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

[El Tejon]

I hope and pray that our shooter was not misguided by Gun Shop Commandoism. "Well, in Texas, you kin shoot 'em."

This should be an interesting case to watch (at least for me, professionally, not something I would ever do or recommend); please keep us posted.

 

[Jeff White]

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.....

Jeff

 

[Bartholomew Roberts]

As you're aware, BR, the legal concept of "harm" encompasses far more than physical harm.

I don't think he will have any trouble alleging he was preventing a harm. I think the "reasonableness" requirement is the one that would make me lose sleep at night if I were in his shoes. I think the grand jury will probably no-bill him; but I also think he would lose the case at trial with a half-competent prosecutor.

 

[oldironman]

I think burglars should be shot on site - period. I have been the position before where I have had to go pawn or sell something to put food on the table for my family. If someone comes and steals the things of monetary value from someone, they have taken away the ability of someone to feed their family. I don't advocate doing it because of the law in many places - but I would support a change in the law anywhere that would allow someone to shoot known burglars. I realize that there are going to be situations where it may be hard to tell if a burglary is in process, but there are times - like this one - when there is no doubt. I sure hope the law is in his favor on this one, because I live within an hour of that shooting, and I sure hope someone will protect my property by any and all legal means. There are some burglars who will pull a moving truck up to a house and literally move someone out, taking EVERYTHING! My little brother lost everything like that, and he was already nearly broke. Sorry people like that should get the death-chamber, IMO.

 

[Thumper]

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.....

Snarky and cute, but I guess I miss the point. I'm speaking to the law directly as it's written.

CCD, which standard do you believe he didn't meet?

A) Do you believe the property could have been recovered by other means?

or (not and...which means you have to deny him BOTH of these for you to be right.)

B) Do you believe that he wouldn't have exposed himself to bodily injury if he'd used other means?

 

[Thumper]

Also, this mumbo jumbo about his neighbor having to ask him is also rendered moot by the word "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.

I should say this:I wouldn't have shot the guys. I've been in precisely this situation and I didn't shoot. (Of course, I'm not 70 years old, either. I had other options.) I'm merely speaking to the legality of the issue.

 

[oldironman]

I should say this:I wouldn't have shot the guys. I've been in precisely this situation and I didn't shoot. (Of course, I'm not 70 years old, either. I had other options.) I'm merely speaking to the legality of the issue.

I was also in a similar situation, but as I was going out the door in my housecoat with a shotgun, my wife was calling the sheriff. I confronted the guy and he started to move, so I fire a shot into the dirt in front of him yelling at him I was serious. He took off running anyway, but the deputies caught him about 10 minutes later in someone's backyard. I am glad I didn't shoot him, but I could never convict someone else for it. I would have had to shoot this guy in the back, which I couldn't do in that situation, but in this current story, these guys were shot in the front and side - they got their just reward.

 

[ClickClickD'oh]

CCD, which standard do you believe he didn't meet?

It doesn't matter what I believe. What matters is what angels are open for a prosecutor to gain leverage. See post #11 for my opinion on this mans actions. It's pretty safe to say though that my opinion can run afoul of a DA looking to pad his conviction rate.

There is a very dirty angle prosecutors like to play, property recovery. Did the victim have homeowners insurance that covered the property inside the house against theft? Most homeowners do. Prosecutors will, and have argued that recovering the value of property is tantamount to recovering the property. This is why if you are ever in a carjacking and you use deadly force, you tell the police you did so because you were in fear of your life, not because they were taking your car.

Another angle of attack that a DA is likely to use will be the prudent witness angle. Surely the guys weren't going to run to lala land with their sacks of loot. They must have had a vehicle nearby. Wouldn't being an active witness and getting the license plates have been a better route than killing a man? It's definately down the force continuim.

There are angles for a DA to attack this case from if he wants to.

 

[joe4702]

These guys likely had a rap sheet a mile long and anyone willing to break into a house like that has to be considered very dangerous. Caught by the police, they'd like get a short sentence and be out in no time. Perhaps next time, they'd need to dispose of some poor housewife who happened to be home at the time. I say good riddance to bad rubbish. People are fed up with the government coddling criminals and releasing them into society over and over again, and then being told they need to hide in their houses while their neighborhood is being invaded. Give the guy a medal.

 

[orionengnr]

This should be interesting.
Not what I'd have done, probably , but if more people would, there would be a lot fewer brazen criminals.

 

[Headless]

I never thought i'd say this about something happening in texas...but in florida he'd have a better chance of getting off without jail time.

 

[Thumper]

How come, Headless?

 

[gak]

Thank goodness the old feller wasn't hurt.

In my case, having been robbed before, the police told us they wouldn't bother showing up because it wasn't worth their time, plus they'd "never catch the robbers or recover the items." Way to raise the bar.

If you decide work is for suckers and you are entitled to steal unlimited money/loot without fear of reprisal, you are scum imo. I know in todays world hard-working people and police are evil while lawbreakers are glorified and admired; but I for one applaud the old guy when crooks are brazen enough to do daylight home invasion robberies next door to him.

If they say it was a legal shoot and he was within the law, I'll be mad at him for not having a web cam on his weaver mount to catch the robbers O-face when he stepped out with his free loot and saw the shotgun.

 

[Headless]

Well, Thumper,
Read through here:
http://www.flsenate.gov/statutes/index.cfm?App_mode=Display_Statute&URL=Ch0776/ch0776.htm


First, understand a 'forcible felony' is:

776.08 Forcible felony.--"Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Now, 776.012:

776.012 Use of force in defense of person.--A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other's imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1) He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2) Under those circumstances permitted pursuant to s. 776.013.

Now, consider this - according to 776.013,

776.013 Home protection; use of deadly force; presumption of fear of death or great bodily harm.--
(1) A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:

(a) The person against whom the defensive force was used was in the process of unlawfully and forcefully entering, or had unlawfully and forcibly entered, a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person's will from the dwelling, residence, or occupied vehicle; and

(b) The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.

As noted in 776.08, a forcible felony is home invasion robbery or robbery. As noted in 776.012, you may use force to prevent the commission of a robbery or home invasion robbery - and as noted in 776.013, you are justified using deadly force if the person shot was in the act of entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle. There is not even any requirement for the person to be stealing from the person who acts in defense - you can act in defense of someone else in these cases as stated in the statutes.

Sometimes I like Florida.

 

[peyton]

MSNBC just had a segment on this, 911 recording and all. Last thing I caught was "Drop the Bags" Crime needs to be dealt with, not sure the neighbor realized the age or size of the robbers. I know my carcass would not stand a beating. We shall see.

 

[patentmike]

That tape shows that the man had reasonably believed that a theft had been consummated. (1)

As for the "or" (2)(A) requires the old guy to "reasonably believe" his protection had been requested. So even if the neighbor has a poor memory and doesn't recall specifically asking, the testimony will undoubtedly show that in many neighborhoods such a request is implied. The very word "neighbor" implies cooperation.

Notwithstanding the protection of 1 or 2A, the tough talk on the tape doesn't prove anything. It doesn't really matter whether he said he was going to hunt them to the ends of the earth or bake them cookies, once the guy got outside, it's a new situation: If he reasonably feared that the two young thieves would do him bodily harm, he's justified. Lucky thing he happened to have a bird hunting gun handy, or the story might have been about an elderly man being beaten to death by burglars.

It's too bad about the poor choices of two thieves in their 30's. Maybe they had bad childhoods, bad young adulthoods, bad 30-somethings. Maybe they just needed 30 more years to turn their lives around. It's especially sad that they engaged in such activities after taking the trouble to come here from Puerto Rico. If there is a pattern of illegal conduct in their pasts, it might show just how lucky the old guy was.

 

[Double Naught Spy]

Too bad he's not in Texas because we all know at THR that he would be facing no legal consequences for doing this in Texas.

Ah ET, we know he would not be facing no legal consequences if he was defending is OWN property, which he wasn't. We don't smile on going after people like this for another's property.

patentmike said,

It doesn't really matter whether he said he was going to hunt them to the ends of the earth or bake them cookies, once the guy got outside, it's a new situation: If he reasonably feared that the two young thieves would do him bodily harm, he's justified. Lucky thing he happened to have a bird hunting gun handy, or the story might have been about an elderly man being beaten to death by burglars.

Yes and no. What reason did the old guy have for believing the burglars were going to harm anyone while he was on the phone with 911? It sounds sort of like premeditation. He stated what he was going to do and then went and did it. The question is, can he justify he feared for his life?

 

[winchester62]

The white bag one the dead men had been carrying contained a large amount of cash that had apparently been taken from the house, Corbett said.

For the guys going on and on about the insurance company replacing the stolen items - show me an insurance company who insures cash; or even guns, high end camera gear, or jewelry without a rider for that matter.

The old guy should have said, "I'm going to try to stop those guys!" He looks really bad with what he DID said. As it is, he still has a good chance to walk.

 

[Thumper]

The question is, can he justify he feared for his life?

You haven't been following the thread very closely, have you?

 

[plexreticle]

I wonder if there is a legal fund set up for this guy. I bet he would get a lot of donations.

 

[mekender]

last story i read, the guy stated that the two stepped onto his property... if that is the case, they trespassed while committing a felony... in that case, hes 100% justified no matter what his previous statements to 911 were...

the audio states that they broke into a window on the right side of the house, that he couldnt see from his house... its quite conceivable that the 2 guys did cross his property line...

 

[JerryM]

I hope the grand jury decides he was justified, and if they do not I hope a jury finds him not guilty.
However, I think he will have to plea bargain or will be found guilty of some offense that will send him to prison.
I believe the liberals will convince the authorities that he had no right to kill or seriously injure someone for stealing a TV for instance.

It will be interesting to see what happens, and hopefully we can learn what the verdict is as time goes on.

Jerry

 

[Double Naught Spy]

You haven't been following the thread very closely, have you?

I have, but don't think your view of the law fits as succinctly as you think it does given the information in the news accounts. It is obviously not a clear cut as you think.

Also, I think you may be making assumptions that are not necessarily true. For example,

A 70 year old man confronting two burglars WITHOUT the threat of deadly force would obviously place him at risk.

For him to be at actual risk, the burglars would have to have intent, opportunity, and ability to do him harm. There is no indication that this was the case.

 

[Thumper]

Well, heck. I guess I'm missing the obvious here. Why don't you explain section 9.43 (Protection of Third Person's Property) to me in lay terms?

There's every possibility I'm missing something, but you're going to have to point it out to me. Sorry I'm so obtuse.

Specifically, if you could, point me towards the "in fear for one's life" you seem to believe is requisite in Texas law.

 

[Double Naught Spy]

Thumper, you made the point that claimed the shooter was at risk, not me. And no, I don't have any beliefs that risk is a requisite of Texas law. In fact, I am often one of the folks getting flamed for noting that committing illegal acts such as burglary and robbery are high risk activities and that the burden should not be on the good guy for taking a life, but on the criminal. My response to posters who query, "Is it worth taking a life over a piece of property?" to which my response is, "Is it worth risking your life to steal a piece of property?"

So what are you missing? For starters, the guy's own attorney stated

Wednesday's shooting "clearly is going to stretch the limits of the self-defense law," said defense attorney Tommy LaFon, who is also a former Harris County prosecutor.

In other words, he isn't even certain his client fully operated within the law or not and he has worked both sides of the legal system as a lawyer.

As BR noted, did the guy reasonably believe there was no other way to prevent the loss of property, especially given that he had contacted the police and been told the police were on the way?

Personally, I like the guy's resolution to the problem. Given his phone call and information he gave to the police, I don't know that his actions were fully encompassed under the law. As noted, not even his lawyer is sure either.