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Old December 9, 2021, 01:55 AM   #101
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Now, should the shooter have killed him? That is a whole another discussion.
The way you worded it, it could be a couple of different discussions at least.

The first point is, why are you even asking, do you think there was an option to stop him using deadly force where there was no risk of death??

The law recognizes that deadly force is exactly that, force that may result in death. The way our legal system works, intentionally killing someone is always a crime. Outside a courtroom many find it a distinction without a difference, but in court it matters, whether you intended to kill someone, or if they died as a result of being stopped by justifiable deadly force.

Next point, tied in with but slightly different from the first one, the justification for using deadly force on someone is to stop them from doing that to you. If you shoot them somewhere that death is unlikely, its possible that will not stop the attack. Also, there is a legal argument about only "shooting to wound" and that is, that since you only tried to wound them, then you did not actually believe deadly force was necessary.

AND, under our system if you do not truly believe deadly force is necessary, then your "defensive" use of deadly force can change to offensive action in the eyes of the law.

And this argument is also applied to "warning shots". If you do not believe that deadly force is absolutely necessary then you should not shoot.

I'm not a lawyer, and this is not valid legal advice, its just my observation of how things seem to work. (and my CYA)

And fwiw, asking "should the shooter have killed him" implies (to me) an execution /deliberate murder, like putting two rounds into the back of his head after he's already been stopped. That certainly isn't legal, and its probably not what you meant, but its what your phrasing brings to my mind.

In "gravest extreme" we shoot to STOP the threat, no more, no less. If the attacker dies as a result of being stopped, the law allows for that.
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Old December 9, 2021, 02:02 AM   #102
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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.
Apparently not. The video shows the bigger guy grab at the gun, the smaller guy twists away into the yard. There's nothing in the video that could be even creatively described as anyone picking anyone else up.

But it's moot. Wrestling around on the porch isn't what the TX Castle Doctrine is talking about.
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Does Texas not recognize the concept of curtilage?
I'm sure it does, but it's not equivalent to "habitation", "workplace" or "vehicle". Trying to say that walking on to someone's land or onto their porch is the same as "entering their habitation" isn't going to fly.

A habitation is specifically defined in TX law as a structure made for overnight accommodation of persons.
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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.
For Castle doctrine to apply, the person has to unlawfully and with force, enter, or attempt to enter a structure that is made or adapted to overnight accommodation of persons. Saying that a person walking onto a porch is entering a habitation with force is a stretch, to say the least.

If you have to spin the circumstances and creatively interpret the statute for things to work out the way you think they should, that's a clue that you're working backwards from a conclusion to make the laws and the situation fit that conclusion. That means it's time to step back and reassess. Start with the facts and the statutes and work forward to a conclusion.

Look, to be clear, I'm not arguing guilt or innocence here, I'm just saying that TX Castle Doctrine does not apply.
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Old December 9, 2021, 09:00 AM   #103
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The legal term “habitation” is defined by Texas Penal Code §30.01 as “a structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.” This means structures that are detached from where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.


Texas Penal Code disagrees.
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Old December 9, 2021, 10:16 AM   #104
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Originally Posted by John KSa
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Does Texas not recognize the concept of curtilage?
I'm sure it does, but it's not equivalent to "habitation", "workplace" or "vehicle". Trying to say that walking on to someone's land or onto their porch is the same as "entering their habitation" isn't going to fly.
Actually, if Texas recognizes the concept of curtilage, walking onto someone's front porch or remaining in their immediate front yard after being told to leave would be exactly the same as being in their habitation. That's what the concept of "curtilage" is all about.

But I'm not a lawyer so I don't have the ability to research Texas case law to find out if that's the way Texas looks at curtilage.
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Old December 9, 2021, 01:57 PM   #105
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Aquila— the porch is the same as part of the house. See Texas Penal code 30.01. Castle doctrine applies. It isn’t part of the curtilage. It is part of the habitation, by code. It is attached to the structure where the shooter sleeps.

JohnKsa —- did you read Texas Penal code 30.01 Before saying I was backing into my position?
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Old December 9, 2021, 08:39 PM   #106
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Actually, if Texas recognizes the concept of curtilage, walking onto someone's front porch or remaining in their immediate front yard after being told to leave would be exactly the same as being in their habitation.
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Aquila— the porch is the same as part of the house. See Texas Penal code 30.01.
I think (1)(B) would be what is being referenced...

Quote:
(1) “Habitation” means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:

(A) each separately secured or occupied portion of the structure or vehicle;  and

(B) each structure appurtenant to or connected with the structure or vehicle.

(2) “Building” means any enclosed structure intended for use or occupation as a habitation or for some purpose of trade, manufacture, ornament, or use.
In that light, it would seem that this is a whole lot less legally ambiguous. The porch would apparently be included as an attached structure to the habitation, but not necessarily the front yard. The deceased was on the porch after being told to leave and died on the porch.
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Old December 9, 2021, 08:57 PM   #107
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This has been my point the whole time but not my original thought that goes to Andrew Branca . Which is technically by law it’s a legal self defense but it’s a poor argument because of the technicalities to argue to a jury . Technically he was OK to shoot but are you going to convince of jury that an unarmed man 10 feet away not progressing toward you really deserve to die ?
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Old December 10, 2021, 03:03 AM   #108
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JohnKsa —- did you read Texas Penal code 30.01 Before saying I was backing into my position?
I didn't just read it, I QUOTED from it. How could you possibly not realize that significant portions of my posts on this thead were taken word from word from it?
Quote:
Texas Penal Code disagrees.
Here's the exact definition.

"Habitation" means a structure or vehicle that is adapted for the overnight accommodation of persons, and includes:

(A) each separately secured or occupied portion of the structure or vehicle; and

(B) each structure appurtenant to or connected with the structure or vehicle.
Quote:
Actually, if Texas recognizes the concept of curtilage, walking onto someone's front porch or remaining in their immediate front yard after being told to leave would be exactly the same as being in their habitation. That's what the concept of "curtilage" is all about.
Did you read the definition of habitation? It specifically refers to a structure. A structure is a pretty specific thing.

While there very well may be other laws in TX where curtilage applies the very specific definition of habitation makes it clear exactly what is being defined and it's not the patio, not the land around the house, it's "a structure". And not just any structure, it has to be a structure designed for overnight accommodation of persons.

And not just any part of the structure, it is a "secured" or "occupied" part of the structure.

And just being near it doesn't apply, one must enter or attempt to enter. (Keep in mind that the entire concept of entering demands that there be an inside and an outside and going from one to another.)

And just entering (going from outside to inside) or attempting to enter doesn't apply, it must be done unlawfully.

And just doing it unlawfully doesn't apply, it must also be done with force.

I'll say it again, if you find yourself searching for ways to interpret the law to fit a spun version of the circumstances, you're working backwards from a conclusion instead of letting the law and the circumstances point towards a conclusion.

In other words, you don't look at the law and say:

Is there any possible way we can take this law and these circumstances and creatively make them fit together?

A defense attorney may be forced to try a strategy like that to do his job, but that's not how the law should be interpreted in general.

You want to look at the circumstances and the law and ask yourself if they mesh. Not "How can I possibly MAKE them mesh?", not "Are there any unusual definitions of any of the common terms that might make them mesh?", not "Is there a way to spin the circumstances so it looks like the laws might fit that altered version of reality?" Just look at them and see if they fit.

If you have to try to redefine a "structure designed for overnight accommodation" into a porch, that's a clue you're trying too hard.

If you have to redefine "entering a habitation unlawfully and with force" to stepping onto a porch while screaming at someone, to make things fit, then it's time to step back and reassess.

The laws were written with clear intent and the definitions are explicit to help avoid confusion. Just look at them and take them for what they actually say.

Again, I'm not arguing the issue of guilt or innocence--I'm just saying that Castle Doctrine doesn't apply.

To be even more clear, I'm not claiming that there's no creative interpretation of Castle Doctrine that a really good attorney might be able to convince a gullible jury is a good fit to the circumstances of the case.

I'm just saying that if you look at the circumstances and you look at the Castle Doctrine and you don't have any agenda, it's clear that Castle Doctrine doesn't apply here. That doesn't mean it wasn't self-defense, just that one should look elsewhere in the Penal Code to find the justification that fits.
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Old December 10, 2021, 09:19 AM   #109
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one definition of appurtenant.

https://www.lawinsider.com/dictionar...nant-structure
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Old December 10, 2021, 10:04 AM   #110
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I see that the Texas AG has now stepped in. I'm sure he will have his staff scour the Texas code and render an elegant answer, completely unaffected by politics .
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Old December 10, 2021, 10:18 AM   #111
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I'm not going to even begin to attempt my own amateur interpretation of the laws here.

But, it might be a useful exercise to review an attorney's analysis of this.. and he does address curtilage here:

Quote:
Avoidance is also likely irrelevant on the facts of this particular case on the grounds that the confrontation occurred within the curtilage of Carruth’s home—but “curtilage” is an ambiguous legal concept in the context of use-of-force law, which I’ll address in more detail when I cover defense of highly-defensible property as a possible justification for this shooting.
https://legalinsurrection.com/2021/1...justification/

Note that I do not think this particular internet expert is any more authoritative than any other internet expert, its just that he walks through his legal analysis of the events in the video.
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Old December 10, 2021, 11:30 AM   #112
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The city of Lubbock seems to consider a fence a structure as they require a building permit for it. I bet a good attorney could find a case requiring a building permit for adding a porch. The building permits only seem to be required for buildings, structures, or systems such as HVAC. Maybe the porch is a HVAC system.

https://ci.lubbock.tx.us/departments...-need-a-permit
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Old December 10, 2021, 11:40 AM   #113
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You might could make the case the whole front yard is included if that fence touches the house. Seems adding a fence requires permit.
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Old December 10, 2021, 12:05 PM   #114
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The front yard is NOT fenced in, however, so no, the whole of the front yard would not be included. There is no reasonable expectation that people should not enter the front yard.
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Old December 10, 2021, 12:25 PM   #115
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Originally Posted by John KSa
Quote:
Actually, if Texas recognizes the concept of curtilage, walking onto someone's front porch or remaining in their immediate front yard after being told to leave would be exactly the same as being in their habitation. That's what the concept of "curtilage" is all about.
Did you read the definition of habitation? It specifically refers to a structure. A structure is a pretty specific thing.
I read the definition of "habitation." That's a definition of "habitation," which does not address "curtilage." IF Texas law recognizes the concept of curtilage, then the porch and probably/possibly the front yard immediately adjacent to the porch would be included -- as "curtilage," not necessarily as "habitation." Determining to what extent curtilage applies might require a deep dive into Texas case law rather than relying entirely on statutes.
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Old December 10, 2021, 01:10 PM   #116
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Lol do you guys hear your selves . Now say all those things to a jury and finish it with , and that’s why he had to die ! Another interesting aspect to that point would be when the law is ambiguous you must rule in favor of the defense . So once again as in the Rittenhouse case and the under age Firarms charge . This Texas Law as it comes to habitation Curtlage etc. would seem debatable at minimum . Is that just another technical steppingstone to lawful self-defense due to the ambiguousness of the law itself ? I guess that’s another one to argue to the jury lol
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Old December 10, 2021, 01:51 PM   #117
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First, a quick definition of “curtilage.” Curtilage is the area immediately around your home that is part of the normal day-to-day use of the home. I caution that most of the law on curtilage has been developed around Fourth Amendment search-and-seizure law, meaning when is the government required to obtain a warrant in order to conduct a search for and seizure of evidence, and that the scope of curtilage for that context is not the same as the scope of curtilage in the use-of-force context, because it serves different purposes in each context (in the use-of-force context curtilage is much more constrained).
https://legalinsurrection.com/2021/1...justification/
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Old December 11, 2021, 01:00 AM   #118
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...probably/possibly the front yard immediately adjacent to the porch would be included -- as "curtilage," not necessarily as "habitation.
Which means it's irrelevant since Castle Doctrine is specifically about habitations. VERY specifically about structures that are made for overnight accommodation of persons.

Look, we all know (or should know) that Castle Doctrine is about self-defense IN the home when someone breaks INTO it. The law is written to make it clear that ENTRY (or at least attempted entry) to a structure is a prerequisite for Castle Doctrine to apply. The law is written to make it clear that the structure being ENTERED is a HABITATION and even carefully defines what habitation means.

If the porch were an enclosed porch where the words "unlawful entry" actually made sense then I think Castle Doctrine could possibly apply.

The bottom line is that Castle Doctrine is about providing the presumption of justification in deadly force encounters when someone is in their home and someone else breaks in. It's not about arguments that take place on a front porch.

That doesn't automatically mean that the shooting is criminal, it just means that Castle Doctrine isn't the right way to try to determine the legality of this particular encounter.
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Old December 11, 2021, 07:57 AM   #119
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My take is a bit different John. I think the trespasser had already made it clear that he was going to take the kid and clearly used forceful language and physically-threatening movement which a reasonable person could assume meant he was prepared to forcefully enter the habitation to forcibly remove the child. Whether or not the physical boundary was crossed, it is reasonable to assume that it would have been had the encounter continued. While the LG made a mistake of physically crossing from the interior threshold with the firearm, I personally think under these particular circumstances it was justifiable.
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Old December 11, 2021, 08:21 AM   #120
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...a reasonable person could assume meant he was prepared to forcefully enter the habitation...
For Castle Doctrine to apply in TX, either entry or at the very least attempted entry is required. Simply believing a person is prepared to make forceful entry is not sufficient. They have to at least make an attempt.
Quote:
...I personally think under these particular circumstances it was justifiable.
Again, I'm not arguing guilt or innocence, only the applicability of Castle Doctrine.
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Old December 11, 2021, 10:14 AM   #121
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Again, I'm not arguing guilt or innocence, only the applicability of Castle Doctrine.
Understood.
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Old December 11, 2021, 11:23 AM   #122
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Another interesting aspect to that point would be when the law is ambiguous you must rule in favor of the defense.
The 'rule of lenity' which is a noble rule in theory, is not always how it is played in reality.

The problem, as indicated by this discussion, is that what is ambiguous for some is clear for others.
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Old December 11, 2021, 01:49 PM   #123
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Imho...it doesn't look like a case of justifiable homicide, to me.
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Old December 13, 2021, 12:06 AM   #124
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As I read through the discussion here, I am left with a feeling that there is some kind of search for a perfect legal storm in which if all the I's are dotted and the T's are crossed then a situation exists where killing someone is legally protected.

What I'm missing out of this is that we can only deploy deadly force to stop a threat to great bodily harm or death.

In the last few seconds of the life of the man who died, I do not understand how he offered a threat of great bodily harm or death to anybody. What action or move did he take that represented a threat? He was clearly aggressive, but he never struck or attempted to harm the shooter.

I see that Stagpanther offered that he MAY make a move to enter the house, and therefore could be shot. But unless he is viewing something I am not, he never made any move to enter the house. So, what is the lawful excuse for deadly force?

I'm no lawyer, so I don't try to debate law in these cases, but I have a bit of a litmus test: if I take no action, will I face injury or death.

In the case of Rittenhouse; yes he was indeed facing death or injury had he not defended himself. In the Arboury murder case, if the defendants had done nothing, nothing would have happened.

In THIS case, if the shooter had stayed in his house, then presumptively nothing would have happened. At that point, if the deceased had attempted to enter the house, then there really would be no discussion about the lawfulness of a potential shooting.

I really do not see how this meets the 'only shoot to stop the threat' obligation.
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Old December 13, 2021, 12:51 AM   #125
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Originally Posted by ghbucky
What I'm missing out of this is that we can only deploy deadly force to stop a threat to great bodily harm or death.

In the last few seconds of the life of the man who died, I do not understand how he offered a threat of great bodily harm or death to anybody. What action or move did he take that represented a threat? He was clearly aggressive, but he never struck or attempted to harm the shooter.
With the disclaimer that I am not a lawyer (we have some good ones here, but I'm not one of them), I respectfully submit that I think you are overlooking two things.
  1. Depending on the law of the particular state, the Castle Doctrine may (or may not) remove the criterion on being in fear of imminent death or serious bodily harm. So there's the question of whether or not the Texas version of the Castle Doctrine still imposes that criterion. If it does, then the question is whether or not the "curtilage" (the porch and the front yard, in this case) fall under the purview of the Castle Doctrine.
  2. The second thing I think you have overlooked is that the question of fearing imminent death or serious injury is to be viewed through the eyes of the defendant (the shooter), knowing only what he knew at the moment. This is subject to the "reasonable man" test, but it still means that a jury has to put themselves in the defandants shoes and consider whether if THEY had been in that situation, if they would have felt themselves to be in fear of imminent death or serious bodily harm. It's not a determination based on how it appears after watching the video in slow mention fifty times, it's a question of "If you were there instead of Kyle Carruth, would YOU have felt threatened with death or serious bodily injury?"
We're not going to resolve this. I hope we'll get the results of the grand jury inquiry. Whether or not the grand jury hands down an indictment will tell us a lot.
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