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Old December 7, 2021, 07:35 AM   #76
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It remains the prosecution's task to disprove that a shooter "felt in imminent danger of seriously bodily injury or death"--that is such a high bar, more or less requires the prosecution becomes a mind-reader; the prosecution has to basically assemble a mountain of quasi-circumstantial evidence that refutes what the shooter alleges he was thinking at the time of a shooting. Between that, the murkiness of laws and a judge's discretion to set the rules and drop charges as he sees fit, I believe these kinds of shootings are only going to increase. That's why I draw the line between the Rittenhouse thing and this one--this was clearly a choice to remain a threat on the guy's property after he was asked to leave, regardless of the "dance" between the shooter and the victim.
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Old December 7, 2021, 07:41 AM   #77
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Originally Posted by stagpanther
It remains the prosecution's task to disprove that a shooter "felt in imminent danger of seriously bodily injury or death"--that is such a high bar, more or less requires the prosecution becomes a mind-reader; the prosecution has to basically assemble a mountain of quasi-circumstantial evidence that refutes what the shooter alleges he was thinking at the time of a shooting.
The "imminent danger of death or serious bodily harm" criterion generally applies to self defense other than under the castle doctrine. This shooting will probably fall under the Castle Doctrine, if Texas has that in its laws, since the entire incident transpired on and adjacent to the porch of the shooter's home -- i.e. the curtilage. Unless Texas law applies the "imminent danger" criterion to self-defense within the home, that criterion won't apply.

I'm pretty certain Texas requires all homicides to be presented to a grand jury, so the question will be whether or not the grand jury hands down an indictment.

I have to leave for work so I don't have time to dig into this. This site provides links to Texas laws that probably apply. Rather than speculating, see what the actual laws that apply say on the matter:
https://guides.sll.texas.gov/gun-laws/stand-your-ground

Here's the part I think applies:

Quote:
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(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.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
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Old December 7, 2021, 07:50 AM   #78
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The "imminent danger of death or serious bodily harm" criterion generally applies to self defense other than under the castle doctrine. This shooting will probably fall under the Castle Doctrine,
I don't agree, almost all shootings usually make a "nod" to the concept of "proportionality" to the perceived threat vs the degree of force used to stop that perceived threat, regardless of where the shooting occurs. But once the threat occurs on someone's home property--that changes things, especially when family is involved. The castle doctrine is not an absolute get out of jail free card, but it usually takes away or reduces the imperative of duty to retreat.
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Old December 7, 2021, 08:07 AM   #79
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This one's messy... extremely bad judgement all round.

Invoking castle doctrine given what is shown in the video will produce
public blowback and likely weaken support -- if not the actual law as
written -- for the doctrine itself.

Bad JuJu.
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Old December 7, 2021, 08:23 AM   #80
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This one's messy... extremely bad judgement all round.

Invoking castle doctrine given what is shown in the video will produce
public blowback and likely weaken support -- if not the actual law as
written -- for the doctrine itself.

Bad JuJu.
The family of the victim have already launched a mountain of civil suits, my guess is they already know this is probably not going their way in a criminal trial. I don't think it will weaken the castle doctrine, but it certainly will likely put the notion of proportionality of action vs the idea of "perceived threat" under scrutiny. That's a pot of molasses and more people are likely going to die as the boundaries are pushed out IMO.
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Old December 7, 2021, 08:34 AM   #81
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I think you need to review how KY implements Castle doctrine....
This is not a thread on KY Castle Doctrine. It's a thread on a TX shooting, so there's no need to roll off into KY law.
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Old December 7, 2021, 08:43 AM   #82
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I'm pretty certain Texas requires all homicides to be presented to a grand jury, so the question will be whether or not the grand jury hands down an indictment.
Correct. So the grand jury may no bill the shooter and nothing happens to him and if they don't, then it will likely end up in the hands of a jury.
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Old December 7, 2021, 09:38 AM   #83
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He has the right to order the trespasser to leave the property and to use force in doing so.
I don't think anyone but law enforcement can use force to trespass someone. Correct me if I'm wrong.
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Old December 7, 2021, 10:03 AM   #84
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The other side to that is that despite having gone inside after telling the EX to leave the property, the EX refused to leave and hence was trespassing and a belligerent trespasser at that. He has the right to order the trespasser to leave the property and to use force in doing so.
Correct.

Also, here's a hot take on that very subject : https://ltcaustin.com/when-are-texan...t-trespassers/



From that article : "The scenario changes if the trespasser notices the property owner and engages with him or her while armed. This changes the situation from trespass to attempted murder or aggravated robbery. This matters when separating force from deadly force. Firing upon the perpetrator in this scenario would likely be deemed a justifiable action."
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Old December 7, 2021, 10:36 AM   #85
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The above article is rather unclear IMO. I don't think there is any question that deadly force is allowed (assuming you are under castle doctrine) inside your home.

But I do not think FORCE can be used to remove someone from your property, IE: your yard.
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Old December 7, 2021, 11:25 AM   #86
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I don't think anyone but law enforcement can use force to trespass someone. Correct me if I'm wrong.
Consider yourself corrected.

Texas Penal Code - PENAL § 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.
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Old December 7, 2021, 11:57 AM   #87
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Originally Posted by stagpanther View Post
The family of the victim have already launched a mountain of civil suits, my guess is they already know this is probably not going their way in a criminal trial. I don't think it will weaken the castle doctrine, but it certainly will likely put the notion of proportionality of action vs the idea of "perceived threat" under scrutiny. That's a pot of molasses and more people are likely going to die as the boundaries are pushed out IMO.
Yes, and taken with mehavy's post, what concerns me. There is the "law", "justice", and then what is morally right. There are degrees and perceptions to all and they are not, as some opine, all in concert with each other. The law is written by men to try and impart their perceptions of justice and morality onto the actions of others. Threat of violence is what really makes it all work (or as much as is possible). When the threat of corporate violence is removed, by choice of passivism, removal of tough sentencing including the death penalty, etc., the .gov, in some manner breaches the social contract and in effect places upon the individual, or at least smaller groups, the need to make harder and harder choices when it comes to self defense. Those who rebuke the notions of self-control, a "higher calling", support of their fellow man, tend to have reactions of stripping the choice of self defense from the individual. That, in essence, is part and parcel of the majority of those who are anti-gun.
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Old December 7, 2021, 03:15 PM   #88
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the EX refused to leave and hence was trespassing and a belligerent trespasser at that. He has the right to order the trespasser to leave the property and to use force in doing so.
and we have these cites from Texas law...

Quote:
Texas Penal Code - PENAL § 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.
and this,
Quote:
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(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.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Am not a lawyer, but it seems to me that this situation does not meet all the requirements in the cited sections of Texas law.
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Old December 7, 2021, 05:03 PM   #89
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As noted, the deceased had been ordered to leave and had not. The homeowner went inside and got his rifle and brought it outside without pointing it at the deceased (force, as noted by JohnKSa above) as he apparently believed it was immediately necessary for the situation to get the trespasser to leave.

Once the much larger trespasser made verbal threats to take the gun and use it on the homeowner and then assaulted the homeowner and attempted to take the rifle, the homeowner was rightfully in fear of his life and defended himself (deadly force).

Note, I am not stating that grabbing a rifle for force was in any way prudent in this situation, only that it does not appear to be illegal.
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Old December 7, 2021, 08:16 PM   #90
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[[B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or]

This right there.
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Old December 7, 2021, 11:45 PM   #91
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there is going to be a lot of legal hair splitting in this one at least from what I can see from my chair.

Did the trespasser

Quote:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
arguably, stepping on someone porch is not "with force"...

Quote:
(2) did not provoke the person against whom the force was used;
Arguably, returning to the confrontation after retreating inside the house could be "provoking"

What we have here is a situation where the homeowner might be within his legal rights for some actions and outside them for others, depending on how the laws are interpreted by those who are ruling on the case.

In other cases firing a "warning shot" or "shooting to wound" has been argued that demonstrates that the shooter felt deadly force was NOT warranted...

then there is the disparity of force argument, and what would a reasonable person do, and, ..and...and...

This is a can of worms and no matter what all of us armchair quarterbacks might think, the only thing we can be sure of until the case is dismissed or finishes in court is that when you play stupid games you win stupid prizes.
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Old December 8, 2021, 12:28 AM   #92
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there is going to be a lot of legal hair splitting in this one at least from what I can see from my chair.
To that . the widow of Reed has filed a civil suite against Carruth on behalf of her self . I don't know where to find it but one of the Youtube lawyers read through it and wow . Very interesting how you get to leave out everything stupid your side did . It was almost comical in what they allege . One thing they seem to say in the paperwork is that Reed went there looking for he son . It appears the Carruth residence was not the designated place to pick the child up . Meaning Reed was uninvited and really should have left when asked too . In fact they state in the paperwork Reed went to his ex wife's place of business to search for the child . It seems Carruth works out of his house and Reeds ex works for Carruth I guess . Regardless they kept referring to Carruths house as Reeds ex-wife's work place or Carruths place of business . My guess is because going to a business uninvited would seem less trespassy then going to Carruth's home uninvited .

Starts at 1hr32min mark
https://www.youtube.com/watch?v=ngWqqKLv050&t=19s
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Old December 8, 2021, 01:40 AM   #93
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... Castle Doctrine...
This shooting, as far as I can tell, has nothing to do with Castle Doctrine.

Castle Doctrine in TX applies when someone:
  • Unlawfully and with force enters or attempts to enter your habitation, vehicle, or work-place;
    or
  • Attempts to remove you, by force, from your habitation, vehicle, or work-place;
    or
  • Was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

There was no attempt to enter any house, workplace or vehicle.
There was no attempt to remove the homeowner by force.
There was no attempt to commit any of the crimes listed in the last bullet.

And no, trying to take a child in a custody dispute is not aggravated kidnapping unless there are other circumstances. Here's the definition of aggravated kidnapping in TX.
Sec. 20.04. AGGRAVATED KIDNAPPING. (a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:

(1) hold him for ransom or reward;

(2) use him as a shield or hostage;

(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;

(4) inflict bodily injury on him or violate or abuse him sexually;

(5) terrorize him or a third person; or

(6) interfere with the performance of any governmental or political function.

(b) A person commits an offense if the person intentionally or knowingly abducts another person and uses or exhibits a deadly weapon during the commission of the offense.
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Old December 8, 2021, 07:32 AM   #94
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Originally Posted by John KSa
This shooting, as far as I can tell, has nothing to do with Castle Doctrine.

Castle Doctrine in TX applies when someone:

Unlawfully and with force enters or attempts to enter your habitation, vehicle, or work-place;
or
Attempts to remove you, by force, from your habitation, vehicle, or work-place;
or
Was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.


There was no attempt to enter any house, workplace or vehicle.
There was no attempt to remove the homeowner by force.
There was no attempt to commit any of the crimes listed in the last bullet.
Does Texas not recognize the concept of curtilage?
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Old December 8, 2021, 08:23 AM   #95
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Originally Posted by John KSa
Quote:
There was no attempt to remove the homeowner by force.
Were we watching the same video ? After being ordered to leave, (by the armed homeowner) the guy picked up the homeowner from his front porch and moved him into the yard.

The porch would be the "home" and putting the guy off his porch is literally "removing him from his home by force"

I think that meets that particular qualification.

The little guy Asked everyone to leave his property, the big guy flatly refused.
The little guy retrieved his firearm and ordered the bigger guy to leave.
The big guy assaulted him and, while attempting to take his firearm "removed" him from his home by force.
As soon as the little guy regained control of the firearm, he fired.

I'll admit I'm a bit dubious about the warning shot but, the rest is a good shoot IMO.
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Old December 8, 2021, 02:17 PM   #96
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Were we watching the same video ? After being ordered to leave, (by the armed homeowner) the guy picked up the homeowner from his front porch and moved him into the yard.
Interesting interpretation. What I saw was that he attempting to disarm the homeowner, grabbing the rifle, and the homeowner spun and/or was forced to spin (while the aggressor attempted to take the rifle) and extricated from the aggressor's grasp, ending up off the porch, turning and firing. Nowhere did I see that the homeowner was "picked up."
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Old December 8, 2021, 08:49 PM   #97
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If the porch is consider the home then it is a good shoot.

Very few of you don’t shoot someone entering your home uninvited. Even fewer of you don’t shoot after he attempts to disarm you can throws you out of the home.

Again, if the porch is legally considered the part of the home then this a good shooting.

The deceased grabbed the shooter/firearm and moved the shooter off the porch (out of the home). How is that not removing homeowner from the home?

Texas law seems to allow use of deadly force if someone removes or attempts to remove you from your home. If the porch is the home, then the video clearly shows the deceased doing that.
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Old December 8, 2021, 09:13 PM   #98
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Originally Posted by sfwusc
If the porch is consider the home then it is a good shoot.

...

Texas law seems to allow use of deadly force if someone removes or attempts to remove you from your home. If the porch is the home, then the video clearly shows the deceased doing that.
https://www.law.cornell.edu/wex/curtilage

https://legal-dictionary.thefreedict....com/curtilage

https://definitions.uslegal.com/c/curtilage/

https://study.com/academy/lesson/wha...-case-law.html
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Old December 8, 2021, 10:23 PM   #99
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If they want to charge him, then the state needs 12 people to all agree that an attached, covered porch behind a fence isn’t part of a house.

If they can do that, then we can discuss the other possible means that would have given the shooter the right to use deadly force.


Ask around random people, is a porch part of a house?


Now, should the shooter have killed him? That is a whole another discussion. I think it is clear cut he had the legal right to do it.
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Old December 8, 2021, 11:30 PM   #100
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Now, should the shooter have killed him? That is a whole another discussion. I think it is clear cut he had the legal right to do it.
I think that is the over arching point regardless of case be it Carruth , Baldwin , Rittenhouse or Potter . Was it morally wrong , bad choices , could have things been done better . Maybe but was it criminal is the real question
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