Written by: Steve Glista
Researched by: Jeff W. Richards
Edited by: Peter Fehrs
Managing Editor: Brady Iandiorio

Nobody wants to start their day by facing down a couple of knife-wielding thugs in the kitchen, but eventually it happens to everyone. On January 7, 2009 it was Michael Arcay’s turn. When Daniel Bartlett and Justin Campbell broke through his front door that morning, Arcay was waiting for them. When the two intruders threatened him, Arcay called his roommate, who broke up the unexpected gathering by shooting Bartlett and Campbell with a shotgun. Bartlett staggered out to the front yard and died from his wounds. Campbell fled on foot, but later turned himself in to the authorities.

Even though Arcay’s (still anonymous) roommate admitted killing one man and injuring another, the Amarillo police allowed him to remain free. Isn’t shooting people against the law? Most of the time, the answer would be “yes,” but since this happened in Texas, it might not be so simple.

The Stars At Night, Are Big And Bright

In Texas, as in several other states, people have an expanded right to use deadly force to defend themselves in their own homes, thanks to a law commonly known as the “Castle Doctrine.” According to the National Rifle Association, at least 23 states have enacted some form of Castle Doctrine. The Texas statue is a good example: (1) it removes the duty to retreat when someone is threatened inside their own home, vehicle, or place of work; and (2) it provides immunity from civil liability and criminal prosecution to people whose actions fit within its boundaries. For the purpose of this article, the important conditions are (emphasis added):

(a) . . . a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:  (A) unlawfully and with force entered . . . the actor’s occupied habitation, vehicle, or place of business or employment;

[ . . . . ]

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity [....]

The first relevant element of the statute is the word “presumed.” In a legal context, presumptions have special significance–a presumption is like a gimmie from the legislature or the court. Simply put, the opposing side is required to do all the work to overcome it. In most home-invasion shootings, overcoming the presumption that the shooter acted reasonably is a daunting task. Unbiased witnesses are hard to come by in these situations, since the only people present generally are the homeowners, their friends or family, and the intruder (if they manage to survive the encounter).

Due to this high hurdle, the presumption that deadly force was reasonable is usually the whole enchilada in Castle Doctrine cases. When the Castle Doctrine conditions are met, the law orders the police, the district attorney, the grand jury, and everyone else to assume that the shooter’s use of deadly force was justified. In states with the Castle Doctrine, establishing a criminal prosecution or a civil wrongful-death case can be nearly impossible if the would-be defendant has acted in accordance with the statute.

The second element is that the Castle Doctrine grants a shooter the presumption of reasonableness only in specific locations- at home, at work, and in their vehicle. The motivation for the law is that people should be able to feel safe in these places, and should be able to defend themselves and their families if the need arises. In these specific locations, the law prioritizes the right to self-defense over any interests of an intruder.

The third important part of the code is the “and” at the end of subsection (2) above. The implication of a trailing “and” is that all of the conditions in the list must be satisfied. Which leads to the final part: “otherwise engaged in criminal activity.” The Texas statute suggests that anything more illicit than a traffic violation should be enough to trigger the limitation in part (3).

Better Homes and Basement Gardens

An unorthodox choice of interior landscaping might mean that Mr. Arcay and his roommate could have a bit of trouble pulling up the drawbridge. The intruders were reportedly trying to steal marijuana that Arcay had been growing in his house:

Arcay and the roommate are now wanted by police for possession of 25 to 35 marijuana plants.

“The suspects targeted this house and the occupants repeatedly to steal marijuana they knew was in the house,” [Police Lieutenant] Trupe said. “We still feel, though, whatever was going on in that house, the occupants were justified in the force they used.”

A discussion of the propriety of marijuana criminalization laws is beyond the scope of this article (interested readers should peruse Gonzales v. Raich, the 2005 Supreme Court ruling that upheld federal law regulating marijuana production). Despite the best efforts of netizens at Change.gov, it is still a federal crime to grow marijuana in the United States–and unfortunately for Mr. Arcay and his roommate, possession of marijuana is a felony in the state of Texas (no matter how you spell it):

Sec. 481.121.  OFFENSE: POSSESSION OF MARIHUANA. (a)  … a person commits an offense if the person knowingly or intentionally possesses a usable quantity of marihuana. (b) An offense under Subsection (a) is: …. a felony of the third degree if the amount of marihuana possessed is 50 pounds or less but more than 5 pounds.

In general, judges don’t like to reward bad behavior. A criminal defendant generally can’t use a defense if the actions that need defending occurred during a different illegal act. Think: the law won’t allow you to claim self-defense if you shoot the guard who tries to stop you from robbing a bank. But can Mr. Arcay’s roommate claim self-defense as a justification for shooting intruders who were trying to steal their weed?

Applying The Law To The Facts

As noted above, the Texas version of the Castle Doctrine has a limitation that might operate to exclude Mr. Arcay’s roommate from its protection. Remember, the Texas statute tells the DA and the grand jury to presume that a shooter’s decision to use deadly force against a home intruder was justified and reasonable, unless the shooter was concurrently engaged in other criminal activity. The statute doesn’t make an exception for non-violent crimes, or for chronic or ongoing illegality.

The limitation is significant because the shooter was living in a house where Mr. Arcay had been illegally growing marijuana… which is illegal.  In the words of the statute, Arcay and his roommate were both “engaged in [the] criminal activity” of possessing marijuana as long as it was within their control. Possession of marijuana in this quantity is a felony, enough to trigger Part (a)(3) of the Texas statute and eliminate the presumption.

But that conclusion forces us to wonder whether the limitation itself is reasonable. There is every indication that Arcay and his roommate had good reason to forcefully defend themselves: they were being threatened with violence by armed men who had entered their home by force. This is the sort of self-defense that the Castle Doctrine is meant to promote. It would seem unjust that a person protecting their own life inside their own home might be charged with a criminal homicide, even though the crime that invoked the limitation was unrelated to the act of pulling the trigger.

Another Twist and What’s Next?

One last wrinkle: it’s not clear that any marijuana was actually in Arcay’s house on January 7 when the shooting occurred.  Police found and confiscated the plants  while investigating a previous burglary at Arcay’s house on December 13.  The police may have inadvertently done the roommate a big favor when they removed the plants. Without the drugs, this shooting is a perfect example of the sort of aggressive self-defense that the Castle Doctrine is meant to encourage. Without additional knowledge about the marijuana possession, Amarillo’s police did just what the law orders them to do:assume that the shooting was justified self-defense and allow the shooter to go free.

If police found marijuana at the house on the day of the shooting, Arcay and his roommate  should not have the benefit of the protections that the Castle Doctrine gives to law-abiding Texas residents. Without the presumption that deadly force was justified, the shooter may still be able to prove that he pulled the trigger in self-defense, but the ultimate decision should be left to a jury.