Ayoob on Amber Guyger

Disclaimer: I'm not your lawyer and this is not legal advice. If you want legal advice, hire an attorney. 

    Greg Ellifritz linked to a couple articles that Mass Ayoob wrote about the Amber Guyger trial and conviction for murder of Botham Jean, including his most recent article, "UNDERSTANDING MORE ISSUES IN THE DALLAS 'WRONG APARTMENT SHOOTING' TRIAL." If you read my commentary on the verdict, you can probably guess that I wouldn't agree with Ayoob's reasoning, and my mind is not changed after considering his arguments and reviewing what appears to be the applicable law.

     I have a lot of respect for Ayoob's experience and knowledge regarding self-defense and typically hold his opinions in high esteem. I cite to his articles and books frequently. But in reading his article, he seems to decide everything in favor of Guyger. Obviously the jury did not. This might have been because the jury did not believe Guyger. Or it may have been because they did not believe Guyger acted reasonably.

    As Ayoob notes, the law does not require that you be perfect or even correct in your actions; only that you acted reasonably. But the reasonable standard is not a subjective standard, based only on what you thought. Otherwise, every person that ran a stop sign saying that they did not see the sign would never be guilty or liable for the action. Rather, the reasonable person standard is an objective standard that looks at what a mythical reasonable person would have done on the same circumstances. Typically, legal explanations of a reasonable person link it with the word prudent. Even Ayoob recognizes this in his article when he notes that the question put the jury is "What would a reasonable and prudent person have done, in the same situation, knowing what the defendant knew?"

     And, in fact, Texas law requires that, in order to use force in self defense, a person generally must show that he or she "reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force." Tex. Penal Code Ann. § 9.31(a). “Reasonable belief” is defined as "a belief that would be held by an ordinary and prudent man in the same circumstances as the actor." Tex. Penal Code Ann. § 1.07(42). The common definition of "prudent" is "wise or judicious in practical affairs; sagacious; discreet or circumspect; sober," or "careful in providing for the future; provident." Notwithstanding the foregoing, Texas law provides for certain circumstances when, as a matter of law, use of force is not justified, including "in response to verbal provocation alone" and "if the actor provoked the other's use or attempted use of unlawful force."  Tex. Penal Code Ann. § 9.31(b)(1) and (4).

    But Texas law does not stop at whether the person acted reasonably. Rather, there are other limitations on when a person can use deadly force. First and foremost, Texas law provides that "[a] person is justified in using deadly force against another: (1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." Tex. Penal Code Ann. § 9.32(a). And, because the "stand your law" instruction was provided in favor of Guyger, the following is also relevant: "A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section." Tex. Penal Code Ann. § 9.32(c).

    First, I'm going to note that the stand your ground instruction is completely inapplicable here because it doesn't apply a reasonable person standard, but simply requires that the person asserting "stand your ground" must have "a right to be present at the location where the deadly force is used." As written, it doesn't matter that Guyger may have believed she was had a right to be in the apartment because, in fact, she had no right to be present in Jean's apartment.

   Second, while Ayoob points to the fact that other people living in the same apartment building may have gone to the incorrect apartments on a regular basis can actually cut both ways. That is, if a prudent person knew of the problem, a prudent person would arguably take additional care to make sure that he or she was not entering the wrong apartment.

   Third, and similar to the first point, Texas law on self-defense only allows self-defense against a person unlawfully using force, and specifically only allows deadly force in defense of deadly force or to prevent certain enumerated crimes. It does not allow the use of force against a verbal provocation or when the person claiming self-defense provoked the use of force. According to Ayoob, Guyger used of force was "reasonable" because she was presented with the situation of Jean saying "hey, hey, hey," and not showing his hands as ordered. Yet this was only a verbal provocation. There is no evidence that Jean had a weapon. See Graves v. State, 452 S.W.3d 907, 911 (Tex. App. 2014) (lethal force self-defense claim rejected because there was no evidence that the aggressor had a weapon). Moreover, by drawing her weapon, Guyger arguably provoked any force that Jean may have used.

    Fourth, while Ayoob gives a good explanation as to why certain discrete choices or actions by Guyger may have been "reasonable," I think he misses the forest for the trees: i.e., an ordinary and prudent person is not so distracted or oblivious so as to walk into someone else's home and shoot the occupant dead.

   Finally, I am intrigued by Ayoob's comment:

With Botham Jean within a second of reaching her, she could not possibly have backed up faster than he could continue moving forward; she had been disarmed (of her TASER) by a strong man a year or so before; and she entered encumbered with the police gear she was holding in one hand, which also accounts for why she described firing with one hand only.

(Underline added). As I wrote in my earlier post, Guyger "was completely unaware of her surroundings, not confident of her own abilities to manage a suspect, and too excitable to manage her emotions or reactions," and this additional detail seems to further support my conclusion.

    Should Guyger have been charged with murder is a different matter. I suspect that if the jury had been given the option of finding Guyger guilty of reckless homicide, it would have done so.