Would Texas Bill H.B. 868 Make it More Likely that Teachers Will Shoot Students?

Commentators at Daily Kos and ThinkProgress believe it will. From the ThinkProgress article:

People who are concerned about the use of excessive force by law enforcement may have to deal with another fatal can of worms. If Texas state Rep. Dan Flynn (R) gets his way, teachers will have the right to use deadly force against students in Texas classrooms, in the near future. 

The Lone Star State already permits teachers to have firearms in the classroom, but H.B. 868, also known as the Teacher’s Protection Act, would authorize instructors to use “force or deadly force on school property, on a school bus, or at a school-sponsored event in defense of the educator’s person or in defense of students of the school that employs the educator.” Instructors would also have the right to use deadly force “in defense of property of the school that employs the educator.” Moreover, civil immunity would be granted to those who use deadly force, meaning they would not be liable for the injury or death of student.

Such a bill could have disastrous consequences for students of color. A coalition of civil rights organizations found that black and Latino students face much higher rates of disciplinary action in schools, which exacerbates the so-called school-to-prison pipeline. By extension, if students of color are already disproportionately targeted by school authorities for their behavior, they could also become the targets of deadly force used by educators.

Additional coverage from the Houston Chronicle is available here. Most discussion of the law that I have been able to find is highly critical, arguing that teachers will be much more likely to shoot students if this bill is passed.

But what does the proposed law really permit? The full text of the H.B. 868 can be found here. The bill states:

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS: SECTION 1. Subtitle G, Title 2, Education Code, is amended by adding Chapter 38A to read as follows: 

CHAPTER 38A. TEACHER'S PROTECTION ACT 

Sec. 38A.001. SHORT TITLE. This chapter may be cited as the Teacher's Protection Act. 

Sec. 38A.002. EDUCATOR'S DEFENSE OF SELF OR STUDENTS. (a) An educator is justified in using force or deadly force on school property, on a school bus, or at a school-sponsored event in defense of the educator's person or in defense of students of the school that employs the educator if, under the circumstances as the educator reasonably believes them to be, the educator would be justified under Section 9.31, 9.32, or 9.33, Penal Code, in using force or deadly force, as applicable, in defense of the educator or students. 

(b) It is a defense to prosecution for an offense committed by an educator only in the course of defending the educator's person or students of the school that employs the educator that the conduct is justified in the manner described by Subsection (a).  

Sec. 38A.003. EDUCATOR'S DEFENSE OF SCHOOL PROPERTY.  (a) An educator is justified in using force or deadly force on school property, on a school bus, or at a school-sponsored event in defense of property of the school that employs the educator if, under the circumstances as the educator reasonably believes them to be, the educator would be justified under Section 9.43, Penal Code, in using force or deadly force, as applicable, in defense of property of the school that employs the educator. 

(b) It is a defense to prosecution for an offense committed by an educator only in the course of defending property of the school that employs the educator that the conduct is justified in the manner described by Subsection (a).  

Sec. 38A.004. NONEXCLUSIVITY. This chapter does not prevent an educator who is a defendant in a criminal prosecution from offering as a defense to prosecution any justification provided under Chapter 9, Penal Code. 

Sec. 38A.005. CIVIL IMMUNITY. An educator who uses force or deadly force that is justified in the manner provided under Chapter 9, Penal Code, as described by this chapter, is entitled to the civil immunity provided by Section 83.001, Civil Practice and Remedies Code, for injury or death that results from the educator's use of force or deadly force, as applicable.  

Sec. 38A.006. SUSPENSION. A principal or other appropriate administrator may suspend a student under Section 37.005 who engages in conduct that contains the elements of the offense of assault under Section 22.01, Penal Code, against an employee of the school, regardless of whether that conduct is identified in the student code of conduct as conduct for which a student may be suspended. 

SECTION 2. This Act takes effect immediately if it receives a vote of two-thirds of all the members elected to each house, as provided by Section 39, Article III, Texas Constitution. If this Act does not receive the vote necessary for immediate effect, this Act takes effect September 1, 2015.

The most heavily-criticized part of the law is Section 38A.003 which permits deadly force for the defense of school property. But it is important to note that this section is qualified by Penal Code section 9.43 -- the elements of which must be meant for teachers' use of deadly force to be justified. This is important because when deadly force is employed under section 9.43, the elements of Penal Code section 9.42 must also be met. Under section 9.42:

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or
(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

With all these cross-references now in mind, the scope of any new force that H.B. 868 would allow seems fairly limited. Teachers' use of deadly force to protect school property would be limited to circumstances where that force is "immediately necessary" to prevent certain criminal activity. Most of the crimes enumerated in section 9.42 are severe (e.g., arson, burglary, robbery), and the less-severe crimes mentioned in that section, like criminal mischief, are only applicable to a self-defense scenario if they are committed during nighttime. This nighttime qualifier would render the broad "theft" and "criminal mischief" crime situations inapplicable to most teacher-student interactions, which presumably take place during the day.

Additionally, section 9.42 would restrict teachers' use of deadly force to situations where the teachers reasonably believe that the property could not be protected by any other means, or that anything less than deadly force would expose the teacher or others to "substantial risk of death or serious bodily injury."

Finally, it is important to note that teachers' use of self-defense in other situations must be justified under existing self-defense laws. Because meeting existing self-defense requirements is a necessary element of justification under H.B. 868, this bill does not seem to give teachers any greater leeway for acting in self-defense.

This is not to say that H.B. 868 is a good idea. Since the law does not seem to give teachers any greater leeway than existing self-defense law, those sections of the law granting teachers the right to use force or deadly force are redundant with existing self-defense laws. As far as I can tell, the only new, significant legal development this law would implement would be to grant teachers civil immunity for any harm caused by their justified use of force or deadly force. This may be a topic worthy of discussion and criticism, but without further investigation into Texas's law of civil immunity and self-defense, I am not sure whether section 38A.005 of H.B 868 makes any notable difference to existing Texas law.

While H.B. 868 has prompted some harsh criticism, most of this criticism is misleading. Once all the proposed law's cross-references are taken into account, the law makes so little difference that it is difficult to isolate what there is to criticize.