thetexan wrote:No. Given the circumstances you describe, and as stated earlier, the threat was when he was pointing the gun at you. Once he stopped the threat AND you no longer have a REASONABLE (as will be determined by a jury) belief that it is immediately necessary to use deadly force in defense of the threat...then you are no longer justified or authorized to use deadly force. Everything you do afterward is irrelevant. It doesn't matter if you follow him (unless stalking), call him on your phone (unless you then threaten him), take him out to dinner, etc. Lawful deadly force is always an action of immediacy, never pre-calculation or after-the-fact retaliation.
So you can follow him certainly to keep track of him until the police can catch up to him and arrest him based on your complaint against him. But you may never track him down to use deadly force. There is no longer a threat.
The only time pursuit is authorized is this...you may use FORCE (not deadly force) in FRESH pursuit after being dispossessed of land or tangible, movable property AND you REASONABLY believe the person HAS NO CLAIM to the property he took
or
the person used force, threat, or fraud to take the property.
But only in fresh pursuit.
The only "after-the-fact" justified use of deadly force is to protect land or tangible, movable property when and to the degree you REASONABLY believe that deadly force is IMMEDIATELY NECESSARY to prevent someone who is fleeing IMMEDIATELY AFTER committing burglary, robbery, aggravated robbery, or theft during the night time from escaping with the property, AND you REASONABLY BELIEVE that the land or property can not be recovered by any other means than deadly force, OR
by NOT using deadly force to prevent the fleeing with your property, you would expose yourself or another to a SUBSTANTIAL rist of death or serious bodily injury. (and I can't even imagine what that scenario would look like). And even under these conditions you are not justified in using deadly force unless you first are justified in using force under 9.41 and meet those requirements.
So even in these paragraphs the requirement that immediate necessity is reasonable is ever present as a requirement for deadly force justification.
There is no justification of deadly force after a threat is over because the immediacy requirement doesn't exists. But, if you can claim that after having the gun pointed at you, and after he takes his gun and gets in his truck and leaves, and after you chase him down THAT IT IS HE THAT IS THE IMMEDIATE THREAT...and THAT IT IS NOT NOW YOU THAT IS THE THREAT TO HIM...then you can explain that to the jury.
tex
Tex,
I like what you posted here, but I think there's a slight but extremely important correction needed where I highlighted in blue above.
The 'OR' should be an 'AND'. In PC 9.42 (see below), subsection (1), (2), & (3) must all be met in order justify using deadly force. Subsections (2) & (3) each have a couple ways of being met; either 2(A) 'or' 2(B), 'AND' either 3(A) 'or' 3(B).
Another thing that seems to be commonly misstated is the part I highlighted in red font (not just by you; I've heard it before, & I think it may have been a typo or mischaracterized on the DPS slide during the Instructor class as well). Subparagraph 3(B), in my non-lawyer plain reading of the statue, says that if using less than deadly force (as in the level of force that's already allowed for in PC 9.41 to protect your property) would put you at substantial risk of death or serious bodily injury, THEN (coupled with (1) and either 2(A) or 2(B) being met) deadly force may be justified.
An example of this could be Andre the Giant grabs Granny Clampet's purse. Granny has the right to use force to prevent Andre from absconding with her property under PC 9.41 so 1 is covered; Andre is trying to flee WITH Granny's purse after committing a robbery 2(B); AND Granny reasonably believes that if she uses less than deadly force against Andre she runs a substantial risk of getting smashed into the pavement 3(B).
The way that I read your post, & have heard it explained at least once before with the emphasis on "NOT using deadly force to prevent fleeing with your property would place you or others at a SUBSTANTIAL risk" would be more akin to 'if Granny didn't use deadly force, then the Anthrax spores in her knapsack would place her or others at risk'. I think this is why it's so hard for many of us to come up with a decent example scenario as you noted.
Besides the not picking I just did, I'm in agreement with your take on this.
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.
100%
