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Typically, Halloween is a joyous time of the year. However, the global pandemic will likely alter plans this year. Whether you plan to go out or stay at home this Halloween, it is certainly still wise to understand the potential dangers this time of year presents and how to avoid legal pitfalls.

Historically, Halloween has been a time for people to feel that it is acceptable (and maybe even traditional) to commit acts of theft and vandalism, as long as it is for “trick-or-treat.” Here in Texas, vandalism is taken very seriously and has been given the legal name of criminal mischief. Does Texas law allow you to defend your property against criminal acts on “mischief night?” The short answer is yes, but you must be very careful when using force or deadly force to protect your property.

Late-Night Ghouls at the Door…

What if Halloween troublemakers bring you the ultimate scare—someone attempting to break into your occupied home? The Texas version of the “Castle Doctrine” states that deadly force is legally presumed to be reasonable if used against someone who is attempting to or has succeeded in forcefully and unlawfully entering into your occupied home.

The Castle Doctrine can also be applied to the protection of your occupied motor vehicle against carjackings, as well as your occupied place of business. This is because home invasions, carjackings, and workplace violence are not strictly property crimes, but are acts of violence that strike at the very core of personal safety.

Mischief and Vandalism

What if the Halloween troublemakers are instead attempting to get into your toolshed or unoccupied car, or if they are stealing your lawn decorations or smashing your pumpkins? Unlike a home invasion or carjacking, there are no legal presumptions of reasonableness when defending property alone. The use of force or deadly force is only allowed when and to the degree it is reasonably necessary to protect or recover the property.

In fact, when preventing the crimes of mere trespassing, theft during the daytime, and criminal mischief during the daytime, only force and not deadly force is legally permitted. If the crime being perpetrated is burglary of a car or building (not an occupied home since the Castle Doctrine applies as mentioned above), arson, theft at night, or criminal mischief at night, the use of force or deadly force may be exercised to protect the property.

However, deadly force can only be used in those situations if you have a reasonable belief the property could not be protected or recovered by any other means, or the use of force alone would subject you to a substantial risk of death or serious bodily injury. So be careful and think about whether or not a jury would think it was reasonable for you to use deadly force against a teenage prankster. Odds are that a jury might identify more with the dead or injured prankster than you.

Trick-Or-Treating with Real Weapons?

Members have asked if they can integrate real weapons into a Halloween costume. However, trick-or-treating with real weapons can be a “dual-edge-sword” issue. The Texas Legislature has recently changed some laws that might make your knight or barbarian costume a little more realistic. In 2017, the century-old prohibition on carrying swords, daggers, spears, etc. was removed from the unlawful carry statute.

In 2019, the Texas Legislature continued its decriminalization of weapons by legalizing the carrying of clubs, axes, tomahawks, maces, etc., as well as legalizing knuckles, such as brass knuckles, ring guards, and cat head shaped keychains. Beware: the Texas Legislature legalized the weapons for general carrying, and they continue to be prohibited by statute in specific areas. Therefore, the law allows you to carry a sword while out chaperoning your kids trick-or-treating or at your friend’s Halloween party, (although these activities are less likely this year during the pandemic), but you cannot carry it at any school-sponsored Halloween event. Although 51% establishments may not be open because of the pandemic, remember that carrying your firearm or sword (even with your costume) into one of these locations is a felony offense.

While carrying these weapons is no longer prohibited, they are considered deadly weapons and therefore their use is only permissible in the same situations where you could justifiably use your firearms. Stay safe and let’s all have a Happy Halloween.

For any questions regarding activities and home defense during Halloween, call Texas LawShield and ask to speak to your Independent Program Attorney.

The preceding should not be construed as legal advice nor the creation of an attorney-client relationship. This is not an endorsement or solicitation for any service. Your situation may be different, so please contact your attorney regarding your specific circumstances. Because the laws, judges, juries, and prosecutors vary from location to location, similar or even identical facts and circumstances to those described in this presentation may result in significantly different legal outcomes. This presentation is by no means a guarantee or promise of any particular legal outcome, positive, negative, or otherwise.