The Volokh Conspiracy
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Defending Your Dog Against Family Member Can Lead to Family Violence Protective Order
A Texas court holds that only self-defense—not defense of property—is excluded from such orders (which can also temporarily strip defendant of Second Amendment rights). And the same logic applies to force, even nonlethal force, used to defend your family members against another family member as well.
From Brast v. Brast, decided yesterday by the Texas Court of Appeals (Houston), in an opinion by Justice Margaret "Meg" Poissant, joined by Justices Frances Bourliot and Meagan Hassan.
[Plaintiff] David [Brast] and [Defendant] Randy [Brast] are brothers and neighbors, and [Defendant] Ryan [Brast] is Randy's son. David and his wife, Janet, and on behalf of their son Matthew, sought a protective order from Randy and Ryan for a minimum of two years, arguing that they were in grave fear of serious bodily injury. Appellees asked 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 that arose over a dog on March 27, 2022. The dog, which Randy said was a stray and then Ryan claimed belonged to them, wandered onto David's property. David said that he was going to shoot it or haul it off before picking the dog up and taking it inside his home. When Randy and Ryan trespassed onto David's property to retrieve the dog, the men "got into a scuffle." David testified that Randy and Ryan hit him. Randy and Ryan claimed that they were defending their property when they trespassed onto David's property to retrieve the dog.
For the next four days, Randy and Ryan fired firearms outside of their property and adjacent to David's property, including after midnight. David testified that on the third day, one of the men drove his truck to the side of the property line with David, rolled down his window, and fired gunshots into the ground while facing in David's direction. Finally, David testified that he feared for his life and he feared Randy and Ryan will "come in [and] kill me one night or one evening-me and my family." Janet also testified that she feared for her and her family's life during the events of March 27 and in the future.
[Ryan's friend] Grayson testified about the scuffle and about ownership of the dog that led to the incident, confirming that he had given the dog as a puppy to Randy's daughter. When Ryan testified, he denied striking his uncle David, threatening David or his son, or later 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 threatened repeatedly to shoot it.
The court issued one-year protective orders against Randy and Ryan, which included a ban on their "possessing firearms or ammunition." They defended in part on the grounds that "the[ir] actions were justified under Texas Penal Code § 9.41(b), concerning actions taken in the defense of property":
A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
But the court held that the family violence protective order statute didn't allow such a defense:
"Family violence" necessary for a protective order under the Family Code is defined [in relevant part] as:
(1) an act by a member of a family or household against another member of the family or household that is intended to result in physical harm, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent physical harm, bodily injury, assault or sexual assault, but does not include defensive measures to protect oneself; ….
The plain language of the statute provides that acts in self defense are not family violence, but it contains no similar provision concerning the defense of property. Thus, we conclude that actions in the defense of property do not preclude a finding of family violence as necessary for a protective order under the Family Code and reject appellants' argument….
This strikes me as a bad result. These defendants may have done much more than try to protect their dog (for instance, if the allegations of threatening gunshots were true). But the logic of the opinion goes far beyond that: It makes clear that any use of physical force—including of course nonlethal force—to defend property is "family violence" that can justify a protective order. If a family member is trying to kill your dog, and you punch him to rescue the dog, you're guilty of family violence, and have no legal defense against a possible protective order.
Indeed, under the court's logic, you're guilty of family violence even if you use nondeadly force to protect another person, since that's still not "defensive measures to protect oneself." Punching a family member to protect your child (or a sibling or a parent or anyone else) is "family violence" and can lead to a restraining order (and the temporary loss of gun rights).
I'm skeptical that the court was correct in its statutory analysis. It's true that the "but does not include defensive measures to protect oneself" language on its face is limited to self-defense, and not defense of property or defense of another. But the statutes allowing defense of property and defense of a third person are also statutes, and they expressly say that such behavior "is justified." They create an exception to a wide range of criminal laws dealing with violence, and I think it may make sense to read them as creating an exception to the family violence statute as well.
But even if the court was right as to the statutory analysis, the result still seems to be very bad from a policy perspective. The prohibition on firearms possession based on a defendant's noncriminal defense of property or third persons would also violate the Second Amendment, I think. (The Second Amendment challenge in this case was dismissed on mootness grounds, because the one-year gun restriction had expired by the time the appeal was decided.) I hope the Texas Legislatures steps in here, to protect lawful defense of family members, as well as of pets and other property, in such situations.
