Appropriate use of deadly force Texas style

[JRH6856]

FWIW, I believe the theft at night law was initially passed primarily to deal with cattle rustlers. It is a pretty old law.

[csmsss]

One thing I'm surprise that (I think) no one has brought up is that the defendant was never charged with solicitation of prostitution!

[JohnKSa]

That's kind of a surprise--where did you find that information?

[JRH6856]

I believe that since solicitation is a misdemeanor, it must be witnessed by the arresting officer in order to be charged. Money changed hands. But who was there to testify as to why?

[zincwarrior]

The one positive, her next of kin now owns him in civil court. He's a bankrupt man walking. Its no consolidation but it helps.

As to changing the law, yes it should be changed and put in line with the self defense statutes. To narrowly tailor the change the law should include the same language that the party cannot claim the defense provision if the defendant are themselves in commission of a crime or conspiring to do so (I think the last part is my language).

[arch308]

I don't see anything positive in your statement. He was legally found not guilty. The law has been working fine for a long time and should remain on the books as is. Not sure why you need consolation.

[Spats McGee]

I seem to recall reading somewhere that the shooter in this case testified that he "didn't mean to kill her." If my memory of that is correct, it presents a bit of a quandry for the shooter. If not, y'all feel free to disregard the rest of my ramblings in this post. In most SD shootings, there's not much question about the shooter's intent. Most of the time, it's a situation of "I meant to kill him, but I had a really good reason." In this case, if the shooter said at the criminal trial that he didn't mean to kill her, then he may have given the civil suit (negligence) more wiggle room. (It may also be that TX law won't allow a civil suit now that he's been acquitted. I just don't know one way or the other.)

[zincwarrior]

I don't see anything positive in your statement. He was legally found not guilty.

Thats why a change needs to be made.

It may also be that TX law won't allow a civil suit now that he's been acquitted. I just don't know one way or the other

No he can still be sued in Texas.

[allaroundhunter]

If he was able to successfully use the castle doctrine as a defense then a civil suit would not be able to be filed against him, but that was not his defense.

And zincwarrior, I have no idea why you have such a beef with this law, but it is here to stay and I don't see a reason for it to be changed. When criminals understand that they are putting their lives in danger more then maybe it will cause them to rethink the actions that they are about to make. If it doesn't, well then it could lead to natural selection and one less criminal on the streets. Perhaps you don't want that, but I sure do.

[zincwarrior]

He can't effectively use the Castle Doctrine as that relates to self defense.

1) Thats one of two reasons I have a beef with the law. My wife defending herself from attack effectively has a higher standard of proof then someone shooting a prostitute over money.

2) The other beef is that someone shot a prostitute with an AK 47 over money, and got off scot free. As Dad would say, thats all kinds of crazy.

EDIT: this is not meant as an attack on anyone except the actual shooter in the fact pattern, and I respect other people's opinion on the subject although I disagree.

[allaroundhunter]

Zinc, we don't know all of the details. The shooter could have been (probably was) arrested. Then, he could have been charged with solicitation and the judge could have ruled it as time served since it is a misdemeanor. He still had to pay for his defense, and I assure you that he did not get off scot-free. Do I think that this defense should have applied to him? No, I don't think so. However I am not a lawyer (and you know how common sense works in this world )...

But, I do not want this law to change because it should be there for those who may have a more valid case for using it as a defense.

[zincwarrior]

Again, respectfully to those who disagree, I don't see arrest and legal fees sufficient punishment for the crime of murder.

I also understand the desire not to change the law (I'd rather a proved appeal on this, but I'll state I don't know very well what the State's requirements are for appeal). However a change limiting the defense to those who are not engaged in criminal activity at the time would be generally sufficient.

or just a half decent prosecutor.

[Tom Servo]

It may also be that TX law won't allow a civil suit now that he's been acquitted.

It's a bit murky. This is the relevant code section:

§ 83.001. AFFIRMATIVE DEFENSE. It is an affirmative
defense to a civil action for damages for personal injury or death
that the defendant, at the time the cause of action arose, was
justified in using deadly force under Section 9.32, Penal Code,
against a person who at the time of the use of force was committing
an offense of unlawful entry in the habitation of the defendant.

However, Section 9.32 doesn't say anything about theft. It only covers unlawful deadly force or "imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."

[Evan Thomas]

Actually, it doesn't seem that murky to me. The passage you quoted refers specifically to section 9.32, which deals with defense of persons. Since it doesn't mention Subchapter D, section 9.41, which is the one on defense of property, wouldn't that exclude the latter as an affirmative defense in a civil suit?

I could be wrong, but I think this was an amendment passed as a sort of addendum to the stand your ground law.

[Tom Servo]

Since it doesn't mention Subchapter D, section 9.41, which is the one on defense of property, wouldn't that exclude the latter as an affirmative defense in a civil suit?

That's my thinking, yes.

[JRH6856]

Originally Posted by zincwarrior

However a change limiting the defense to those who are not engaged in criminal activity at the time would be generally sufficient.

I agree the law needs such a chage, but how would that have changed the outcome of this case?

If there had been sufficient evidence to charge prostitution or solicitation of prostitution, the charge would have been brought. Without evidence, all there is is speculation. Speculation is not sufficient to bring charges. If the defendant was not charged with another crime, then the preclusion you seek would not apply and the result would be the same.

[zincwarrior]

He was in the act of solicitation, therefore, the defense would be out.

We don't know if he was charged/convicted or not (well I didn't see anything on that). In that instance, charge them with solicitation first....

Of course by taking the stand he admitted the act. he would have to actually or else its straight attempted murder. Once he admits it, its no longer a defense.

[JRH6856]

Of course by taking the stand he admitted the act. he would have to actually or else its straight attempted murder. Once he admits it, its no longer a defense.

I haven't read the transcript. Did he actually admit to solicitation of prostitution? If he was just paying for "companionship" for a period of time, that is not a chargeable crime, even if "everyone knows" what "companionship" really means. There are any number of non criminal services he could have been paying her for. There was no need for him to admit to solicitation to establish the theft.

An even if he did admit to solicitation on the stand in this case, if the preclusion had been in place, he would not have done so (self incrimination) and there would still have been no precluding criminal activity.

[zincwarrior]

He would have had to no?
He would have had to take the stand to explain why he started popping rounds with an AK. Ok technically no but I don't see how the defense could be supported otherwise. Once he was on the stand he could be cross examined as to why he was there.

Remember he was not alleging companionship. The key argument is that he didn't get his "service" and as they were leaving with his money he started shooting to prevent them from leaving.

[JRH6856]

He would have had to no?

No.

You keep saying he was solicting. Maybe, maybe not. If the crime is not charged, it does not really exist as a precluding crime. We may speculate all we want, but unless tried and convicted, he is innocent of the speculated act. Even if the judge allows the speculation of criminal activity, the defense can use the lack of a charge as a rebuttal.

I used to manage a restaurant near an area heavily worked by prostitutes. We did all we could to get them off the streets, but it was difficult because the police are at a real disadvantage. Solicitation of prostitution is difficult to prove. Generally, it has to be witnessed by a police officer, and he must witness money being exchanged specifically for a sex act. Talking to a known prostitute in a location she is known to work, may get you questioned, but not charged unless you admit to the crime. It is not illegal to pay for time, conversation, entertainment (dance). He may pay for body lotion (expensive body lotion) and then ask her to apply it. If a sex act subsequently occurs, it must be proven that it was part of the initial contract and not simply a result of mutual attraction between two consenting adults. Generally the only way an officer can prove prostitution is in a sting.

And without admission of guilt and a resulting charge, there is no precluding crime, while the failure to deliver any of the promised legal services mentioned could be fraud as I previously described.

[MLeake]

Spats, I think you meant to say people normally would say, "I meant to shoot her," not, "I meant to kill her."

While killing in self-defense (or to stop certain crimes) may be justifiable, the intent is supposed to be to stop the threat or crime. Killing is incidental.

Killing for the sake of killing is another matter.

[Spats McGee]

MLeake, you are absolutely correct.

[Tom Servo]

I seem to recall reading somewhere that the shooter in this case testified that he "didn't mean to kill her."

"I didn't mean it" is one of the worst things one can say when making a self-defense claim, as it opens the door to a wrongful-death suit.

Did he actually admit to solicitation of prostitution?

Yes. According to the article, he answered an ad for an escort on Craigslist, and he told the court he assumed that, um, adult touching was part of the $150. When he found out otherwise, he shot the victim while she was trying to leave.

Ms. Frago died because Mr. Gilbert felt she had been inaccurate in a Craigslist advertisement.

[Spats McGee]

Originally Posted by Tom Servo

"I didn't mean it" is one of the worst things one can say when making a self-defense claim, as it opens the door to a wrongful-death suit.

That's exactly what I was getting at, though I might not have been that successful in doing so.

[zincwarrior]

Ms. Frago died because Mr. Gilbert felt she had been inaccurate in a Craigslist advertisement.

And that is the essential absurdity of this case.