“The Houston Restaurant Self-Defense Shooting: Neutralizing a Threat v. Killing a Criminal”
I’m delighted to pass along this item from T. Markus Funk, author of Rethinking Self-Defence: The ‘Ancient Right’s’ Rationale Disentangled (2021), Understanding the Role Values Play (and Should Play) in Self-Defense Law, 58 American Criminal Law Review 331 (2021), Cracking Self-Defense’s Intractable ‘Difficult Cases,’ 100 Nebraska Law Review (2021), and What US Law Reformers Can Learn from Germany’s Value-Explicit Approach to Self-Defense, 73 South Carolina Law Review 195 (2021).
On January 5, 2023, at around 11:30 p.m., a 46-year-old diner-patron was sitting in a booth at the southwest Houston’s El Ranchito Taqueria #4 when a masked robber began pacing around the restaurant demanding money from the patrons at gunpoint. As the robber walked past the patron the patron pulled out a handgun. The patron then shot and killed the robber, who has been identified as 30-year-old Eric Eugene Washington.
The handgun later turned out to be a fake (the shooter can be seen throwing it against a wall in apparent disgust after the shooting). Yet there can be little question that the employees and customers, some of whom crawled under a table desperately seeking cover, had every reason to fear they would be killed or seriously injured that day. According to the as-of-yet unnamed shooter’s attorney, “[i]n fear of his life and his friend’s life [the shooter] acted to protect everyone in the restaurant.” The attorney further accurately commented that in Texas, “a shooting is justified in self-defense, defense of others and in defense of property.”
A Texas Grand Jury is now reportedly considering whether that shooter’s conduct qualifies as justified self-defense under Texas law. And although the so-called “smart money” understandably is on the prosecutor’s office not charging the shooter, his situation is perhaps not as entirely clear-cut as it may at first blush appear.
Just the Facts
A January 10, 2023, Washington Post article describes the shooting this way:
The customer with the gun had thrown cash onto the floor as the intruder walked by his booth, collecting money from several patrons. When the attempted robber came back by the booth, walking toward the front door at the restaurant, the customer pulled out his gun and fired.
Unedited video footage shows he shot Washington four times in quick succession.
Then, after Washington fell to the ground, the customer fired four more times, walking toward his body.
He fired the ninth and final shot standing close to the top half of Washington’s body, the video shows.
[Note that although there has been some reporting that the robber was shot as he was “leaving the restaurant” or was “headed towards the door,” the surveillance video does not confirm these claims of fact.]
Unsurprisingly, the one thing that is crystal clear is that different commentators have very different perceptions of the shooter; some outlets describe him as a Bernhard Goetz-style “vigilante,” while others hail him as a “hero.”
A Short Primer on Texas’ Laws on Deadly Force in Self-Defense
Much has been written on Texas’ stand-your-ground/no retreat and castle-doctrine provisions embedded in Texas Penal Code §9.31 (governing the justified use of non-deadly force) and §9.32 (governing the justified use of deadly force). These enhanced protections for law-abiding citizens, however, will likely not feature heavily in this case. Instead, the outcome, here, will likely be governed by a mix of fairly standard self-defense law, combined with a healthy dose of prosecutorial discretion.
Self-Defense. Texas Penal Code § 9.32 as relevant here provides that:
A person is justified in using deadly force against another … when and to the degree the actor reasonably believes the deadly force is immediately necessary …  to protect the actor against the other’s use or attempted use of unlawful deadly force [or 2] to prevent the other’s imminent commission of robbery … or aggravated robbery.
[Note that, per Texas Penal Code § 9.01(3), “deadly force” encompasses serious bodily injury]. These provisions of Texas’ self-defense laws generally track the laws in other U.S. states. They are focused on a defender deploying deadly force to neutralize a deadly threat. Intentionally killing an attacker after the threat is neutralized, on the other hand, exceeds what the law allows, tends to fall more squarely in the punishment or revenge buckets, and can result in separate criminal charges, up to and including murder.
Defense of Others. Texas Penal Code § 9.33 provides that:
A person is justified in using … deadly force against another to protect a third person if[,] under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using … deadly force to protect himself against the … unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect[,] and the actor reasonably beli
Article from Reason.com