Man shoots would-be burglars (questionable shoot)

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Paladin
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Man shoots would-be burglars (questionable shoot)

#1

Post by Paladin » Tue May 24, 2005 12:05 pm

Article:

http://www.kcentv.com/news/c-article.php?cid=1&nid=7118

"After two unarmed men broke into a house there, police say the man who lived drove up and shot both of them. When they ran away, he started shooting their car. "

Shooting them in the house is one thing, but shooting unarmed thieves as they're driving away is much more questionable. Homeowner could get into trouble over this one if the thieves didn't take any property with them.
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#2

Post by Braden » Tue May 24, 2005 12:07 pm

I guess it all depends on whether they took property or not. If so, he was justified (legally) in shooting them. That said, I'm not shooting someone over material things. That's what insurance is for.
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#3

Post by dolanp » Tue May 24, 2005 1:43 pm

Even with property it is questionable. You have to 'reasonably believe' that there is no means of recovery.. which is a bit subjective.
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#4

Post by Suckhow » Tue May 24, 2005 1:48 pm

Did this happen at night or day?

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#5

Post by Paladin » Tue May 24, 2005 4:22 pm

Suckhow wrote:Did this happen at night or day?
Didn't seem to say in the article, but implied that a nearby muffler shop was open.
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#6

Post by Chris » Tue May 24, 2005 6:15 pm

Suckhow wrote:Did this happen at night or day?
doesn't matter. only theft and criminal mischief require nighttime before you're authorized to use deadly force. burglary can be day or night.

it's very 'iffy.' he better start saying he believed that they had some of his property. and it doesn't matter if they are armed or not.

the biggest problem i see is that he did not immediately report it. he should have been the first one to call 911.

i'm willing to bet the DA either takes a very low misdemeanor assault case or drops it altogether. it probably depends on the guy that did the shooting. if he's a stand up guy, member of the chamber of commerce, church elder type, he won't face any charges. but if he ever did a stint in a local jail for even PI, he's done.

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#7

Post by HighVelocity » Tue May 24, 2005 6:18 pm

He was trying to stop fleeing felons. How was he supposed to know they were unarmed? How was he supposed to know they hadn't taken anything?


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#8

Post by txinvestigator » Tue May 24, 2005 8:36 pm

HighVelocity wrote:He was trying to stop fleeing felons. How was he supposed to know they were unarmed? How was he supposed to know they hadn't taken anything?
Are you saying that a private citizen can use deadly force to "stop a fleeing felon"?


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#9

Post by one eyed fatman » Tue May 24, 2005 8:47 pm

I feel so sorry for those poor burglars. They got hurt. They shoulda got dead. And the victim has to wonder if he had a legal right. It's a shame our legal system is such a farce. The scumbags of America seem to have more rights than the victims do.

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#10

Post by HighVelocity » Tue May 24, 2005 9:23 pm

txinvestigator wrote:
HighVelocity wrote:He was trying to stop fleeing felons. How was he supposed to know they were unarmed? How was he supposed to know they hadn't taken anything?
Are you saying that a private citizen can use deadly force to "stop a fleeing felon"?
What does the TX penal code say?


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#11

Post by dolanp » Wed May 25, 2005 7:39 am

Here is the relevant statute, pay close attention:
§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated
robbery, or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.
You must meet all 3 subsections (see that they are joined by "and") to use deadly force in protection of property. (1) and (2) are easily satisfied but the really questionable part is usually (3). Did he "reasonably believe" that there was no other way to recover it? Does having insurance mean that you can 'recover' it? If the person was armed then you'd have a case because (3)(B) would definitely apply.

I'd be interested to see was Charles thinks on that, but I'd have a hard time shooting someone over property unless it was like some irreplacable family heirloom or something like that.
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#12

Post by Braden » Wed May 25, 2005 7:44 am

dolanp wrote:You must meet all 3 subsections (see that they are joined by "and") to use deadly force in protection of property. (1) and (2) are easily satisfied but the really questionable part is usually (3). Did he "reasonably believe" that there was no other way to recover it? Does having insurance mean that you can 'recover' it? If the person was armed then you'd have a case because (3)(B) would definitely apply.

I'd be interested to see was Charles thinks on that, but I'd have a hard time shooting someone over property unless it was like some irreplacable family heirloom or something like that.
I still think that I would never shoot someone over "stuff", but looking at the statute I would have to agree with your logic on what is required to use deadly force in this situation. First of all, we don't know if the burglers actually had any property with them or not. Second, I guess whether or not it could be recovered would depend on what it is.

I think this guy could easily be in a lot of trouble here. Does anyone know if he has a CHL or not?
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#13

Post by txinvestigator » Wed May 25, 2005 8:32 am

HighVelocity wrote:
txinvestigator wrote:
HighVelocity wrote:He was trying to stop fleeing felons. How was he supposed to know they were unarmed? How was he supposed to know they hadn't taken anything?
Are you saying that a private citizen can use deadly force to "stop a fleeing felon"?
What does the TX penal code say?
There is no justification in chapter 9 for a non-LEO to use Deadly Force to stop a fleeing felon.


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#14

Post by txinvestigator » Wed May 25, 2005 8:37 am

dolanp wrote:Here is the relevant statute, pay close attention:
§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately necessary:
(A) to prevent the other's imminent commission of
arson, burglary, robbery, aggravated robbery, theft during the
nighttime, or criminal mischief during the nighttime; or
(B) to prevent the other who is fleeing
immediately after committing burglary, robbery, aggravated
robbery, or theft during the nighttime from escaping with the
property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or
recovered by any other means; or
(B) the use of force other than deadly force to
protect or recover the land or property would expose the actor or
another to a substantial risk of death or serious bodily injury.
You must meet all 3 subsections (see that they are joined by "and") to use deadly force in protection of property. (1) and (2) are easily satisfied but the really questionable part is usually (3). Did he "reasonably believe" that there was no other way to recover it? Does having insurance mean that you can 'recover' it? If the person was armed then you'd have a case because (3)(B) would definitely apply.

I'd be interested to see was Charles thinks on that, but I'd have a hard time shooting someone over property unless it was like some irreplacable family heirloom or something like that.
I believe your interpratation is spot on. Imminence and immediately necessary are important.

I am with you on the use of DF also. I have already decided that I am not willing to take a life over a property crime only.

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#15

Post by Charles L. Cotton » Wed May 25, 2005 11:51 am

dolanp wrote: I'd be interested to see was Charles thinks on that, [. . .]
You and txinvestigator are correct; there is no "justification" in Chp. 9 for non-LEO's to use deadly force against someone merely because they are a fleeing felon. As you pointed out in your post quoting Chp. 9.42(2)(B), deadly force is justified against some "fleeing" actors, but it is very limited and focuses on preventing the completion of certain property crimes, not on preventing the escape of the actor after a completed crime. In short, when specific statutory conditions are met, you can shoot a fleeing burglar to prevent the completion of a property crime, but you can't shoot a fleeing murderer.

Please note, I'm not remotely suggesting that I would shoot someone solely to protect property, nor would I offer that advice to anyone else. I am also not suggesting that I would allow the murder of my wife or one of my sons to merely walk away; I'm sure I would be in fear for my life as well. Surely, a murder wouldn't allow witnesses to live.

Also, there often is no bright line as to whether an event is “merely� a property crime, or the combination of a property crime and a threat of death or serious bodily injury. Car-jacking comes to mind. I wouldn’t shoot anyone to solely protect my Corvette (and I wanted it for 30 years). However, many, perhaps most, car-jacking also involve the suspect killing the driver, so if I'm ever faced with that threat, I may well shoot at the first opportunity, to protect myself, not the car.

I think it’s important to recognize that we are engaging in somewhat of an academic exercise. Regardless of the provisions of the Penal Code, in the real world you may or may not have a problem if you shoot a fleeing burglar in the back. Likewise, a prosecutor may be loath to prosecute you for shooting a fleeing murderer. The law taught in class in law school often is not applied as written in the real world. The bottom line for me is simple: “If I have to shoot, then I'll shoot; but I pray (sincerely, not merely a figure of speech) the need never arises.�

Regards,
Chas.

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