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Old February 28, 2011, 11:40 PM   #26
JohnKSa
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Join Date: February 12, 2001
Location: DFW Area
Posts: 18,428
It's important to note that section 9.42 is NOT the entire text of TX law on using deadly force for property protection. The conditions in 9.41 must ALSO be satisfied.

The reason that it's not terribly common to see prosecutions for such actions likely has a lot more to do with the difficulty of indicting a defendant in some areas than it does with the letter of the law.
Quote:
I think if a there is a broken window there is personal stuff scattered all inside your vehicle the door is open and there someone there with a screw driver in his hand isn't that enough justification to shoot legally.??..
Absolutely not!

That is not at all what the law says.

§ 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.
(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
(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
(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
(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
(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.
You are talking about a simple theft, not a robbery or aggravated robbery or burglary and therefore what it comes down to is that you can legally use deadly force to prevent criminal mischief and theft ONLY if ALL of the following conditions apply:
  • The crimes happen at night AND
  • You were in lawful possession of the property in question prior to the incident AND
  • You reasonably believe that only force can prevent the damage/loss of property AND
  • You reasonably believe that immediate action is necessary to prevent the damage/loss of property AND
  • The force is used immediately AND
  • You reasonably believe the person taking the property has no legal claim on it (i.e. no shooting the repo man) OR you know he's taking it by force, threat or fraud AND
  • You reasonably believe that deadly force is immediately necessary to prevent the crime AND
  • You reasonably believe that only the use of deadly force can prevent the crime OR that using any other method (besides deadly force) would expose you or another innocent to substantial risk of serious injury or death.
You can use deadly force to recover property stolen in a burglary, stolen in a robbery or stolen in a theft that took place during the nighttime ONLY if ALL of the following conditions apply:
  • You were in lawful possession of the property in question prior to the incident AND
  • You reasonably believe that only force can recover the property AND
  • You reasonably believe that immediate action is necessary to recover the property AND
  • The force is used in "fresh pursuit" AND
  • You reasonably believe the person taking the property has no legal claim on it (i.e. no shooting the repo man) OR you know he took it by force, threat or fraud AND
  • You reasonably believe that deadly force is immediately necessary to recover the property AND
  • You reasonably believe that only the use of deadly force can recover the property OR that using any other method (besides deadly force) would expose you or another innocent to substantial risk of serious injury or death.
Quote:
I rather pay lawyer fees and know that justice was served.. Than to pay damages and know that the bad guy is smoking it up with his friends talking about how someone just got jacked.. I guess its also a pride thing,i am willing to go thru the consiquences than to just sit there and take it..
If you shoot him without the proper legal justification then justice has not been served and you're as much of a bad guy as he is.

Besides, the deadly force laws are not there to give citizens a way to mete out justice, they are there to allow citizens to protect themselves (and in very restricted circumstances their property) when there is NO OTHER reasonable method for doing so.

The idea that the law gives you, the citizen, the right to hand out justice is NOT consistent with the principles governing the legal use of deadly force.

The legal use of deadly force is NOT about handing out justice with a gun, it is about preventing serious crimes under very carefully defined circumstances when no other reasonable options are available.
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