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

Postby ELB » Fri Sep 02, 2016 3:29 pm

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

Postby vjallen75 » Fri Sep 02, 2016 3:41 pm

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

Postby ELB » Fri Sep 02, 2016 3:54 pm

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

Postby TexasTornado » Fri Sep 02, 2016 4:12 pm

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

Postby Jusme » Fri Sep 02, 2016 4:52 pm

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

Postby Vol Texan » Fri Sep 02, 2016 6:53 pm

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

Postby joe817 » Fri Sep 02, 2016 9:29 pm

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

Postby thetexan » Fri Sep 02, 2016 9:51 pm

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

Postby NotRPB » Sat Sep 03, 2016 8:01 am

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

Postby imkopaka » Sat Sep 10, 2016 8:01 am

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

Postby popo22 » Sat Sep 17, 2016 3:28 pm

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

Postby KLB » Sat Sep 17, 2016 3:50 pm

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

Postby C-dub » Sun Sep 18, 2016 6:50 pm

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

Postby Medley86 » Sun Sep 18, 2016 7:20 pm

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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