Self-defense in home and posting no-tresspassing

[drjoker]

I can guarantee that it wouldn't have ended well for you in front of a jury if you shot an unarmed maintenance man entering your apartment to fix your a/c or plumbing or changing your air filters. Even you agreed with me, "unreasonably entering" Shooting your landlord while showing your apartment might not garner you jail time but I bet you'd lose a lot in lawyers' fees and lost work time because you have to appear in court. Shooting a maintenance man will probably land you in jail. IANAL, but the key word is "reasonable" and on that we both agree (quoting you).

I actually asked my lawyer once the exact same question, "Can I get arrested and get jail time for shooting someone inside my home who broke in?"
"Yes."
My lawyer explained that although there's a Castle Doctrine, you'd still have to pass what's known as the "reasonable person" clause. For example, the castle doctrine protects you from a real perp that broke into your home. However, if a drunk guy broke in to your home then fell asleep on your kitchen floor, you do NOT have the right to shoot him while he is sleeping. That is not reasonable and the legalese is that it does not pass the "reasonable person" test. Some other examples my lawyer threw at me from real life cases;
1. sleeping drunk on your kitchen floor
2. neighborhood kids chasing after a ball that was thrown through your window during a game of catch
3. apartment maintenance guy inside your home. You do not have a right to lock him out as it is not your home since you are a renter. If he breaks in to conduct repairs, you do NOT have a right to shoot him.

I totally disagree on the last one. If you are currently occupying the apartment, they do NOT have the right to force entry into it. As the lessee, you have rights to stop them from unreasonably entering your occupied apartment unless there is an emergency situation to repair, then you probably want them to come in.

I know this one for a fact as I stopped a landlord at gunpoint from forcing his way into my apartment to 'show it to a perspective tenant' many years ago. The landlord was charged with burglary of a residence and assault. I ended up dropping the charges just because I didn't feel like messing with it, but he got the message. It was not the first time he had done this to a tenant, but I was first one to stop him.

[ELB]

The maintenance man/landlord thing would seem to turn on what your lease says, and if the maintenance guy or landlord followed the terms of the lease. The Texas version of Castle Doctrine turns on, among other things, "unlawful entry" and "occupied habitation", not "home." I don't think renting in and of itself makes any difference as to your protections under the Castle Doctrine - BUT specific cases turn on facts, and if one of the facts is you signed an agreement that lets the maintenance guy enter your apartment or rental house during certain hours when you are not home, and you did not answer his knock, then I could see you having some trouble availing yourself of the protection of the Castle Doctrine.

Now, if the landlord or maint guy doesn't follow the terms of the lease, e.g. if the landlord just butts in unannounced, without knocking, or providing notice that's required by the lease, then he's got a problem, as KeithB's landlord found out.

There are of course other legal exemptions for people to enter your home, among them police and firefighters and EMTs who are doing it in the course of their duties. There is an ugly case in Oklahoma where a volunteer firefighter responded to a call of a man home alone who had a seizure (I think the man's brother called 911 when he couldn't reach his brother). When the firefighter entered the man's bedroom, the man shot and killed him, apparently as he was coming out of the seizure and thinking there was an intruder in the house. The man is now facing murder/manslaughter charges. I am not sure this is correct, but it is happening. (And as a vollie FF/medical responder I have entered a few houses by force and/or on my own -- not ideal, but sometimes...)

So it's probably wise not to just immediately shoot someone in your house if there is any chance at all you can take a moment to figure out what's what.

As far as posting trespassing, others have pointed out that there's nothing in the text of the law about it, and I have never heard of that before. IANAL and all that, but I think we would have heard about it by now. There have been quite a few reported shootings of people, usually intoxicated in some fashion, entering dwellings not their own and getting shot for it, without any problems for the legal occupier.

[Skiprr]

Even you agreed with me, "unreasonably entering"... IANAL, but the key word is "reasonable" and on that we both agree (quoting you).

Actually, I agree with your attorney to an extent, but the whole of PC Chapter 9 needs to be considered. In the 80th legislature, SB378 (http://www.statutes.legis.state.tx.us/D ... m/PE.9.htm) the so-called Castle Doctrine, was introduced, passed, and signed into law effective September 1, 2007. Sections 9.31 and 9.32 were amended to specifically define under what conditions/circumstances use of force in defense of self would be "presumed to be reasonable."

The language was essentially retained intact (renumbered from §9.32(a)(3) to (a)(2) that deadly force is justified if use of force is justified per §9.31 and "when and to the degree the actor reasonably believes the deadly force is immediately necessary..." On that I agree with your attorney. The "reasonable person" qualification always applies.

However, added by SB378, §9.32(b) now reads: "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: knew or had reason to believe that the person against whom the deadly force was used: 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; unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or was committing or attempting to commit an offense described by Subsection (a)(2)(B) [and] did not provoke the person against whom the force was used; and was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used."

Note that unlike some other statutes, this is not worded as a "defense to prosecution." It very clearly stipulates conditions/circumstances under which the presumption of reasonableness is established. IANAL, but I know there was a lot of back-and-forth in 2007 about this very thing. The bill became known as Texas's "Castle Doctrine" mainly because of one clause: "...in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat."

But it was important to our 2A legislators and lobbyists to do more than just remove the clause "if a reasonable person in the actor's situation would not have retreated..." Previously, §9.32 said that deadly force was justified "...when and to the degree he reasonably believes the deadly force is immediately necessary to protect himself against the other's use or attempted use of unlawful deadly force; or to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery." (Charles may need to come around and correct me here.) This sounds like what your attorney is referencing.

Too much gray area--and situational decision making--if you're asleep in your bed behind locked doors at oh-dark-thirty. So some clear stipulations were added to the statutes that defined conditions under which the reasonableness of use of deadly force was to be presumed. Again, I feel the new key phrase is "unlawfully and with force."

I agree with your attorney, though, that this never means you necessarily should use deadly force in the defined circumstances. If you get up in the middle of the night and head to the kitchen for a glass of water only to find that the neighborhood drunk has forced open a window, grabbed a beer out of your fridge, and is passed out on the floor, acquiring a sight-picture with your Glock is not the right thing to do; there is no immediacy of threat. Call 911 and let the LEOs handle the intruder. And thank them for having to do so.

However, if it's a matter of, for example, an unlawful intruder breaking a window or kicking in a door to gain entrance to your occupied habitation, the law now clearly states that--should you employ it--the use of deadly force will be presumed to be reasonable.

[Skiprr]

There are of course other legal exemptions for people to enter your home, among them police and firefighters and EMTs who are doing it in the course of their duties. There is an ugly case in Oklahoma where a volunteer firefighter responded to a call of a man home alone who had a seizure (I think the man's brother called 911 when he couldn't reach his brother). When the firefighter entered the man's bedroom, the man shot and killed him, apparently as he was coming out of the seizure and thinking there was an intruder in the house. The man is now facing murder/manslaughter charges. I am not sure this is correct, but it is happening. (And as a vollie FF/medical responder I have entered a few houses by force and/or on my own -- not ideal, but sometimes...)

So it's probably wise not to just immediately shoot someone in your house if there is any chance at all you can take a moment to figure out what's what.

Typing while you posted. And, yep, that's why both conditions of "unlawfully and with force" have to be applicable under §9.32 (even though I'm sure Oklahoma law differs from Texas).

Firefighters and emergency medical services personnel are exempt from restrictions of trespass "under exigent circumstances" (actually, it's a defense to prosecution) by TPC §30.05(e)(1).

[Keith B]

There are of course other legal exemptions for people to enter your home, among them police and firefighters and EMTs who are doing it in the course of their duties. There is an ugly case in Oklahoma where a volunteer firefighter responded to a call of a man home alone who had a seizure (I think the man's brother called 911 when he couldn't reach his brother). When the firefighter entered the man's bedroom, the man shot and killed him, apparently as he was coming out of the seizure and thinking there was an intruder in the house. The man is now facing murder/manslaughter charges. I am not sure this is correct, but it is happening. (And as a vollie FF/medical responder I have entered a few houses by force and/or on my own -- not ideal, but sometimes...)

So it's probably wise not to just immediately shoot someone in your house if there is any chance at all you can take a moment to figure out what's what.

Typing while you posted. And, yep, that's why both conditions of "unlawfully and with force" have to be applicable under §9.32 (even though I'm sure Oklahoma law differs from Texas).

Firefighters and emergency medical services personnel are exempt from restrictions of trespass "under exigent circumstances" (actually, it's a defense to prosecution) by TPC §30.05(e)(1).

I agree on this. It would not be reasonable to shoot a maintenance man trying to come to do normal repairs in if they had announced who they were and you didn't answer and they thought the apartment was unoccupied.

In my case, it was 10:30 at night, the landlord was trying to force his way into the apartment past me, and had no reasonable reason to be there. I was told by both responding officers and the prosecuting attorney that I was totally within my right to show that I would use deadly force if necessary, and if he had forced his way on in would have been justified.

[ELB]

...
In my case, it was 10:30 at night, the landlord was trying to force his way into the apartment past me, and had no reasonable reason to be there....

Yikes. Was he drunk as well, or was this his normal stupid?

[Keith B]

...
In my case, it was 10:30 at night, the landlord was trying to force his way into the apartment past me, and had no reasonable reason to be there....

Yikes. Was he drunk as well, or was this his normal stupid?

His 'normal stupid'. It was a college town, and he was used to bullying his way in, especially on young girls or women. I heard these stories about him AFTER we had rented the apartment, including from a couple from women he had done it to.

We had given notice that we were moving out at the end of the month and he decided to bring a woman by to 'show the apartment'. I refused to allow him in due to the late hour and that we were in our bed clothes. He tried to use the 'I am the owner' ploy, but he met his match with me due to my previous law enforcement experience and dealing with landlord/tenant issues before. My wife was freaking out that he was trying to push past me. When the .357 barrel went in his face, he backed up REALLY quickly. I pushed the door closed and chained it. He tried to bluff me into letting him in, but the police showed up really quickly. They had dealt with him before as well, so were not sympathetic to him when he admitted he tried to force his way in. They arrested him on the spot and his 'supposed new tenant' (actually some gal I found out he was dating) was forced to go bail him out. LOL

[twomillenium]

and I would add that the police can also take any and all of your possessions anytime they want. Well to be perfectly accurate, they can and do try, and they have more firepower than most citizens, so... You may well get your freedom and possessions back after going to court and paying for a lawyer.

Where is the law that says the police can take any and all your possessions anytime they want?

[K.Mooneyham]

And this kind of stuff provides one of the main reasons I am now in the process of moving out of the small town I live in, and into a house outside of town. The house is far enough off of the road that one would have to walk over one hundred yards to get up to the house, after climbing over a gate. Certainly not going to be done by accident. Now, I'm sure someone on here can come up with some sort of scenario with kids and a ball, or whatever, but kids with a ball ain't going to be out playing with it at 2 AM, not where I live. And I WILL be posting my place with "No Trespassing" signs, including in Spanish, and painting fence-posts with some sort of luminescent purple paint, too. I'm going to do my best to take any guesswork out of the whole thing.

[twomillenium]

and I would add that the police can also take any and all of your possessions anytime they want. Well to be perfectly accurate, they can and do try, and they have more firepower than most citizens, so... You may well get your freedom and possessions back after going to court and paying for a lawyer.

Where is the law that says the police can take any and all your possessions anytime they want?

It's called civil forfeiture.

Civil forfeiture ??? Means the police can take any and all your possessions anytime they want???? Where is that law and don't make it up.

[twomillenium]

I am aware of that I was addressing the careless comment that "the police can also take any and all of your possessions anytime they want."

[Soccerdad1995]

I am aware of that I was addressing the careless comment that "the police can also take any and all of your possessions anytime they want."

Did you purposely take this one sentence out of context, or were you too busy to read the sentence after it before you posted your response? Here is what I said:

and I would add that the police can also take any and all of your possessions anytime they want. Well to be perfectly accurate, they can and do try, and they have more firepower than most citizens, so... You may well get your freedom and possessions back after going to court and paying for a lawyer.

Yes, the police can and do take people's possessions when they do not have sufficient evidence to charge them with any crime, and there is no due process involved in the taking. I would post the links to numerous examples but given that you didn't read past the first sentence of my post before, I'm not sure that would be productive.

When citizens are willing to incur legal expenses they frequently get their possessions back, or agree to a settlement for a portion of their items value. This is reality. It is illegal, unconstitutional, and an abuse of power. And it happens.

[twomillenium]

I am aware of that I was addressing the careless comment that "the police can also take any and all of your possessions anytime they want."

Did you purposely take this one sentence out of context, or were you too busy to read the sentence after it before you posted your response? Here is what I said:

and I would add that the police can also take any and all of your possessions anytime they want. Well to be perfectly accurate, they can and do try, and they have more firepower than most citizens, so... You may well get your freedom and possessions back after going to court and paying for a lawyer.

Yes, the police can and do take people's possessions when they do not have sufficient evidence to charge them with any crime, and there is no due process involved in the taking. I would post the links to numerous examples but given that you didn't read past the first sentence of my post before, I'm not sure that would be productive.

When citizens are willing to incur legal expenses they frequently get their possessions back, or agree to a settlement for a portion of their items value. This is reality. It is illegal, unconstitutional, and an abuse of power. And it happens.

I agree that it is illegal and unconstitutional and an abuse of power when your possessions are seized without warrant or due process and then the citizen has to pay legal fees to maybe get their possessions back. Just like anything that might sound good at the time it can quickly evolve into a loophole for greed and technicality.

It is still a careless statement to say that the police can take any and all your possessions anytime they want. Because that simply is not true.