence until the district attorney signs off on not pressing charges, but you will most likely get it back within a couple of weeks. If you are assaulted and kill an attacker in a remote place where there are no witnesses, you'll probably be arrested and face charges until it is sorted out by a grand jury or by a criminal trial by jury if it goes that far.

A lawyer is not cheap, and my wife and I pay monthly as insurance to keep legal representation on retainer. As long as we are in a place where we are allowed to be legally armed, then our legal expenses are covered to defend against criminal charges relating to the use of a gun. My wife and I spend a total of about $30/ month for this service. My 17 year old is also covered if he uses a gun to stop an intruder in my home.

In Texas, 17 years of age is the legal age to allow children unsupervised access to firearms in the home. My son knows the combination to my gun safe, because I trust him. He knows how to operate every gun I own and he has been shooting them since he was 8 years old under my supervision. He understands the seriousness of the damage a gun can do and respects it. I have no younger children in the home, unless my 8 month old granddaughter is in the house or occasionally my 5 year old great niece. When they are in the house, all guns are either on our hips in a holster or locked in a 400 lb gun safe.

I've covered several topics of self defense and gun ownership and safety. Feel free to ask questions and I look forward to your summaries of self defense and gun laws in your countries.

[brian ross]

Dowunder, what you need to realise is that criminals have the same rights as their victims before the law.

Guns are not allowed since 1996 to be owned for self-defence purposes. To own a gun, you must be a member of a firearm shooters association or club. You are not allowed to own semi-automatic long arms or pump-action shotguns. You must shoot regularly and be seen by your peers to be a stable and responsible gun owner.

There are no "castle doctrines" or "stand your ground" allowances. You are expected to defend yourself or retreat depending upon the circumstances. What force you use must be consummate with the threat that you are facing. You can't just pull a gun out and shoot someone who enters your home. You must fear for your life or the lives of your loved ones or your associates.

Guns can be used for self-defence purposes, however, you're not allowed to own them expressly for that purpose. You can use a gun to defend yourself or your loved ones or your associates - if the situation warrants it. If you hurt or kill a culprit, you must face court (usually on a manslaughter charge but occasionally on a murder charge) and defend your actions prove what you did was justified.

The courts are where matters like that are worked out. Police do not have the authority to let someone off if they shoot someone. Only the DPP (Director of Public Prosecutions [i.e. "The Crown"]) can do that although more than likely they'll let it go through to the courts. The Police invesigate, they lay charges (independent to what the defender might desire) and the DPP decides if a case exists and then it goes to court. The Judges decide.

[Bogan]

Hi Tex, Australian law is completely different.

Australian law is based upon British Common Law in which there is nothing written into law which justifies the use of deadly force. There are exceptions to this rule, but nowhere in either British or Australian law does it say anything like "you can kill somebody under these conditions" . If you kill somebody in Australia, whatever the circumstances, you are in big trouble. Even the police have to worry about being prosecuted unless they can justify to a coroner that killing an offender was absolutely necessary to protect innocent life.

An example was the recent hostage situation involving a nut case Iranian Muslim who went into a coffee shop in Sydney with a shotgun and held dozens of people hostage. Although a SWAT team had him dead in their sights and could have taken him out at any time, somebody up the food chain had to make the call to shoot him. And unless that could be justified in front of a coroner, that person in authority was in real danger of facing a manslaughter charge. So the police brass did nothing and two hostages died when the offender killed one hostage, and the police stormed in, and another hostage died from a ricochet in the ensuing gun fight.

The only mitigating factor which might prevent a person from being charged with murder if they kill somebody, is whether the police prosecutor does not press charges because if it comes to court, he knows that no jury would convict the shooter. This happened once in Sydney where an antique shop owner who had previously been a victim of an armed robber shot dead an armed robber holding a handgun to his wives head.

The bloke was outside the shop when he looked in the window and saw a man holding a handgun to his wife's head. He went back to his adjoining house to get his trusty 30-30 Winchester lever gun. He aimed through a window and put one in the blokes ten ring. It turned out that the offender had just been released from prison for kidnapping, where he had kidnapped a wealthy elderly lady and tied her to a tree without water or shelter for two days. He demanded a ransom, but somebody had seen his car and thought it was suspicious and had taken the rego number. The bloke was arrested and interrogated, and the woman, more dead than alive, was found and rescued.

The police prosecutor knew that no jury would convict a man for killing a scumbag lowlife like that. But such cases where somebody kills somebody for a damned good reason and is not charged with murder is very rare under Australian law.

[Outlaw Yogi]

I'll tell you about Australian law

In Nov 2003 a woman named Anne (no need for surnames) mortgaged her house and 5 acres on Goondoon Rd Bullyard for $65k to buy 40 acres on Bundaberg Gin Gin Rd (main arterial road) Bullyard. She used $40k to buy the block and the remaining $25k was intended for a shed (come house) and PV solar gear (s/h solar set up bought - overpriced at $12k).

Anne was a Greens candidate for the Qld 2004 state election and let her Kiwi boyfriend Ken live on the 40 acres in a caravan she gave him, and allowed him to use the solar set up. She allowed Ken access to the loan account. He bought himself a big trailer and turned the block into a tyre dump.

When Ken became intimidating she banned him from Goondoon Rd house and asked he vacate Bundaberg Gin Gin Rd property. Another member of the Hinkler-Burnett Greens branch (Bundaberg) Peter told her that Ken had offered him PV solar panels for sale. Anne was in a panic about Ken selling equipment she'd borrowed money to acquire. I asked Peter, and he confirmed Ken's offer.

Ken worked 1 day a week in Gin Gin showing people how to use computers. Anne and I went to the Bundaberg Gin Gin Rd property to see if the solar set up was still there. The $3k inverter and stainless steel box were gone and replaced with a cheap arse regulator and a few dials on a piece of ply wood.

Anne and I went to Gin Gin Police station, told them what was going on and that we intended removing the remaining solar gear from the property. The police didn't want to know about it, but a civilian on the front counter did write something in a book.
Anne and I went to the Bundaberg Gin Gin Rd property loaded the equipment onto a box trailer and hid it at another Greens member's place closer to Bundaberg.

Anne wanted me to stay at her Goondoon Rd house in case Ken came there. I agreed on the condition she take me back to Bundaberg to get my voice activated tape recorder and fresh batteries. She agreed. I tested the tape recorder at around 5pm.
At about 8:20pm that night Ken turned up in his Falcon station wagon.

Anne asked me to stay out of sight, thinking my presence might inflame him, so I laid on a bed behind a book case used as a partition and Anne went outside to deal with Ken.

Meanwhile the tape recorder is running. On 4 separate accasions Anne told Ken to "Go away". When Anne tried retreating back into the house Ken put his forearm between the sliding glass door and the door jam so she could not close it. I could hear the door going back and forth scratching on the pebbles in the door track.

I got up, remembered a similar event where gate crashers broke a glass door trying to force their way into a party in my late teens and thought "someone's going to get cut up here". I picked up a mattock handle and as Ken tore the door from the track and stepped into the house saying "I'm gunna ...." I hit him on the right side of his head. This was just enough force to make his step backward one or two steps and gave me time to stand directly in the doorway. There was a 7 stone woman and 3 kids close by so I had no room to swing or jab. As Ken came charging in with a look of fury I hit him on the crown of his head. He stepped back and fell unconscious.

On the tape I can be heard "Call the pigs". When Anne by torch/flashlight saw Ken was injured she went to help him, and I can be heard on the tape yelling "No!, just leave the kunt there or I'll phuking kill him". A few minutes later I asked "Is there a light for out there?" It didn't work. By torch light I assessed his condition and gave him first aid. It turns out by this stage Ken had regained consciousness but was playing possum. After about 20-30 minutes he got up, got in his car and drove himself to Gin Gin hospital (16 stitches).

There are 2 police stations (Gin Gin and South Kolan) within 10 minutes drive from that house, but it took police over 2 hours to attend a 000 reported home invasion and injury (ambulance cancelled when Ken left). We told the cops from South Kolan what happened and I showed them the mattock handle with skin and hair on it (which they left hehind. The cops stayed for about 10 minutes and asked that we attend South Kolan Police station to give statements and for them to make a copy of the tape.

At South Kolan Police station the cops didn't want a statement from me. They now knew Anne was a Greens candidate for election and I was a former member of Comanchero MC (quit Easter 96). At the up coming Qld state election former Qld Police sergeant Jack Dempsey was running as a candidate. Sgt Pierce and Cost Lowe of South Kolan saw this event as a way to damage Anne's electoral prosects and I became the political football.

I was charged with 'Assault with a deadly weapon' - 10 year gaol/jail. I fought it, so it went to trial. The cops reduced the charges to 'Assault occasioning bodily harm whilst armed' - 2 years gaol/jail. In relation to Ken, Sgt Al;an Pirce told us "There's no such charge as home invasion in Queenslad". Which one week later we found from a former Qld Police Sgt (then Kolan Shire Council environmental offier) to be false. Pierce said "The only thing we can charge him with is trespass". I replied "Well that'll have to do".

As I told Sgt Pierce and Const Lowe, if I was bad I could have put Ken in his car, dumped it, him and his Rottweiler in the river and no-one would even know he came to the house. Sgt Piece replied "That's true".

I was on trial for 10 months, during which time the media circus failed to get a photo of me, but did Anne. Despite 4 sections of the Qld Criminal code stating what I did was legal, and 7 sections stating what Ken did was illegal I was sentenced to 180 hour community service. And I cought the relevant cops in the court house foyer giving Ken advice on how to get off the trespass charge.

So my advice is if you have to deal with an intruder, just kill them and say nothing.

Since that time I have learnt though a South Kolan Community Hall committee member that Sgt Alan Piece was seen stealing the fridge from the South Kolan community hall in uniform with his paddy wagon. When Piece failed to get a committee member (at member's front door) to withdraw the break & enter and stolen goods report the fridge was returned the next day.

I have also heard that before Const Lowe was stationed at South Kolan he was run out of Mt Perry by the cow cockies for his involvement in cattle duffing/rustling.

Some cops try to make out I'm anti-police. I'm not anti-police, I'm anti-authoritarian and anti-corrupt bastards.

[Bogan]

So, you were an ex-Comanchero bikie and you had a Greens candidate as a girlfriend? I dunno ma-a-a-ate. I think a nice bloke like you should be more particular about the sort of women you associate with.

[Texan]

Bogan - My son inherited a Winchester 30/30 from his grandfather. He isn't a hunter, so it won't see much use and will be a family heirloom as it was originally purchased by his great grandfather. I'm glad there are some allowances for self defense, but I don't think I care for your lack of ability to protect your family. Your laws aren't my call, but I wish you well.

Outlaw Yogi - What happened to you is obscene. That's the kind of situations I want to avoid.

Brian - Your Director of Public Prosecutions sounds much like our elected District Attorney. The police make an arrest when the law is broken or someone is harmed and the facts are not all known. The DA has the power to drop charges if the case is not prosecutable or determined to not be a crime at all. If there is any question, the case is referred to a grand jury of random citizens to see if there is enough evidence to warrant a criminal trial. Either the grand jury dismisses the case or a criminal trial date is set.

Our law is pretty straight forward. Deadly threats can be responded to with deadly force, even if that threat turns out to be false. An example of that would be shooting someone who tried to rob you with a realistic looking toy gun or pointing their finger at you from inside a coat pocket. Anybody forcing their way into my home or vehicle will have the possibility of fighting with me over my weapons, be they knife, gun, club, or whatever. They forfeited their right to life when they threaten me inside my own home and many times in public.

[brian ross]

Brian - Your Director of Public Prosecutions sounds much like our elected District Attorney.

Yes and no. The biggest difference is the the DPP is appointed rather than elected. Also, the DPP has some clear rules about what he can and can't let people get away with. Further, he can make the police change the charges they have brought against a person who is arraigned before the courts.

The police make an arrest when the law is broken or someone is harmed and the facts are not all known. The DA has the power to drop charges if the case is not prosecutable or determined to not be a crime at all. If there is any question, the case is referred to a grand jury of random citizens to see if there is enough evidence to warrant a criminal trial. Either the grand jury dismisses the case or a criminal trial date is set.

Here we have a Magistrate's hearing to see if the court itself believes that a case can be brought in a major case. The Magistrate is usually a lay person (or they can be professional) who has learnt about the law and how to apply it. The Magistrate makes the decision if there is a "case to be answered".

Our law is pretty straight forward. Deadly threats can be responded to with deadly force, even if that threat turns out to be false. An example of that would be shooting someone who tried to rob you with a realistic looking toy gun or pointing their finger at you from inside a coat pocket. Anybody forcing their way into my home or vehicle will have the possibility of fighting with me over my weapons, be they knife, gun, club, or whatever. They forfeited their right to life when they threaten me inside my own home and many times in public.

Our laws are pretty straight forward as well. They are similar but different. In Texas as soon as a culprit commits a crime, his rights appear to be forfeit. Downunder, the culprit still has rights and anything undertaken by their victim must also be put before a court. You are answerable for your actions. Much better for the courts to decide whether the victim has committed a crime in their own right.

[Texan]

It’s not so much that the criminals rights are forfeit, but that the homeowner gets the benefit of all doubt. If a 90 year old man in a wheelchair breaks into my house and I walk towards him with lights on and see that he is unarmed and execute him, I’m going to prison for murder and rightfully so. If I have any doubts that my home intruder may have a weapon and the ability to kill me, I have no obligation to take a chance and trust that he won’t harm me. This is where i keep my mouth shut and call my lawyer.

[Bogan]

To Texan.

I don't necessarily agree with our laws either. When a violent home invader was killed by a homeowner in Sydney some years ago, (I don't remember how he was killed) there was a big stink in the press about whether or not the homeowner should be charged with murder. I think the coroner did not commit the homeowner for trial because once again, the law has to wonder whether any jury will find a man guilty of defending his home from a home invader. Home invaders are every person's enemy. One talkback radio host declared that "home invaders leave their rights at the door" and I think that saying struck a chord with the public.

Australia once had very lenient gun laws and very low rates of violent crime. People carrying large amounts of cash (bank tellers, bank managers, bookmakers, and payroll employees) were once allowed to carry concealed handguns. Bank tellers were once quite happy to shoot it out with any stupid bank robber. That was one reason why Australia's bank robbery rate was low. The other was that until the late 50's bank robbery was a hanging offence. But then one teller got shot dead in a gunfight and the worker's compensation insurance industry demanded that tellers be disarmed, and that they should just give the cash.

Today, I think it is only jewellers and gun shop owners who may carry concealed handguns while in their shops. A case should be made, in this age of imported terrorism, for off duty police officers, retired police officers, retired and serving officers of the armed forces, and decorated war heroes of any rank, to be be allowed to carry concealed handguns. If society can not trust these people, than who can you trust? Recently in Sydney, two off duty police officers attempted to stop an armed robbery. Both were police (or, as we say in Australia, "plice" and they were husband and wife. The husband got shot (he recovered from his wound) and the robbers got away.

[brian ross]

It’s not so much that the criminals rights are forfeit, but that the homeowner gets the benefit of all doubt. If a 90 year old man in a wheelchair breaks into my house and I walk towards him with lights on and see that he is unarmed and execute him, I’m going to prison for murder and rightfully so. If I have any doubts that my home intruder may have a weapon and the ability to kill me, I have no obligation to take a chance and trust that he won’t harm me. This is where i keep my mouth shut and call my lawyer.

As you said, the Judicial system is weighted in favour of the home owner. Downunder, the Judicial system is fair and not weighted to anybody. It appears fairer that way to me. I do not believe that anybody has the right to kill anybody else, no matter what they are doing, without facing a Judge and jury.