Appropriate use of deadly force Texas style

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John said:
It only allows deadly force when all other alternatives have been exhausted and any other course of action would place the property owner's life in danger. The focus is still on preventing victimization and provides that if one goes through entire the progression in the law and is left no other option, they can take it to the next level.
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It pains me to say it (;)), but the more I think about it, there's something to this argument -- at least as an abstraction, and when deadly force is genuinely a last resort. I'm still bothered by how it's apt to play out in practice, however.

I'd want to know, for instance, whether it does deter nighttime marauders; it seems to me that would be hard to measure. But it should be possible to determine whether people really benefit from it: for example, does it in fact help property owners to recover their property, or, if they act on the basis of this law, do they, on average, incur legal and other costs that exceed the value of the property in question?

In other words, if one is to justify taking life to prevent victimization, one ought to be able to show that victimization is actually prevented.
 
Had the shooting occurred 100 miles north in Travis County (Austin), it is very likely numerous charges would have been preferred and convictions obtained.

There are some differences across Texas, with many in Austin acting more like Diane Feinstein than Texans :)
 
This is like the habitual criminal in California who received a life sentence under the then-new Three Strikes law. His third offense was stealing a slice of pizza.

He was not put away for life for stealing pizza, nor was the woman shot for $150. The laws were applied to them because they were criminals and the public expects it.
 
I'm still bothered by how it's apt to play out in practice, however.
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Frankly, I feel the same way and I can't think of a set of reasonable circumstances where I, personally, would use deadly force to attempt to stop a crime that was purely a property crime, or to recover property.

I can come up with some very "creative" (i.e. unrealistic) scenarios where it might make sense, but no scenarios that are reasonably probable.
In other words, if one is to justify taking life to prevent victimization, one ought to be able to show that victimization is actually prevented.
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I think that would be hard to show a benefit based on the statistics involving actual deadly force cases where property protection was the focus.

However, I do believe the law has value in that it seems likely to reduce the incidence of victimization by deterring, to one extent or another, criminals from engaging in crimes where they can be legally shot. That's in spite of the obvious issues with how it would play out for the "defender" in practice.

In fact, an occasional well-publicized case is valuable to preserving that deterrent effect by not allowing the law to fade from the collective memory of the public.

That deterrent value is pretty much the sole reason I wouldn't care to see the law changed--with the possible exception of adding a criminal activity clause to bring it into line with the other TX deadly force laws.

In one sense, this is the same general principle as a person, who has no personal desire to own or use firearms, supporting the right to own firearms as a deterrent to government tyranny, or as a general deterrent to certain violent crimes. Not because he believes revolutions are a good idea or because he wants to own firearms himself for self-defense, but because he believes that widespread private ownership of firearms likely provides some deterrent value against the government overstepping its bounds and probably makes it less desirable for criminals to break into occupied dwellings.
 
As regards a theoretical principle of deterrence, there are some similarities between the two. But I think that there's also an analogy with capital punishment when one looks at the effects in a more concrete way.

The evidence that the death penalty deters murderers is minimal (in part because no study has compared it with the deterrent effects of other punishments, such as life without parole). But -- especially since the advent of DNA testing -- it's become apparent that innocent people are sentenced to death with some regularity. Concern about executing the innocent is one of the reasons that six states have repealed death penalty laws since 2007.

I don't mean to suggest that thieves are "innocents," but they are human beings, and their lives have value. I'm not sure that the actual loss of life can be justified by a presumed, but unsupported, deterrent effect.

I don't know how frequent such cases are, and that's also relevant to this calculus, although I also don't know exactly how one would do the math. But I'm pretty sure that it would be hard to justify the law on the basis of "...if it saves just one bicycle." ;)
 
As regards a theoretical principle of deterrence, there are some similarities between the two. But I think that there's also an analogy with capital punishment when one looks at the effects in a more concrete way.
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I haven't studied this, but my hunch is that capital punishment is something of a fairy tale to most criminals because it is such a complicated and drawn-out process. I suspect that walking out the door and getting in the car with the thought that you might not make it home that night is a signficantly more tangible deterrent than the thought that in a few decades, if a lot of things go against you (like getting caught by the law in the first place) you could get put to sleep.

Although it's not precisely the same thing, I do know that there have been studies/interviews done that indicate criminals are generally more afraid of armed citizens than of LEOs.

I also find that although shootings over property don't happen very often, they tend to stay in the collective memory. I still occasionally hear someone retell an incident that happened in this area well over 20 years ago. It involved a property owner who was exonerated after he shot and killed someone who had repeatedly stolen from him. The homeowner encountered him leaving the scene and shot him to prevent his escape with the stolen property.
 
manta49 said:
Probably a stupid question I am not a lawyer. If the law in Texas says that shooting someone stealing your money etc is legal, and I assume the law makers were happy with the law and the way it was written why did the case go to court. Could this incident make them look at the law again and make changes.
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Prosecutors aren't judges, that is why. Will this make legislators make or contemplate changes? Nope.
 
Here is a great example. It has a lot of the hot button topics.
- child killed (age 14)
- shot in back
- because of property theft at night
- homeowner shooter walked, uncharged IIRC, because he was 100% within compliance of the law
- also San Antonio incident

http://thefiringline.com/forums/showthread.php?s=&threadid=64313&highlight=fight+cock

Given that the law is in place and has been for so long, the burden of risk is really on the criminal, not the homeowners/residents, when it comes to crime at night.
 
Yes but in this case^^ the person was not otherwise engaged in illegal activity. The case under discussion the person was engaged in illegal activity that otherwise would not have given the oportunity for the theft to have occured ultimately resulting in a homicide.
 
There's an assumption being made here that may not be accurate. That assumption is that the $150 in question remained the defendant's property even after he voluntarily gave it to the woman he subsequently shot. Did it really? I'd suggest not. He voluntarily gave it to her in expectation of some "service" (the specific nature of which has not necessarily been established). He was unhappy with the service rendered, but under what legal precept does that return legal title of the $150 to him? How would it be different from any other purchase someone makes and is unhappy with?

If I were to buy an item from Walmart (or any other retailer), suffer buyer's remorse and demand my money back, only to be refused by the retailer, would that qualify under the law as theft? I highly doubt it.
 
Its a contract dispute, not property.

As a Texan, this case has so much FAIL on so many levels its infuriating.
The prosecution almost has to appeal (and will win that), else nearly every criminal shooting can be protected under this methodology.

"he sold me bad crack so I shot him"
"case dismissed."

You cannot claim defense of yourself or property if you are engaged in criminal activity at the time. Thats basic Texas law and an appellate court will knock it on that basis alone. appeal #1.

The activity involved is not a good, but a service, therefor he's not protecting property - appeal #2.

The issue was a contract dispute. You cannot claim self defense under a contract dispute. appeal #3

The contract dispute is VOID as it was an illegal contract. Appeal #4.

You cannot use a firearm to stop a BG fleeing unless they pose a threat to you of serious injury or death. Appeal #5.
 
That's where I was headed too. But this is a jury's verdict. Jeopardy has attached and there can be no prosecutorial appeal. The time for the prosecution to act would have been at the moment the judge allowed/required the jury to consider the affirmative defense.
 
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zincwarrior said:
You cannot claim defense of yourself or property if you are engaged in criminal activity at the time. Thats basic Texas law and an appellate court will knock it on that basis alone. appeal #1.
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As John and I noted above, the Texas use of force statute on defense of property is peculiar in that it fails to mention criminal activity as precluding a claim of justification.

Otherwise, you and csmsss raise some interesting points...
 
The man shot someone to recover $150 and he was charged and tried and acquitted three and a half years later.

Bad move by the shooter, bad outcome for the state.
 
zincwarrior said:
You cannot use a firearm to stop a BG fleeing unless they pose a threat to you of serious injury or death. Appeal #5.
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False. Blatantly false. And being a Texas resident you should know that the above statement is not true.

And as to appeals in general - double jeopardy is attached so the prosecution cannot appeal this one for any reason (unless they can prove perjury, I believe).
 
Prosecutors aren't judges, that is why. Will this make legislators make or contemplate changes? Nope.
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There is obviously a difference of opinion on this question. You say they won't contemplate changes do you have inside knowledge in the agencies that would look at these things. ?

Prosecutors aren't judges, that is why. Will this make legislators make or contemplate changes? Nope.

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Could this incident make them look at the law again and make changes.

It certainly could. I would even go so far as to guess that if this case does provide impetus for a change it would be to include a clause like the ones in TX self-defense law that stipulate that the person using deadly force can't be involved in criminal activity that rises above a certain severity level
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I think it might of being legal but not smart to start shooting in this sort of situation. No matter what the outcome is it will cost the person a lot more than $150.
 
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The man shot someone to recover $150 and he was charged and tried and acquitted three and a half years later.

Bad move by the shooter, bad outcome for the state.
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I wonder how much the shooter has spent in legal fees to stay out of jail for his effort to collect his $150.
 
Quote:
Originally Posted by zincwarrior
You cannot claim defense of yourself or property if you are engaged in criminal activity at the time. Thats basic Texas law and an appellate court will knock it on that basis alone. appeal #1.

As John and I noted above, the Texas use of force statute on defense of property is peculiar in that it fails to mention criminal activity as precluding a claim of justification.

Otherwise, you and csmsss raise some interesting points...
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I think you'll be hard pressed to find case law (other than this case) to support this argument. WOuld be interesting though.

Quote:
Originally Posted by zincwarrior
You cannot use a firearm to stop a BG fleeing unless they pose a threat to you of serious injury or death. Appeal #5.

False. Blatantly false. And being a Texas resident you should know that the above statement is not true.

And as to appeals in general - double jeopardy is attached so the prosecution cannot appeal this one for any reason (unless they can prove perjury, I believe).
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$9.41
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
***It’s a payment for a service not tangible property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
****Woops just lost that one.
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.


§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. 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
****See above.
(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
****Its not reasonable to shoot an AK at someone.
(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
****Its not reasonable to shoot an AK at someone.

(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
***Its not reasonable. It’s a contract dispute over an illegal contract.
(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.
***Nope, maybe prosecution for solicitation.
 
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Realistically, the state legislative session is coming to an end. There will be no great effort to change the law because of this case in the near future.

Nor will there be an appeal. If that is legal. What is the grounds against the protection against double jep.?

My opinion but that's the way I see it.
 
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