W.C. Frosch, an elderly peaceful gentlemen of 74 years was relaxing inside his home when he heard a noise out front. He peered out the window and saw 15-year-old Brandon Robinson and some other teens running across his lawn. Mr. Frosch thought the teens were prowlers, so he armed himself with a handgun and told his wife to call 911. He shot through a window, striking Brandon under his left arm. Brandon and his pals were in fact crossing his yard to check out a loud party that was under way at a home on the other side of Frosch. While the injuries were not life threatening, there was a bizarre and tragic ending to the episode. On their way to the hospital a vehicle crossed the center stripe and struck the truck driven by Brandon’s mother head on. Brandon survived but his mother died.

The local authorities initially cited Texas new “castle law” in declining to file charges. Under the law, a person is presumed to be acting reasonably if he shoots someone he believes is trying to break into his occupied home, business or car. The case was later presented to a grand jury and Mr. Frosch was indicted last week on a charge of aggravated assault with a deadly weapon, a second-degree felony, punishable by two to 20 years in prison and a $10,000 fine. You can read the story here.

What is Texas new Castle Law? Here is an overview:

In 1995, the Texas Legislature created an exception to a 1973 statute, which required a person to retreat in the face of a criminal attack. The exception allowed a person to use force without retreat when an intruder unlawfully entered their home. The Castle Law extends a person’s right to stand their ground beyond the home to vehicles and workplaces, allowing the reasonable use of deadly force when an intruder is:

• Committing certain violent crimes, such as murder or sexual assault, or is attempting to commit such crimes;
• Unlawfully trying to enter a protected place; or
• Unlawfully trying to remove a person from a protected place.

The law also provides civil immunity for a person who lawfully uses deadly force in the above circumstances.

There you have it. What is the big change? Your car is now your castle. Your workplace is now your castle. That is a pretty big moat!

What has not changed? There still has to be an “unlawful act”. The law does not give you the right to blow away any shady looking skell approaching your vehicle or front door. I really do not view the analysis as any different under the new law. If the person is in your home, breaking into your home etc, it appears you can still fire away with relative impunity. There is no duty to retreat. Beyond that, your actions are going to be judged after the fact by a grand jury. If they don’t indict the presumption will be that your action was lawful. If they indict the presumption will be that your action was unlawful. In other words, if the guy is not in your home or holding a weapon up to your car window, fire at your peril to the whim of the grand jury.

There is some concern about the extension of the protection to your vehicle. This is because Texas has a fairly liberal Conceal and Carry law. I wont go into it other than to say that there is a greater then the norm likelihood in Texas that the person in the car whose window you are beating on will pull a gun out of her glove compartment. Thats in my opinion is the stickiest part of the law. If you are safely locked in your vehicle and some homeless guy comes up to you at an intersection, starts banging on your window and screaming, does the law allow you to fire through the window or roll down the window and shoot him? Under the current statute there is certainly an argument that the answer is yes.

Any criminal attorneys want to chime in?

The good thing is that the statute takes any confusion about what is a reasonable belief out of the equation by substituting the “unlawful act” standard. The statute is very specific on what acts will in themselves presume a “reasonable belief.” You can read about the statute here.

Let’s say that the three prior people who knocked on your front door, put a gun in your face, tied you up and cleaned out your home. You finally wise up and get a Dirty Harry Magnum. The gun weighs more than you but the next bastard who tried it is going to pay!. Joe the roving magazine salesman guy offering great deals to fund his next bible mission to Zamunda shows up at your door at 10 p.m and knocks. Boom! Dirty Harry says hello right through the peephole. Does the fact that the last three guys who knocked robbed you make your belief that Joe would objectively reasonable? Of course not. Even if it was subjectively reasonable, the conduct of Joe did not fit any of the required exceptions in the statute. The statute tells us what constitutes a reasonable belief.

Let us take a look at very publicized recent case in Dallas, Tx.

Musician Jeffrey Carter Albrecht was shot to death Sept. 3 after he tried to kick in a neighbor’s door during a drunken rage. Albrecht was very well known guitarist and keyboardist on the Dallas indie music scene. he was a member of rising indie pop band Sorta, Edie Brickell & New Bohemians, and Salim Nourallah’s band, the Polaroids.

A neighbor reportedly thought Mr. Albrecht was a burglar and fired a pistol high through the back door as a warning, but struck the 6-foot-4 Mr. Albrecht in the head. No charges were ever filed against the neighbor. the case was referred to a grand jury which returned a “no-bill”. The facts are not in dispute that the neighbor gave ample warning to Mr. Albrecht that he was armed and would fire before he fatally shot him. You can read that story here.

The Albrecht case in my opinion is an easy call. Albrecht was unlawfully trying to enter a protected place. What about Mr. Frosch? That is an easy call as well. Trespassing in itself is not an unlawful act as defined by the statute. I don’t think he will do time but if he does not plead this out he probably will be convicted.

Bottom Line? You can go through a million different scenarios with the same number of outcomes. What do you think? You just pulled into your open garage. You feel a presence. You turn around to see someone you don’t recognize walking up your driveway. There have been a rash of garage robberies in your neighborhood. Your good friends Smith and Wesson are also sitting in your car? What do you do? What should you do?

Does the Texas Castle Law go to far? I don’t think so. In the grand scheme of things I don’t think it matters at all during that crucial millisecond decision making process. If you think your life or home safety is in jeopardy and you have the weapon you are probably going to fire regardless of any statute. it is not a deterrent to bad shoots. What it does is take the pressure off law enforcement and district attorneys and you in legitimate shoots

How about the video below. It was not even this guys house. It was his neighbors. He was warned not to use deadly force by the 911 operator and killed the burglars next door with the 911 operator on the phone!

Where is Dirty Harry when we need him? We know what he would do!

Man Shoots Thieves Robbing Neighbor’s House; 911 Tapes Released