Appropriate use of deadly force Texas style

[Evan Thomas]

Originally Posted by zincwarrior

I think you'll be hard pressed to find case law (other than this case) to support this argument. WOuld be interesting though.

It isn't a matter of case law, but of what is and is not written into the statutes. Read the part you quoted above; it neither includes nor refers to the following section, which is included in the portions dealing with defense of persons:

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

Since it's not there, it doesn't apply to defense of property.

As to the question of an appeal by the prosecutor, in most places, a prosecutor is allowed to appeal a verdict only if there was egregious misconduct, such as bribery of jurors, during a trial. Otherwise, the protection against double jeopardy prevents prosecutorial appeals.

But things may be different in Texas, as they so often are.

[zincwarrior]

You could be right on that. I'm getting that confused with self defense.

[csmsss]

As to the question of an appeal by the prosecutor, in most places, a prosecutor is allowed to appeal a verdict only if there was egregious misconduct, such as bribery of jurors, during a trial. Otherwise, the protection against double jeopardy prevents prosecutorial appeals.

But things may be different in Texas, as they so often are.

Well, not in this case, as it's a constitutional protection. And it's one that federal courts are extraordinarily reluctant to breach.

[JRH6856]

When I was growing up this was a "watermelon law". It is what allowed a farmer to unload a couple of 12ga rounds of rock salt into your rear end as you ran off with his melons at night. And it is what allows you to follow Joe Biden's advice to fire a couple of "blasts" in the air when someone is making off with whatever. You don't have to shoot them, but you may cause them to drop whatever they are taking. Whether you kill them, injure them, or miss completely, it is still a use of deadly force.

Originally Posted by zincwarrior

(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.

In the case in question, the dispossession was accomplished by fraud. She took the money, said she had to give it to her driver, then got in the car and left. Any offer of service in exchange for a fee was fraudulent as demonstrated by her actions. The defendant fired at the fleeing vehicle in an attempt to stop the theft and recover the money. The shot struck the victim, but that may or may not have been the intent.

[ClydeFrog]

I honestly don't have loads of sympathy for "career criminals" or "frequent flyers" as some working cops call them.
A street crook & petty thief I had a few run-ins with as a hotel security guard in a low end property about 3 years ago was recently busted for auto theft(felony).
He's in his mid-20s & has a long rap sheet. I'm 100% sure this felon will move on to violent crimes like armed robbery & home invasions later in life if he doesn't do a long stint in prison.
If a armed citizen or license holder uses lethal force on a bad guy, think of all the crimes or deaths or misery that may prevent in the future.

CF

[Evan Thomas]

Originally Posted by ClydeFrog

If a armed citizen or license holder uses lethal force on a bad guy, think of all the crimes or deaths or misery that may prevent in the future.

Clyde, you probably mean that this could be a side effect of using deadly force, but just to be very clear: this is never a valid reason for the use of deadly force.

Wannabe heroes are apt to think this way, but the only justification for a civilian to use deadly force is to stop an immediate threat or a crime in progress. It's vital to know the laws in your jurisdiction.

[JohnKSa]

It’s a payment for a service not tangible property.

Interesting point. I wonder if one of our legal experts could weigh in on whether or not money is generally considered to be "tangible, movable property".

[JRH6856]

I don't think it makes any difference if the payment is for a service or "tangible, moveable property" if the payment is obtained by fraud.

[JohnKSa]

The question arises because the law only justifies the use of deadly force when the property in question is "land or tangible, movable property". Money clearly isn't "land", so if it's also not "tangible, movable property" then the law doesn't apply to the recovery of money and there would be no justification available under the law.

I don't know the legal definition of "tangible, movable property".

[JRH6856]

Tangible property in law is anything which can be touched, and includes both real property (land) and personal (moveable) property. Money is considered personal property. (When an estate is probated, money is listed as personal property.)

[zincwarrior]

Quote:
Originally Posted by zincwarrior
(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.

In the case in question, the dispossession was accomplished by fraud. She took the money, said she had to give it to her driver, then got in the car and left. Any offer of service in exchange for a fee was fraudulent as demonstrated by her actions. The defendant fired at the fleeing vehicle in an attempt to stop the theft and recover the money. The shot struck the victim, but that may or may not have been the intent.

It wasn't fraud. It was a dispute on the terms of the contract's "work" to be performed. This is a service contract. No different then if some guys came in to do drywall work, and as they left for the evening the buyer decided to fire rounds at them to get them finish the job that night (with his mega high capacity assault AR-47)

The defendant committed a felony in shooting at the vehicle. At best this is involuntary manslaughter. I tell you though, if you ever get in trouble in Central Texas, you need this guy's lawyer, jury consultant, and judge.

I don't think it makes any difference if the payment is for a service or "tangible, moveable property" if the payment is obtained by fraud.

It matters under the horribly tortured use of the statute in this case.
If "money" is not viewed as property under the definition, then there's another reason this case was bust. Jeez was the prosecutor even there during the trial?

[Double Naught Spy]

The defendant committed a felony in shooting at the vehicle. At best this is involuntary manslaughter.

Apparently, the judge and jury that actually heard the case feel completely different than you do.

It wasn't fraud. It was a dispute on the terms of the contract's "work" to be performed. This is a service contract. No different then if some guys came in to do drywall work, and as they left for the evening the buyer decided to fire rounds at them to get them finish the job that night (with his mega high capacity assault AR-47)

You have some insight into the case and know that the escort was going to return to finish the job the next day? Come on.

To put it in your contractor terms, it would be theft by deceit (scam) whereby a job was to be performed, was paid for in advance, and the contractor fled with the money and without performing the service, much like 'gypsy' roofers.
http://news.google.com/newspapers?ni...pg=3442,907279
http://www.kcbd.com/story/1843704/gy...ubbock-to-scam

The suggestion that this is simply a contract dispute (civil matter) seems to differ considerably from the perspective of the cops who see such as a criminal matter. A promise to perform work you aren't going to perform after being paid for it isn't a contract dispute. It is theft and at the time it was a theft in progress. Theft at night, certainly in progress as happened here, is covered under the law.

[Spats McGee]

Originally Posted by JohnKSa

Interesting point. I wonder if one of our legal experts could weigh in on whether or not money is generally considered to be "tangible, movable property".

Hmm, I don't deal in the kind of law where this becomes an issue, but my first reaction is that currency is a kind of tangible, personal property.

According to 49 CFR 262.3 [Title 49 – Transportation; Subtitle B Other Regulations Relating to Transportation; Chapter II Federal Railroad Administration, Department of Transportation; Part 262 Implementation of Program for Capital Grants for Rail Line Relocation and Improvement Projects], tangible personal property means “property, other than real property, that has a physical existence and an intrinsic value, including machinery, equipment and vehicles.”

Money is defined as "a medium of exchange authorized or adopted by a domestic or foreign government as a part of its currency." Cushman v. GC Servs., LP, 2009 U.S. Dist. LEXIS 92863 (S.D. Tex. Aug. 13, 2009)

Source:http://definitions.uslegal.com/

I've been turning this one over in my head for several days, which is why I haven't weighed in much. Clearly, the jury thought that this shooting met the legal requirements of TX law. Despite that, I have a hard time with it. It just doesn't pass the smell test for me. Yes, the deceased and her driver were likely engaged in an illegal activity. Then again, so was the shooter (solicitation). Yes, TX law allows for deadly force indefense of property, under certain circumstances. Yes, when all the chips are counted, this likely cost the shooter a great deal more than the initial $150 dollars that he would have lost if he'd just let them drive away. That said, the nydailynews article says that he shot at her car "as she was driven away." That says to me that he followed her outside. As far as I can tell, there was no threat to his life, his family, or anything other than the $150. It just doesn't sit right with me.

[csmsss]

Another interesting thing about this case is that it was tried in Bexar County (San Antonio). It might not be terribly surprising to see a case resolved this way in a rural TX county (what few there are left), but not in an urban area like this.

[zincwarrior]

Another interesting wrinkle. If its not physical currency, but debt/credit/check, how would that interplay? It could be argued thats not tangible, movable property. I'm sure there's case law on it.

The problem here is that, its such a crazy fact pattern, who's scope means that pretty much any transaction occurring at night could lead to gunplay, even if its an illegal activity. Go to a 7/11, don't like the candy bar. Clerk tries to leave because shooter is acting crazy and blamo legally dead clerk. I don't see on what tortured argument this can hold. Its like some off the wall Bar exam test.

[JRH6856]

As it was explained to me, a credit card is tangible personal or moveable property. It can be touched, it is obviously personal as it has your name on it, it can be moved, and it has value.

Likewise, a music CD is tangible personal property. It can be touched, it can be moved, and it has value. It also contains intellectual property which is not tangible and not yours. A person stealing the CD is stealing tangible property from you. A person copying the CD is stealing intellectual property, not from you but from the artist who created the music. Theft of intellectual property is not covered under the law in question.

I don't think the 7-11 candy bar analogy holds because there are other avenues offering hope of recovery other than by use of deadly force. Such as complaining to the corporate offices.

[Double Naught Spy]

Go to a 7/11, don't like the candy bar. Clerk tries to leave because shooter is acting crazy and blamo legally dead clerk.

This does not make any sense and/or would not be covered under the law.

You go to 7/11 and buy a candy bar. It is YOUR property. There is no law that says 7/11 must buy it back from you if you don't like it. You don't get to shoot the clerk under the law. He isn't stealing property from you at night, is he?

[JRH6856]

Originally Posted by Spats McGee

That said, the nydailynews article says that he shot at her car "as she was driven away." That says to me that he followed her outside. As far as I can tell, there was no threat to his life, his family, or anything other than the $150. It just doesn't sit right with me.

But the law does not require that there be a threat to his life or family, only to property, and only when there is (a) no hope of recovery by any means other than deadly force, or (b) when an attempt at recovery without use of deadly force would expose the actor to risk of death or serious bodily injury.

Two unidentified persons fleeing in an unidentifiable vehicle would seem to be covered under (a) and two persons would seem to create a disparity of force that would be covered under (b). That he pursued her outside rather than shooting her when she tried to leave the room suggests that he may have been attempting to use less than deadly force until he was faced with either a disparity of force or a fleeing vehicle with no other way of stopping it.

What does not sit right with me is that, as Vanya pointed out, there is no preclusion of justification when the act occurs in the course, or as the result of another crime in which the actor is a willing participant.

[Spats McGee]

Having read the code sections, I understand that the TX law in question does not require a threat to life or limb. It still doesn't sit right with me. This is one of those times when "legal" doesn't necessarily equate with "right" in my mind.

[zincwarrior]

Quote:
Go to a 7/11, don't like the candy bar. Clerk tries to leave because shooter is acting crazy and blamo legally dead clerk.

This does not make any sense and/or would not be covered under the law.

You go to 7/11 and buy a candy bar. It is YOUR property. There is no law that says 7/11 must buy it back from you if you don't like it. You don't get to shoot the clerk under the law. He isn't stealing property from you at night, is he?

Its applicable.
1) it occurs at night.
2) the clerk leaving when you're displeased with the product, is taking your property (money), without providing the product you desired.
3) you shoot said clerk and claim defense of property.

Another example:
1) buyer pulls up to illegal crack dealer at night.
2) an exchange is made.
3) buyer reviews the product in more detail and is not happy with the weight or consistency of the product.
4) crack dealer attempts to flee with buyer's money.
5) buyer shoots the crack dealer.
Thats a good shoot using this case as stare decisis.


Its not different then the actual case. I'd say its an absurb example, but the real world situation is so absurd itself as to make any attempt at absurdity nothing by comparison.

I know its stupid but thats the point. If this case is used as stare decisis it opens a massive can of worms. This has to be addressed via appeal or change the law.

[arch308]

I like the law as it stands. Just because you don't agree with this one verdict you need to change the law? Seems rash to me.

[zincwarrior]

While I don't think this will start a run of convenience store shootings, its a definite defence in a slew of criminal activity.

And no I don't like the law. Just because its night time doesn't mean you should be ok shooting someone stealing your purse.

[JRH6856]

Its applicable.
1) it occurs at night.
2) the clerk leaving when you're displeased with the product, is taking your property (money), without providing the product you desired.
3) you shoot said clerk and claim defense of property.

Not applicable as all conditions required by the law are not met. To wit, there are other avenues available for later recovery than by immediate use of deadly force.

Another example:
1) buyer pulls up to illegal crack dealer at night.
2) an exchange is made.
3) buyer reviews the product in more detail and is not happy with the weight or consistency of the product.
4) crack dealer attempts to flee with buyer's money.
5) buyer shoots the crack dealer.
Thats a good shoot using this case as stare decisis.

Not the same as the San Antonio case. In the example above, and exchange was made. Goods were received in exchange for cash. In the San Antonio case, there was no exchange. Nothing was received in exchange for the cash. Could have been fraud in either case.

In any event, the theft at night justification could be claimed, and I'm fairly certain a search of cases would find that it has been claimed many times under similar circumstances without success.

What makes the San Antonio case notable is that the jury accepted the defense. (Juries are not bound by stare decicis.)

[Double Naught Spy]

Its applicable.
1) it occurs at night.
2) the clerk leaving when you're displeased with the product, is taking your property (money), without providing the product you desired.
3) you shoot said clerk and claim defense of property.

NO! Once you purchased the product and took possession of it, the money you used to pay for it was no longer yours. You don't get to own the money you paid somebody else and the product you purchased with it as well. You made a purchase transaction, and EXCHANGE. That is how proper purchases work. That you are not happy, after the fact, when the clerk at 7/11 did nothing wrong does not give you any right under any law to shoot him, even at night.

Another example:
1) buyer pulls up to illegal crack dealer at night.
2) an exchange is made.
3) buyer reviews the product in more detail and is not happy with the weight or consistency of the product.
4) crack dealer attempts to flee with buyer's money.
5) buyer shoots the crack dealer.
Thats a good shoot using this case as stare decisis.

Again, no. In this case, the shooter did NOT receive the product. He paid for a service he did not receive and the person left with the money. That is theft.

What you are describing with your crack example and your candy bar example is not theft. In both cases of your cases, the sellers delivered and payment was made. In the OP court case, money was paid but the seller did not deliver.

[deepcreek]

I wonder how much the shooter has spent in legal fees to stay out of jail for his effort to collect his $150.

This is my thought.

I could see shooting at someone for stealing a box of jewelry, horse, car, etc probably what the law was made for. But where do you draw the line?

It would be sad to see a kid get killed for stealing a garden gnome, a hooker stealing money not so much.