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Old November 10, 2011, 02:46 PM   #1
Bartholomew Roberts
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Texas Man Shoots Teen Over Vehicle Burglary

I know we often have discussions about use of deadly force to protect property. Since Texas is one of the few states that allows it, I thought this story would be interesting to follow:
http://www.star-telegram.com/2011/11...man-fires.html

The short version is five teenagers were driving around Fort Worth in an SUV. The SUV stopped and two got out and attempted to break in to the vehicle. They heard a door close from the residence where the vehicle was parked and fled back to the SUV, which drove off. However, the resident fired into the SUV, striking Jose Antonio Torres, 17, in the head and killing him.

Texas law for use of deadly force in defense of property states:

Quote:
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.
(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.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property1) 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.
Based on the very brief news report, it appears there are several concerns for the resident who fired the shots here:

1. There appears to be a question of whether the person he shot, is also a person who burglarized the vehicle.

2. Use of deadly force is only justified to prevent the other from fleeing with the property; but based on the news story, it appears no property was actually taken.

The case is going to the district attorney to see if he will recommend charges; but as a homicide will end up going to the grand jury in any case. It goes to illustrate some of the legal pitfalls of using deadly force to protect property, even in a state where that is allowed by law.
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Old November 10, 2011, 03:10 PM   #2
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There is the law and there is what's right. I think that, at the heart of the matter, is the saw that goes, "You can't call the bullet back."

I can only speak for myself, but if I pull the trigger, there will be a very good reason. Somebody driving away from the scene of a crime is not a very good reason to me. That's not just because Idaho law is different from Texas law, it's because of what I feel is right and wrong.

I won't offer up an opinion of whether or not the shooter is guilty of a crime because it seems to me that he's balanced right on the edge of a legal knife edge. I think that his future depends upon what kind of mood the DA and grand jury are in.
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Old November 10, 2011, 03:14 PM   #3
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Not good.
There was no further threat to the property or persons. The way I read that code, I don't think this will turn out well for the trigger man.
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Old November 10, 2011, 03:28 PM   #4
therealdeal
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a lesson was learned either way...don't break into people's cars and not expect consequences.
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Old November 10, 2011, 04:12 PM   #5
carguychris
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Quote:
Use of deadly force is only justified to prevent the other from fleeing with the property; but based on the news story, it appears no property was actually taken.
+1, and it should also be emphasized that §9.42(3) requires two other conditions:
Quote:
(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... property would expose the actor or another to a substantial risk of death or serious bodily injury.
(emphasis mine)

Points of contention:
  • It is unclear whether the shooter had any reason to believe that teens may have stolen something that could not be recovered by other means; for instance, auto insurance would normally cover things like broken windows and stolen stereos.
  • The story implies that there was no good reason for the shooter to fear for his/her life, as the suspects were reportedly already fleeing the scene when the shots were fired. Of course, this is from their version of events.
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Old November 10, 2011, 04:24 PM   #6
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Cold day in hell when the shooter is CONVICTED in this case. I have seen several other Texas cases that honestly had less legal grounds for use of force that fell apart or where a jury let the guy off.


Another thing; the shooter(homeowner) had no way of knowing the boys got nothing from his car when he shot. It could be somewhat ASSUMED they were fleeing with some property from the car.
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Old November 10, 2011, 04:35 PM   #7
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Unless they were fleeing with one of my kids I could not personally justify shooting, as this was described, regardless of what the law says.
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Old November 10, 2011, 04:35 PM   #8
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[QUOTE]I have seen several other Texas cases that honestly had less legal grounds for use of force that fell apart or where a jury let the guy off./QUOTE]

That's entirely a different matter altogether. A jury's decision in another case is non binding to a DA and the letter of the law. He does have a certain degree of discretion in deciding which situations he proceeds to file charges but basically he has to follow the letter of the law. That's the advantage of being judged by our peers and not by a judge.
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Old November 10, 2011, 06:16 PM   #9
Bartholomew Roberts
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Quote:
Originally Posted by Patriot86
Cold day in hell when the shooter is CONVICTED in this case. I have seen several other Texas cases that honestly had less legal grounds for use of force that fell apart or where a jury let the guy off.
I guess we will see on this one. I've seen at least two shootings using lethal force to protect property that resulted in the shooter being convicted and sent to prison. A great deal will depend on whether the grand jury decides to indict and if they do, then it wil be up to the jury. At that point, even if he doesn't get convicted, he will still end up spending enough money to buy several SUVs.

Quote:
Another thing; the shooter(homeowner) had no way of knowing the boys got nothing from his car when he shot. It could be somewhat ASSUMED they were fleeing with some property from the car.
The shooter must reasonably believe that use of deadly force was immediately necessary to meet the conditions outlined above. The problem with the bolded language is that whether the belief was reasonable is a question of fact of the type that is usually decided by a jury. Often if law enforcement has to guess at facts, they let the jury do it's job and sort them out.

And while it isn't impossible, proving that your belief was reasonable when the people you shot didn't actually have any property of yours is a tough spot to be in. In at least one of the shootings I mentioned above, that is exactly what led to the shooter being convicted.
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Old November 10, 2011, 08:57 PM   #10
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Good for the Texan.

These criminals will face justice no other way.
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Old November 10, 2011, 09:21 PM   #11
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It will be interesting to see how the case plays out.

I always wonder if cases like this have any effect on the rest of the would-be criminals.

Like when Jerome Ersland executed a robber. Whether or not Ersland was convicted (he was), I wonder if it makes criminals think that the next time they attempt to rob a pharmacy maybe they could run into another Jerome Jay Ersland?

On the other hand criminals tend to be stupid and not learn from their poor life decisions....
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Old November 10, 2011, 09:37 PM   #12
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Quote:
Another thing; the shooter(homeowner) had no way of knowing the boys got nothing from his car when he shot. It could be somewhat ASSUMED they were fleeing with some property from the car.
What if there wasn't any property in the car that couldn't be recovered by other means?

FWIW I never keep irreplaceable items in my car overnight. There's an iPod and a fairly nice Sony stereo, but my insurance will replace those. Other than that, all the thieves will get is an ice scraper, an umbrella, a towel, a few road maps, and a $0.50 NRA promotional "tactical" LED flashlight.
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Old November 11, 2011, 10:43 AM   #13
Glenn E. Meyer
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Reading the legal literature on self-defense and killing, very dense, there is no indication that kiling someone as a deterrent to others will fly as a justification or excuse.

What do they learn? They may learn to avoid or to be better killers. Take your choice.
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Old November 11, 2011, 11:42 AM   #14
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Quote:
...there is no indication that kiling someone as a deterrent to others will fly as a justification or excuse.
Vigilantism plays well on the silver screen but it's not a real-world solution to crime.
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Old November 11, 2011, 03:38 PM   #15
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Professor Gary Kleck has published an article on this:

Deterrence and macro-level perceptions of punishment risks: is there a “collective wisdom?”

But I can't find an actual hard-copy and it's $25.00 a day to read it online
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Old November 12, 2011, 04:57 PM   #16
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One thing I noticed while working in a detention facility: A lot of these stupid criminals are egged on by other stupid criminals.

On their own, they probably would not commit most of these crimes. I do not know how many times I heard "My buddies talked me in to doing...."

It is pretty easy to influence youngsters. Peer pressure and name calling can get them to do some pretty stupid things. I think that is why most parents and relatives say "He was such a nice boy, would never do anything like that..." But when they get with their friends, things can go downhill very fast.
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Old November 13, 2011, 08:25 AM   #17
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Quote:
It is unclear whether the shooter had any reason to believe that teens may have stolen something that could not be recovered by other means; for instance, auto insurance would normally cover things like broken windows and stolen stereos.
This part of the law doesn't seem to be a problem. If a burglar is leaving with your items and you can't somehow stop him/her physically, there is no reason to believe that you will be able to recover the items any other way. Insurance coverage isn't considered a means of recovery.

Quote:
Deterrence and macro-level perceptions of punishment risks: is there a “collective wisdom?”
The problem with collective wisdom is that it isn't uniform across the collective and can't be counted on to be present in any individual or small group of the collective.
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Old November 13, 2011, 09:16 AM   #18
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Quote:
Cold day in hell when the shooter is CONVICTED in this case.
In this case...

...me thinks there's a good possibility the residents in hell better do some Arctic weather gear shopping.

Taking the article at its own merits, with no extenuating circumstances(and there usually are), if I would be sitting on the jury, the shooter would be convicted.
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Old November 13, 2011, 09:49 AM   #19
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(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.

--------------------------------------------

I wish Idaho had the same as above. Personally, I believe in the right that every man has to defend his home and to protect those who are dependent on him; and from my heart I wish that every old man and boy in my country who can fire a gun would shoot down, as he would a wild beast, the men who are desolating their land, stealing from their homes, or insulting their women.

These youngins that were at out theiving around, are just the symptom of the larger issue. That issue is - our whole country has been taken over by these thugs! Who's fault is it? Parents? Courts? I just don't know. What I do know is that they were on the path to be career criminals. Most likely still are.
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Old November 13, 2011, 01:29 PM   #20
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Even if it is legal to take a human life to protect property, I don't think it is justifed on moral grounds...Not to mention the civil lawsuit which could drain you of everything you have left that the criminal did not have the opportunity steal...It just ain't worth it to me...However,if I determine my life or other innocent bystander is in danger or with severe physical harm...I'll stop the criminal with deadly force if necessary and worry about civil lawsuits latter.
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Old November 13, 2011, 02:10 PM   #21
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Quote:
Even if it is legal to take a human life to protect property, I don't think it is justifed on moral grounds...Not to mention the civil lawsuit which could drain you of everything you have left that the criminal did not have the opportunity steal...It just ain't worth it to me...However,if I determine my life or other innocent bystander is in danger or with severe physical harm...I'll stop the criminal with deadly force if necessary and worry about civil lawsuits latter.
Not that I disagree with you, but..

Is it possible that "Its not worth it to you" because you haven't been repeatedly stolen from?
Or you haven't had your last $20.00 stolen from you, so you couldn't eat for the rest of the week?

If it is ok to steal, as long as its done in a non violent manner, then why not make it legal?

Is it possible that you actually have a moral responsibility to protect what belongs to your family, even if it means using "deadly force".?
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Old November 13, 2011, 03:08 PM   #22
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Personal morality has nothing to do with it. The greater good of a peaceful society requires us to resist banditry and lawlessness. By not dealing with the problem today, here and now, you personally, are in all likelihood condemning others without the means to defend and resist to serious harm and injury, or worse. That's where personal morality needs to be.
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Old November 13, 2011, 04:09 PM   #23
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back in the day, you didn't steal a horse because you knew you would hang. If you did steal a horse you knew ahead of time you'd hang if you got caught.
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Old November 13, 2011, 05:05 PM   #24
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Quote:
Even if it is legal to take a human life to protect property, I don't think it is justifed on moral grounds.
The reason why we have laws is because things like morals and ethics are personal decisions. If you don't want stop somebody from stealing your hard earned belongings, that is your decision. What you claim as not being justified on moral grounds has no business in what is justified on moral grounds of the shooter. He may have felt 100% morally justified. So whose morals do we go with? Neither. We go with what is said in the law.

Quote:
back in the day, you didn't steal a horse because you knew you would hang. If you did steal a horse you knew ahead of time you'd hang if you got caught.
Back in the day, plenty of horses were stolen. Back in the day, people also figured they would get away with the crime. Back in the day isn't today, but criminals always figure they won't get caught.
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Old November 14, 2011, 12:16 AM   #25
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Assuming the facts as given by the criminal gang, the shooter is guilty of criminal homicide IMO.

The wonders of modern technology: looking down into the 2100 block of salisbury ave:
http://maps.google.com/maps?q=2100+S...73.43,,0,14.44

I am not in favor of using lethal force even in the hypothetical case of preventing someone I know is fleeing with my property after a burglary, because in an urban environment there's not just the legal requirements for lethal force to consider, but the possibility that your bullets will end up causing property damage/loss or injury to others not engaged in the burglary.

The location of this crime (either a vehicular burglary or a criminal homicide or both) was just behind some businesses and one residential side-street away from a city street. Not the best location to be shooting anyone outside unless you are very sure that it is necessary from a competing harms perspective (a criminal presenting an imminent threat of severe injury would be just about the only thing that qualifies, IMO).

Quote:
If it is ok to steal, as long as its done in a non violent manner, then why not make it legal?
In your view, making something a crime should always authorize victims to use lethal force to prevent the crime (or future crimes) if the criminal(s) are fleeing?
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