That Crazy Texas Shotgun Guy
by tgirschNovember 28th, 2007
By now, you’ve probably heard about the guy in Texas who, while on the phone with 911, gunned down two people who were burglarizing his neighbor’s house. If you haven’t, the story (with 911 transcript) is here.
SayUncle complains about the “hysteria” of the “anti-gunners”:
Texas has some of the more lenient defense of property laws but they’re still pretty limiting
…snip…
Why would he think that a law that eliminates the duty to retreat instead justifies killing two burglars that were not an imminent threat to him and were not on his property? Probably because he heard that line repeated over and over by the anti-gunners in press coverage of the bill.
I’m not sure I agree with Uncle here. For one thing, Texas’ defense of property laws don’t seem all that limiting to me. Have a look, specifically at Sections 9.41, 9.42, and 9.43. IANAL, but as I read these, you do have a right to use deadly force against someone to prevent them from committing burglary, even of someone else’s property. 9.42.2B explicitly includes a fleeing suspect as a valid target; coupled with 9.43.1, I think he may actually have a valid defense here. All he has to demonstrate is that he “reasonably believed” the use of deadly force was the only way he could prevent the burglars from getting away with the goods.
Uncle may be right that this has nothing to do with so-called “Castle Doctrine” laws, but that’s still splitting hairs, in my opinion. The bottom line is, I think that most of us (including most pro-gun folks) would agree with Uncle’s assessment that the shooting is “sketchy at best and criminal at worse [sic],” yet it might be perfectly legal in Texas.
And that, to me, is just scary. It strikes me as an open invitation to vigilantism. I’m more pro-gun than most on the left, but this is just ridiculous.
As a side note, if you’re a supporter of gun rights and defense of property laws in general, you should probably hope that the shooter does get some sort of legal punishment. Because if he doesn’t, this will almost certainly galvanize a repeal movement.
Categories: Legal Issues, News & Current Events, Weekend Flame Bait |
“as I read these, you do have a right to use deadly force against someone to prevent them from committing burglary”
I don’t think so. IANAL either but sec 41 says use of ‘force’ and sec 42 says ‘deadly force’. Those are different. And the deadly force laws are kinda fuzzy so lawyers tend to advise not to do that.
“Uncle may be right that this has nothing to do with so-called “Castle Doctrine” laws, but that’s still splitting hairs, in my opinion.”
Not splitting hairs at all. Taking issue with the coverage of the story which specifically blamed the shooting on castle doctrine laws.
“this will almost certainly galvanize a repeal movement.”
I doubt it. There are a few conflicting stories and the folks in texas seem to think the guy’s a hero. I wouldn’t bet on that.
Maybe we should ask Xrlqy-Wrlqy, who IAL.
But recall that the only reason 9.41 is relevant is as a qualifier: Use of “deadly force” is not allowable under 9.42 unless use of “force” would be allowable under 9.41 in similar circumstances.
First, the quasi-IANAL disclaimer - IAAL, admitted in two states, formerly quasi-admitted in a third, currently practicing in a fourth and soon to be sworn in in a fifth non-state, but I’ve never been admitted in Texas. [That's actually something of a weenie disclosure, as the Texas Bar has a "Do Mess With Texas" rule that allows any lawyer in the U.S. who's been practiced for 5 of the previous 7 years to be admitted there without an exam, but I digress.] The transcript is unclear as to the circumstances in which Horn shot the guys. Some of his statements imply that he went out to confront them, but only shot them when they came dangerously close to him on his own property. If so, this may just be a vanilla self-defense case.
Let’s assume, for purposes of this discussion, that it was not self-defense, and that Horn’s only purported justification for shooting the burglars was to prevent them from escaping with the loot. Based on that assumption, I agree with Tom that the guy may have a valid defense, albeit one I’m more inclined to chalk up to legislative malpractice than to an inherent defect in the castle doctrine concept. Tex. Pen. Code § 9.41(b) allows force to recover one’s own property while in fresh pursuit, and § 9.43(1) extends the privilege to third parties under the circumstances. Thus, the question of whether or not Horn was privileged to use deadly force under § 9.42 hinges on elements (2) and (3) of that statute. The second element is clearly met if Horn reasonably believed that his use of deadly force was needed to prevent the continued crime, or to prevent the perps from escaping with the loot - a reasonable belief since the cops hadn’t arrived yet. The third element is a bit trickier, as it can be read in one of two ways:
Common-sense reading: deadly force is only justified if the actor reasonably believes that the property cannot be protected or recovered any other way, without exposing himself or another to a substantial risk of death or serious bodily injury.
Hyper-literal reading: deadly force is justified if the actor reasonably believed either that the property cannot be protected or recovered any other way, or that the use of nonlethal force in particular would expose him or another to a substantial risk of death or serious bodily injury.
This distinction is important, as Horn knew the cops were minutes away, so he must have known that the property could be recovered without him using any force at all or exposing himself to any significant risks.
oh criminal was shot..what a loss to the world.
Its a shame that most of the sections you quote, were removed from the law September 7th, 2007, right before the shooting.
http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/SB00378I.htm is the current law in TX