using deadly force

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Emtifre09
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using deadly force

Postby Emtifre09 » Sat Dec 20, 2014 9:34 pm

Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks

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Jumping Frog
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Re: using deadly force

Postby Jumping Frog » Sat Dec 20, 2014 10:34 pm

Assuming the house or vehicle is occupied, she may be a divorce attorney, but she is clueless. Both you and her should review Texas Penal Code Chapter 9.

Although this is just one snippet of a long and complicated chapter, it gets the points across:

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;


An unoccupied house or vehicle is covered elsewhere and is not quite as clearcut. Review TPC §9.42 from the same chapter.
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Emtifre09
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Re: using deadly force

Postby Emtifre09 » Sun Dec 21, 2014 12:23 am

It wouldnt be my first action just clarifing things.

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nightmare69
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Re: using deadly force

Postby nightmare69 » Sun Dec 21, 2014 12:32 am

I'll just keep my mouth shut about divorce attorneys.
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Emtifre09
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Re: using deadly force

Postby Emtifre09 » Sun Dec 21, 2014 12:45 am

They act like they knkw everything. Gets old. But anyways. Thanks for clarifing the penal code

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Re: using deadly force

Postby The Annoyed Man » Sun Dec 21, 2014 12:08 pm

Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks

Tell her to go back and study the law. She's obviously anti-2nd Amendment. It boils down to this, without quoting a bunch of penal code.....

Yes.

The law assumes that a reasonable person would have reason to use deadly force against an uninvited entry in the middle of the night, for the simple reason that a criminal has every reason to suspect that you will be home in the middle of the night. If the criminal is not worried about you being at home, then he is clearly willing to do you violence. He may have, in fact, come for the purpose of doing you violence. Whether he is there to take your stuff, or to take your life, you are absolutely justified in using deadly force because you have no way of knowing his purpose, and you are not required to wait until he stabs or shoots you before defending yourself. His very presence is a threat.

Daytime is a little different, in that a criminal might have reason to assume you would be gone during the day, and that is why he chose daytime to B&E. However, if you are inside the premises (it could be that you work nights, or that it's your day off) and you confront the criminal, and he becomes aggressive, you have every right to shoot him. If he tries to leave with your property, you have the right to shoot him........although you might consider the value of the property against the possible legal bills you will incur, or against any personally held moral considerations you might have about killing in defense of property.

Exodus 22:2-3 makes this distinction between the threats from a B&E during night or day even all the way back to the Old Testament:
Exodus 22:2-3English Standard Version (ESV).

2 [a] If a thief is found breaking in and is struck so that he dies, there shall be no bloodguilt for him, 3 but if the sun has risen on him, there shall be bloodguilt for him. He shall surely pay. If he has nothing, then he shall be sold for his theft.
This may or may not be important to you in your own spiritual life, but just know that the law is based in part on the importance of this scripture. Preeminent 2nd Amendment advocate Dave Kopel has a very interesting article on the Torah (Old Testament) and Self-Defense here if you are interested in reading further: http://www.davekopel.com/2A/LawRev/The-Torah-and-Self-defense.htm.

Both of these scenarios assume you are inside. But what happens if you come home in the middle of the day for lunch, and after pulling around back of your house, you find someone trying to break in to your bedroom window from the outside? You can draw your pistol, and order him to stop. I doubt the law would countenance you back-shooting him if he didn't. You have a cellphone, use it, and let the local police do the tactical entry......unless you have a loved one inside the house. Then do what you have to do. The police won't get there in time. If he stops, you can detain him at gunpoint, use your cellphone, and hold him there at gunpoint until they arrive. If he stops trying to break in, turns, and rushes at you, you are fully justified in shooting him.

Same scenario, but this time you see him on the way out of your home, carrying your TV. Is your TV worth what it is going to cost you legally? You have the right to try and stop him, even at gunpoint, but what if he tells you to go to hades and keeps walking with your TV? Are you going to back-shoot him as he walks off? Particularly if he makes no actual move to threaten you? Technically legal as it can be lawful to use deadly force in defense of property, but probably not defensible in any kind of practical way......."practical" meaning what happens when you get your day in court.

But if you go read the code, terms like "reasonably believes" appear all over it. The law recognizes that IT cannot be there to adjudicate the events in real time. It must rest on whether or not the actions are reasonable......would a reasonable person (not crazy, not a criminal, and not in a fit of passion) do these things, and the standard of reasonableness is in part defined by terms like "reasonably believes".

I think we have reason to believe that your mom is very poorly informed.
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Re: using deadly force

Postby suthdj » Sun Dec 21, 2014 1:00 pm

Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks


Simple tell her to break into your house and see how it works out.
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Re: using deadly force

Postby Beiruty » Sun Dec 21, 2014 1:07 pm

Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks


Get a new lawyer. Especially a self-defense or criminal lawyer.
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anygunanywhere
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Re: using deadly force

Postby anygunanywhere » Sun Dec 21, 2014 4:42 pm

suthdj wrote:
Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks


Simple tell her to break into your house and see how it works out.

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Re: using deadly force

Postby Charlies.Contingency » Sun Dec 21, 2014 4:47 pm

suthdj wrote:
Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks


Simple tell her to break into your house and see how it works out.

I wonder if he and his wife would still get any inheritance! :smilelol5:

That would be a terrible article: "Man shoots mother-in-law breaking into house, inherits millions."
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Re: using deadly force

Postby oohrah » Sun Dec 21, 2014 9:22 pm

The word is "presumption". In Texas, if you are in your house or your vehicle, there is a presumption that you do not have to prove to use deadly, according to a lawyer I talked to.
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Re: using deadly force

Postby romeofox » Sun Feb 08, 2015 4:45 pm

suthdj wrote:
Emtifre09 wrote:Can i use deadly force if someone is breaking into my house or vehicle during any part of the day. Day or night. My mother in law is a divorce attorney and says i cannot. What is the rule on this? Thanks


Simple tell her to break into your house and see how it works out.



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Re: using deadly force

Postby jmra » Sun Feb 08, 2015 5:06 pm

Where you live can play a major factor in what happens after such a shooting. Liberal community with a liberal DA means you are up a creek in a sinking canoe. Anywhere else...
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epontius
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Re: using deadly force

Postby epontius » Mon Feb 09, 2015 3:32 pm

Penal code 9.31 and 9.32 are Texas' version of the Castle Doctrine... never a need for the king or queen to flee the castle before using force against an unlawful intruder.

So if you are in your car when the attack happens than it is justified.
If someone is burglarizing your car sitting on your driveway while you are inside your home...think twice. While "theft in the night time" is justified (apparently because the chances of recovering stolen property is more difficult since it maybe harder to identify the criminal), you'll probably get stuck with a huge civil suit by the perps family. Shooting them in broad daylight while your car is sitting in your driveway unoccupied you'll probably get charged with murder and be sued.
My CHL instructor for the past dozen years always suggested that unless your car was worth $200k or more don't bother shooting even if justified as it would cost more than that in legal fees and suits. I think the last renewal class I took with him he wasn't even suggesting that anymore... just not worth the hassle.

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Re: using deadly force

Postby Keith B » Mon Feb 09, 2015 4:05 pm

epontius wrote:Penal code 9.31 and 9.32 are Texas' version of the Castle Doctrine... never a need for the king or queen to flee the castle before using force against an unlawful intruder.

So if you are in your car when the attack happens than it is justified.
If someone is burglarizing your car sitting on your driveway while you are inside your home...think twice. While "theft in the night time" is justified (apparently because the chances of recovering stolen property is more difficult since it maybe harder to identify the criminal), you'll probably get stuck with a huge civil suit by the perps family. Shooting them in broad daylight while your car is sitting in your driveway unoccupied you'll probably get charged with murder and be sued.
My CHL instructor for the past dozen years always suggested that unless your car was worth $200k or more don't bother shooting even if justified as it would cost more than that in legal fees and suits. I think the last renewal class I took with him he wasn't even suggesting that anymore... just not worth the hassle.


One of the issues is that burglary of an unoccupied motor vehicle is only a misdemeanor in Texas. So, unless you can prove that you were preventing the person breaking in from committing a felony, like stealing the vehicle, instead of just rummaging around for loose change, then you cannot use deadly force to prevent it.
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