TX: Deadly force in defense of 3rd party against unarmed assailant

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ELB
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TX: Deadly force in defense of 3rd party against unarmed assailant

#1

Post by ELB »

Man shot during alleged assault arrested

29 y.o. man alleged to have been beating his stepfather outdoors, "...hitting him hard and stomping on him.” Attacker's brother tried to stop him without success. Brother retrieved a gun from the house, still couldn't stop the attacking brother, so shot him. In the calf of the leg.

Stepdad went to hospital for treatment, attacking brother went to hospital for treatment, followed by arrest and booking into jail. And as for shooting brother"
"It doesn’t look like charges will be filed against him, because it appears he was defending the third person, who happened to be his stepdad, but the case will be submitted to the district attorney’s office for review,” he [Guadalupe County Sheriffs Investigator] said.
Interesting for its use of deadly force against "unarmed" assailant. Don't know the age of the shooting brother.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#2

Post by vjallen75 »

Will the placement of where the BG was shot determine if charges were filed? Clearly the brother was trying to stop the BG.

Does that [shot placement] have anything to do with use of DF?
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#3

Post by ELB »

vjallen75 wrote:Will the placement of where the BG was shot determine if charges were filed? Clearly the brother was trying to stop the BG.

Does that [shot placement] have anything to do with use of DF?
I dunno. Strictly legally speaking, deadly force is deadly force, but in real life... :confused5

Compare with this one: viewtopic.php?f=136&t=83198
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#4

Post by TexasTornado »

Nothing in the law says that you must insert yourself in harm's way in defense of another. It was obvious that the BG was a threat and continued to be a threat to a 3rd party.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#5

Post by Jusme »

Replace step dad with a female, replace younger brother with another female. If the shooter was not physically able to stop the attack. Shooting the attacker may have saved a life. Deadly force does not have to involve a weapon. The attacker could have killed the victim with only hands and feet. I don't believe any charges will be forthcoming for the shooter. JMHO
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#6

Post by Vol Texan »

Jusme wrote:Replace step dad with a female, replace younger brother with another female. If the shooter was not physically able to stop the attack. Shooting the attacker may have saved a life. Deadly force does not have to involve a weapon. The attacker could have killed the victim with only hands and feet. I don't believe any charges will be forthcoming for the shooter. JMHO
Spot on...unarmed does not mean un-deadly.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#7

Post by joe817 »

Vol Texan wrote:
Jusme wrote:Replace step dad with a female, replace younger brother with another female. If the shooter was not physically able to stop the attack. Shooting the attacker may have saved a life. Deadly force does not have to involve a weapon. The attacker could have killed the victim with only hands and feet. I don't believe any charges will be forthcoming for the shooter. JMHO
Spot on...unarmed does not mean un-deadly.
:iagree: totally. Disparity of force is always a deciding factor, IMO.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#8

Post by thetexan »

ELB wrote:Man shot during alleged assault arrested

29 y.o. man alleged to have been beating his stepfather outdoors, "...hitting him hard and stomping on him.” Attacker's brother tried to stop him without success. Brother retrieved a gun from the house, still couldn't stop the attacking brother, so shot him. In the calf of the leg.

Stepdad went to hospital for treatment, attacking brother went to hospital for treatment, followed by arrest and booking into jail. And as for shooting brother"
"It doesn’t look like charges will be filed against him, because it appears he was defending the third person, who happened to be his stepdad, but the case will be submitted to the district attorney’s office for review,” he [Guadalupe County Sheriffs Investigator] said.
Interesting for its use of deadly force against "unarmed" assailant. Don't know the age of the shooting brother.
Define unarmed. If he was using his fists as instruments capable of inflicting serious bodily injury or death then he was armed with and wielding a deadly weapon.

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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#9

Post by NotRPB »

TexasTornado wrote:Nothing in the law says that you must insert yourself in harm's way in defense of another. It was obvious that the BG was a threat and continued to be a threat to a 3rd party.
True, with some exceptions:
http://images.jw.com/com/publications/155.pdf
Special Relationships
The General Rule and the Exceptions.
Texas Law on Special Relationships
By Fred A. Simpson and Deborah J. Selden

What is a special relationship?
The legal meaning of the term “special relationship” in Texas jurisprudence is
ambiguous. Reported case law and commentaries use the seemingly multi-faceted term with
little or no precision or consistency in 1) contact law; 2) tort law; 3) constitutional law; 4) evidence;
5) criminal statutes; 6) criminal law; and 7) family law.


The scope of our analysis is limited to special relationships in the context of tort and contract liability.
Texas courts most often look to the RESTATEMENT for guidance in defining special relationships that impose duties of affirmative action as a matter of law in tort cases.

http://images.jw.com/com/publications/155.pdf
Special Relationships in Tort
The General Rule and the Exceptions.
As a general rule, no one has a duty to aid or protect another person.
8 Even if one has the practical ability to control a third person to prevent him from physically harming another,
9he has no duty to exercise such control.
10 The presumption of lack of duty or liability, however, disappears when a special relationship exists between the parties. ...
Section 315 of the RESTATEMENT sets forth two exceptions under which an individual has
a duty to control the conduct of third persons: 1) if a special relationship exists between an
individual and the third party, the individual has a duty to control the third party’s conduct; or 2)
if an individual has special relationship with another, the individual has a duty to protect the
other from the wrongful acts of third parties.


Sections 314A, 314B, and 320 detail the special relationships in which an individual
has a duty to aid or protect another: 1) a common carrier and passenger; 2) an innkeeper and
guests; 3) a possessor of land who holds it open to the public; 4) one who voluntarily assumes
control or is required to take control of another; 5) an employer and employee; and 6) one who
has custody of another has a duty to protect them from a third party.
15 Relationships in which an
individual may owe a duty to control the acts of a third party are listed in sections 316 through
319: 1) a parent and minor child; 2) master and servant; 3) possessor of land or chattels and a
licensee; and 4) an individual in charge of a person having dangerous propensities.
16
http://images.jw.com/com/publications/155.pdf

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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#10

Post by imkopaka »

Unarmed or not, the part that sticks out to me is the whole "stomping on him" thing. If someone's head is on the concrete and you stomp on it, is that not deadly force? And if it is, would that not automatically justify the use of deadly force to stop it, especially when the actor attempted to stop the assailant without using force first, showing that every other reasonable option had failed? Sounds pretty cut and dry to me. :fire
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#11

Post by popo22 »

We are told that when an individual is being "kicked or stomped" about the "head/neck/chest" while on the ground that there is case-law that this constitutes "deadly force". As a LEO we would normally make an arrest for "aggravate assault" for such actions, so I would certainly think this fits in this situation.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#12

Post by KLB »

This is an example why you can never say never. Using deadly force against an unarmed assailant certainly raises eyebrows and could get you in a lot of trouble. But it all depends on the specific circumstances. In these circumstances, I hope the shooter will be OK.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#13

Post by C-dub »

It's how GZ was acquitted.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#14

Post by Medley86 »

A woman attacked a girl who works with my girlfriend as she was leaving work, tried to steal her purse and car and when she resisted started beating on her. Another co worker tried to intervene and she was also thrown to the ground and injured. The business owners husband noticed and grabbed his pistol out of his truck and held her until police arrived. Luckily the gf was off that day, had I been there however I could not justify shooting the unarmed woman without first trying to physically stop her. I do think every situation is different though, if physically stopping the attack without serious injury is possible it would be preferable, but if my currently pregnant girlfriend was being attacked I would be looking for the fastest way to stop the attack with 2 lives being on the line.
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Re: TX: Deadly force in defense of 3rd party against unarmed assailant

#15

Post by ELB »

Follow up:

It appears the stomper, one Tomas Albarez Jr., pled guilty/nolo contendere to misdemeanor "ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE" and was sentenced to 90 days in the Guadalupe County Jail (just down the road from me!). He also had to pay court costs of $367.

He had a previous felony conviction of burglary of a habitation on 5/23/2011 (in front of the same judge as the above), for which he was sentenced to five years, with credit for 293 days in jail. It appears he still owes $836 from that episode.

Over a year prior to the burglary conviction it appears he faced two separate charges for "ASSAULT CAUSES BODILY INJURY FAMILY VIOLENCE", and on a charge for "CRIMINAL MISCHIEF >=$50<$500 ", all of which were dismissed. Different judge.

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