Volokh conspiracy lawyer scrgruppen
from Prast v Prastdecided yesterday by the Texas Court of Appeals (Houston), in the opinion of Judge Margaret “Meg” Boysan, joined by Judges Frances Burleau and Megan Hassan.
[Plaintiff] David [Brast] And [Defendant] Randy [Brast] They are brothers, neighbors, and [Defendant] Rayyan [Brast] He is Randy’s son. David and his wife, Janet, on behalf of their son Matthew, sought a protective order against Randy and Ryan for at least two years, arguing that they were in extreme fear of serious bodily injury. The appellants requested that the trial court prohibit Randy and Ryan from possessing a firearm during the term of the protective order….
[The order stemmed from] An altercation ensued over a dog on March 27, 2022. The dog, which Randy said was a stray and then Ryan claimed was his, wandered onto David’s property. David said he would shoot it or drag it before picking up the dog and taking it inside his house. When Randy and Ryan trespassed on David’s property to retrieve the dog, the two men “got into a fight.” David testified that Randy and Ryan beat him. Randy and Ryan claimed they were defending their property when they trespassed on David’s property to retrieve the dog.
Over the next four days, Randy and Ryan fired firearms outside their property and near David’s property, including after midnight. David testified that on the third day, one of the men drove his truck alongside the property line with David, rolled down his window, and fired shots into the ground while facing in David’s direction. Finally, David testified that he feared for his life and was afraid that Randy and Ryan would come [and] Kill me one night or one evening – me and my family.” Janet also testified that she feared for her life and the life of her family during the events of March 27 and in the future.
[Ryan’s friend] Grayson testified about the fight and ownership of the dog that led to the accident, confirming that he gave the dog a puppy to Randy’s daughter. When Ryan testified, he denied hitting his uncle David, threatening David or his son, or discharging a firearm in the middle of the night. Instead, he claimed that on March 27, he was only retrieving his family dog after David repeatedly threatened to shoot it.
The court issued one-year protection orders against Randy and Ryan, which included a ban on “possessing firearms or ammunition.” They defended in part on the basis that “[ir] Actions justified under Texas Penal Code § 9.41(b), with respect to actions taken in defense of property:
A person who has been unlawfully dispossessed of land or tangible and movable property by another person is justified in using force against the other when and to the extent that the actor reasonably believes that force is immediately necessary to re-enter the land or to reclaim the property if the actor uses force on Immediately or in new pursuit after expropriation and:
(1) the representative reasonably believes that the other had no claim when the representative was dispossessed of his or her property; or
(2) The other accomplished the expropriation by using force, threats, or fraud against the actor.
But the court held that the Domestic Violence Protection Order Act did not allow such a defense:
The “domestic violence” necessary for a protection order to be issued is defined under the Family Code [in relevant part] like:
or sexual assault or assault, But it does not include defensive measures to protect oneself; ….
The plain language of the law states that acts of self-defense are not considered domestic violence, but it does not contain a similar provision regarding defense of property. We therefore conclude that the proceedings in defense of property do not preclude a finding of domestic violence as necessary for the issuance of a family law protection order and we reject the appellants’ argument….
This seems to me like a bad result. These defendants may have done much more than simply try to protect their dog (for example, if the allegations of a shooting threat were true). But the logic of the opinion goes further: it explains this any The use of physical force – including non-deadly force, of course – to defend property is “domestic violence” that can justify a protective order. If a family member is trying to kill your dog, and you punch them to save the dog, you are guilty of domestic violence, and you have no legal defense against a potential protective order.
In fact, under the court’s reasoning, you are guilty of domestic violence even if you used non-deadly force to protect another personsince this is still not “defensive protection measures”. Himself – HimselfPunching a family member to protect your child (or a sibling, parent, or other person) is “domestic violence” and can result in a restraining order (and temporary loss of gun rights).
I am skeptical that the court was correct in its legal analysis. It is true that the language “but does not include defensive measures to protect oneself” on its face is limited to self-defense, not defense of property or defense of others. But the laws that allow the defense of property and the defense of a third person are also laws, and they explicitly say that such behavior is “justified.” It creates an exception to a wide range of criminal laws dealing with violence, and I think it might make sense to read it as creating an exception to domestic violence law as well.
But even if the court is right on the legal analysis, the outcome still looks very bad from a political perspective. I believe that prohibiting possession of firearms based on a defendant’s noncriminal defense of property or third parties would also violate the Second Amendment. (The Second Amendment challenge in this case was dismissed on merit, because the one-year gun restriction had expired by the time the appeal was decided.) I hope Texas legislatures will step in here, to protect the legal defense of family members and pets. And other property in such cases.
