Oh oh; "questionable" shooting in Pasadena, TX....

[Dallas239]

Bartholomew wrote:

Given the definition of necessity, I think he will be in trouble if it gets to a jury; but I don't expect it to get that far.

:Sec. 9.22. NECESSITY. Conduct is justified if:

The definition that you are quoting is not a definition. It is its own completely seperate, generally applicable, affirmative defense.

 

[OldTXCop]

He can't claim self defense, because he initiated the situation, when he went outside. That also nullifies his "necessity". The intent of protecting a 3rd person's property, is for situation's like you are protecting your wife, or her property. The concensus among those teaching the continuing education penal code class I took the weekend after this incident, is that technically he is without legal grounds to stands on, and had better hope for a jury, made up of those, like most of us here. BTW if you listen to the end of the phone call, thre were officers on the scene within seconds of the shooting.

Personally, I hope he gets cleared, because it sure would send a clear message to the BG's.

We'll have to keep an eye on this one.

 

[Dallas239]

Jeff White wrote:

ClickClickD'oh, you should know by now that here at THR, whenever the actual law is in conflict with what someone's emotion thinks it should mean, emotion wins out....

It appears to me that the objective elements required in the law are met here. So this will hinge on a question of "reasonableness", which is pretty much an emotional question to being with.

And C.C.D. didn't get the law correct when he paraphrased, because "and"≠"or"

And I haven't seen anyone quote this section of the Texas Penal Code:

§ 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor's purpose is limited to creating an apprehension
that he will use deadly force if necessary, does not constitute the
use of deadly force.

Which basically says this gentleman could have legally threatened deadly force even if he wouldn't be justified in using it, as long as he would have been justified in using force to prevent or stop the burglary. If he did that and then they turned on him, he won't be dealing with deadly force in protection of property, he'll be dealing with self defense. Then he only has to satisfy the requirements of § 9.41 and not the tougher requirements of § 9.42.

Bottom line, anyone who claims there is a clear legal answer in this case, probably doesn't understand the law very well or hasn't given it enough thought. There's even a criminal defense attorney quoted in the paper saying that deadly force can only be used to prevent burglary during the nighttime, which is clearly wrong on the face of the law.

 

[Thumper]

OldTxCop...note the OR

9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person
is justified in using force or deadly force against another to
protect land or tangible, movable property of a third person if,
under the circumstances as he reasonably believes them to be, the
actor would be justified under Section 9.41 or 9.42 in using force
or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful
interference constitutes attempted or consummated theft of or
criminal mischief to the tangible, movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection
of the land or property;
(B) he has a legal duty to protect the third
person's land or property; or
(C) the third person whose land or property he
uses force or deadly force to protect is the actor's spouse, parent,
or child, resides with the actor, or is under the actor's care.

Or is not AND. Who taught your class?

 

[mekender]

He can't claim self defense, because he initiated the situation, when he went outside. That also nullifies his "necessity". The intent of protecting a 3rd person's property, is for situation's like you are protecting your wife, or her property. The concensus among those teaching the continuing education penal code class I took the weekend after this incident, is that technically he is without legal grounds to stands on, and had better hope for a jury, made up of those, like most of us here. BTW if you listen to the end of the phone call, thre were officers on the scene within seconds of the shooting.

in what state is a private citizen not allowed to go out of his house and onto his own front yard to witness a crime? He initiated the armed conflict by saying "move and your dead"... shortly thereafter shots were heard... his next statement was along the lines of "i had no choice, they came onto my property with me"... as far as i can tell, trespassing during the commission of a felony is grounds for someone legally shooting you in TX

 

[mekender]

There's even a criminal defense attorney quoted in the paper saying that deadly force can only be used to prevent burglary during the nighttime, which is clearly wrong on the face of the law.

its been stated before that the attorney is a former prosecutor... not someone i would trust legal advice from...

 

[OldTXCop]

Thumper...You can quote 9.43 all night long... but:

9.43 requires you to meet the requirements of 9.41 and 9.42, for items (1) or (2A), (2B) or (2C) to apply. Many of the people who taught the class did not feel he met the requirements of 9.41 or especially 9.42.

The folks who taught this class are more qualified than me, and unless you're a judge, or legal professor, are probably more qualified than you.

Most of them are gun owners who believe in our right to defend ourselves and our property. But most also believed by point of law, he committed murder.

 

[OldTXCop]

He initiated the armed conflict by saying "move and your dead"... shortly thereafter shots were heard... his next statement was along the lines of "i had no choice, they came onto my property with me"...

He initiated the conflict, so in order for "self defense" to be valid, he would have had to retreat from the conflict, had the attack continue and then take a defensive posture.

He made the statement that if he went outside, he was going to shoot (or kill) them, so he has established a premeditated act.

His statement that he didn't know the neighbors, means he can't meet the requirements of 9.42, so 9.43 does not apply. 9.41 allows the use of force, but not necessarily deadly force.

Unless his property was properly posted, they didn't trespass. You can't use deadly force to stop trespass, so unless they attacked him, he has no claim there.

 

[Bartholomew Roberts]

The definition that you are quoting is not a definition. It is its own completely seperate, generally applicable, affirmative defense.

Yup. You are right about that. Although the underlying point of whether a reasonable person would have found it immediately necessary is still pretty much the turning point of the case.

His statement that he didn't know the neighbors, means he can't meet the requirements of 9.42, so 9.43 does not apply.

There is nothing in 9.42 about knowing your neighbors. That language is from 9.43 and as Thumper pointed out, the OR makes it irrelevant to this case because he clearly meets 9.43(1) and doesn't need to rely on 9.43(2). Now whether he meets 9.42(2) and 9.42(3) is a different issue entirely. I think he will do OK with a Texas Grand Jury though.

 

[MDHunter]

On Glenn Beck.....

he had a Texas Senator on tonite (can't remember the guys name), Glenn was leaning toward this guy (the citizen who killed the criminals) is part of the undercurrent in our country that has lost confidence in our justice system, so they're trying to do what's right on their own (he was being supportive, just using his own spin).

The Texas Senator, VOLUNTEERED that "he was within Texas law as written, to protect his neighbor's property." One big YEAH for you Texas guys having a Senator who stood up for the citizen!

 

[Thumper]

OTC,

Which part of 9.91 or 9.42 do you not believe he met?

Do you believe the neighbor's property was recoverable by other means?

Do you believe that he wouldn't have placed himself in harm's way if he used less than deadly force?

He gets his choice of either of those...doesn't have to satisfy both.

Also, are you backing away from your premise that 9.43 applies only to one's spouse? That "or" is interesting, isn't it?

We'll see whether or not the guy walks. Either way, I'll buy you a beer sometime.

 

[OldTXCop]

There is nothing in 9.42 about knowing your neighbors....

Nothing specifically about neighbors is mentioned... but he can't meet the requirements of 9.42(3A), if he doesn't know his neighbors, so it is a relevant point. He may not meet the requiements of 9.42(3B) either.

He must meet one of those two conditions for deadly force to be applicable. If he doesn't meet 9.41 or 9.42, then 9.43 doesn't apply. 9.41 does not justify deadly force by itself, so his best bet would be to meet 9.42, and as it was said:

Now whether he meets 9.42(2) is another question entirely.

He must meet either 9.42(3A) or (3B) for 9.42(2) to be applicable.

 

[Bartholomew Roberts]

(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.

Nothing specifically about neighbors is mentioned... but he can't meet the requirements of 9.42(3A), if he doesn't know his neighbors, so it is a relevant point.

I guess I could see the argument that not knowing his neighbors hurts his ability to argue that the property could not be recovered by other means; but I would disagree that it is an absolute bar to meeting any of 9.42(3).

 

[OldTXCop]

Do you believe the neighbor's property was recoverable by other means?

If they have insurance, it was recoverable by other means....That's what we were taught.

Do you believe that he wouldn't have placed himself in harm's way if he used less than deadly force?

If they were running away, he could have used less than deadly force. He has no duty to pursue.

BTW:
I'm glad people are standing up for this guy. I hope he doesn't even go to trial, I've only been repeating what was covered in my class this past weekend.......If he goes free, it sure sends a message to the BG's around here.

 

[Thumper]

He must meet either 9.42(3A) or (3B) for 9.42(2) to be applicable.

Right...and as I just asked you; you don't believe he met either of those? I think he met BOTH!

(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by any other means; or

How could he reasonably believe the property could be recovered if he let them run?

(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.

So which use of force other than deadly force should he have used?

 

[Dallas239]

He initiated the conflict, so in order for "self defense" to be valid, he would have had to retreat from the conflict, had the attack continue and then take a defensive posture.

You don't say, but I'm guessing that you are referring to this:

§ 9.31. SELF-DEFENSE.
...
(b) The use of force against another is not justified:
...
(4) if the actor provoked the other's use or attempted
use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly
communicates to the other his intent to do so reasonably believing
he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts
to use unlawful force against the actor;
...

The problem with that theory is that I don't think attempting to stop a crime can be considered "provoking" the use of unlawful force when the statute specifically authorizes him to do so. If your's is the correct reading, then you can use force (but not deadly force) to stop a simple theft, but if the BG pulls out a gun and starts shooting, you can't return fire (deadly force) because "you started it". I think that must be wrong. The BGs initiated the conflict when they commited theft. He can use force to try and stop the theft, and if they turned and charged at him when he told them to drop the loot, then he can use deadly force to protect himself. And once he is justified in using deadly force, there is no requirement to retreat. Again, in this situation you never get to the requirements of Sec. 9.42, so he doesn't have to justify the deadly force as defending the property.

I think the toughest part in taking this road is that he has to argue that when he initially confronted the BG's he only intented to threaten deadly force. His comments to the dispatcher hurt him here, but I don't hink fatally.

 

[Dallas239]

I guess I could see the argument that not knowing his neighbors hurts his ability to argue that the property could not be recovered by other means

He only has to argue that he believed that, and that his belief was reasonable based on what he knew at the time. Insurance isn't going to replace family picture albums or anything else with primarily sentimental value.

 

[Thumper]

If they have insurance, it was recoverable by other means....That's what we were taught.

Are you sure that's not only applicable to PERSONAL property? It seems an undue burden to require the actor know the insurance status of every item in the state.

Over at ARFCOM, they're saying that one of the things stolen was a quantity of cash. Unverified.

 

[Thumper]

Interestingly, unless I'm mistaken, Mr. Horn still hasn't been charged with anything.

 

[JohnKSa]

If they have insurance, it was recoverable by other means....That's what we were taught.

I've heard the comment about insurance before as well--I may have even MADE the comment about insurance before.

However here's an interesting point that may or may not be splitting hairs but is still worth mentioning. The law says RECOVER. Insurance doesn't recover, it replaces or reimburses and typically only PARTIALLY replaces and PARTIALLY reimburses. Just a thought.

 

[Double Naught Spy]

Interestingly, unless I'm mistaken, Mr. Horn still hasn't been charged with anything.

Unless I am mistaken, the grand jury hasn't heard his case yet either.

 

[Warren]

50 cents in shotgun shells turns into 1000s of $ in legal bills over a few 100? $ in loot?

Does not add up. A negative expectation play.

This is one of those "be a good witness" situations.

No offense to anyone here but nothing that you own is worth me killing someone over and exposing myself to ruin and prison.

To save YOU yes, to save your gramma's wedding band, or Uncle Bob's medals? Not a frigging chance.

 

[Fast Frank]

"No offense to anyone here but nothing that you own is worth me killing someone over and exposing myself to ruin and prison."

I agree with you, but there's more to it than just that.

This isn't JUST a simple case about one man shooting some bad guys.

Everybody in the whole country is watching.

Convicting the shooter will send a message to the bad guys everywhere.

Letting him go will, too.

Personally, I believe that shooting bad guys will do more to reduce crime than any other possible tactic.

I hope he goes free.

 

[plexreticle]

If he is set free he's welcome to live next door to me.

 

[RoadkingLarry]

Personally, I believe that shooting bad guys will do more to reduce crime than any other possible tactic.

X10 from me. Stop coddeling the criminal and stand up and refuse to be a victim.