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Thanks C-Dub for the second article. I went back and looked again after this video. I misread the time on the video from Penney's. The bottom corner says 2030, but it might be a store number. I see that number and just automatically convert it to a time usually. Too long in the military and law enforcement dealing with 24 hour clocks, I guess. Now I see the clock in the upper left saying the afternoon time.

I gather that the jewelry store owner chased the thief from his store and the surveillance tapes are from the thief running through the Penney's on the way out.

That means the only possible defense is to stretch the use of force defense to include deadly force. A person can use force to the degree necessary to recover property. A good lawyer could argue (though I would hate to be in that situation) that the section authorizing deadly force is not all inclusive, but a list of times presumed to be included. From what we have right now, that is the only real hope I see for this.

And I don't think you really need to worry as much about this charge as the case implies. If you were legally justified in shooting, you probably won't sweat this unless you really do injure someone else. I think the big problem for this case was the lack of a clear cut justification for shooting to begin with.

srothstein wrote: And I don't think you really need to worry as much about this charge as the case implies. If you were legally justified in shooting, you probably won't sweat this unless you really do injure someone else. I think the big problem for this case was the lack of a clear cut justification for shooting to begin with.

The one factor that stands out is this is a shooting in a mall. He is charged with deadly conduct. He did not have the right to let loose no matter the price of the stolen property or the amount of daylight left in the day. He was indoors in public place and fired off a shot.

Zee wrote: The one factor that stands out is this is a shooting in a mall. He is charged with deadly conduct. He did not have the right to let loose no matter the price of the stolen property or the amount of daylight left in the day. He was indoors in public place and fired off a shot.

That is absolutely not true. Nowhere does it say you can only shoot a fleeing felon to defend your property only IF you are on your own premises or inside the business you own. The shooter was a tenant, owner of the jewelry store, and the flight of the thief was through the mall, so pursuit of the fleeing man necessarily involved the mall.

You guys probably have moral ideals about whether to shoot a fleeing perp but the law doesn't make the distinction. Steve hit the nail on the head about it being theft during the day, and the other poster who pointed out a $10,000 theft is a felony and the store owner may be justified shooting (at) a fleeing felon regardless of the time of day.

This is another iffy case and it doesn't do our cause any good for a store owner to be charged for something if technically he was fully within his rights. We need to support the rights of those who lawfully defend their lives or property with deadly force if we would like to continue enjoying the same right ourselves.

Steve wrote:
I think the big problem for this case was the lack of a clear cut justification for shooting to begin with .

Presumably (?), the ring was included in the jeweler's insured inventory and that loss will be covered at least in part. The legal bills will probably exceed the wholesale cost of the ring along with the loss of his gun and any CHL the jeweler may have had.

One the one hand, the jeweler's decision to pursue and shoot in defense of his property is admirable. On the other hand, that decision will no doubt prove to be quite costly.

You guys probably have moral ideals about whether to shoot a fleeing perp but the law doesn't make the distinction. Steve hit the nail on the head about it being theft during the day, and the other poster who pointed out a $10,000 theft is a felony and the store owner may be justified shooting (at) a fleeing felon regardless of the time of day.

No offense to those without morals but it worries me when I repeatly read entries that sound as if things can only be legal or moral, never both.

If the laws are followed this man has lost his license for the time being and will get it back only after his trial is complete and only if he is found not guilty of reckless conduct because he has been charged with reckless conduct. The question to determine reckless conduct is, Did he behave in a way that endangers others?

I have seen a few people repeat in this thread that it is lawful to use deadly force to stop a fleeing felon. I'm somewhat familiar with chapter 9 of the Penal Code, and I don't see this in there. Can someone point it out to me.

Who knows if insurance would have covered this. Most insurance policies have a deductible, correct? I wonder what he deductible would be on a place with millions of dollars worth of inventory.

I'm conflicted with what to think.

I think he had every right to stop the the thief. I couldn't afford to lose $10,000.

I think the store owner needs to learn how to shoot and the proper time to shoot. If he wasn't 100% sure he was going to hit the guy, he should not have taken the shots. Too much potential collateral damage in a busy mall.

Just another good reason to stay out of those places.

KRM45 wrote:I have seen a few people repeat in this thread that it is lawful to use deadly force to stop a fleeing felon. I'm somewhat familiar with chapter 9 of the Penal Code, and I don't see this in there. Can someone point it out to me.

You'll find it in PC 9.42:
"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 believe he had the authority to shoot, but in an occupied mall it was reckless endangerment.

joe817 wrote:

KRM45 wrote:I have seen a few people repeat in this thread that it is lawful to use deadly force to stop a fleeing felon. I'm somewhat familiar with chapter 9 of the Penal Code, and I don't see this in there. Can someone point it out to me.

You'll find it in PC 9.42:
"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.

We have no reason to believe it was burglary, robbery, or aggravated robbery. And it it was NOT night, then it was not "theft during the nighttime". One poster said he saw it on the 6PM news; so it likely was not "night". So none of the above law would apply

We have no reason to believe it was burglary, robbery, or aggravated robbery. And it it was NOT night, then it was not "theft during the nighttime". One poster said he saw it on the 6PM news; so it likely was not "night". So none of the above law would apply

If you'd go back and re-read the original post "...lawful to use deadly force to stop a fleeing felon." , I was merely pointing out in the statues where it is justified under certain circumstances. I was making no comment on the legality/illegality, or the justification/non justification of shooter's actions in the jewelery store.

As a general rule, the fact that the theft was of felony level does not justify deadly force under the law. Also, insurance does not affect the justification. The law does not say recover from the loss, but the recovery of the property. this means the actual property.

On another point, if you ask any cop or lawyer, they will tell you to remember that the law is not about right or wrong, justice or injustice, moral or immoral, but just about what the law says. Something can be moral (if obeying the law is not considered) and illegal. It can be immoral and legal (see the eminent domain case in New London, Conn. for one example - my opinion on the morality of it). And of course, it can be immoral and illegal, as we try to make the laws reflect.

I think those who are asking about the morality of the shooting are placing their values on the incident and saying what they would do in that type of case. They acknowledge the law may allow it but that does not mean it should be done. As a person who tries to be honest with himself, I don't think I would have shot in the mall over a shoplifter, even for that amount, but that is my judgment. I will do my best to make an impartial assessment of the law for the case though, as you have seen by my trying to justify this one.

But, from our disagreements here, with the number of pro-gun and pro-defense people we have, I think the store owner is probably in trouble when it gets to a jury. A plea bargain may be in his future.

joe817 wrote:

KRM45 wrote:I have seen a few people repeat in this thread that it is lawful to use deadly force to stop a fleeing felon. I'm somewhat familiar with chapter 9 of the Penal Code, and I don't see this in there. Can someone point it out to me.

You'll find it in PC 9.42:
"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.

Thank you for your response Joe. I know there are certain felonies that are explicitly listed in the statute concerning the use of Deadly Force. I know there are exigent circumstances that would also justify the use of deadly force to stop a fleeing suspect. The statement I have a specific problem with is this:

I believe a 10,000.00 theft would be a Felony.
It is justified to shoot day or night to stop a Felony in progress. Front, back, sideways, upside down or any other way to stop the Felon.

This is not an accurate statement, and if someone reads this thread and believes it, and acts upon that belief in the future, they could be in a world of hurt. In Tennessee V. Garner, the Supreme Court ruled that the shooting of a fleeing felon without regard for the seriousness of the felony was unconstitutional.

Take this simple example: I take the stand in a trial and I say "Joe was with me at the time of the offense, so he could not have don it" When in fact you were not with me. I have just committed the crime of Aggravated Perjury (PC37.03) a 3rd degree felony. According to the statement above I could be shot trying to leave the courtroom, and the shooter would be justified.

I have been perusing various forums and it seems that people who shoot in self-defense always (but not 100% of the time, see Joe Horn) get jail time if the felon is unarmed. I suggest that you carry pepper spray in addition to a gun so that you may defend yourself with force, but not deadly force, if deadly force would've been illegal/immoral. For example, in this case, force may be used, but NOT deadly force since the felon is fleeing in the day time.

Per Penal Code 9.41: "... justified in using force against the other when... in fresh pursuit after the dispossession...."

Per Penal Code 9.41, force is legal here, however, it is NOT legal to use deadly force in this case because it was during day time. However, in night time, it would be a justifiable shooting, but I would not recommend it because of moral reasons (and cost of litigation reasons).

Per Penal Code 9.42: "A person is justified in using deadly force... to prevent... theft during the nighttime...."

My suggestion to y'all is to carry pepper spray AND a gun. I don't understand why some folks would carry a spare magazine. I'm willing to bet that most civilian armed defenses are over in 0-2 shots fired by the defender. Probably, most are over in zero (0) shots and never make the news because the mere show of the weapon scares away the perp. For example, even in Police shootings, most shootouts are over in 2.6 (revolver) to 4.6 (auto) shots ( http://www.theppsc.org/Archives/DF_Arti ... _Study.htm ) Personally, instead of a spare mag, I carry a small pepper spray and a small pack of Quikclot wrapped in gauze & rubber gloves. I vacuum packed the Quikclot/gauze/gloves so that it would take up very little room. The tiny pepper spray and Quikclot kit together takes up less space than one spare Glock 17 magazine. You might be surprised to find that a Quikclot kit and pepper spray will be much more useful in a self-defense situation. If you pull out your gun to defend yourself, chances are you ARE GONNA GET SHOT. There's nothing that says good guys get a pass on getting shot. Without Quikclot, to plug up your bullet wound, you could die in less than 2 minutes before the ambulance gets to you. Pepper spray will keep you out of jail so that you'd avoid the fate of this shopkeeper, Harold Fish: http://www.texasshooting.com/TexasCHL_F ... arold+fish, Paul Saustrup: http://www.trailerparkshow.com/conceal1.html, etc. No matter how justified, if you live in an area with a liberal D.A., you're probably going to be paying $100k or more in legal bills if you shoot someone who is unarmed. Pepper spray or some other less lethal self defense tool such as a Taser (watch out! these are illegal in many cities, check with your jurisdiction before you buy one) would keep you out of jail if the attacker is unarmed. It angers me that these law-abiding citizens such as Harold Fish, Jerome Ersland ( http://newsok.com/oklahoma-city-pharmac ... le/3372941 ) , Paul Saustrup, and this shopkeeper get in trouble while the real bad guys get a pass!

Bottom line: better to carry both pepper spray and a gun rather than a gun and a spare mag.

drjoker:

You mentioned the OKC pharmacist who shot a bad guy robbing him.

There is an extensive thread on the forum re: this shooting. If you review the video tape
of the incident, it appears that he shot the kid once and knocked him down, chased
the other robber outside, returned to his pharmacy desk, with his back to the
"threat", switched guns (he had both a Taurus Judge and maybe a .380), then
calmly walked over and executed the kid as he lay on the floor. Not the definition
of a "good shoot".

That's why the pharmacist was charged.

SIA