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Re: using deadly force
Posted: Tue Feb 10, 2015 10:41 am
by epontius
Keith B wrote:
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.
I was differentiating between a daytime burlugary of property and "theft in the nighttime" which under sec 9.42 is justifiable use of deadly force.
Sec. 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.
I still wouldn't do it and wouldn't recommend anyone else do it either. And I would think it would be difficult to convince a jury that your car or your CD collection couldn't have been replaced.
Re: using deadly force
Posted: Tue Feb 10, 2015 11:30 am
by Keith B
epontius wrote:Keith B wrote:
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.
I was differentiating between a daytime burlugary of property and "theft in the nighttime" which under sec 9.42 is justifiable use of deadly force.
Sec. 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.
I still wouldn't do it and wouldn't recommend anyone else do it either. And I would think it would be difficult to convince a jury that your car or your CD collection couldn't have been replaced.
I understand. I was just pointing out that the term 'burglary' only applies 'a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault....'. For a car it is burglary of a motor vehicle. The two are WAY different in the statues, so 9.41 & 9.42 only relate to the burglary of a habitation or building and NOT a vehicle. You would not be justified in using force or deadly force to stop the actual burglary of a motor vehicle. It would only apply to stopping them from escaping with your items once theft during the nighttime had occurred.
Re: using deadly force
Posted: Thu Sep 07, 2017 12:42 pm
by imandres
You can not use deadly force unless you are threatened by deathly force, so an example is a guy enters your house with a banana in his hand, you can not shoot him. The principle of proportional force prohibited and you will be going to jail. Your divorce mother in law is right, just she didn't explained the whole thing.
Re: using deadly force
Posted: Thu Sep 07, 2017 12:54 pm
by Jusme
imandres wrote:You can not use deadly force unless you are threatened by deathly force, so an example is a guy enters your house with a banana in his hand, you can not shoot him. The principle of proportional force prohibited and you will be going to jail. Your divorce mother in law is right, just she didn't explained the whole thing.
Welcome to the forum imandres!!
Besides, reviving, a two and a half year old thread, I believe you are mistaken. If someone breaks into my house, carrying, a banana, cold beer, or TV guide, he will be looking at the business end of my gun. If he does not immediately depart, there will more than likely be some cleaning issues, my wife and I will have to deal with.
You are not required to wait for deadly force to be applied against you in your home. I do not know what a person's motives, or intentions, may be, but I am not going to wait and see before making a decision. This has been backed up by case law, where people have shot intruders, whether the intruder was armed, or applied any type of force against the person in the house. If you are walking around neighborhoods holding a banana, hoping to test your conclusions, I would advise against it.
Re: using deadly force
Posted: Thu Sep 07, 2017 2:52 pm
by Soccerdad1995
Jusme wrote:imandres wrote:You can not use deadly force unless you are threatened by deathly force, so an example is a guy enters your house with a banana in his hand, you can not shoot him. The principle of proportional force prohibited and you will be going to jail. Your divorce mother in law is right, just she didn't explained the whole thing.
Welcome to the forum imandres!!
Besides, reviving, a two and a half year old thread, I believe you are mistaken. If someone breaks into my house, carrying, a banana, cold beer, or TV guide, he will be looking at the business end of my gun. If he does not immediately depart, there will more than likely be some cleaning issues, my wife and I will have to deal with.
You are not required to wait for deadly force to be applied against you in your home. I do not know what a person's motives, or intentions, may be, but I am not going to wait and see before making a decision. This has been backed up by case law, where people have shot intruders, whether the intruder was armed, or applied any type of force against the person in the house. If you are walking around neighborhoods holding a banana, hoping to test your conclusions, I would advise against it.
and I also second the welcome to the forum, imandres.
If someone enters your occupied habitation, with force, then you do have a presumption of reasonableness for the use of deadly force per Texas penal code sections 9.31 and 9.32. It does not matter if they are just breaking into your house to sell you a newspaper subscription, and you do not need to wait until you see a weapon.
Personally, if someone breaks into my home while I am there, and they don't immediately leave when the dog goes after them, I'm going to assume that their intent is not to bring joy and happiness into my life.
Re: using deadly force
Posted: Thu Sep 07, 2017 3:26 pm
by Pawpaw
PC §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;
Re: using deadly force
Posted: Thu Sep 07, 2017 5:14 pm
by crazy2medic
I have read this entire thread and now I have a question, my understanding of Texas Law was that shooting somebody who is breaking into your car, house, shed...etc after dark was permissible, because after dark you cannot determine wether or not they are armed, the State gives you the presumtion that anybody carry out a crime on private property would be armed and you may employ deadly force on that presumtion!
??? Anybody Wanna kick this around?
Re: using deadly force
Posted: Thu Sep 07, 2017 6:21 pm
by ninjabread
imandres wrote:You can not use deadly force unless you are threatened by deathly force, so an example is a guy enters your house with a banana in his hand, you can not shoot him. The principle of proportional force prohibited and you will be going to jail.
That sounds like legal advice. Are you licensed to practice law in Texas?
Re: using deadly force
Posted: Thu Sep 14, 2017 12:15 pm
by Soccerdad1995
crazy2medic wrote:I have read this entire thread and now I have a question, my understanding of Texas Law was that shooting somebody who is breaking into your car, house, shed...etc after dark was permissible, because after dark you cannot determine wether or not they are armed, the State gives you the presumtion that anybody carry out a crime on private property would be armed and you may employ deadly force on that presumtion!
??? Anybody Wanna kick this around?
I'm not sure of the rationale behind the law. That aspect would be interesting from an historical perspective, and I do enjoy learning about history. In fact, if I didn't like buying stuff so darn much, I would be a history teacher right now. So I would be interested in learning more about the history and evolution of Texas gun laws.
But from a practical perspective, I think it is more useful to focus on the wording of the law, and any relevant judicial precedents that might be out there. For example, someone upthread mentioned not shooting a person who was running off with your CD collection because you couldn't convince a jury that the CD's could not be replaced. Putting aside the fact that the CD's might actually be irreplaceable in today's world of digital music, I think this is missing the point since the relevant statutes don't mention irreplaceability as a requirement for a justified use of deadly force. It would actually be quite interesting if that WERE a relevant factor, though. Presumably poor people would be justified in using deadly force to protect property that wealthier folks would not be justified to defend with deadly force. And taken to the extreme, your pets and even your kids can be replaced.....
Re: using deadly force
Posted: Sun Dec 31, 2017 2:24 pm
by thetexan
ninjabread wrote:imandres wrote:You can not use deadly force unless you are threatened by deathly force, so an example is a guy enters your house with a banana in his hand, you can not shoot him. The principle of proportional force prohibited and you will be going to jail.
That sounds like legal advice. Are you licensed to practice law in Texas?
txuplc.org
Re: using deadly force
Posted: Sun Dec 31, 2017 2:53 pm
by dlh
I wonder if the Texas Castle Doctrine's presumption of reasonableness has been reviewed by the United States Supreme Court?
This thread caused me to reread the Tennessee v. Garner case:
http://caselaw.findlaw.com/us-supreme-court/471/1.html
and particularly this language in the opinion:
However, the fact that Garner was a suspected burglar could not, without regard to the other circumstances, automatically justify the use of deadly force. Hymon did not have probable cause to believe that Garner, whom he correctly believed to be unarmed, posed any physical danger to himself or others.
It is understood that case was viewed from the standpoint of the police shooting a fleeing burglar--not a homeowner shooting a burglar inside the home-owner's residence.
In my old-age I am too lazy to research any newly pertinent case-law since Garner. Maybe those with more energy will undertake such a task.