Defense of a third party and the meaning of ‘immediately necessary’

Self-defense claims show up regularly in prosecution, and their brother, defense of a third party, only slightly less often. Both claims require that force be “immediately necessary” before they apply, but neither statute nor any other part of the law defines what “immediately necessary” means. In Henley v. State, the Court of Criminals Appeals looked at that meaning and what is required for self-defense or defense of a third party to apply.

The facts
Gregory Henley and his ex-wife, Brandy, were going through a custody dispute. At the time of trial, Gregory had sole custody of their two sons, and Brandy had supervised visitation. The visitation was supervised due to claims that Brandy’s new husband, Douglas, had strangled the boys and Douglas’s 11-year-old former stepson had sexually abused them.
    On the day of the offense, Brandy and her mother (who supervised the visitations) arrived at Henley’s house to pick up the boys. Brandy refused to speak to Henley other than to tell him to bring the boys to the car. When he refused, she called 911 to report that Henley was violating the court order allowing her visitation. Henley brought the boys to the car and put them in the backseat. Brandy was sitting in the driver’s seat waiting for the police to arrive when Henley broke off her door handle, pulled Brandy out of the car by her hair, hit her in the face with his fists, and knocked her head against the concrete. When Brandy’s mother tried to intervene, he shoved her back, and she broke her arm in the fall. Henley then got in his car—without his sons—and drove away.
    At his assault trial, Henley claimed defense of a third party, that his assault of Brandy was justified to protect his sons from potential abuse by Douglas or his stepson. He wanted to present evidence about the allegations against Douglas and his stepson and evidence that Brandy had lied to the family court about living with Douglas, showing that he had a reasonable belief that Brandy might violate the court order about not allowing Douglas to be around the boys during her visits. The abuse allegations were first made in August 2011; this offense was in May 2012. Henley testified in a hearing that he became aware of additional allegations a week before the offense, but he did not contact CPS or the police or make any attempt to modify the custody orders in that time. After several hearings outside the jury’s presence at different points of the trial, the trial court ruled that the evidence was irrelevant and thus inadmissible.

“Immediately necessary”
Both self-defense and defense of a third party share the requirement that the actor believe his use of force is “immediately necessary” to protect himself or a third party. The term “immediately necessary” is not defined in either statute or elsewhere in the Penal Code. Although the Court has not considered the immediacy requirement in the defense of a third person context, it drew the analogy to a similar justification defense: necessity. The necessity defense justifies conduct if the actor believes the conduct is “immediately necessary to avoid imminent harm.” Imminent harm means harm that is ready to take place; therefore, for conduct that is immediately necessary to avoid imminent harm, “that conduct is needed right now.” For force to be “immediately necessary” to protect another, it must be force that is needed at that moment, “when a split-second decision is required.”
    A defendant has the right to present evidence relevant only to a valid justification defense. Otherwise the evidence is irrelevant and inadmissible. Thus, Henley turns on whether the evidence showed a valid defense of a third party justification to the assault charge. If not, the evidence was inadmissible. The Court concluded that even if all of Henley’s evidence was true—giving reasons why he did not trust Brandy to watch the boys and why he was angry at her ignoring his concerns—it still did not do anything to justify assaulting her because there was no split-second decision that it was necessary to assault her to protect his children. Neither Douglas nor his former stepson were present at the time, and there was no evidence that there was any imminent danger of them coming into contact with the boys. Henley’s evidence focused only on his fears based on information that was, at best, a week old. Any potential harm he feared was “neither immediately present nor certain to occur in the immediate future.”
    In considering whether the threat was imminent, the Court noted the number of other alternatives Henley could have taken to address his concerns if he was afraid the boys were in danger. He could have sought out a temporary restraining order to prevent Brandy’s visit, filed for a change in the custody arrangement with the family court, or notified CPS or the police. Indeed, because Brandy had already called 911 and was waiting on the police to arrive when Henley started assaulting her, he could have just waited for the police and explained his concern. The Court also pointed out that Henley created the danger by first putting his sons in Brandy’s car and then assaulting her. He also left his sons behind (and possibly in danger) when he drove away after the assault. In all, the Court decided that Henley’s evidence helped make his anger more understandable, but it did not provide a valid defense.
    In short, the Court concluded that to be justified to use force to protect a third person, the person had to have been in immediate danger, not danger from an “imagined future scenario.” Because Henley’s evidence did not show that Douglas or his former stepson were present or that Brandy or her mother were about to endanger the boys, his evidence did not support defense of a third party.

Going forward
What does Henley mean for practitioners? Importantly, the Court’s decision was not unanimous, spawning three dissenting opinions and one concurring opinion. Two of the dissents argued that Henley was entitled to present evidence on the issue even if a jury might not have found reasonable his belief that force was immediately necessary. This highlights how dangerous a road a prosecutor faces when trying to exclude requested jury charges. Any evidence raising a defense—no matter how weak, impeached, or contradicted—requires it to be included in the jury charge upon request. Here, the majority opinion relied on the conclusion that even if Henley’s evidence was fully believed, it still did not raise the defense and thus the evidence was irrelevant. It is important for prosecutors to remember that the question is not whether the evidence is believable but simply whether it exists.
    Presiding Judge Keller’s dissent raised a different issue. She believed that the majority ruling added an extra imminency requirement to the statute. The statute requires that force only be immediately necessary, not that it be immediately necessary to protect against imminent use of force. This, Keller believes, is to prevent a “point of no return” event from returning, where it may be the last opportunity to use force even though the danger itself is in the future. However, even this danger was not present in Henley, as there was no indication that dragging Brandy out of the car while she waited for the police to arrive was the “point of no return” after which Henley’s sons would inevitably find themselves facing danger. But in another case where the danger may not be immediate but the need to act is—perhaps if Brandy had been threatening to take the boys away to hide with her and Douglas and Henley had no other opportunity to stop her—a court may find that such circumstances do satisfy the immediacy requirement. The important factor to keep in mind is thus not whether the danger is about to happen, but whether the defendant’s actions were necessary at that moment to prevent the danger.
    In light of the concerns raised by the dissents, it is important not to get carried away with this victory for the State. Small changes in Henley’s facts could have resulted in a very different opinion. But in cases where the defendant is claiming to have been acting under self-defense or defense of a third party based on purely an “imagined future scenario” instead of a danger actually close at hand, this case is an important weapon in the prosecutor’s arsenal. A defendant cannot simply use his imagination to think of a possible danger in the future to justify an assault in the present. The danger must be in some way near at hand or immediate, or the assault is just an assault.

Endnotes

1 Henley v. State, No. PD-0257-15, 2016 WL 3564247 (Tex. Crim. App. June 29, 2016).

2  The strangling allegation was later found not true, and the sexual assault allegation was found to be true.

3  Tex. Penal Code §9.22.

4  Henley, slip op. at 19.

5  Id. at 20.

6 Id. at 5.

7  Id. at 21-22.

8  Id. at 22.

9 Id.

10  Id. at 25.

11  Id., Hervey, J., and Newell, J., dissenting.

12  Beltran v. State, 472 S.W.3d 283, 290 (Tex. Crim. App. 2015).

13  Henley, slip op. at 2 (Keller, P.J., dissenting).