Texas Couple Shoots 4 for Trespass. Boy, 7, Dies

[Brian Pfleuger]

Does TX still have the death penalty? LOL!

TX may lead the country in state executions.

Yeah, I know they're still bumpin' 'em off, just didn't know if they're still doing the sentence. You know, sort of like a really bad grandfather clause? (Bad if you're the guy on death row.)

 

[Mike Irwin]

Wow. Those two look like poster children for meth abuse.

They're a year younger than me, but they look as if they are in their middle to late 50s!

 

[Evan Thomas]

In no state is deadly force permitted for simple trespass.

Yah... good post, OM. But (referring back to Bartholomew Roberts' post #12, in which he quoted from the relevant statutes) there's a distinction to be made between "use of force" and "use of deadly force" as applied to simple trespassing.

Sec. 9.41 - PROTECTION OF ONE'S OWN PROPERTY
(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.

So in Texas, a person may use force to "prevent or terminate" trespass. But NOT deadly force, in the absence of actual or threatened "arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime" (Sec. 9.42).

It seems that this is a distinction that's too hard for some people to make. It might not be the worst thing if the Texas leg. rewrote that law a bit, to take any use of force off the table in cases of simple trespass, if this is the sort of criminal idiocy it leads to. Especially with that word "prevent" in there... "Gosh, yer Honor, I had every right to beat the livin' daylights out of those people because I was sure they were gonna trespass on my property."

No. Not a well-written, or well-thought-out, set of statutes. Between possible confusion about lethal vs. non-lethal force, and with "prevention" in there as a possible justification... these statutes are, IMHO, begging to be misinterpreted by fools like this couple.

 

[Bartholomew Roberts]

Bartholomew, go back over Section 9.42. Deadly force is permitted only when immediately necessary "to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief [(damaging or destroying the tangible property of the owner)] during the nighttime" or "to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property". No mention of trespass.

OldMarksman, I've looked at Section 9.42 a few times now. For our discussion, the important part is this first part of 9.42:

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

Until you meet the standards under 9.41, you cannot use any kind of deadly force at all. Once you meet those standards, then you can consider the other factors you listed.

You have quoted part of 9.41. No mention at all of deadly force.

Yes, because I don't think the Muhs met the immediate necessity requirements of 9.41, I didn't go into a discussion of Sec 9.42 because you cannot claim any of the defenses under Section 9.42 until you have met the requirements of Sec. 9.41.

So in Texas, a person may use force to "prevent or terminate" trespass. But NOT deadly force, in the absence of actual or threatened "arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime" (Sec. 9.42).

Correct; but another problem with this statute is the "criminal mischief during the nighttime." Criminal Mischief covers a wide range of crimes from minor Class C misdemeanors to State Felonies that are relatively serious. Here is a brief version of Sec. 28.03 covering the topic of Criminal Mischief (actual version is more involved in distinguishing the various levels of Criminal Mischief):

Sec. 28.03. CRIMINAL MISCHIEF. (a) A person commits an offense if, without the effective consent of the owner:

(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or

(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

Since this incident took place at 9pm, it could have potentially qualified for "criminal mischief at nighttime" if the levees belonged to the Muhs and the Muhs could convince the jury that it was immediately necessary to shoot at the vehicles to terminate the damage to the levees. However, the levees don't belong to the Muhs, were not on their property, apparently weren't even damaged, and I don't think the Muhs would have met the immediate necessity test even if they did own the levees.

 

[Evan Thomas]

I don't think the Muhs would have met the immediate necessity test even if they did own the levees.

I very much agree.

Thanks for clarifying the definition of "criminal mischief." For this, including the "minor Class C misdemeanors," a property owner is allowed to use deadly force?! I have to say that I don't care for this, m'self...

I think you're right, BR, this is another huge problem with this statute.

 

[SteelJM1]

Even in AZ, one can only use the THREAT of deadly force in trespassing, or property theft cases. You can't actaully pull the trigger though, so hope that the shotgun rack noise is enough to scare them away. If not, your only recourse is the call the police.

 

[JuanCarlos]

Any statute(s) written such that they would give these two dustheads the impression that this shoot even might be lawful should be reconsidered and/or clarified.

BR's post is enlightening, both because it points out that the law seems to not be on their side but also because it suggests that the only reason for this is the location of their property line and/or the definition of a phrase so malleable as "immediate necessity."

 

[buzz_knox]

My reading of the Texas statute is that an intepretation that could even in theory support this murder can only be derived by standing both the law and the observer on its head, while consuming all manner of illicit substances.

 

[JuanCarlos]

My reading of the Texas statute is that an intepretation that could even in theory support this murder can only be derived by standing both the law and the observer on its head, while consuming all manner of illicit substances.

True.

But place the victims within the couple's property lines, and suddenly you're hoping a jury accepts a reasonable definition of "immediate necessity." Moreso, you're hoping that all twelve jurors do.

It would take only one idiot with a deep love of "trespassers will be shot" signs to hang that badboy.

I see a problem with that. That's what I'm getting at. Because obviously these...insert a word here I can't use on this forum...thought the victims were on their property, and that thus this was a legal shoot. That alone seems unacceptable to me.

 

[Evan Thomas]

My reading of the Texas statute is that an intepretation that could even in theory support this murder can only be derived by standing both the law and the observer on its head, while consuming all manner of illicit substances.

Yes, absolutely, if you're talking about "interpretation" as practiced by, oh, people who've studied law, or semi-educated people such as myself...

But I think what some of us are expressing concern about is the kind of "interpretation" that comes about by word of mouth, or word of Internet, among the sort of people who would put up a sign like the one this couple had on their property. And this problem is made worse by allowing the possibility of using deadly force over minor property crimes at all. In my opinion, this is a line that ought not to be crossed by private individuals over any property crime, but certainly not one that's at the level of a misdemeanor; I find this ethically abhorrent, and I'd like the laws to which I and other people are subject to have some relation to ethical norms of conduct.

And as to the role played by the consumption of illicit substances in any of this, Mike Irwin was right on when he said that "those two look like poster children for meth abuse." Oh my... goodness.

 

[Bartholomew Roberts]

Thanks for clarifying the definition of "criminal mischief." For this, including the "minor Class C misdemeanors," a property owner is allowed to use deadly force?! I have to say that I don't care for this, m'self...

BR's post is enlightening, both because it points out that the law seems to not be on their side but also because it suggests that the only reason for this is the location of their property line and/or the definition of a phrase so malleable as "immediate necessity."

Well, that isn't all of Sec 9.42... once you have met all the requirements of Sec 9.41 and you have established that "criminal mischief at nighttime" is occurring, you must also establish:

(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.

Again, I think that would be a tough argument to sell to a jury; but it does occasionally happen. Not surprisingly, a lot seems to depend on what the local community thinks about the incident. For a better discussion about the fine points of civil and criminal liability over use of deadly force to protect property against criminal mischief/theft during nighttime check out the case of Howsley vs. Gilliam, 517 S.W.2d 531 (Tex. 1975). This is a Texas Supreme Court case where a doctor who had shot an 18yr old boy for stealing his car battery was sued in civil court after escaping criminal charges. It goes into several older cases discussing the same issue as well.

 

[buzz_knox]

And this problem is made worse by allowing the possibility of using deadly force over minor property crimes at all.

I actually don't think that's an issue here. Texas law doesn't allow deadly force simply to prevent a property crime. It allows deadly force when a person reasonably believes deadly force is necessary to prevent of certain crimes, and no other force will allow the prevention of said crime without unreasonable risk to the actor. Distilled down, the law basically says that you are protected if the only way to reasonably stop the crime is to kill the person. It's not "I can stop this crime by shooting the person"; it's "any reasonable person would know the only rational way of stopping this crime is to shoot the person." This is most likely an outgrowth of the time when the only way crime would ever be deterred is if individual citizens took care of the matter (which is all too often the case, even now).

Assuming the riders were on the property and flagrantly trespassing, was deadly force reasonably necessary and, in fact, the only way of stopping the trespass? That's the question these "individuals" would have to convince a jury of, and I suspect the jury's answer would be a resounding and profound "no".

 

[Evan Thomas]

Texas law doesn't allow deadly force simply to prevent a property crime. It allows deadly force when a person reasonably believes deadly force is necessary to prevent of certain crimes, and no other force will allow the prevention of said crime without unreasonable risk to the actor.

I get the legal point, but in ethical terms, this is a distinction without a difference. Mo' bettah to let the crime take place than to take a life in preventing it. I do take your point about the history involved, but even so...

Assuming the riders were on the property and flagrantly trespassing, was deadly force reasonably necessary and, in fact, the only way of stopping the trespass? That's the question these "individuals" would have to convince a jury of, and I suspect the jury's answer would be a resounding and profound "no".

Let's hope you're right... although it's worth reiterating that this statute doesn't appear to permit the use of deadly force to prevent or stop trespassing, flagrant or otherwise, under any circumstances. Given that the victims in this case apparently were not even on the property... it's hard to imagine any jury having much sympathy, least of all when one of the victims is a small child.

 

[JuanCarlos]

Yes, absolutely, if you're talking about "interpretation" as practiced by, oh, people who've studied law, or semi-educated people such as myself...

But I think what some of us are expressing concern about is the kind of "interpretation" that comes about by word of mouth, or word of Internet, among the sort of people who would put up a sign like the one this couple had on their property. And this problem is made worse by allowing the possibility of using deadly force over minor property crimes at all. In my opinion, this is a line that ought not to be crossed by private individuals over any property crime, but certainly not one that's at the level of a misdemeanor; I find this ethically abhorrent, and I'd like the laws to which I and other people are subject to have some relation to ethical norms of conduct.

Yeah, this is (sort of) what I was trying to say, only put better. I have no doubt that this shooting was illegal (regardless of whether or not they were on the property). However I don't see any bright line rules making this shooting illegal if the couple hadn't been "mistaken" as to the end of their property. That, and instances like Joe Horn (which somebody is much more likely to be familiar with than any case law you might cite), are exactly what lead chuckleheads like this to believe the shoot was legal.

Which, obviously, they did. They may be dregs of society, but nothing about their conduct suggested that they thought, as they pulled the trigger, that they were doing anything illegal. Now ask yourself, how likely is it that two idiots like this in California or Massachusetts or England or anywhere else would think the same?

Actually, I should verify the laws regarding self-defense in those jurisdictions, but I think you get the point. Obviously, that's the other end of the spectrum, and I'm not in favor of that either. I'm just saying that the farther you push down the requirements for use of deadly force, the more likely it is that "mistakes" like this will happen.

Of course, this is the part where I should offer a solution. But I got nothin'. *shrug*

 

[44 AMP]

Each case is an individual...but the law must be for all

Based on the info given here (and I haven't even looked at them, or their property), this sounds like an indefensable (undefensable?) shooting.

Who would shoot an innocent 7 year old boy dead like these so-called people did?

Without defending them in any way (and I really don't mean to sound like I am), but the facts (at this time) do not seem to indicate that the intent was to shoot a 7 year old boy dead. That was the result, and due process will make them pay. But it appears that the shots were fired at the vehicles, with no knowledge of who was inside.

It is quite likely that claiming trespass, and the legal right to shoot was the only possible excuse they could come up with (and a feeble one at that).

It may likely come out that the shooters were not of sound mind and unimpaired judgement. But making it sound like they deliberately picked off the boy as he rode by (or anything like that) doesn't aid in clear understanding of what actually happened.

When they plea bargin (and I think it highly likely they will), and they claim "we wasn't tryin' to kill anyone, just scare 'em off", then the prosecutor will decide just how to deal with it. Until then, lets just let the system work.

Yeah, my gut feeling is, after conviction, fry'em! But until then, lets not stir the pot more than we have to.

Its not a gun issue, its not a law issue. Its about a couple of apparent wack jobs who thought they had the right to shoot trespassers, and killed a little boy in the process.

 

[Evan Thomas]

Its not a gun issue, its not a law issue. Its about a couple of apparent wack jobs who thought they had the right to shoot trespassers, and killed a little boy in the process.

It's a law issue to the extent that they misunderstood the existing statutes; the case, to me, raises the possibility that it's too easy to misread the statutes quoted here, and conflate "use of force to prevent trespass" with "use of deadly force" for the same purpose, even although the statute restricts use of deadly force to trespass combined with other property crimes, when there's an inability to prevent/stop them in other ways. I think this case makes a pretty good argument for restricting use of deadly force to defense of life, not property, as, I believe, is the case in most other places.

 

[Double Naught Spy]

Lots of folks don't know the law, but just because they do not is not a reason to modify or repeal it. It may be a reason for better education about laws, but these two don't strike me as very well educated or caring about education.

You think they were confused. At best I think they were ignorant and at worst simply disreguarded the law because it was convenient to do so.

 

[JohnKSa]

Any statute(s) written such that they would give these two dustheads the impression that this shoot even might be lawful should be reconsidered and/or clarified.

It's not like these folks were law students who read the law carefully but somehow got the wrong impression from it. We're talking about ignorant idiots who believed what other ignorant idiots told them. If they ever read a single word of TX law or ever had two words of it quoted correctly to them in their entire lives it would greatly surprise me.

You don't fix that by changing laws, you fix that by making examples of ignorant idiots when they do really stupid, illegal things.

 

[Kmar40]

Without defending them in any way (and I really don't mean to sound like I am), but the facts (at this time) do not seem to indicate that the intent was to shoot a 7 year old boy dead. That was the result, and due process will make them pay. But it appears that the shots were fired at the vehicles, with no knowledge of who was inside.

A distinction without a difference, legally. Undoubtedly the prosecutor will argue that they were trying to shoot the driver, at least. Transferred intent takes care of the rest.

I would say that firing into an automobile even if the methheads thought it was empty would at least be criminal recklessness and would support a manslaughter charge.

 

[djohn]

What the law say's one can do legally doesn't mean one has to follow it to the letter.

Even if they where on the land, a moral decent huming being would not or shouldn't shoot first and ask questions latter unless imminent danger.


IMO this is a case of triger happy people that just waited for opportunity to shoot somebody.


All can have been avoided with simple communication with the off roaders.