Bustos Law Firm

The Heritage, Conception, Life, and Death of Arizona’s S.B. 1062. And Why It’s Important

In Constitutional Law, Federal Law, First Amendment on April 23, 2014 at 9:57 AM


On February 19, 2014, Arizona’s two houses of legislature passed S.B. 1062. Though the bill does not explicitly mention homosexuality or Christianity, it became both a lightning rod and a rally flag, depending on which side of the culture war onlookers identified themselves. Facing intense pressure from businesses, professional sports organizations, and national politicos, Governor Jan Brewer vetoed the bill.

Objective observers of S.B. 1062 would probably agree that the dialogue surrounding the bill generated more heat than light. One need only glance at the “comments” section of almost any article covering the bill to see the belligerents calling each other names and impugning each other’s motives. For example, one commentator on a Powerline article suggested those opposed to S.B. 1062 were “agents of intolerance, hatred and darkness.” http://www.powerlineblog.com/archives/2014/02/no-this-is-not-jim-crow-for-gays-understanding-arizona-s-b-1062.php.

On the other side of the debate, one well respected news reporter let his anger cloud his logic so much that he blatantly contradicted himself in less than a minute’s time. In a news piece titled “Keeping Them Honest,” CNN’s Anderson Cooper first accused one of the interest groups that helped draft the bill of acting strange for not coming on his show since “they were not keeping [their role] secret” and then, less than a minute later in his monologue ominously suggested that what was wrong with the groups’ activity was not their activism but that they were keeping their role a secret. See http://mediamatters.org/blog/2014/02/28/cnn-and-msnbc-expose-the-anti-gay-group-behind/198280, first posted clip at 1:30 to the end.

Another gay-rights activist described the controversial bill as “a wretched, conceived-in-hate piece of trash.” http://americablog.com/2014/03/arizonas-sb-1062-egregiously-misrepresented-critics.html. Actually, instead of “hate,” the controversial bill’s conception is intertwined with First Amendment jurisprudence and historical legislative (both federal and state) reactions to that jurisprudence.

The First Amendment

Ratified in 1791, the First Amendment forbids Congress from prohibiting the free exercise of religion. Since that time, courts have struggled to find a correct balance between an individual’s freedom of religion and society’s demands of each individual. For example, at one extreme, although a worshipper of Moloch might feel religiously compelled to offer her child as a burnt sacrifice to the ancient Ammonite god, Texas Penal Code §19.03 defines such conduct as capital murder, punishable by death or life imprisonment without parole. Does Texas Penal Code § 19.03, therefore, “prohibit[] the free exercise of” religion? The answer is easy, and must be an emphatic “no.” Otherwise, the First Amendment “would . . . make the professed doctrines of religious belief superior to the law of the land, and, in effect . . . permit every citizen to become a law unto himself.” Reynolds v. United States, 98 U.S. 145, 167 (1878). President Lincoln (though not in reference to freedom of religion but as justification for firing on Fort Sumpter) framed the dilemma as follows: “Must a government, of necessity, be too strong for the liberties  of its own people, or too weak to maintain its own existence?” See Minersville School Dist. v. Gobitis, 310 U.S. 586, 596 (1940).

As history attests, drawing the line of demarcation using clear legal standards that adequately balance both the individual’s First Amendment interests and society’s demands of each individual, can be challenging.

Where To Draw the Line?

Early Supreme Court decisions, lacking the balancing tools of the later-promulgated levels-of-scrutiny constitutional jurisprudence, drew a severe line, limiting religious freedom’s scope to protecting belief but not action. For example, the Reynolds Court, when faced with the issue of whether a law prohibiting plural marriage violated a 19th-century polygamous Mormon’s First Amendment rights, ruled that “Congress [is] deprived of all legislative power over mere opinion, but [is] left free to reach actions.” Id. at 164 (emphasis added). In other words, because Mr. Reynolds’ sentence to two years’ hard labor was based on his actually marrying a second wife instead of merely holding the opinion that doing so would be morally right, the Court found his First Amendment rights to remain intact despite the sentence. The same Court, however (likely fearing a Pandora’s box that would lead to anarchy, especially if the Court granted a First Amendment right to participate in what “has always been odious among the northern and western nations of Europe”) ignored the thorny fact that the First Amendment protects “free exercise of religion,” not mere opinion. Id.; U.S. Const. amend. I.

The Reynolds bright line began to blur in 1943 with West Virginia State Board of Education v. Barnette, in which the Court ruled that a state could not compel a Jehovah’s Witness school child to pledge allegiance to the flag. 319 U.S. 624. Though the Court packaged the ruling with a consciousness of the Reynolds language (claiming that making a symbol and stating a vow was intimately linked with belief) the holding nonetheless undoubtedly weakened Reynolds’ assertion that “legislative power . . . [is] left free to reach actions.” Reynolds, 164.

In 1968, that line blurred to breaking, when the Court addressed the issue of whether a Seventh-Day Adventist could be required to accept work on Saturdays to receive unemployment benefits. Sherbert v. Verner, 374 U.S. 398. The Court ruled in favor of the Seventh-Day Adventist. The Court wholly discarded the Reynolds bright line rule and instead analyzed the issue through the constitutional “levels of judicial scrutiny,” created by United States v. Carolene Products Company, 304 U.S. 134 (1938). The Court examined the law with strict scrutiny, further stating that “only the gravest abuses [of religious exercise] give occasion for permissible limitation” by the state. Sherbert at 406.

 Religious Freedom Restoration Act

In 1990, with Employment Division v. Smith, the Supreme Court again demonstrated the precariousness of the balance between individual religious liberty and public safety, peace, and order. 494 U.S. 872. There, the Court decided whether a user of an illicit drug could seek First-Amendment refuge from criminal prosecution. In Smith, the Court returned to a more Reynolds-like position, expressly rejecting the compelling interest requirement for government actions that burdened the exercise of religion. Id. at 888-889. The Court held that if the religious conduct burdened (in this case, smoking peyote) is prohibited by law (whereas in Sherbert observing a Saturday Sabbath was not prohibited by law, a distinction the Court was careful to note), then no heightened scrutiny applies. The only question for reviewing courts in such situations is whether the law is “generally applicable” (the inverse being whether the State is specifically targeting or exempting a religion) and whether the law in question has a rational basis.

It is perhaps no coincidence that the three decades preceding Smith saw not only a rising crime rate but also a rising drug-related crime rate. Thus, it is quite possible that the Court’s sudden jerking back of the religious freedom reins was informed by the same fear that informed Reynolds: “every citizen . . . a law unto himself.”

Although it is only arguable that Smith was a reaction to three decades of increasing lawlessness, there is no question that the Religious Freedom Restoration Act was passed in reaction to Smith. See City of Boerne v. Flores, 521 U.S. 507, 513 (U.S. 1997). In effect, Congress said to the Court, “if you will not find stronger protections of religious exercise in the Constitution, we will craft our own statutory protections.” In 1993, the Democrat-controlled House and Senate passed (with only three total dissenting votes) and President Clinton signed, the Religious Freedom Restoration Act (“RFRA”). Among other things, RFRA restored strict scrutiny as the lens through which Courts must evaluate religion-burdening state actions. The Court, however, soon made clear that RFRA had not once and for all settled the balance.

Supreme Court Strikes Down RFRA As To States

In 1997, in City of Boerne v. Flores, the Supreme Court struck down much of RFRA, holding that the Constitution did not grant Congress the authority to impose RFRA’s requirements on the states, though RFRA’s restrictions continued to apply to the federal government. 521 U.S. 507.

In response, many states passed their own version of RFRA. One of those states was Arizona. Arizona’s RFRA was a precursor to S.B. 1062. Events in other states led Arizona legislators to believe that additional RFRA protections and an expansion of the Arizona RFRA were required.

In 2013, the Supreme Court of New Mexico upheld a fine imposed on a photographer by the New Mexico Human Rights Commission (NMHRS) for refusing to photograph a gay “commitment ceremony.” Elane Photography, LLC v. Willock, 2013-NMSC-040, 8 (N.M. 2013). The NMHRS based its fine on the New Mexico Human Rights Act of 2007, which prohibits public accommodations from discriminating against people based on their sexual orientation. That same year, bakeries in Oregon and Colorado were subject to fines for refusing, on religious grounds, to bake a wedding cake for a gay couple. The Oregon bakery faces the possibility of hundreds of thousands of dollars in fines, and the state’s Labor Commissioner has spoken of a desire to “rehabilitate” the bakery.

In reaction to these cases, and to protect orthodox Christians from being forced to participate in activities contrary to their beliefs, many states moved to enact their own RFRA or broaden the RFRA they currently had. Arizona was one such state. Arizona’s S.B. 1062 attempted to broaden its RFRA so as to extend the Act’s protections to not only churches but also individuals and legal entities. S.B. 1062 would also have allowed use of the new RFRA in a lawsuit as a claim or defense regardless of whether the government was a party to the proceeding.

The rest is history. When both houses of legislature passed the bill, a media firestorm erupted, decrying the bill as something intended to legalize discrimination against homosexuals in places of public accommodation (something that was already legal in Arizona, by the way). Almost everyone in the public sphere had something to say about the bill—from the National Football League to two failed Republican presidential nominees—most weighing in against passage. In an unprecedented turn of events, three legislators who voted for the bill shortly thereafter publicly expressed regret for their vote.

Jan Brewer, whose own administration helped draft the legislation, exercised her veto, stating that she did not see how the bill was necessary.

The Troubling After-Taste of S.B. 1062

Reasonable people can disagree on whether S.B. 1062 was a “solution in search of a problem,” as one of the GOP legislators described the bill to justify his opposition thereto after voting to pass it. Reasonable people can also disagree on where, exactly, the balance ought to lie in protecting freedom of conscience, particularly within the developing corpus of gay rights. The troubling aspect of S.B. 1062’s life and death, however, is that instead of a principled discussion taking place regarding these issues, name-calling and outright deceit were used to attack those on the opposite side of the argument. Those supporting the bill should not be labeled hate-filled bigots by virtue of their support of the First Amendment, just as those opposed to it should not be vilified as anti-religious deviants.

Also troubling to people of faith is the question of where not only religious liberty but liberty in general stands in the wake of S.B. 1062’s demise. If such measures as S.B. 1062 become taboo, while measures like New Mexico’s NMHRA become commonplace, is there any space left for those opposed to participating in events that run contrary to their deeply held religious beliefs? If an orthodox Christian must choose between actively participating in a gay wedding and losing her livelihood, why not pass a statute forcing an Evangelical Christian to photograph a Latter-day Saint couple after a temple wedding? Why not pass a statute forcing a Muslim-owned food company to sell grape juice to a distillery whose sole function is to produce wine used at a Catholic Mass? Why not force a gay accountant to give tax advice to a Muslim mosque that teaches homosexual acts should be punished by death? The intended beneficiaries of such statutes would all belong to historically persecuted groups, and all could argue that they feel ashamed and discriminated against without these statutory protections.

But if such laws are passed and enforced, who decides who gets to force whom to do what? In other words, at one point does liberty—both of gay-rights activists as well as orthodox Christians—disappear, only to be replaced by the rule of the strong? When does a law that forces someone to choose between acting in accordance with their religious beliefs and providing for themselves and their families not “prohibit the free exercise of religion?”

Of course, as with the hypothetical child-sacrificing Moloch-worshipper discussed above, there must be some limitations to the free exercise clause. But no one would disagree that the state has a compelling interest in prohibiting child sacrifice. There is plenty of room for disagreement, however, as to whether the state has an interest strong enough to override First Amendment rights in protecting individuals from feelings of shame and embarrassment—however real those feelings might be for gay couples who are denied wedding services. Furthermore, if the state arrogates to itself the role of affirmation czar, why should it not be equally concerned with the feelings of the Christian couple who were forced to close their Oregon bakery? Surely the protests, death threats, and administrative proceedings instilled in them feelings of shame, embarrassment, and fear.

In answering these questions, we should remember religion’s great importance to America’s conception of liberty. “We have not government armed with power capable of contending with human passions unbridled by morality and religion . . . . Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” John Adams, letter, October 11, 1798. “Americans [have historically] combined the notions of [religion] and of liberty so intimately in their minds, that it is impossible . . . to conceive the one without the other.” Alexis de Tocqueville, Democracy in America, vol. 1, trans. Henry Reeve (New York: Geroge Dearborn and Co., 1838), 287. They “are intertwined, interlinked, and interlocked so tightly that when one of them . . . is cut, the other . . . will bleed.” Jeffrey R. Holland, “Faith Family and Religious Freedom,” Clark Memorandum, Fall 2013, 29.

New Provisional Waiver Rule to Ensure Family Unity Goes Into Effect

In Immigration on June 4, 2013 at 3:31 PM

imagesAs of March 4, 2013, green card seekers who are not eligible to adjust status within the U.S., and face significant waits abroad due to their unlawful presence, now have another option: applying for a provisional waiver of unlawful presence, or the “stateside” waiver.

The “Provisional Unlawful Presence Waiver of Inadmissibility for Certain Immediate Relatives” rule, often referred to as the new family unity rule, allows immediate relatives  of U.S. citizens, who entered the country without permission, to apply for a waiver of their unlawful entry, while still in the United States.  DHS initially proposed the change in procedure last April, as a solution to a growing problem—families were facing months, and in some cases, years of separation because of two conflicting provisions in U.S. immigration law.

BACKGROUND – Everyone who applies for a visa or green card is first checked to see whether he or she is “admissible” to the United States if they wish to have their case decided in the U.S.  One of the grounds of inadmissibility is unlawful presence in the United States of 180 days or more, but there are several others (including medical history and criminal convictions). Thus, if someone entered the country unlawfully they are deemed inadmissible and the law requires them to go to a U.S. embassy or consulate abroad for processing of their visa application, and to get a waiver for their unlawful presence, before they can return to the United States.

People are deemed inadmissible if they are “unlawfully present” in the U.S. for six months after April 1, 1997, subsequently leave the U.S., and then seek admission by applying for an immigrant or nonimmigrant visa from abroad. Such persons are subject to a three year bar to re-entering the country, which requires the unlawful presence waiver, before they can return to the U.S. The bar to reentering the country is ten years if they were unlawfully present for one year or more after April 1, 1997.

Under past practice, an individual applied for their unlawful presence waiver with U.S. Citizenship and Immigration Services (USCIS), only after having been found inadmissible by a consular official abroad.  This process was generally time consuming, inefficient, and often costly, particularly because it lengthened the amount of time families were apart by several months, and even years, while USCIS made a decision on the waiver — and, of course, sometimes those waivers were not approved at all, and people become permanently separated from their families in the United States. As a result, many couples who need this waiver have chosen to lay low in the United States, rather than go through the waiver process abroad and risk facing the ten year ban.

NEW PROCESS - Under the new provisional waiver process, eligible immigrants will now be able to apply for their waivers in the United States (but only as to certain unlawful presence inadmissibility grounds), and if approved, they will receive their waiver before leaving the United States. Having the waiver in hand, before leaving the United States, will allow immigrants to depart the United States for the green card process, knowing they will almost certainly be allowed to return home to the United States to be with their families. And, in other good news, USCIS is also seeking to cut down on the amount of time immigrants will have to wait abroad to pick up their green card….from the current wait time of several months, to a much more manageable wait time of about two weeks.

Immigrants with multiple grounds of inadmissibility CANNOT apply for the provisional stateside waiver using Form I-601A, and must instead apply for a waiver outside the U.S. using Form I-601. If you ignore this rule and apply anyway, you risk at a minimum losing your application fee – and in a serious enough situation, might risk enforcement activities being started against you. If you think you might be found inadmissible not only because of your unlawful presence in the U.S., but also due to multiple criminal convictions, or for another reason, you should consult with an immigration attorney before submitting your visa and waiver applications.

ELIGIBILITY - In order to be eligible to apply for the new provisional waiver, the applicant must be:

  • An immediate relative of a U.S. Citizen (spouse, child, parent);
    The beneficiary of an approved immediate relative petition ( Form I-130);
    17 years of age, or older;
  • Upon departure from the U.S. – be subject to the unlawful presence ground of inadmissibility only. (If additional waivers for other grounds of inadmissibility are required, the applicant will not be eligible to use the provisional waiver process);
  • Present in the U.S. at the time of filing the application for the provisional waiver and for biometrics collection at a USCIS Application Support Center;
  • Has a case pending with the Department of State (DOS), based on an approved immediate relative petition, and has paid the immigrant visa processing fee; and
  • Show extreme hardship to their U.S. citizen spouse or parent, if the applicant cannot return to the United States, or if they have to relocate outside the U.S. to be with the applicant.“Extreme hardship” is vaguely defined as greater than the normal hardship a qualifying relative can be expected to experience if the immigrant is denied admission. It is important to prove BOTH why the qualifying relative cannot move abroad, AND why the qualifying relative cannot simply live in the US without the Alien. It is not enough to merely assert that the qualifying relative will miss the immigrant’s company, as this is considered a “normal” hardship, not extreme hardship.

Arguments for Extreme Hardship in the United States

Some of the more common arguments for extreme hardship when your relative remains in the United States include, but are not limited to:

  • Your relative has a medical condition and depends on you for care.
  • Your relative is financially dependent on you and you will not be able to provide adequate support from abroad.
  • Your relative has financial debts in the United States and cannot pay them without your support.
  • Your relative has a sick family member and will be unable to care for that person without your support.
  • You are the caregiver for your relative’s children and he or she cannot afford childcare in your absence.
  • Your relative is experiencing clinical depression as a result of your immigration situation.

 Arguments for Extreme Hardship Abroad

Some of the more common arguments for extreme hardship when your relative accompanies you to your home country include, but are not limited to:

  • Your home country is in or on the verge of war and/or political upheaval.
  • Your relative has a serious medical condition that cannot be adequately treated in your home country.
  • Your relative will be discriminated against in your home country.
  • Your relative does not know the language of your home country.
  • Your relative is a primary caretaker for a sick family member in the United States.
  • Your relative will be unable to secure gainful employment in your home country.
  • Your relative’s educational progress will come to a halt.
  • Your relative has children from a previous relationship who will not be allowed to live or visit your home country due to custody issues.
  • Your home country has a high rate of violence.
  • Your relative has financial debt in the United States that cannot be paid from your home country.

In addition to these eligibility requirements, the Department of State must also not have acted to schedule the immigrant visa interview for the applicant before January 3, 2013, the publication date of the final rule in the Federal Register. Those ineligible to file under this rule, however, may still be able to file a provisional waiver if, for example, a new I-130 relative petition is filed with USCIS by a different petitioner on their behalf.

Be Careful About Applying If You Cannot Prove “Extreme Hardship”

The provisional waiver is a great step forward in reducing the time burden that many U.S. citizens face before their qualifying relatives can receive green cards. However, it will not provide lawful status, employment authorization, protection from deportation, or the automatic approval of a green card. For that reason, you should check to make sure you meet all the requirements before you spend the time and money necessary to apply for the new stateside waiver only to possibly have it denied.

The only difference between the original application for a waiver of inadmissibility (using Form I-601), and the new provisional waiver is that you will receive a decision before you need to leave the United States for your interview at a consulate abroad. However, just like with an I-601 waiver, you will still need to submit a considerable amount of evidence to prove that a waiver should be granted due to the “extreme hardship” that your U.S. citizen spouse or parent would face if your case is denied. An immigration attorney can help you to assemble a convincing application package for USCIS, but if you doubt that you can prove extreme hardship, you may want to hold off providing personal information to USCIS until you have the necessary evidence.

How Many Waivers Does USCIS Typically Approve?

In Fiscal Year 2012, USCIS denied 34%, or about one out of every three, I-601 waivers.   Many of those denials were by applicants who prepared their applications on their own or used the services of a notario or an immigration “consultant.”  Considering the stakes at hand, this is not a very wise course of action, and you should seriously consider hiring an experienced immigration attorney to shepherd you through the provisional waiver process. Also, persons who have recently married are usually well-advised not to submit waivers. However, their chances of approval rise markedly after they have children and a house, especially if the breadwinner would be forced to remain at home to care for any children.

What Are the Risks of Applying for the Provisional Waiver?

Some immigrants have been skeptical of this rule change and many wonder whether they should provide their names and addresses to U.S. Citizenship and Immigration Services (USCIS) and admit to living in the U.S. without lawful status. However, in most cases, the potential benefit of obtaining a green card without waiting outside the U.S. for several years outweighs the risks of applying.

You may be worried that your personal information will be used by USCIS in order to place you into detention, or in removal proceedings in Immigration Court, if your application is denied. In most cases, this is improbable, but it is not impossible. If your case merely involves unlawful presence in the U.S., it is unlikely that the information you submit to USCIS will be used against you in this way.

USCIS has also stated that it will not share information submitted on Form I-601A with Immigration and Customs Enforcement (ICE), the agency tasked with apprehending violators of immigration law, unless it involves an individual with a criminal history or fraud violations, or one who poses a threat to national security or public safety. But be aware that USCIS may change this policy at any time due to an administration change, or after a significant event. For example, more cases than ever were referred to ICE after the terrorist attacks of September 11, 2001.

You  should take an honest look at your situation to determine whether your background might raise flags and eventually cause you to be detained or deported. Have you ever provided false information on a government application? Do you have multiple criminal convictions or a history of gang association? Have you been a member of a group that has been linked to terrorist activities? If so, you should consult with an experienced immigration attorney who can advise you on your best course of action before you submit your information to USCIS.

What Happens if My Wavier is Denied?

Waivers that are denied will be subject to USCIS guidance and law enforcement priorities for issuing Notices to Appear (NTA) in immigration court, anyone else who is denied an I-601 waiver will have the choice to either abandon the process (while still remaining in the United States) or appeal the denial — while staying in the United States for the two or three years that it typically takes to adjudicate the appeal.

Of course, the I-601 waiver does not guarantee admission into the United States. The U.S. Consulate, after the initial consular interview, can always discover new grounds of inadmissibility, which may, or may not,  have an applicable waiver to cure the specific ground of inadmissibility.

The bottom line is that those who abandon the waiver process, or who have their waiver appeals denied, if not priority cases for ICE, will be back to square one—undocumented and married to U.S. Citizens. But at least they will be with their families in the United States, rather than separated from them, or forced to move under duress.

FILING FEE - The filing fee is $585 for the I-601A provisional waiver form.

Standing Your Ground in Texas

In Gun Laws, Self Defense, Texas Law on January 15, 2013 at 9:53 AM


The February 26, 2012 Trayvon Martin shooting by George Zimmerman shined a spotlight on Florida’s stand-your-ground law and other such laws in states around the country. All states have a self-defense justification for otherwise unlawful violence. One of the important points on which the states differ, however, is whether and to what extent the person defending herself has a duty to retreat. States that do not require retreat, where possible—not even outside the home—are referred to as stand-your-ground states. In other words, they allow potential victims to stand their ground against first-aggressor assailants.

The Sanford, Florida tragedy soon became a cause célébre for stand-your-ground opponents in Florida. Such opponents point to other tragedies as evidence of the need to repeal such laws. For example, a highly publicized case involved a semi-conscious drunk Floridian trying to enter what he thought was his own home. The real homeowner was also a gun owner. When the man sobered up, he was in the hospital with a bullet through his chest.

On the other hand, stand-your-ground proponents point to stories like Norman Borden’s. While Borden was being run down by a jeep in West Palm Beach, he emptied his pistol into the windshield and then side door of the pursuing car as it approached and then passed, killing two of the three occupants. The surviving assailant later testified that the trio’s plan had been to rough Mr. Borden up with a baseball bat. Looking to the stand your ground law for guidance, the jury rightly acquitted him.

Fourteen states, including Texas, currently have a stand-your-ground law on the books. Gun owners, however, should be careful to understand what those laws mean. Misunderstanding the scope of these laws can have tragic consequences. For example, Raul Rodriguez, a middle-aged Houston man, thought the law gave him an umbrella of protection after brandishing a firearm at his neighbor’s house to try and quiet a noisy late-night party. When the neighbor, 36-year-old elementary school teacher, allegedly lunged at him, Rodriguez shot him dead and wounded two others. Rodriguez said he was just standing his ground. The jury said otherwise, convicting him of second-degree murder. Rodriguez was sentenced to 40 years in prison.

The Texas statute allowing potential victims to stand their ground states: “A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force [in self-defense].” Tex. Penal Code § 9.31(e).

It is difficult to argue that Rodriguez qualified for safe harbor under this section. He approached his victims with a camera, a flashlight and a loaded fire-arm. Most people would see this as an act of provocation.

In order to use deadly force—force capable of causing death or serious injury, such as that used by Rodriguez or any gun owner—subsequent sections of the Texas Penal Code require that the assailant reasonably believe such force is immediately necessary to protect against deadly force, aggravated kidnapping, sexual assault, or robbery. Because Rodriguez’s victims threatened to get a gun, outnumbered him by at least three to one, and showed signs of strong hostility before allegedly lunging at him, Rodriguez’s actions may have not been in conflict with this section of the penal code.

Additionally, other provisions of the penal code provide further restrictions on standing your ground. For example, Texas Penal Code §9.31(b)(5), found in the same section of the penal code as the stand-your-ground provision, states that the use of force is not justified if the shooter sought an explanation from or discussion with the other person concerning the shooter’s difference with the other person while the actor was carrying a firearm without a license and without being in his own home, vehicle, or en route between the two. Thus, if Rodriguez had not held a concealed handgun license, his self-defense argument would have failed under this provision as well.

In conclusion, Raul Rodriguez provides a sobering reminder that gun owners should be extremely careful about the meaning of the stand-your-ground laws. Texas’s stand-your-ground law may be a license to protect oneself against first-aggressor assailants, but it certainly is not a carte-blanche to pick a fight only to shuck smoke wagons and throw lead when an adversary becomes violent.


Get every new post delivered to your Inbox.