(TX) Clerk shoots reported beer thief


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Drizzt
September 6, 2007, 08:55 PM
Clerk shoots reported beer thief

05:19 PM CDT on Thursday, September 6, 2007

By Carolyn Campbell and Vicente Arenas / 11 News

The clerk followed the suspect to his car. A Heights area store clerk shot and killed a man who allegedly ran out of his store with 18 beers Wednesday night.

The shooting happened at a Conoco in the 600 block of Studewood at White Oak.

The clerk said the man went into the store around 11:45 p.m. and walked out with a 12-pack and a six-pack of beer. The store clerk followed the suspect out to his car.

The suspect allegedly reached for something, and that's when the clerk shot him once in the chest, fearing the man was reaching for a gun.

Two witnesses tried to perform CPR on the suspect, but he died at the scene.

Houston police haven't determined if the suspect had a weapon in his car. The case has been referred to a grand jury.

“You can’t run rampant and just go steal beer. I mean if that guy let him steal beer then what’s next. They steal your car. They steal everything,” said Ary Bolanos who is a customer.

Officials say a clerk was killed at this store several years ago by another man trying to steal a can of beer.

While the murder rate in the Heights is down, burglaries are up nearly 40 percent.

“You’ve gotta be very suspicious and now you’ve got to be very careful in the neighborhood,” said Santa Iturralde. He’s a customer.

The Conoco service station sits on a corner next to a couple of popular bars that have opened up in the last couple of years. The legendary Fitzgerald’s club sits right across the street.

A clerk at the store Thursday said he’s got some really cool customers and knows many of them by name. He even gives some of them credit when they can’t pay for gas or cigarettes.

But he said things have been changing in the neighborhood over the past couple of years. The store was recently broken into, and the cash register was smashed open.

There have been several other robberies and home burglaries in the area; recently, vandals broke out the windows of several business in the area.

The Heights has been in transition for years now.

There are new bars and $400,000 homes, but along with the growth though comes pain.

Just Ask store clerk Tony Vong. “It was kind of quiet for a year or two and then the crime rate started coming up again.”

The same can be said of many Houston neighborhoods.

In the Heights though certain crimes outpace the rest of Houston.

The beauty that attracts so many people here, it seems, also attracts the bad guys.

http://www.khou.com/topstories/stories/khou070906_ac_heightsclerk.a88a2aca.html

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Standing Wolf
September 6, 2007, 09:06 PM
I'm sure the criminal was the oft-cited "good boy."

The real pity isn't that the "good boy" died for 18 cans of beer, but that other "good boys" aren't smart enough to learn the obvious lesson from his stupid mistake.

TehK1w1
September 7, 2007, 01:50 AM
I'm getting seriously tired of living in Houston...

Bazooka Joe71
September 7, 2007, 02:38 AM
Killed for 18 cans of beer.

Wow.

Flak_Jakett
September 7, 2007, 02:43 AM
He followed the suspect to the car? I think in my state the man would get some real prison time for that. The suspect was fleeing. And if he stole coors light or some other such pee water, then the store was only out like what?... 5 bucks? And for that he was killed. I hope the guy is happy with living down the fact that he shot a guy for 18 cans of beer.

ArfinGreebly
September 7, 2007, 03:22 AM
Killed for 18 cans of beer.
We'll overlook the fact that this guy had already made the decision that a case of beer was what his life was worth.

Because, there are a couple of other pertinent facts:
The suspect allegedly reached for something, and that's when the clerk shot him once in the chest, fearing the man was reaching for a gun.
. . . and . . .
Officials say a clerk was killed at this store several years ago by another man trying to steal a can of beer.

Sometimes they just want the beer.

Other times they're willing to kill you for it.

You choose which one you're dealing with today.

Mannix
September 7, 2007, 03:32 AM
None of us were there(please post if you were).
All the facts aren't out yet.

For all we know the BG COULD have been going for a gun, at any rate it says he was shot in the chest, not the back. Meaning whatever he was going for, he turned around at the same time, presumably in a menacing fashion, which would be considered a very foolish thing to do if the person following you was armed.

Bottom line, there's not enough info to determine if it was a good or bad shoot.

Titan6
September 7, 2007, 08:36 AM
This is truly excellent.

Let us assume that the story is as written. Dangerous assumption that the media got it right I know... but still:
1. The man stole the beer
2. The clerk chased after him
3. The clerk suddenly felt in danger because he ''thought'' the alleged BG might be reaching for a weapon.
4. Clerk puts a pill in the BG's chest
5. No weapon was found
6. No other witnessess
7. Years ago someone else had been killed at the store over beer.
8. No charges were filed

I like it.

Now every mall Ninja at shopping mall everywhere with his tactical Glock 40 can feel a sense of urgency when faced with alleged shoplifters. ''She was reaching in her purse I swear! I thought she was bringing out a .38 or something...The baby carriage is more than adequate to hide a sawed off SXS.... Those little punks come in here everyday after school stealing stuff....''

Shoplifting is hardly a victimless crime anyway. The company loses real money over it and that could mean the difference between a vacation in Europe and a vacation in the Antilles to some corporate honcho.

I say we give ''license to kill'' to security guards and store clerks everywhere. These highly trained individuals with catlike reflexes are able to make snap decisions on who is stealing what... and can blow the trash away to make perfect society for the rest of us.

We could even take it a step fruther and make the death penalty the only punishment for all crime but I think people lack the courage for that these days.

SaxonPig
September 7, 2007, 10:40 AM
Flak Jacket- The dead man was a thief. A criminal. That's enough for me. Doesn't matter if was a can of beer or a million dollars in value. A thief is a thief and I suspect that men would have been quite willing to commit violence against his victim with no lost sleep.

I have zero tolerance for criminals.

When I was about 20 I was working nights in a convenience store. Guy walked out with two cases of beer one night and I went after him with a 1911in my hand. I would not have shot a shoplifter at that time (I now realize how dangerous any criminal can be) but worried he might get violent. In the parking lot he had 3 friends waiting. The 4 to 1 odds looked bad so I cranked off a round in the air. Great fun. They ran like the rats they were dropping the beer and falling over each other to get away.

No, none of the neighbors called the cops.

TexasRifleman
September 7, 2007, 10:42 AM
Killed for 18 cans of beer.

Wow.

No, killed for stealing another man's livelihood. Good shoot, hope it works out OK for the store owner.

RPCVYemen
September 7, 2007, 11:03 AM
Sometimes they just want the beer.

Other times they're willing to kill you for it.

You choose which one you're dealing with today.

Actually, don't we know that in this case, the bad guy was not looking to kill the clerk? The bad guy had already left the store. If his aim was to kill the clerk, then he would have done so in the store.

I would consider that pretty clear evidence that the bad guy just wanted the beer.

Mike

Shadowangel
September 7, 2007, 11:47 AM
I would consider that pretty clear evidence that the bad guy just wanted the beer.

Doesn't mean he can take it without reprecussions. I want a million dollars. If I tried to steal it, I would expect to be shot at.

One of Many
September 7, 2007, 12:39 PM
Notice that they say the crime problem has increased in the last two years - KATRINA transplants most likely. The criminals that were forced out of LA and ended up in TX, decided that the TX area was richer pickings than what they would find back in LA.

When the BG turns to confront the chasing store clerk, and makes a motion that can be reasonably interpreted to be reaching for a weapon, the clerk can justifiably fear for his life. To exercise the right of self defense, the clerk is not required to have exercised good judgment in trying to stop the thief from getting away with the stolen goods, the clerk is required to have reasonable fear of death at the hands of the BG. If the BG had simply dropped the beer and kept going (with his back to the clerk) he would not have been considered to be a threat, and could not be justifiably shot. This situation turns on the fact that the BG decided to confront the clerk, and made threatening motions.

CountGlockula
September 7, 2007, 12:52 PM
“You can’t run rampant and just go steal beer. I mean if that guy let him steal beer then what’s next. They steal your car. They steal everything,” said Ary Bolanos who is a customer.


'Nuff said. Do we want criminals to do anything they want to innocent, law abiding citizens? NO. Fight or flight...the clerk chose to fight.

BUT, it is questionable if it was self-defense since the clerk thought the BG had a gun. To be continued...

otcconan
September 7, 2007, 12:53 PM
I work in retail, and we are instructed never to follow anyone who is stealing past the point of sale. It is for our own protection. It's sad, but I have a feeling the clerk is going to hang for this (figuratively, of course). I don't know what Conoco's policy is, but I suspect it's similar. The very best that can happen is he'll walk on the indictment, but lose his job anyway.

Killed for 18 beers? Not really that sad, in my opinion. Fired for 18 beers? Really, really stupid.

Karma
September 7, 2007, 01:08 PM
That same news channel has reported that the DA is filing charges on the clerk. The (Houston) Chronicle hasn't updated the story.

TexasRifleman
September 7, 2007, 01:25 PM
That same news channel has reported that the DA is filing charges on the clerk

You shoot and kill someone in Texas you go to the Grand Jury no matter what, the DA has no choice in that.

TexKettering
September 7, 2007, 01:53 PM
You shoot and kill someone in Texas you go to the Grand Jury no matter what, the DA has no choice in that.


Really? What exactly is the Grand Jury... I'm playing the ignorant card. :D


According to the Texas deadly force statutes, it appears that the clerk was legally justified in using force.

HKUSP45C
September 7, 2007, 01:59 PM
You shoot and kill someone in Texas you go to the Grand Jury no matter what, the DA has no choice in that.

Which is as it should be. It keeps the next "law dog" DA from pressing charges on you later. A very nifty device to prevent double jeapordy.

brerrabbit
September 7, 2007, 02:11 PM
I am not sure but I do not believe Double Jeopardy applies to grand jury proceedings.

HKUSP45C
September 7, 2007, 02:15 PM
Interesting. So a failed indictment isn't a trial? It seems intuitive to me that it would apply. Then again I won't vouch for the voracity of my earlier statement. I heard it from my dad a long time ago and since it made sense, I assumed it was true. If it's not then I still think homocides of all stripes should go before a group of uninvolved people to decide on the circumstances and whether they warrant a real trial or not. So, it's still as it should be. :)

Edit: it appears you're correct.


If the grand jury refuses to return an indictment, can the prosecutor come back and try again, or is that barred by double jeopardy?
Double jeopardy does not apply to the grand jury. In practice, however, it is uncommon for a prosecutor, having failed once, to try again without good reason. The Department of Justice requires the prosecutor to obtain permission of the Assistant Attorney General for the Criminal Division to present the case again.

Edit part two: It just occurred to me that I never put my 2 cents in about the shooting. While I wouldn't kill a man over a case of beer (much less an 18 pack) I can certainly see following him out to his vehicle to get his plates and particulars .... while armed. I can also certainly see shooting him if he turned and reached for "something" in a place I'd expect a gun to be. I can also certainly expect Texas to let this clerk off for killing a thief, we're just kooky that way here. Somehow, I just don't hear about people killing criminals (of any flavor) in Texas and taking a ride up the river for it. Must be something in the water down here. I think I'll go have me another glass of it.

mr_dove
September 7, 2007, 03:35 PM
It seems like a fine shoot to me. The clerk did not go after the thief to kill him. He went to retrieve stolen property or to apprehend the thief. Unfortunately the situation escalated to a self defense situation.

It seems that alot of high roaders have trouble differentiating between these two scenarios:

1. defending PROPERTY with deadly force (illegal in most states)
2. attempting to retrieve stolen property without deadly force (ok in every state) but then using deadly force in self defense when the thief attacks.

I suppose many folks must think its illegal to try to retrieve your property from a thief.

MrPeter
September 7, 2007, 03:47 PM
If you're going to follow the chump out to his car to try to get your beer back, don't bring a gun. If you think he might try to hurt you, stay where it's safe and use your gun if its necessary there. Don't go out looking for trouble with your gun in hand.

This one feels wrong to me.

Scorpiusdeus
September 7, 2007, 04:08 PM
In general I doubt I'd shoot someone over 18 cans of beer (What beer comes in and 18 pack anyway). Still, the guy is a thief and a pretty bold one at that. If he has the balls o walk in a store and walk out with 18 cans of beer, you know he robs and does other stuff.

Screw him!

ArfinGreebly
September 7, 2007, 04:30 PM
It is correct that the thief just left the store with the beer, and probably equally correct that, had the clerk stayed where he was, that might have been the end of it. Except, of course, for the paperwork for inventory shrinkage.

We've all heard the mantra that you don't resist and don't try to stop the bad guy, 'cuz someone might get hurt.

I probably don't have to explain that this conduct will only lead to emboldened thieves. At some point, the good people have to stand up to, and resist, the bad people. That's the only way the bad people will have any incentive to stop what they're doing -- or at least to find a softer target.

So you arm yourself in order to defend against the (likely) violence that may ensue when you interdict the bad guy as he tries, once again -- with impunity -- to just walk off with the merchandise.

Now, the bad guy has a choice: 1) realize that he has met resistance, put down the beer, and leave, or 2) decide ain't nobody gonna tell him he can't take the beer, and try to make that point.

1) bad guy puts down beer, says, "okay you win, I be leavin' now," and makes his exit. Nobody gets shot, and the bad guy makes a mental note that this store is "not the droids" he's looking for.

2) bad guy turns to resist/scare/attack/whatever the good guy. This is bad, because the good guy has to defend himself against a person whose intentions are already known to be bad. There is a shoot-out. If the bad guy chose to resist but forgot to bring a gun, that's a really poor operational decision. If the bad guy did bring a gun, maybe both get hurt, maybe the bad guy wins, maybe the good guy wins.

In either case, what does NOT happen is that the bad guy walks away with stolen merchandise no incentive to stop doing that.

Good people have to resist the bad acts of bad people. It's scary, and some of the good guys are going to get hurt. Courage is being scared and acting anyway.

Eventually, the bad guys will a) lose, and no longer be a factor, b) win, but know that the free ride is over, c) make a career choice about what they're doing or where they're doing it.

If the good people hide or stand idly by or decide "it ain't my yob, mon," then the bad people will end up running things.

And that's bad.

Blackbeard
September 7, 2007, 06:07 PM
I'm not going to call bad shoot on this one, but it's close. We don't know all the facts. I think going after the guy was a bad idea. If he had had a weapon, it could have been the clerk's life for 18 beers.

Rexster
September 7, 2007, 07:43 PM
At least one member of THR looks likes he needs to join an antigunner forum. If we do not carry a weapon when trying to stop a crime, then when do we carry weapons? Yes, we must be reasonable in our use of force, but to advocate leaving the weapon behind when pursuing a bad guy? I am not speaking about this incident in particular, but in a general sense. Regarding this incident, the way the Houston news media puts a spin on things, I don't take anything they say at face value.

camslam
September 8, 2007, 12:31 AM
I probably don't have to explain that this conduct will only lead to emboldened thieves. At some point, the good people have to stand up to, and resist, the bad people. That's the only way the bad people will have any incentive to stop what they're doing -- or at least to find a softer target.

AMEN, AMEN, AMEN....

"The only thing necessary for the triumph of evil is for good men to do nothing."
- Edmund Burke

For everyone that is talking about this guys death over 18 cans of beer, just a few things to ponder. What if he was breaking into your house and all he wanted was 18 cans of beer or the $5.00 you paid for it? Would you sit be idle while he robbed you in your home? What if he came up to you on the street and tried to take $5.00 from you? Would you let him? I know these are hypotheticals, but at the heart of it is the philosophy you have towards the evils others perpetuate on society.

I debate anti's all the time about this, a big argument we have is over conceal carry permits. They always say crimes where you would need a gun for protection rarely if ever happen. I always say to them, tell that to the person that was robbed, assaulted, raped, abused, carjacked, shot, knifed, or murdered today. It is easy to dismiss the evil perpetrated on others when it doesn't happen to us. But the question remains as Arfin posed. When do you finally take a stand and say enough is enough.

With the judicial system the joke it is today, you better be ready to protect yourself, because judges and prosecutors aren't keeping these people behind bars. Whether or not the clerk did the right thing in following him out the door, we now have 1 less criminal to assault society. If anyone can tell me how that is a bad thing, I'm all ears!

MudPuppy
September 8, 2007, 12:30 PM
I'm sorry, but if things are as described, I'm with the clerk.

Otherwise, what's the line? A truck full of beers? Just beers. A million dollars? Just money. Too many crimes are committed because the dirtbags think the consequences are a reasonable risk.

And I believe Texas law allows the use of lethal force if you are the immediate victim of theft and reasonably believe you'll not otherwise be able to recover property (apologies for the internet law opinion).

I know others agree and that's cool, that's why we can all discuss our opinions. At the end of the day, both sides have to answer to what's legal.

Flak_Jakett
September 8, 2007, 02:09 PM
Flak Jacket- The dead man was a thief. A criminal. That's enough for me. Doesn't matter if was a can of beer or a million dollars in value. A thief is a thief and I suspect that men would have been quite willing to commit violence against his victim with no lost sleep.

Oh I seee. He was a beer thief!!! Your right we should shoot him, because if he steals beer, who knows what he'll do next. You'll see that if you do background checks on all murderer's and rapists, they all started with beer thefts. So anyone who steels beer is going to eventually rape or kill or rob a bank. I see your point. Killing for 5 bucks of merchandise IS justifiable. Following a fleeing criminal out to his car is always a good idea too. I'm sure that after steeling the beer and fleeing he was going for a weapon in his car to come BACK into the store and shoot the clerk. Yeah.

Similar incidences to this have happened in my community. The precedent set here, is that if you chase a fleeing robber while armed it is considered escalation. He was shot in the chest, but he was in his car obviously fleeing.

hamourkiller
September 8, 2007, 02:16 PM
He was in TEXAS and it is legal to use leathal force at night for such things. He chose to risk his life over beer and lost.

Flak_Jakett
September 8, 2007, 02:21 PM
It is legal in Texas? If they didn't have that mandatory Grand Jury law I'd move there in a second. Oh, well... guess I'll have to keep my plans to move to Florida.

LT1coupe
September 8, 2007, 02:36 PM
I have no problem with the clerk following the man out to gather more evidence, criminals should not be tolerated. If the clerk carried legally why would he not be armed when he did? If the guy made a threatening move, I have no problem with the clerk defending himself.
The mentality that it was just a few beers does'n't fly, he stole, he needed to be caught. Did he deserve to be shot for stealing the beer? No, but for making a threatening gesture yes.

camslam
September 8, 2007, 02:56 PM
Flak: I'm just curious, I'm not trying to start an argument or anything like that. When you said -

Oh I seee. He was a beer thief!!! Your right we should shoot him, because if he steals beer, who knows what he'll do next. You'll see that if you do background checks on all murderer's and rapists, they all started with beer thefts. So anyone who steels beer is going to eventually rape or kill or rob a bank. I see your point. Killing for 5 bucks of merchandise IS justifiable.

Obviously you were being sarcastic, but my question to you is, what is ok to defend? Should the clerk have just sat idle and watched the guy steal the beer and say nothing? So what next, does he just sit idle when anyone wants to steal anything? Does he just watch with a bored look and then call the police?

I'm not saying anyone needs to do anything, but the clerk went outside to follow the guy, maybe to get a license plate number, maybe to confront the thief and tell him to leave the beer, maybe to go shoot the guy, who knows. What scares me most about our society is the amount of garbage we have gotten used to and what we now write off as acceptable losses.

Just because it was only $5.00 of beer, why does that make a difference? Who knows what the guy would have done down the road, but every single FBI, law enforcement, or criminology study will show you that 99.98% of criminals don't just commit one single crime. They commit several and keep going until they are caught, killed, or deterred enough to stop.

I won't say the clerks actions were the smartest, but it will be rare that I will condemn someone for standing up for what is right.

Titan6
September 8, 2007, 03:27 PM
camslam- I'd advise you not to start quoting statistics that are not correct or do not exist.

Most stores have a policy that if you spot a shoplifter you call the police and let them handle it. This is to limit their liability and prevent the employee from being hurt. If the BG gets away, he gets away. Better that than a $20 million dollar law suit. Some states allow stores to hire police officers to do their security work (Colorado comes to mind) but they still retain arrest powers.

What I think is that most people lack the moral conviction to go the extra mile. Why not kill speeders and drunk drivers for example? These people are not only breaking the law they are endangering your life...

Joe Demko
September 8, 2007, 03:30 PM
Obviously you were being sarcastic, but my question to you is, what is ok to defend?

My question to you is, what is the cut-off point for where it isn't worth taking somebody's life?

LT1coupe
September 8, 2007, 03:45 PM
I think some of you are missing the point, the man was NOT shot for stealing beer. He was shot for making a threatening move.

Bartholomew Roberts
September 8, 2007, 04:00 PM
Let's look at a similar case. Prayor v. State, 456 S.E.2d 664 (Ga. App. 1995):

Prayor and his wife were in the kitchen washing dishes at about noon on October 24, 1992, when they looked through the kitchen window and saw the thief standing near Prayor's truck. They ran out of their house, and according to their testimony, the thief had gotten into the truck. Prayor shouted something, and the thief jumped out of the truck and started running. Prayor's wife had called “911” in the interim and Prayor briefly spoke with the dispatcher. Prayor testified that he decided he wanted to apprehend the thief for the police. He retrieved his .357 revolver that he kept in his house for protection, and got into his car to look for the thief. He spotted the victim emerging from a path that was often used as a cut through to a nearby school. The thief began to run away from the Prayor, and he testified he told the thief to “hold it.” Prayor also testified that he thought he saw something in the thief's hand, but he admitted on cross-examination that he did not mention this in his statement given to police shortly after the incident. The thief continued to flee, and proceeded to run up some steps at the school. According to Prayor, when the thief reached the top of the stairs, he made a quick turn back in his direction and Prayor, who was only partly out of his car, fired a warning shot without aiming the gun. The thief went down, and defendant came up to him and removed his belt and tied his arms behind his back. The police arrived, and discovered that the victim, who was still lying on the ground, had been shot. Prayor was then placed under arrest. Prayor also testified that he fired his gun partly to get the thief to stop and partly in self-defense.

Prayor was convicted of aggravated assault (a felony). How different is that case from this one? I think the important point to take away from this is that any time you are firing at another human being, your life and freedom is on the line. It isn't a decision to make lightly because it will have serious consequences. I guarantee the clerk in this case is going to spend a lot more than the 18 cans of beer even in a best case scenario.

He was in TEXAS and it is legal to use leathal force at night for such things.

You had better think again about that...

Where there were no allegations of self-defense, defense of others, or defense of property in wrongful death action based on negligence, shield of justifiable homicide provided by Vernon's Ann.P.C. art. 1222 (repealed) inflicted for purpose of preventing theft at night did not exonerate defendant, who shot and killed decedent in attempt to fire warning shot after observing decedent stand over engine compartment of defendant's parked automobile, lift battery out of car, set it down in front of car and close hood. Howsley v. Gilliam, 517 S.W.2d 531 (Sup. 1975)

Defendant was not justified in using deadly force by shooting victims with firearm to prevent theft of his car keys, wallet, and damage to his car; damage to defendant's car had already been committed when defendant left scene and then returned after arming himself, and there was no evidence that victim was attempting to flee or escape with defendant's wallet and keys. Heng v. State (App. 1 Dist. 2006) 2006 WL 66461, Unreported, petition for discretionary review refused.

ArfinGreebly
September 8, 2007, 04:03 PM
The clerk isn't defending the beer.

The clerk is defending the clerk.

The clerk goes after the bad guy to get the beer back. Stealing beer is prohibited and directly harms the business. As an employee, it makes sense to attempt to recover the stolen merchandise.

The guy threatens the clerk with violence.

The clerk defends the clerk.

Nobody's shooting anybody "over a case of beer."

It seems there's an objection to the clerk's having the sand to go after the thief. Well, yes, there are many people -- probably even a majority of people -- who wouldn't do that, leaving the chasing of the thief up to those who "are trained for that sort of thing."

All that does is give the thieves a pass.

The thieves will only change their model when good people stand up to them.

And in doing so, someone's going to get hurt. Thieves and robbers know this. They also know that good people have a real problem confronting evil, are scared to death to stand up to badness, and would rather let it be someone else's job.

When good people stand up to bad people, the bad people will have to change their model.

There is necessarily a certain amount of messiness involved in the corrective process. Some of that messiness will be dead people.

And it's not about a case of beer.

Got that?

Not about a bloody case of beer.

It's about interdicting the disruption of lawful business.

It's about standing for decency and the right to be free of constant predation.

Not beer.

All the bad guy had to do to stay alive was PUT THE BEER DOWN AND LEAVE. But he didn't do that. He confronted and threatened.

And the clerk stood his ground.

camslam
September 8, 2007, 04:15 PM
Titan:

camslam- I'd advise you not to start quoting statistics that are not correct or do not exist.

Just caught my statistic. I won't claim it is 100% correct :) and I'm not trying to pass it off as an actual statistic, but I think you get the point about it.

I'm sure that many CORPORATE chain stores have the exact policy you are talking about. I don't think any of us want to open that can of worms by discussing the merits of such policies. Obviously there would be just as much fodder if we were talking about schister lawyers and the myriad of lawsuits that are filed throughout this country every day. Pathetic and off topic.

What we are talking about is the philosophy of doing something versus not doing anything. Do you have any opinions on any of the questions I have proposed?

what is ok to defend? Should the clerk have just sat idle and watched the guy steal the beer and say nothing? So what next, does he just sit idle when anyone wants to steal anything? Does he just watch with a bored look and then call the police?

For everyone that is talking about this guys death over 18 cans of beer, just a few things to ponder. What if he was breaking into your house and all he wanted was 18 cans of beer or the $5.00 you paid for it? Would you sit be idle while he robbed you in your home? What if he came up to you on the street and tried to take $5.00 from you? Would you let him?

When do you finally take a stand and say enough is enough?

Bartholomew Roberts
September 8, 2007, 04:21 PM
I think in the end, it will depend a lot on the grand jury. The clerk has two basic defenses available to him.

1) The theft at night defense we already discussed. This is an old Texas law and most of the supporting case law on it is equally old. The few times it has come up in recent years, courts have been reluctant to interpret it as broadly as our ancestors did, so it is risky to rely on this.

2) The belief of the grand jury that the clerk had a reasonable fear of death or serious injury by whatever the thief did based on testimony and evidence. That is a lot of your life to put into the hands of other people and the clerk is extremely fortunate that the grand jury selection process is more restrictive than the jury selection process.

At the end of the day, I wouldn't have pursued the guy. The reason I wouldn't have done it is because whatever societal disorder is engendered by not taking a stronger stand against the theft of beer seems like less of a problem than putting my life in the hands of a bunch of strangers who weren't there to see what I saw and heard.

If this type of theft is truly the problem Arfin describes, then we need to change the laws first because as it stands right now, you run a real risk of going to jail for this type of shoot as the cases cited above show.

camslam
September 8, 2007, 04:24 PM
Bartholomew: I'm with you. That is the problem with our society today. It is almost to the point where you literally can't afford to do what is right.

That is a sad, sad, commentary if you ask me.

Bartholomew Roberts
September 8, 2007, 04:40 PM
Bartholomew: I'm with you. That is the problem with our society today. It is almost to the point where you literally can't afford to do what is right

Well, to be fair, I have been reading hundreds of "self-defense" cases this weekend just to find the few examples I offered. My big problem was that in most cases our system gets it right. The person who shot was so obviously wrong that it didn't make a very good example for THR. Many of them were clearly outright murder where the shooter later tried to justify it by self-defense.

I have to look fairly long and hard to find even potential examples of where people who were probably innocent or just guilty of choosing the wrong people to hang around and got caught up in a system that hears "it was self-defense" 1,000 times a day; but where 999 times it isn't true.

But it does happen rarely and it can happen to you if you aren't careful. My posts are less about what is likely to happen and more about how you can maximize your odds of being on the right side.

If I could narrow it down to several factors, it would probably look like this:

1. Don't associate with criminals or bring them around your home.
2. Use the recreational intoxicant of your choice in moderation and in a safe environment.
3. Choose your friends wisely (see #1).
4. Don't pursue people once the initial threat/incident has passed.

If you took the 500+ cases claiming self-defense that I have been skimming and applied those four criteria, there would be about zero cases left.

ArfinGreebly
September 8, 2007, 04:52 PM
4. Don't pursue people once the initial threat/incident has passed.
Yup.

Our clerk arguably didn't exercise the best judgement.

One thing to stop the thief while he's still in the store.

More like askin' for trouble chasin' him after he's left.

Current law being what it is, I'd say don't chase him.

hamourkiller
September 8, 2007, 05:32 PM
Batholomew, here in Texas you can and many people have been legaly shot for leaving with stolen property at night. I cant state name and time but several such incidents have happened in my life time in the Houston area.
Gang members stealing hubcaps at an apartment building, young man gut shot several with a 22lr from his window. No biled by Johny Holmes who told reporters it is not against Texas law to shoot thieves at night.
Man shot a repo man who was driving off in his car at night, 30-30 through the chest, no billed. It is well known you risk your life to flee with anothers property at night here in Texas.

With the price of ammo, the thiefs estate should reimburse the clerk for the cost of the round it took to defend his life and property.

Dorryn
September 8, 2007, 06:01 PM
Here in Buffalo, we have at least 1 murder a month over a sum less than $20.

Here on THR, some feel that minor thefts and crimes are acceptable and we ignore them because at what point does killing another human become justifiable?

Interesting how these perspectives and reality correlate.

Buttermilk
September 8, 2007, 06:08 PM
It's the" principle" !! I work security and must let a thief exit the store before I may act, as per the D.A. of my county. After that, it's a foot pursuit.

If things are to be as one has written above, why do we have locks on our doors of our homes, autos, storage buildings, etc.?

Just let the crooks have everything?? What kind of a gutless society are we becoming? What kind of a deterrent is there for thieves or any other criminal with that kind of thinking?

Yes, when we check for "priors" on most shoplifters, there are several more violations of all different types. Most thefts are to fund drugs.

With that kind of thinking, where does it stop?

IT'S THE PRINCIPLE!!!

mljdeckard
September 8, 2007, 06:29 PM
In Utah, one may use deadly force to prevent a violent felony, serious bodily injury, or death.

I've seen a couple of arguments here that don't hold up. This man was not killed because he was destroying anyone's livelihood. One man cannot be expected to pay with his life for the cumulative effect of crime against a business in a bad neighborhood.

Some have said, "This is the same guy who WOULD break into your house or rob you at gunpoint." Last I checked, neither we as citizens, nor the government are allowed to KILL PEOPLE because of what they MIGHT do. Any of us MIGHT do anything. All this guy did was snag a case of beer. When he DOES kick in my door, or I see a gun in his hand, then the situation changes.

Two VERY BAD things I see here. Anytime one uses deadly force, if his story states that he FOLLOWED the bad guy, he is in trouble. Or rather, if he followed the bad guy, there better be a compelling reason such as, "I followed him into a shopping mall where it looked like he was going to open fire on a bunch of people". Otherwise, if the BG is walking AWAY from you, the need to defend yourself no longer exists. It is time to call the police and hope for the best. You don't get to follow someone and kill them just because you are offended that your life WAS in danger a few seconds ago. If the threat is LEAVING, you have no justification to FOLLOW. This flies in the face of being able to tell a jury that you did everything possible to prevent this terrible incident.

If he reached for "something" in his pocket, while he was taking a case of beer to his car, a reasonable person would assume he was reaching for his KEYS. NOT A GUN. Just because you WANT it to be a gun doesn't mean it is. As much as it might give you the willies, you better dang well KNOW it's a gun before you start shooting people. I am willing and able to defend against someone who is trying to shoot me. Not someone who I THINK MIGHT BE trying to shoot me.

If any thief deserves to die, at what dollar value do you draw the line? I draw it a lot higher than $12.99. And it certainly won't be be that does the killing.

usmcgrunt
September 8, 2007, 06:48 PM
When is enough enough? People should be held accountable for their actions! What gave the thief the right to think it was OK to steal whether it was beer, money or something else of value?! Hard to say if the clerk did the right thing since we werent there! We all would have done something diffferent-Hindsight is 20/20! In this day and age in Houston I think the Grand Jury will vote in the clerk's favor, people in Houston are getting tired of these types of crime and they seem to be happening more often!

"All that is necessary for the triumph of evil is for good men to do nothing!"

Grunt Out!

mljdeckard
September 8, 2007, 06:50 PM
So, being held accountable for your actions means you should die over a case of beer?

No, we weren't there, but we know the thief was unarmed.

usmcgrunt
September 8, 2007, 06:52 PM
So, being held accountable for your actions means you should die over a case of beer?

Apparently he thought so, who am I to question him!

Grunt Out!

BBQJOE
September 8, 2007, 07:31 PM
So many things to ponder.
What if the store was a gas/beer/diamond store?
Shooting the thief for 10 bucks of beer not ok?
Shooting the thief for 50 bucks in gas still not ok?
How about if the store held a $200,000 diamond?
I bet it would be ok then huh?

What's an 18 pack of beer cost? $15 or $20 bucks?
What did a horse cost in 1880?

Back then you would be hung for stealing a horse.

So when did the value of the theft become the precedent for the punishment of the crime?
To me, stealing is stealing. It's the act of removing something from someone else that does not belong to you, nor do you have the right to.

The punishment should not equate to the value but the act itself.

beaucoup ammo
September 8, 2007, 07:39 PM
“You can’t run rampant and just go steal beer. I mean if that guy let him steal beer then what’s next. They steal your car. They steal everything,” said Ary Bolanos who is a customer.

I wouldn't shoot the man for stealing 18 brews. If I felt he was reaching for a gun to shoot me, of course I'd have acted the same. Especially in an area where crime is going up.

It's no better here. NE San Antonio has turned into an area of drugs, murder, armed robbery and arson.

Sir Aardvark
September 8, 2007, 10:36 PM
In California it is not "Theft" or "Shoplifting" until the thief has left the store premises with the goods.

Someone mentioned previously that the clerk would have to stop the guy before he left the store, but that following the thief outside was a bad idea.... how are you to stop the "Thief" before they have even legally stolen the goods?

Myself, knowing that I am armed most of the time, would not have followed the thief outside, due to the fact that I would have the foreknowledge that I most likely would end up having to shoot this guy because he stole 18 cans of beer - for me, that is not a worthy reason to end someone's life.

TEDDY
September 8, 2007, 10:39 PM
One thing not taken into account here is attitude.if you are not prepared to shoot you may not have time to decide whether you will or wont in a confrontation.as said in these threads he was a criminal first.and he paid the price for his criminal act.there comes a time when man must decide whether
he looks on or fights.I'v been there.made my play and nobody got shot.where I live now its quite but near by, 20 miles people get shot weekly for nothing.
one guy lent a weed wacker aand asked for it back he got a shotgun load and dead.another argued ove a lighter and got killed.:uhoh:-:confused:-:banghead:

camslam
September 8, 2007, 11:32 PM
Bartholomew: Let me clarify a bit.

If this type of theft is truly the problem Arfin describes, then we need to change the laws first because as it stands right now, you run a real risk of going to jail for this type of shoot as the cases cited above show.

This is what I was in agreement about. I'm sure that many of the cases you looked at had an outcome that was most likely proper. Sadly there are cases that even when a person does most things proper, they are still found guilty. There really is no leeway on anything involving a gun. That is why I said it is sad our society in many times protects criminals more than the actual victims, when the criminal is wounded, fatally or not. It would be nice to see more laws change, i.e. Castle Doctrine, etc.., but we'll just have to see.

The example you gave of the guy getting his .357 and going to "apprehend" the criminal is an excellent example of what not to do. I don't really see too much of a parallel between that case and the clerk we are discussing. It is one thing to go hunt down a criminal and a whole different situation if the guy has just run out the door with 18 cans of beer and you go to intervene in some manner. We aren't the clerk, so we don't know what he saw, felt, or reacted to, but you can bet he will have to explain it now.

No question these are tough scenarios and a person better be smart in all of their actions, because they can count on having to answer for any and all actions they take. Carrying a gun is a lot of responsibility.

Bartholomew Roberts
September 8, 2007, 11:56 PM
Batholomew, here in Texas you can and many people have been legaly shot for leaving with stolen property at night.

Yes, and in several cases people have also gone to jail for shooting someone over stolen property at night. I cited two examples of those cases earlier in the thread. I'd also note that those two cases are the most recent precedent on the issue. That tends to suggest that Texas courts are interpreting those rules more strictly, not less.

Now if the chance of a felony conviction is worth less to you than whatever property is moseying away, then feel free to exercise your rights; but you should know that Sec. 9.42 of the Penal Code isn't the "Get out of jail free" car that some people seem to think it is.

RPCVYemen
September 9, 2007, 12:16 AM
If I could narrow it down to several factors, it would probably look like this:

1. Don't associate with criminals or bring them around your home.
2. Use the recreational intoxicant of your choice in moderation and in a safe environment.
3. Choose your friends wisely (see #1).
4. Don't pursue people once the initial threat/incident has passed.

If you took the 500+ cases claiming self-defense that I have been skimming and applied those four criteria, there would be about zero cases left.

+1

An old biker one time told me that the best defense was to not be in a bar where someone was looking for you.

Mike

Flak_Jakett
September 9, 2007, 02:03 AM
For everyone that is talking about this guys death over 18 cans of beer, just a few things to ponder. What if he was breaking into your house and all he wanted was 18 cans of beer or the $5.00 you paid for it? Would you sit be idle while he robbed you in your home? What if he came up to you on the street and tried to take $5.00 from you? Would you let him?

If aliens abducted you and try to steel your beer would you let them?

I don't know what you wanted me to ponder about. All those situations are rediculous and don't really parallel the main point of FOLLOWING the thief. All those situations the thief COMES to you.

Breaks in your house- BANG!

Mugging me- BANG!

Steals beer from the store in which I
work and runs out the door- 911

What's an 18 pack of beer cost? $15 or $20 bucks?
What did a horse cost in 1880?

Back then you would be hung for stealing a horse.

Also back then women and black men were not allowed to vote.

If those things were viable in society they would still be the same. But they aren't viable, so they aren't the same.

The point is that following bad guys fleeing the scene is a bad idea. To some who say he might have been trying to get his liscence plates, the facts don't seem to fit. If he was trying to get numbers off the plates, then why did he get close enough to witness a threatening gesture at night. He followed the bad guy to confront him while armed and that my friends is an escalation of force.

We wouldn't have even gotten away with that in Iraq. If the guy stole MREs from us and we chased him and shot him when he was reaching for something that wasn't a gun we'd be sent to Levenworth.

W.E.G.
September 9, 2007, 02:22 AM
I bet he won't do that again.

mljdeckard
September 9, 2007, 03:02 PM
The difference between shoplifting a case of beer and someone breaking into your house, or stealing a high dollar value of diamonds is that the first is not a felony. The other two are. Breaking into someone's home is considered a VIOLENT felony. If the thief used force to take the diamonds, this ALSO is a violent felony. It is feasible, if unlikely, that a person could try to take the diamonds without using force. It THAT happened, there would be no justification for using deadly force. This is why you have cameras, telephones, and insurance. You only use deadly force when these things won't help you.

camslam
September 9, 2007, 04:13 PM
We're just going around in circles on this one.

There are those of us that believe crime is crime and something should be done about it. (not advocating chasing down every single criminal you can.)

There are those that believe unless the crime is worthy of defense, you should do nothing about it.

What bothers me and several others on this thread is that too many people dismiss crime because it isn't SEVERE enough, or a weapon wasn't used in it, etc... Which for ME, not anybody else, but ME, is a lot of bunk. A crime is a crime. One more time I will repeat I am not advocating vigilante justice in every crime that takes place, but if someone is stealing something, I will try to stop them. Not necessarily with a gun or weapon, maybe with a verbal warning or something else, but at least make an effort rather than allowing the crime to happen.

In the end, you will have to make your own individual choice what you will do when you are faced with a criminal act and then live with the consequenses.

Joe Demko
September 9, 2007, 04:27 PM
A crime is a crime.

I'm sure the agents of our government say much the same thing when doing things like enforcing gun laws and executing no-knock warrants. Still, if it is what you believe it is what you believe.

Lucky45
September 9, 2007, 04:31 PM
Bartholomew Roberts Quote:
Batholomew, here in Texas you can and many people have been legaly shot for leaving with stolen property at night.

Yes, and in several cases people have also gone to jail for shooting someone over stolen property at night. I cited two examples of those cases earlier in the thread. I'd also note that those two cases are the most recent precedent on the issue. That tends to suggest that Texas courts are interpreting those rules more strictly, not less.
I see that there is alot of misconceptions of what happens in TX, so I will try to clarify with the law. Quoting a few cases that has different scenarios does not change how the law is applied with grand juries in TX.


PC §9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.
(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

PC §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.

mljdeckard quote:

Two VERY BAD things I see here. Anytime one uses deadly force, if his story states that he FOLLOWED the bad guy, he is in trouble. Or rather, if he followed the bad guy, there better be a compelling reason such as, "I followed him into a shopping mall where it looked like he was going to open fire on a bunch of people". Otherwise, if the BG is walking AWAY from you, the need to defend yourself no longer exists. It is time to call the police and hope for the best. You don't get to follow someone and kill them just because you are offended that your life WAS in danger a few seconds ago. If the threat is LEAVING, you have no justification to FOLLOW. This flies in the face of being able to tell a jury that you did everything possible to prevent this terrible incident.

If he reached for "something" in his pocket, while he was taking a case of beer to his car, a reasonable person would assume he was reaching for his KEYS. NOT A GUN. Just because you WANT it to be a gun doesn't mean it is. As much as it might give you the willies, you better dang well KNOW it's a gun before you start shooting people. I am willing and able to defend against someone who is trying to shoot me. Not someone who I THINK MIGHT BE trying to shoot me.

Well, as you can see from the highlighted text in TX law, the clerk was exercising his right and within the law. In this country called TEXAS, everyone knows that DEADLY FORCE is justified after sundown, because we DONT have to see, guess, imagine, hope, pray or wish that you have or don't have a weapon. Eyesight and visual recognition is not that good at night. That is why it is expressly written in the law. Deadly force is justified TO PREVENT THEFT DURING THE NIGHTTIME, AND CRIMINAL MISCHIEF DURING THE NIGHTTIME. It keeps people honest. So spread the word, "DON"T MESS WITH TEXAS."
If some don't like it, they can move to Saudi Arabia, they don't shoot you; they just cut off your hands.

Titan6
September 9, 2007, 04:42 PM
I have toned down my argument some but I ill say this: I worked as a clerk for about a year at night in a poor town.

I dealt with shoplifters on a weekly basis. Shoplifters come in all shapes, sizes, colors, and ages from the very young to the very old. I had a total of six people arrested and zero people got shot. Four got aay that I know of (one ran like a track star). But I am willing to bet that there were plenty more.

Killing people for thievery is not much of a deterent. When we hung horse thieves (an often cited and very misunderstood action... Stealing a horse was closer to attempted murder than theft) people still stole horses.. often. Criminals by and large do not stop commiting crimes out of fear of being harmed. They already understand that is possible. If you ant to escalate violent crime let the BG know he will be shot. That way he knows to shoot you before robbing the place.

TexasRifleman
September 9, 2007, 04:47 PM
If you want to escalate violent crime let the BG know he will be shot. That way he knows to shoot you before robbing the place.

Following that logic then we should be totally passive to all aggression and violence and it will go away?

Joe Demko
September 9, 2007, 04:49 PM
Well, as you can see from the highlighted text in TX law, the clerk was exercising his right and within the law. In this country called TEXAS, everyone knows that DEADLY FORCE is justified after sundown, because we DONT have to see, guess, imagine, hope, pray or wish that you have or don't have a weapon. Eyesight and visual recognition is not that good at night. That is why it is expressly written in the law. Deadly force is justified TO PREVENT THEFT DURING THE NIGHTTIME, AND CRIMINAL MISCHIEF DURING THE NIGHTTIME. It keeps people honest. So spread the word, "DON"T MESS WITH TEXAS."
If some don't like it, they can move to Saudi Arabia, they don't shoot you; they just cut off your hands.

I don't think I'd want a lawyer who went in to court in my defense prepared with this. To paraphrase Inugo Montoya, I don't think those highlighted sections mean what you think they mean.
Just for starters, are you sure that shoplifting falls under the definition of any part of this?
(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

It might fall under theft. Does TX law differentiate between petit theft and grand theft? If so, is petit theft included under the subsections you cited above? Chest-thumping and and hoorahing about internet oversimplifications of TX law aside, I will leave you with this. I lived in TX for several years and the laws were no different back then; they are old laws. If it was as clean-cut and easy as you say, one would expect to read every day about all the shoplifters, burglars, vandals, petty thieves, muggers, cattle rustlers, etc. getting gunned down in droves by righteous Texans who are confident that they are operating on the right side of the law. I don't remember it being that way in Laredo. I don't remember it being that way out in Sonora where my then-girlfriend lived. It's not that way right now in Houston where my brother lives. In fact, TX seems to have as much (or more) crime as the rest of the nation. Why aren't the criminals fleeing to states where, compared to the internet version of TX, they could operate in safety and with near impunity?

Titan6
September 9, 2007, 04:54 PM
Texas Rifleman- I am not sure how a thief running away with a case of beer is violent and aggressive please explain?

Lucky45
September 9, 2007, 05:01 PM
Joe Demko Quote:
Well, as you can see from the highlighted text in TX law, the clerk was exercising his right and within the law. In this country called TEXAS, everyone knows that DEADLY FORCE is justified after sundown, because we DONT have to see, guess, imagine, hope, pray or wish that you have or don't have a weapon. Eyesight and visual recognition is not that good at night. That is why it is expressly written in the law. Deadly force is justified TO PREVENT THEFT DURING THE NIGHTTIME, AND CRIMINAL MISCHIEF DURING THE NIGHTTIME. It keeps people honest. So spread the word, "DON"T MESS WITH TEXAS."
If some don't like it, they can move to Saudi Arabia, they don't shoot you; they just cut off your hands.

I don't think I'd want a lawyer who went in to court in my defense prepared with this. To paraphrase Inugo Montoya, I don't think those highlighted sections mean what you think they mean.
It is amazing that you chose to respond to my personal opinion and not about the legal copy of law that was posted, as it pertains to this particular case.


Joe Demko Quote:
Just for starters, are you sure that shoplifting falls under the definition of any part of this?

Quote:
(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
OK, Smarty. What is the legal definition of "lifting someone's personal property from their shop" then leaving with it without permission?? If they wanted to differentiate theft, they would have written it in the law. So, a reasonable person would agree that the State of Texas means ALL THEFT. WHY??? Because THEFT IS THEFT. No difference.

Joe Demko
September 9, 2007, 05:03 PM
Look, Lucky, you are the guy making claims about how Texas law works. It's your responsibility to prove your own claims; not mine to disprove it. That is the way debate works. Otherwise, things just devolve into increasingly wilder unfounded assertions accompanied by "You can't prove me wrong!"

Lucky45
September 9, 2007, 05:22 PM
Joe Demko quote:
Look, Lucky, you are the guy making claims about how Texas law works. It's your responsibility to prove your own claims; not mine to disprove it. That is the way debate works. Otherwise, things just devolve into increasingly wilder unfounded assertions accompanied by "You can't prove me wrong!"

Huh!!!! You really wanted to the reply to your questions below???
Just for starters, are you sure that shoplifting falls under the definition of any part of this? Quote:(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
It might fall under theft. Does TX law differentiate between petit theft and grand theft? If so, is petit theft included under the subsections you cited above?
I wouldn't answer something that obvious. Then it seems like a drowing person trying to climb onto a straw.

Bartholomew Roberts
September 9, 2007, 05:32 PM
I see that there is alot of misconceptions of what happens in TX, so I will try to clarify with the law. Quoting a few cases that has different scenarios does not change how the law is applied with grand juries in TX.

Then maybe you could explain why the law did not in apply in the cases I cited?

Joe Demko
September 9, 2007, 05:38 PM
Thank you, Lucky. You've told me all I need to know.
Long days and many nights to you.

Lucky45
September 9, 2007, 06:11 PM
Bartholomew Roberts Quote:
Where there were no allegations of self-defense, defense of others, or defense of property in wrongful death action based on negligence, shield of justifiable homicide provided by Vernon's Ann.P.C. art. 1222 (repealed) inflicted for purpose of preventing theft at night did not exonerate defendant, who shot and killed decedent in attempt to fire warning shot after observing decedent stand over engine compartment of defendant's parked automobile, lift battery out of car, set it down in front of car and close hood. Howsley v. Gilliam, 517 S.W.2d 531 (Sup. 1975)

Guilty, because there is no such thing as a WARNING SHOT. Any bullet leaving your gun should have a reason behind it. He should fry.


PC §9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary
to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly outweigh,
according to ordinary standards of reasonableness, the harm
sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the
conduct does not otherwise plainly appear.

PC §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;
I haven't read the case, but from what you stated; here is why he was convicted. He obvious was not in fear of death or serious bodily injury because he stated that he was attempting to fire a warning shot and therefore a reasonable person would agree that the shooter didn't feel in danger when he fired the gun. So therefore, in TX, that means deadly force was not immediately necessary.

Bartholomew Roberts Quote:
Defendant was not justified in using deadly force by shooting victims with firearm to prevent theft of his car keys, wallet, and damage to his car; damage to defendant's car had already been committed when defendant left scene and then returned after arming himself, and there was no evidence that victim was attempting to flee or escape with defendant's wallet and keys. Heng v. State (App. 1 Dist. 2006) 2006 WL 66461, Unreported, petition for discretionary review refused.

Same as the other case. Guilty because of the sections quoted. Deadly force is justified when it is immediately necessary. The shooter cannot use that defense at a later time.

MinnMooney
September 9, 2007, 06:46 PM
Officials say a clerk was killed at this store several years ago by another man trying to steal a can of beer.

I'm not sure what if anything this statement has to do with THIS situation. THIS time the theif left the store with the beer so it's very, very ,extremely obvious that the BG did not have any intentions of harming the clerk. The clerk should have stayed behind cover, gotten the lic.no. of the car and reported it to the police. Stolen car? Oh well... ring up a $12 loss for the day and go home without having to hire a self-defense lawyer. (A lawyer would ask for $5,000 - $10,000 retainer for a court case just to defend your actions.) You could probably prove self defense but it's certainly not a slam dunk case.
I'd rather just be out the $12 and let the PD handle it.

Bartholomew Roberts
September 9, 2007, 06:51 PM
Thanks, your analysis mirrors the analysis of the court perfectly in both cases.

The facts of the original case:

"It is undisputed that on October 26, 1971 at approximately 11:00 p.m. Robert Howsley, who was eighteen years of age, was engaged in attempting to steal a battery from Dr. Gilliam's car. The car was parked in the driveway of Dr. Gilliam's home. Harlan Gilliam, Dr. Gilliam's minor son, heard a noise in the front yard, looked out and saw someone attempting to open the hood of his father's car. He informed his father of what he had seen. Dr. Gilliam obtained a .22 rifle from a closet and went upstairs to his son's room to observe from a window. Dr. Gilliam's position at the window was approximately thirty feet from the event he was observing.

Though it was dark, Dr. Gilliam was able to perceive the shadowy figure of a person bent over the engine compartment of his automobile. He saw this person lift the battery out of the car, set it down in front of the car, and close the hood. At this time Dr. Gilliam decided to fire a warning shot at the intruder's feet in order to apprehend him and to keep him from running away. The rifle shot, however, which traveled the approximate thirty-foot distance, struck Howsley in the head, killing him instantly."

The family of the 18yr old sued Dr. Gilliam in civil court for negligent/wrongful death. Both the trial court and court of appeals granted summary judgment to Dr. Gilliam based on the "theft at night" rule under discussion. The Texas Supreme Court then overturned that ruling using the analysis that a warning shot was negligent.

However, let's look at the facts. The distance was 30' (10yds) and Dr. Gilliam claimed to be shooting at the man's feet and instead hit him in the head? Does that sound plausible to you? Do you think the court considered it?

In the second case, the shooter was breaking into cars left at a Bennigan's parking lot when the car owners returned. Rightly upset at the damaged steering column and broken window, they beat the shooter and proceeded to damage his car in retaliation as well as stealing his tires and car radio. The shooter retrieved a gun and came back to the scene and shot several of his theft victims. During his appeal, he claimed both self-defense and defense of property. He was denied the self-defense claims because the court determined he had no reasonable fear of death or serious injury. He was denied the defense of property at night because the court reasoned that one of the men had his car disabled and was unable to flee with the property and so the jury could have rationally believed that deadly force was not necessary to prevent escape with property.

Note the part in bold because it is real relevant to the discussion here. You have accurately characterized and applied the law and clearly know what you are talking about. It seems to me the tricky part is the "the jury could have found" part. That is the part where things can get dicey.

Assuming, the "he was going for something" defense doesn't hold up, could the grand jury in thithe beer case decide that deadly force wasn't necessary to prevent the escape with the property? That maybe calling the police might have been a more prudent option? I think 9.22(2) doesn't offer a lot of reassurance on that point.

The final point I would make is that the trend in Texas law seems to be limiting the use of the "theft/criminal mischief at night" defense, not expanding it. Both of the cases I mentioned were the most recent appellate level cases I could find on that subject and both found reasons (albeit generally acceptable ones) not to allow the defense. You have to go back to the 1940s to find an appellate court upholding the defense. That seems to suggest to me that the trend in the future is likely to be a narrower view of this law.

Lucky45
September 9, 2007, 08:12 PM
Hey Bartholomew Roberts,

First, in the future can you post the full case like you just did. Because earlier you paraphrased it and lead some people on here to believe that the law is not applicable because these two people lost their case. They lost their cases because of other reasons, not because of the "theft during nighttime" section of TX Law.

Secondly, you are checking Appellate Court cases, but I would figure that more than half of the cases of deadly force in TX do not get that far, because the shooter is NO-BILLED (found not guilty) by the Grand Jury. Then you noticed too, that these were CIVIL cases. Since they were no billed in the CRIMINAL CASE side of it, then the family went to civil court to "get justice."
Luckily, as of few days ago,Section 83.001, Civil Practice and Remedies Code in TEXAS, effective Sept 1, 2007, a person who uses deadly force is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as and are no-billed by a grand jury

Now to your response.

However, let's look at the facts. The distance was 30' (10yds) and Dr. Gilliam claimed to be shooting at the man's feet and instead hit him in the head? Does that sound plausible to you? Do you think the court considered it?
All of that doesn't matter. A reasonable person would agree that a DOCTOR is NOT a SNIPER. Therefore, jumping up all excited at 11pm (night) and possessing an instrument(RIFLE) that is not part of your usual element, that he would not be able hit a elephant 20ft in front of him. If you doubt that scenario, just go to your nearest gun range and LOOK UP. Then tell me what you see?? The target is 10yd, 15yd, 25yd away in the other direction. So, could an average doctor aim at someone's feet at night with a rifle? I would say NO!!! That is why he was found NEGLIGENT. Negligent in TRAINING, AIMING AND REASONING.


Assuming, the "he was going for something" defense doesn't hold up, could the grand jury in thithe beer case decide that deadly force wasn't necessary to prevent the escape with the property? That maybe calling the police might have been a more prudent option? I think 9.22(2) doesn't offer a lot of reassurance on that point.

I would suprise if it doesn't hold up. He did not use deadly force to prevent escape with the property. That is the big thing that most people are missing. Right now, the jury will not be concerned about BEER. Everything he did so far has been according to the law.
1. He was the owner or person with authority to represent the owner of the store. ie. clerk.
2. He visually witnessed the theft.
3. He was trying to prevent the other who is fleeing immediately after committing theft during the nighttime from escaping with the property.
4. He believed the other had no claim of right when he dispossessed the store of the property.
5. the deceased accomplished the dispossession by using force, threat, or fraud against the store clerk.
6. he reasonably believes that:(A) the 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 property would expose the clerk or another to a substantial risk of death or serious bodily injury.

His justification is not about the beer (property), but about SELF DEFENSE.
The deceased made a motion by reaching for something,that after all of the above events had occurred, that the clerk BELIEVED was alluding to accessing a weapon. Therefore, the clerk REASONABLY BELIEVED that his use of deadly force was immediately necessary to avoid imminent harm, death or serious bodily injury.

And that is what matters in TEXAS. It doesn't matter what was stolen or who stolen it. But what would a reasonable person believe in those circumstances. Would you, the reasonable person believe that he was reaching for his wife photo to show you, or his business card to solicit business or a lighter to light a cigarette.

That is what the grand jury will look at and decide if they would have thought he would have been reaching for a weapon or not from all the facts that were know at that time by both parties. Remember, we don't know what words were exchanged during the whole incident, but I bet it wasn't in British cordial manner either.

P.S. What if he said those magic words that will most like get a grown man shot by another grown man in 2007. I will K I S S you????

Bartholomew Roberts
September 9, 2007, 08:57 PM
They lost their cases because of other reasons, not because of the "theft during nighttime" section of TX Law.

Both cases asserted a defense of property due to theft at nighttime under Section 9.42 of the Penal Code. That is why I cited them. If you look at Vernon's Texas Code Annotated, those are the last two cases in the "Theft by Nighttime" section of the annotated comments.

Secondly, you are checking Appellate Court cases, but I would figure that more than half of the cases of deadly force in TX do not get that far, because the shooter is NO-BILLED (found not guilty) by the Grand Jury.

I don't understand how this is relevant since I have never argued that the cases represented what will usually happen regarding "theft/criminal mischief at nighttime" and instead were offered to show that simply because you think it may fit into that category, doesn't mean a grand jury or court will and it is unwise to interpret those provisions broadly when making a decision to use deadly force.

Then you noticed too, that these were CIVIL cases. Since they were no billed in the CRIMINAL CASE side of it, then the family went to civil court to "get justice."

Please look again. Only the first case is a civil case. The second case is a criminal case appealing a murder conviction.

Luckily, as of few days ago,Section 83.001, Civil Practice and Remedies Code in TEXAS, effective Sept 1, 2007, a person who uses deadly force is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as and are no-billed by a grand jury

Just a correction; but Section 83.001 of the Civil Practice and Remedies Code says exactly zero about being no-billed by a grand jury. It says that if the shoot is found justified under Section 9.42 of the Penal Code you have civil immunity. You still have to prove in court that the shoot was justified under 9.42 as an affirmative defense.

So, could an average doctor aim at someone's feet at night with a rifle? I would say NO!!! That is why he was found NEGLIGENT. Negligent in TRAINING, AIMING AND REASONING.

You missed my point entirely. The doctor was not found negligent in training or aiming. He was found negligent because he said he was only firing a warning shot and instead struck the thief in the head when he was aiming at his feet. However, the distance was 10 yards with a .22 rifle - not exactly sniper distance and not exactly the type of shoot where you aim for the feet and hit the head.

I think a more likely explanation is that the doctor shot the boy intentionally and later felt bad about his decision and rationalized it to police as a warning shot. Instead of protecting him though, it actually exposed him to more legal liability than a deliberate shot might have. That was one of my points. The other point is that the Texas Supreme Court in 1975 has a few justices who know a thing or two about rifles and I doubt they bought the warning shot story either; but they were still willing to use it to give him legal liability after two lower courts had given the doctor a pass.

Quote:
Assuming, the "he was going for something" defense doesn't hold up, could the grand jury in thithe beer case decide that deadly force wasn't necessary to prevent the escape with the property? That maybe calling the police might have been a more prudent option? I think 9.22(2) doesn't offer a lot of reassurance on that point.

I would suprise if it doesn't hold up. He did not use deadly force to prevent escape with the property. That is the big thing that most people are missing. Right now, the jury will not be concerned about BEER. Everything he did so far has been according to the law.

Maybe you should take a little more time to read my posts; because I am having trouble understanding your reply despite reading it several times. I said "Assuming, the "he was going for something" defense doesn't hold up" and then you say you wouldn't be surprised to see that happen and then go on to say it is all about self-defense (i.e. he was going for something).

Second, in a court you would assert both self-defense (he was going for something) and defense of property; because if the jury doesn't believe you on self-defense, they might still find it justified under defense of property.

The deceased made a motion by reaching for something,that after all of the above events had occurred, that the clerk BELIEVED was alluding to accessing a weapon. Therefore, the clerk REASONABLY BELIEVED that his use of deadly force was immediately necessary to avoid imminent harm, death or serious bodily injury.

Except that it isn't what I think is a reasonable belief or what you think is a reasonable belief. It isn't even what the clerk thinks is a reasonable belief. It will be what the grand jury reviewing the case thinks is a reasonable belief. The clerk is lucky that the grand jury in Texas is selected with considerably more scrutiny than the regular jury because otherwise he might be facing a real problem.

Since I am having difficulty understanding you, and you are clearly not understanding me, let me give a nice summary of my overall argument:

It is improvident to assume that simply because there is a theft at nighttime you are justified in using lethal force. A quick look at the statutes on Necessity and Defense of Property that you cited earlier should provide ample illustration of that.

Tom Servo
September 9, 2007, 10:08 PM
There's a Chevron in Atlanta where the owner has a tick-marked tally of his kills on the front counter. Last time I saw, he was up to 8. It was the only gas station where you didn't see shady folks congregating after dark.

More power to him. Is that how I'd do things? No. There might be a certain degree of cowardice to it, but I'd just set up shop somewhere safer (of course, I don't know his circumstances).

That said, even shoplifting is crime. It is a disregard for the law, and law is what keeps us civilized. In itself, it is not a violent crime, but as others have pointed out, the perpetrators may be inclined to violence under the wrong stimulus.

I once worked a convenience store. I refused to sell a box of cigars to a young woman who could not provide ID. She went outside, and her boyfriend/husband came in with a tire-iron and threatened to kill me with it. Over cigars.

Like most other corporations, that one had a "don't confront, don't chase" policy. Such policies are typical, and they're drafted to protect the corporation from lawsuits that may arise if the perp is injured. They are not written to protect employees, just like the "no guns" policies they have.

(Incidentally, I was nearly fired when the security feed showed me drawing a gun in self-defense)

In the case quoted OP, the cashier would have had it much easier if he'd just let the beer go. I understand how frustrating it can be, but it wasn't his beer or his money. He could have gotten killed protecting the possessions of someone who's not likely to show much gratitude. As it is, his future now hangs on the selection of a jury. I'd not want to be in his shoes.

If someone wants to blow away thieves and make an example, I'm not going to question it. However, I'm not going to risk a long prison sentence by turning a criminal into a "victim" over replaceable things.

Lucky45
September 9, 2007, 10:10 PM
Bartholomew Roberts quote:Just a correction; but Section 83.001 of the Civil Practice and Remedies Code says exactly zero about being no-billed by a grand jury. It says that if the shoot is found justified under Section 9.42 of the Penal Code you have civil immunity. You still have to prove in court that the shoot was justified under 9.42 as an affirmative defense.

I'll break it down for you. Because I don't know where you are getting your info and it is probably old. HERE IS A SUMMARY OF THE TEXAS LAW.

Legislative Session: 80(R)


Senate Bill 378
Senate Author: Wentworth et al.

Effective: 9-1-07
House Sponsor: Driver et al.




Senate Bill 378 amends provisions of the Penal Code and the Code of Criminal Procedure relating to the use of force or deadly force in defense of a person. The bill creates a presumption of reasonableness for the belief of a person who takes such action that the use of force or deadly force to protect the actor was immediately necessary and provides that the presumption would be reasonable if the actor:

1) knew or had reason to believe that the person against whom the force or deadly force was used unlawfully and with force entered, or attempted to enter, the actor's home, vehicle, or place of business or employment; unlawfully and with force removed, or attempted to remove, the actor from the home, vehicle, or place of business or employment; or was committing or attempting to commit certain serious crimes;

2) did not provoke the person against whom the force or deadly force was used; and

3) was not otherwise engaged in certain criminal activity at the time the force or deadly force was used.

The bill provides that an actor who has a right to be present at the location where the force or deadly force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at that time is not required to retreat before using force or deadly force.

Senate Bill 378 also provides immunity from civil liability for a personal injury or death resulting from the use of force or deadly force to a defendant who was justified under the law in using such force or deadly force.


HERE IS THE WAY IT IS WRITTEN IN THE LAW.

Sec. 83.001. CIVIL IMMUNITY. A defendant who uses force or deadly force that is justified under Chapter 9, Penal Code, is immune from civil liability for personal injury or death that results from the defendant ’s use of force or deadly force, as applicable.


I don't know why you feel I am making this up. This is straight from the State of Texas website. Notice, it says justified under Chapter 9 of the Penal Code, not only one section of the chapter. In TX, NO-Billed means that you were justified in your actions.

Titan6
September 9, 2007, 10:26 PM
Gosh Eric F, thanks for the support. If that dosen't prove my case than nothing will. The shooter is posting him killing bad guys and they still steal knowing that death is a near certainty. 8 kills and they still keep coming? Are you sure you aren't just making that up?

Lucky45
September 9, 2007, 10:42 PM
Bartholomew Roberts wrote:You missed my point entirely. The doctor was not found negligent in training or aiming. He was found negligent because he said he was only firing a warning shot and instead struck the thief in the head when he was aiming at his feet. However, the distance was 10 yards with a .22 rifle - not exactly sniper distance and not exactly the type of shoot where you aim for the feet and hit the head.

I think a more likely explanation is that the doctor shot the boy intentionally and later felt bad about his decision and rationalized it to police as a warning shot. Instead of protecting him though, it actually exposed him to more legal liability than a deliberate shot might have.

I think you missed my point. I was trying to give you the example that people go to gun ranges everyday and aim at targets 10ft away and yet they shoot holes in the roof. So it is NOT HARD to believe that an average doctor would aim a rifle at someone feet who is standing 30ft away and hit them in the head. Two words, FLINCHING and RECOIL. My opinion about his negligence probably came out in the trial. I garauntee that those topics came up in his trial from the plaintiff's lawyer.
Training ---when was the last time you shot that WWII rifle, DOC?
Aiming ---- how often you practice?? Do you know how to sight the scope?? How good of a marksman are you, DOC???
Reasoning ----After answering those previous question, do you think were competent enough to pick up that rifle and aim and shoot someone near their feet, DOC???

Bartholomew Roberts
September 9, 2007, 10:45 PM
I don't know why you feel I am making this up. This is straight from the State of Texas website. Notice, it says justified under Chapter 9 of the Penal Code, not only one section of the chapter. In TX, NO-Billed means that you were justified in your actions.

No, it means the grand jury didn't indict you. It doesn't mean you are justified in your actions. In fact, the District Attorney can even resubmit the case to a different grand jury later, though they rarely do anything like that.

Whether you are justified under Chapter 9 of the Penal Code is determined by a civil trial (just as other immunity issues like sovereign immunity and official immunity are). You have to prove in a court that you were justified under Chapter 9 of the Penal Code in order to claim civil immunity. Assuming you can get the lack of indictment from the grand jury entered as evidence, I am sure that would be a major piece of evidence and the law itself is a big deterrent to lawyers who might otherwise take the case; but just because the grand jury no-billed the criminal charges doesn't mean you are never going to see a civil trial.

Lucky45
September 9, 2007, 10:59 PM
Quote:
Assuming, the "he was going for something" defense doesn't hold up, could the grand jury in thithe beer case decide that deadly force wasn't necessary to prevent the escape with the property? That maybe calling the police might have been a more prudent option? I think 9.22(2) doesn't offer a lot of reassurance on that point.

I would suprise if it doesn't hold up. He did not use deadly force to prevent escape with the property. That is the big thing that most people are missing. Right now, the jury will not be concerned about BEER. Everything he did so far has been according to the law.



Maybe you should take a little more time to read my posts; because I am having trouble understanding your reply despite reading it several times. I said "Assuming, the "he was going for something" defense doesn't hold up" and then you say you wouldn't be surprised to see that happen and then go on to say it is all about self-defense (i.e. he was going for something).

Second, in a court you would assert both self-defense (he was going for something) and defense of property; because if the jury doesn't believe you on self-defense, they might still find it justified under defense of property.

You are MISQUOTING me. I said, although I dropped one word, that " I WOULD BE suprise if it doesn't hold up. (the "he was going for something" defense)
Then secondly, he has to assert 2 defenses. 1) that he was within the law when he was trying to protect his property; and therefore justified.
2) that he was within the law when tried to avoid imminent harm by using deadly force; and therefore justified.

Lucky45
September 9, 2007, 11:22 PM
Bartholomew Roberts wrote:Whether you are justified under Chapter 9 of the Penal Code is determined by a civil trial (just as other immunity issues like sovereign immunity and official immunity are). You have to prove in a court that you were justified under Chapter 9 of the Penal Code in order to claim civil immunity.

I'm trying to figure out how you connected the dots. Isn't a person indicted for violating a penal code then tried in a criminal court.??? Therefore, if you are not indicted by a grand jury, there is no criminal case. So some families get mad and file a lawsuit in civil courts claiming wrongful death caused by the shooter. So since 9/1/07, defendants being sued now have immunity from civil liabilty for their actions that have been determined to be justified under Chapter 9 of the Penal Code.
You don't have to prove in court that you were justified, the grand jury already determined that. Maybe that was the case before, but not since 9/1/07.

Am I wrong??

Lucky45
September 9, 2007, 11:29 PM
Bartholomew Roberts wrote:Except that it isn't what I think is a reasonable belief or what you think is a reasonable belief. It isn't even what the clerk thinks is a reasonable belief. It will be what the grand jury reviewing the case thinks is a reasonable belief. The clerk is lucky that the grand jury in Texas is selected with considerably more scrutiny than the regular jury because otherwise he might be facing a real problem.

I already made that statement. Read previous post. Here is what I said.
And that is what matters in TEXAS. It doesn't matter what was stolen or who stolen it. But what would a reasonable person believe in those circumstances. Would you, the reasonable person believe that he was reaching for his wife photo to show you, or his business card to solicit business or a lighter to light a cigarette.

That is what the grand jury will look at and decide if they would have thought he would have been reaching for a weapon or not from all the facts that were know at that time by both parties.

tallpaul
September 9, 2007, 11:40 PM
I love the crowd that feels the life was worth more than the beer etc... ya all wonder why crime is up. If more of this went on and there could be no criminal or civil suite brought crime would fall exponentially.

It boils down to the if the thief did not steal then he would not be dead... so it is his fault like it or not. Believe it or not. His actions cause his issues not the other way around.

ya all that think it too harsh ect should just go hug a criminal today meetin or sumthin ;)

Bartholomew Roberts
September 10, 2007, 12:02 AM
Am I wrong??

Well, I would just be guessing since no cases have been filed on this since 9/1/2007 that I am aware of; but looking at all the past cases on immunity to civil liability, I would say "yes."

For example, if you want to sue a state official and they claim official immunity, the state official still has to go to court and prove he qualifies under the law.

So in a hypothetical shooting, the grand jury no-bills the shooter. There is no criminal case, so there is also no findings in criminal court. The family is angry and files suit. There isn't any process in place to see whether you have immunity when a suit is filed. They will file pretty much any nutty suit you want (http://www.thesmokinggun.com/archive/years/2007/0816071riches2.html). So as the shooter, you will get served with the lawsuit and if you don't read THR, you'll think "What the heck? I thought I was immune from this!"

Likely the first thing you will do then is contact a lawyer. The lawyer will draft a response to the suit and then probably file a motion for summary judgment to dismiss the suit under Section 83.001. If I were a lawyer for the other side, the first thing I would do is argue that while it might appear you are protected under Section 83.001, we believe that in taking discovery we will discover evidence showing that this isn't really the case and the court should allow such discovery. The court is likely to agree to this because throwing out your suit before you get to depose any witnesses or collect any evidence tends to suggest unfairness.

If I am a real bottom-feeder, I will then open up your personal life (and bulletin board posts) like a can of worms searching for anything I can use to support my case. I will depose you for the maximum time limit and I won't make it comfortable. In short, I will use discovery as much as legally allowed to encourage you to settle the case (hypothetically spoken as a hypothetical bottom-feeder).

If I don't find anything incriminating (like your "shoot, shovel, shut-up" post here at THR) that I can use against you, then your attorney will probably renew his motion for summary judgment and that will probably be granted by the judge prior to the trial. On the other hand, if I get lucky and find some good dirt, then we go to a civil trial and a jury decides whether you fit under Chapter 9 or not. If so, then no judgment against you and you can try and collect your legal fees (You don't want to sit through a six-hour deposition without an attorney right? Going rate for a first-year associate right out of law school at a big firm in Dallas would be around $200/hr).

Despite that the law isn't toothless by any means. It acts as a very strong brake against attorneys wanting to take those kinds of civil suits to begin with (and it wasn't popular in Texas even before that); but you shouldn't assume that just because you have been no-billed by the grand jury that you are home free. That probably is the case; but you don't know for sure.

I think between this case and the one where Carter Albrecht got shot, you are likely to see some caselaw testing the new law very soon.

That is what the grand jury will look at and decide

Here is why I feel confident you are wrong in your interpretation: Where in Texas law is a procedure that tells the court clerk that someone has been no-billed by a grand jury and has immunity from civil suit? Where is the procedural law telling the clerk what happens to such a claim? There is no law; most likely because they intend to use the same procedure they use to determine every other civil immunity case - the civil court system (not the grand jury).

camslam
September 10, 2007, 12:03 AM
It boils down to the if the thief did not steal then he would not be dead... so it is his fault like it or not. Believe it or not. His actions cause his issues not the other way around.

In the simplest terms, this is correct. If the thief had not been stealing he would most likely still be alive right now.

There are always going to be differing sides of the debate. One thing that has surprised me over the course of this thread in particular is the number of THR members that have said let the thief go.

We still don't know exactly what happened and if the clerk already had his gun drawn or what, but just for the principle of not tolerating crime, I thought there would have been more support for the clerk. Obviously, legally he may not have made the best decision, but in the end, whether it was 18 cans of beer or $57 in the till, or a bag of chips, or something else, it doesn't really matter, when you start stealing and robbing, you have officially put yourself in a bad position.

In the end it comes back to the thief and making poor decisions.

Blackbeard
September 10, 2007, 12:13 AM
"Not indicted" does NOT equal "justified". Not indicted can mean not enough evidence to get a conviction.

Bartholomew Roberts
September 10, 2007, 12:24 AM
Thanks Blackbeard, I missed that.

You don't have to prove in court that you were justified, the grand jury already determined that.

No, they did not. See my earlier comment. Bernard Goetz (the infamous subway vigilante) was no-billed by the first grand jury to hear charges on him. The prosecutor resubmitted the charges and he was indicted.

If a grand jury finding was the equivalent of finding that you were justified, then that wouldn't be possible. A no-bill by the grand jury doesn't mean anything besides they didn't issue an indictment at this time.

Lucky45
September 10, 2007, 12:54 AM
Bartholomew Roberts wrote:No, they did not. See my earlier comment. Bernard Goetz (the infamous subway vigilante) was no-billed by the first grand jury to hear charges on him. The prosecutor resubmitted the charges and he was indicted.

If a grand jury finding was the equivalent of finding that you were justified, then that wouldn't be possible. A no-bill by the grand jury doesn't mean anything besides they didn't issue an indictment at this time.

Once again you are misquoting a criminal case to make it suit your agenda.
First, Goetz was no-billed on all charges in the first case, which were ATTEMPTED MURDER, ASSAULT AND CRIMINAL POSSESSION OF A WEAPON. People v. Goetz, 68 N.Y.2d 96

Then 2 years later, he was convicted after appeal, of CRIMINAL POSSESSION OF A WEAPON.People v. Goetz, 73 N.Y.2d 751 Reason why?????? He did not have a CONCEALED HANDGUN LICENSE. PERIOD. If he had a permit, he would have been ACQUITTED of all charges.

Lucky45
September 10, 2007, 01:07 AM
camslam wrote: We still don't know exactly what happened and if the clerk already had his gun drawn or what

Most likely, the clerk has a concealed handgun permit. In the store he would not need one, but when he went outside armed then it tells me high probability that he has a license. If he didn't, they would have charged him with PC §46.02 Unlawful Carrying of Weapon.

Bartholomew Roberts
September 10, 2007, 01:20 AM
Once again you are misquoting a criminal case to make it suit your agenda.

No, I am trying to explain fairly basic concepts of law to you. If you don't like Goetz as an example, you can use Dick Simakhin who was submitted to a federal grand jury on tax evasion charges three times (2001, 2002, 2003).

Also for the record, we are both incorrect as to Goetz (http://www.answers.com/topic/people-v-goetz) (however, I'll just assume you are human and made an error rather than accuse you of deliberately misquoting information to fit your agenda):

Goetz was indicted by the first grand jury on January 25, 1985. The prosecution later amended the charges to present more evidence and Goetz was indicted by a second grand jury on March 27, 1985. Both of these relate to your first case, not your second.

So Goetz was never no-billed on any charges. The charges were dismissed by the Court of Appeals (your first cite).

However, my main point remains the same: A no-bill by the grand jury doesn't mean anything besides they didn't issue an indictment at this time.

Flak_Jakett
September 10, 2007, 01:30 AM
I love the crowd that feels the life was worth more than the beer etc...

Do you think that beer is more valuable than life?

Lucky45
September 10, 2007, 01:45 AM
Goetz was indicted by the first grand jury on January 25, 1985. The prosecution later amended the charges to present more evidence and Goetz was indicted by a second grand jury on March 27, 1985. Both of these relate to your first case, not your second.

So Goetz was never no-billed on any charges. The charges were dismissed by the Court of Appeals (your first cite).


Let me correct what I wrote earlier. Goetz was no-billed on these charges in the first case, which were ATTEMPTED MURDER, ASSAULT. He was indicted on the charge of CRIMINAL POSSESSION OF A WEAPON.

But enough of Geotz, here is the link and you can read for yourself. http://en.wikipedia.org/wiki/People_v._Goetz

Bartholomew Roberts
September 10, 2007, 12:59 PM
Goetz was no-billed on these charges in the first case, which were ATTEMPTED MURDER, ASSAULT.

No, he was not no-billed in the first case. According to your link (which is the exact same content as the link I posted), he was indicted by the first and second grand jury and the charges were dismissed by a court of appeals. Do you understand that dismissal of charges by a court of appeals is different from being no-billed by a grand jury?

It may seem like a small difference if you aren't familiar with the law; but from a practical perspective it is a big difference in both cost and time since Goetz had to file the motion to dimiss charges, be denied by the trial court and then appeal that decision. Had the grand jury just no-billed him, that would have been immediate and he would not have had to take any action to avoid prosecution.

Titan6
September 10, 2007, 07:22 PM
Flak Jacket- There lies the issue. There is actually a majority here that holds that property (even near valuless property) is more valuable than human life if the person giving up their life is a suspected thief.

This is an ethical issue that will not be resolved tonight. Taken to it's extreme it would seem to justify say the killing of renters who fail to pay their rent or those who don't pay off credit card loans or even write a bad check.... After all these people are stealing as well, they are just using a different technique. People don't like to think of themselves as thieves when they do these things but they are.

I would submit that if you are strong and dealing with the very bottom rung of society you might be able to afford a little more benevolence. And certainly if you are strong than there are ways of dealing with the disenfranchised, intoxicated, mentally ill and morally uneducated that don't involve injecting them with 180 grain hollow points.


I would also submit unless you are grown up enough to take charge of a high stress situation involving people ....without a gun.... maybe you shouldn't carry a gun until you develop that skill set. Just a personal thought on the matter. It might save you some trouble in the long run. After all a gun is not really a magic wand that waving it around will suddenly cause people to do whatever you deem is the right thing for them to do. In fact there really is no telling how a person will react to a gun in the face except to say not as you would likely expect.

Amazing how many potential shootings I may have averted with the simple phrases of ''Hey Dude, are you going to pay for that?'' and ''I already called the cops... you can put it back or start running now...'' or ''You do know we have cameras on the beer cooler right?''

Oh and by the way a ''no bill'' does not give immunity to civil prosecution. If the killer was found innocent he would be GTG. In our sue-happy country I would be surprised if the GSV does not sue.

Officers'Wife
September 10, 2007, 07:46 PM
My biggest problem is the clerk followed him out to the car. He had a description, he could have got the plate number. Instead he chose a confrontation. It's one thing when trouble finds you, but quite another when you go looking for it. I'm just glad I'm not on the jury.

Selena

hamourkiller
September 10, 2007, 07:51 PM
We can also take it to the ridiculous other extreme. You so love humanity in all of its wonderful diversity that you are willing to allow any downtroden scum sucking animal come into your house/property and take all of your stuff. Yes you will be one with them as you and your family sit in the street because all of your stuff was taken. Yes you can be warmed by the fact you are a better human than I.

The reality is you who will not defend property are like the anti gunners who refuse to put gun free signs on their houses. You depend upon those of us who will defend property for your protection. With out us every thing you have would be leaving before your eyes. I can with out fear place a sign stating my intentions to defend my property with lethal force. Are you willing to place a sign stating your pacifist position of not defending your property? Basically a come and get it sign if you dont threaten me or my family. After all life is more precious than mere property.

I believe the clerk when he says the thief reached for something and the thief went to hell for it. Wonder if that beer is still cold down there?

Titan6
September 10, 2007, 09:10 PM
Killer- As I said I can handle a thief without help. I do not rely on anyone other than the police to help me with anything security related.

Police are trained to deal with criminals so I suppose I rely on them to handle that but that is the system we live in.

There are other ways of dealing with people. In the world I live in a gun is a near last recourse of a reasonable train of thought and action. If it is the first thing you reach for then things have gone poorly or you are the one responsible for the outcome of every encounter.

BTW- Tresspassing and burglary are quite different than shoplifting in that there is a presumption of violence as the actors motives are unknown. My comparison was beteen two non-violent crimes. Check fraud and shoplifting.

Joe Demko
September 10, 2007, 09:40 PM
The reality is you who will not defend property are like the anti gunners who refuse to put gun free signs on their houses. You depend upon those of us who will defend property for your protection. With out us every thing you have would be leaving before your eyes

Don't get too carried away with your own rhetoric.

Tharg
September 10, 2007, 10:12 PM
wow - what he said... can't say it any better. (but of course I'll try in my own vernacular) an 18 pack of beer is a ***TY thing to get killed over... but when you are stealing property it aught to be a concern what "could" happen. Its just not for the vast majority of people who think other people's property belongs to them and that they can take it with impunity. If you don't think anything is going to happen to you if you steal X, what makes you think they think something is going to happen to THEM if they steal Y?

This isn't just about an 18 pack from a convenience store. If the guy/gal will brazenly do it there, then they probably don't have a problem taking it from you garage or house. Which puts you to the next level of what will THEY do to get away with it when you catch them. Unfortunately, you are now up in yer PJ's at 4am prolly not at the height of your cognitive powers facing an aggressor. Sucks to be you... didn't feel he was worth nabbing for an 18 pack...

No i don't think the death penalty should be handed out for beer thieves... if they give up and are nabbed etc etc... they should be given every opportunity to figure out that its just not worth it to be a thief. If they turn on someone and act like they might "try" something or get froggy... once again its their bad thinking. (or probably correct thinking to them... its probably worked before for them........)

Bleh either way... its the incorrect thinking that their deeds WILL go unpunished that they proceed with unlawful acts to begin with. Its also incorrect to think "others" will learn from it (to not do it... they often learn to come better armed to subjugate a victim) The choice comes in if we as a people are going to take it... and that is a path i'd rather take. if my choices were wolf or sheep, i'll take wolf vs. wolf any time i can remotely get away with it. Wolf vs. Sheep is rarely a good outcome.

J/Tharg!

Titan6
September 10, 2007, 10:47 PM
Excellent moral analogy. But Tharg... You forgot the Sheep dog. Does the sheep dog always kill the wolf? Nope. Normally he chases it off. Does the wolf come back? Sometimes... sometimes the wolf moves on. Is the wolf needed to maintain balance? Guess it depends on your POV. If you are sheep than you fear the wolf... If you are sheep dog than you confront it and drive it away... Kill it if you have to... But only if you have to. If there was no Wolf there would be no sheep dog. But the sheep would still get eaten.

camslam
September 10, 2007, 11:59 PM
Is the wolf needed to maintain balance? Guess it depends on your POV. If you are sheep than you fear the wolf... If you are sheep dog than you confront it and drive it away... Kill it if you have to... But only if you have to. If there was no Wolf there would be no sheep dog. But the sheep would still get eaten.

Titan, come on. Are you trying to say that we need criminals to maintain the balance in society? I'm not saying that is what your position is, but based on reading that paragraph, that is how it sounded.

That my friend is messed up logic. What you imply is "sheepdogs", (i.e. people that care that crimes are commited and are willing to do something about it) need criminals for some perverse way of life, where they can go hunt down or drive off these "wolves". I know many a gun owner, many with conceal carry permits, and not one of them feels that way.

I'm sure the vast majority of people with firearms wish there never would be a need to use them defensively. I'll say this again. The thief probably didn't think he was going to be shot and killed over 18 cans of beer, but that was his choice to steal. If he hadn't been stealing, he probably wouldn't have been shot and killed. It has nothing to do with balance, unless you are talking about the thief being mentally imbalanced.

Tharg
September 11, 2007, 04:49 AM
Who said anything about a sheep dog? :)

I said Wolf vs. Wolf. If we are to strictly stick to the metaphor wolves do not kill other wolves all the time, sometimes they back them down to submission, and of course sometimes they chase them away.

The sheep however lets the wolf do what the wolf wants, be it eat them, or move on because it "isn't hungry".

I said i'd take wolf any time i can remotely get away with it. IE, if its obvious that presenting an aggressor attitude is going to get me no where, it wouldn't be smart to do it. Everything relies on POV... that includes one's take on the situation at the time. If pulling a gun is going to get me shot by the 10 guys robbing the bank, it would be useless to do so at that time. Better to play sheep and live than to play wolf and die.

As for "balance" its a long standing argument that if there was no evil then there would be no good. Its extremely black and white which isn't how the world operates. (well - outside of political realms)

But in the end ya... if there were no thieves/murderers/rapists/angry people/psycho's/etc etc i might even find myself in an anti posture... but if those things didn't exist, what would an anti have to fight for? The non-existance of gun-related crime? hehehe

So much lawyer talk going on on this one. I don't know when it happened, but at some point before i was born common sense lost its mojo. I don't think people should die for stealing beer, but i think people who steal beer should expect to die because its a reasonable (common) outcome when you are putting persons other than yourself in a situation where you are removing property from them. The day a crook looks at me and says give me yer wallet and don't think about shooting me because its only money is the day I'll know we are truly whipped. Have we gotten to the point that we don't even let criminals be held accountable for their (own) actions??!?!

I love computers and gadgets and computer games and (modern) guns... but sometimes i think i was born in the wrong era. Used to be a time a person had to be responsible for all his/her actions be it to pay a loan, take care of his/her family, and be aware of his/her choices in public. At least that is the rosy picture i gather of times long gone. Could be that i just have an ingrown hope that at some point (average) people really did act like that.

at any rate... another novel written in internet anals of time :) :) :)

take care all!!!

J/Tharg!

ilbob
September 11, 2007, 09:51 AM
I don't have much sympathy for beer thieves.

I don't see the upside to a clerk chasing a beer thief outside the store.

tallpaul
September 11, 2007, 08:18 PM
Do you think that beer is more valuable than life?

well if someone is stealing to get it ...

until the penalties are severe then nothing will change. I work hard for what I have and don't believe in letting anyone steal what I work hard for. I give a lot of great and valuble stuff away but only as I am led or choose to.

You do gooders have had your way for years and it is only gettin worse. One thing for sure is the dead robber won't be stealing or hurting anyone else will he?

Joe Demko
September 11, 2007, 10:46 PM
until the penalties are severe then nothing will change.

In the times and places where the most severe penalties for even petty crimes were used, was there still crime?

Titan6
September 12, 2007, 12:35 AM
Crime has actually dropped considerably in the past 15 years or so nationwide. I guess the Do-gooders getting their way is working?

But my contention is that there will always be crime and criminals (wolves) and there is nothing we can do to ever put a stop to it. Criminals know fully well that they could die for stealing your CD player but do it anyway. Most criminals lack the ability to think ahead so much as week or so because they live day to day.

As Tharg pointed out without crime then we would live in perfect society where there would be no need to use guns in defense. Such a thing has never happened in this country despite a yearning for ''The good old days''. When the lord of the manor had his proles whipped for poaching, people still poached. When thieves were crucified, people still stole.

I recognize that not everyone is strong enough to deal with a petty criminal on an emotional and mental level therefore they feel they have to resort to violence. And not every case will things work out as expected. But certainly with some training and proper mind set it could be done by most people.

I guess you have to decide wether or not you are truly a mindless sheep (and therefore bound and determined to only one course of action) or a free thinking individual capable of creative abstract thought.

camslam
September 12, 2007, 12:27 PM
Titan:

I recognize that not everyone is strong enough to deal with a petty criminal on an emotional and mental level therefore they feel they have to resort to violence. And not every case will things work out as expected. But certainly with some training and proper mind set it could be done by most people.

Who decides what a PETTY criminal is? Is it something that becomes obvious within the first couple of seconds when someone is committing a crime? I suppose most of us will just have to brush up on our Jedi Mind tricks, so we can deal with these criminals on an emotional and mental level and resolve these PETTY crimes like you have the power to do. :)

You know the funny thing to me? It has always made sense that when someone attempts to control another (as happens during crime), force equal to or greater than that of the criminal usually does a stellar job of resolving the situation.

I guess you have to decide wether or not you are truly a mindless sheep (and therefore bound and determined to only one course of action) or a free thinking individual capable of creative abstract thought.

I'm sure for the majority of people on this forum or not, have escape or de-escalation as their first choice when confronted with a crime, however, using violence is a definite option and should be. Your comment sounds just a bit self-righteous and it is my hope that the rest of us mindless sheep somehow, someway wise up someday. I'll keep my fingers crossed.

Lucky45
September 12, 2007, 06:17 PM
Titan6 wrote:
Crime has actually dropped considerably in the past 15 years or so ationwide. I guess the Do-gooders getting their way is working?

But my contention is that there will always be crime and criminals (wolves) and there is nothing we can do to ever put a stop to it. Criminals know fully well that they could die for stealing your CD player but do it anyway.?

This is exactly the contention by some people in here. That is why I don't know why is there still an arguement when an owner uses deadly force to protect his property. This right is afforded to them by law with specifications. So if a criminal does not want to change his actions although knowing the consequences: then why should an owner change their reactions. It should not matter just because it is beer or any intrinsic valuable, they knew before they committed the crime, that they might die; end of story.

ClickClickD'oh
September 13, 2007, 01:01 AM
Lucky45,

There's a very important point you are missing about the TX law regarding the use of deadly force in defense of property.

PC §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.

Underlined.

It's very very important.

If your property is insured against loss, and not some sort of one of a kind, it's recoverable. Or so is it's value. If your store carries any sort of theft loss insurance, you can't use deadly force to protect it's merchandise since it is recoverable loss.

Titan6
September 13, 2007, 01:39 AM
Camslam- IME petty criminals are by and large cowards, babies or mentally ill. If they were grown up mature people they would not be petty criminals. If they were a major criminal they would much more likely stick a gun in your face and try to rob the till than waste time on a six pack.

That is the main reason it is easier to control situations involving them. Jedi Mind tricks? :) I suppose you could call it that but really sheer balls will overcome most easily.

Have I claimed the moral high ground? Perhaps. It depends upon your POV. As I said not everyone is strong enough. Just because a person is not strong enough to complete a task does not make them a bad person. However a person that takes the easy way out (a gun) over a harder solution with a better result strikes me as either weak, narrow minded or lacking moral fiber.

Lucky45 - My contention is that people often commit much more dangerous and deadly crimes (speeding, drunk driving) or crimes that have a more negative impact on social economics (writing bad checks) and yet no one is endorsing that we put a stop to those through summary execution. Say the police stop you and you are over the legal limit. Should they now shoot you in the back of the head? After all you are still a threat due to your public intoxication and that would be the easier way out. A minute ago you were willing to kill someone to avoid paying $30 in cab fare.

For some, somehow the dynamics change when we are dealing with personal property. Is it because it is YOUR stuff? Are you that attached to YOUR stuff that you would rather live with killing a person?

A drunk driver knows full well before they get behind the wheel of a car that they might die or kill someone. Yet people who you would never suspect still do it every week. So where do you draw the line?

Even that is not really true though. The only reason that Texas allows for the exception is due to the fact that it is difficult to tell what the threat is at night. Many states do not allow it all. Some go fruther. This is not a legal issue to me. No where have I disputed the legality of storekeep's actions. This is a moral issue. The state I live in now allows gambling. I do not gamble because I am opposed to it on moral grounds.

We also open the door to possibilities we would likely not like to see in our lifetimes. A very powerful yet morally bankrupt corporation could use such laws to back corrupt actions (surprising I know but such things have happened in our past) that would be detrimental to a healthy society for example. A perverted person could use such laws to back legal serial killings such as the fictional example of the Atlanta shop owner posted earlier in the thread.

camslam
September 13, 2007, 12:13 PM
Titan: I hear where you are coming from, but it still puts a big old smile on my face. I'll grant you there are a few people I have come across in my time on this earth that I would not mess with PERIOD. They have a look about them on their face that says, "you really don't want any of this."

That being said, a criminal is a criminal. Most are stupid, and some more so than others. As I mentioned in my previous post, I think the first thing an alert person, in particular a CCP holder would do is assess the situation and try to de-escalate it. I would imagine that verbally talking the criminal down would be right up there as a prime option. However, in the end, what most criminals and people in general respect, is equal or greater force than what they are presenting.

I suppose I didn't care much for your broad generalization in the way people deal with criminals versus what you might do. To each their own and hopefully we'll have few or no situations where we have to find out what works.

Cheers.

doubleg
September 13, 2007, 02:03 PM
Wait its legal to shoot people for stealing your beer? My house parties will never be the same. ;):D

Flak_Jakett
September 13, 2007, 03:52 PM
You do gooders have had your way for years and it is only gettin worse. One thing for sure is the dead robber won't be stealing or hurting anyone else will he?

So what? Is it the do badders turn now? Will you start shooting every kid who steals a candy bar, because someday he will do worse crimes?

That being said, a criminal is a criminal.

I suppose I didn't care much for your broad generalization in the way people deal with criminals versus what you might do.

Talk about broad generalizations. If a criminal is a criminal than why are there misdemeanors (is that how you spell misdemeanor?) and felonies?

I think it is become some crimes are worse than others and I believe in punishments that fit the crime.

Who decides what a PETTY criminal is? Is it something that becomes obvious within the first couple of seconds when someone is committing a crime?

I think it would only take a microsecond to realize that someone shoplifting beer is a PETTY crime. The distinction of petty crime is pretty easy to understand and well defined.

when an owner uses deadly force to protect his property.
The guy was an employee.

So if a criminal does not want to change his actions although knowing the consequences: then why should an owner change their reactions.

I don't think the guy knew he was going to get shot.

It should not matter just because it is beer or any intrinsic valuable, they knew before they committed the crime, that they might die; end of story.

Right, because shoplifters are killed all the time right?

Wynona Ryder is soooo lucky to be alive.
Whoah wait, so am I. I shoplifed a pack of gum one time.

Tom Servo
September 13, 2007, 04:30 PM
Gosh Eric F, thanks for the support. If that dosen't prove my case than nothing will. The shooter is posting him killing bad guys and they still steal knowing that death is a near certainty. 8 kills and they still keep coming? Are you sure you aren't just making that up?
Nope. It's a Chevron/Amoco on the corner of Buford Hwy and North Druid Hills, by the I-85 overpass. Last time I was out there was late 2003.

My understanding is that most people thought it was a joke, or graffiti. I asked him about it out of curiosity, and a Dekalb officer confirmed it for me.

Lucky45
September 13, 2007, 07:08 PM
Flak_Jakett wrote:
Quote:
So if a criminal does not want to change his actions although knowing the consequences: then why should an owner change their reactions.

I don't think the guy knew he was going to get shot.
Isn't there an old saying that IGNORANCE OF THE LAW IS NO EXCUSE.


Flak_Jakett
Quote:
It should not matter just because it is beer or any intrinsic valuable, they knew before they committed the crime, that they might die; end of story.

Right, because shoplifters are killed all the time right?

Wynona Ryder is soooo lucky to be alive.
Whoah wait, so am I. I shoplifed a pack of gum one time.

If you or someone else decide to shoplift in the near future, then you should remember that you MIGHT just have a bullet with your name on it waiting for you by someone who does not share your views. If that is not enough to deter in YOUR mind that you should not steal, then there is no hope for some people. It deters my mind, I would never steal. ( Unless the stuff belongs to me) Then it is just REPO.

Titan6
September 13, 2007, 11:18 PM
Killing a man is a powerful, certain and irreversible thing to do.

If a few beers is worth it to you and you think you are that much in the right than you will likely do just that.
I would submit that to do such a thing over so little is an act of evil. If that is the moral code you follow than you have my pity. But you would not have my mercy if I were on your jury.

Titan6
September 13, 2007, 11:33 PM
Well EricF perhaps so? I could find no news items about it. Certainly he would be a person of interest.

But for those of you who don't believe in Jedi Mind tricks....


WI: Bar owner chases down .44 Magnum-toting robber
Source: Oshkosh Northwestern

“Herb Ott doesn’t like to be robbed. In fact, he takes it pretty darn personally. On Thursday around noon, a man in a camouflage mask and clothing and carrying a .44 Magnum handgun and a bag walked into Ott’s bar, Poor Nate’s Tavern, in the township of Dellona about 50 miles northwest of Madison. The bartender, who declined to give her name, said the robber never pointed the gun at her, but went straight to the money drawer. She began screaming for Ott, who was upstairs doing the bar’s books, as the robber headed out the back door with nearly $5,000 in his bag. The 68-year-old Ott came charging downstairs and burst out the back door after the robber, shouting at him to stop. ‘I told him, ‘Give me my frickin’ money back,’’ Ott said. Ott followed the robber through the countryside behind the bar, careful to keep his distance. The robber ducked from tree to tree, looking back at him from time to time, Ott said. He ran up a hill toward some rental cottages before Ott found him trying to hide behind a shed. Ott began to swear at the robber — ‘I used the Lord’s name in vain. I think he was scared’ — and the robber handed the money bag and loaded gun over to him.” (09/08/07)

Link: http://tinyurl.com/yrl5qu

He faced down an armed robber and got the money and the loaded gun handed over to him using nothing but brass balls the size of cantelopes. Smile if you want to it can be done.

ClickClickD'oh
September 14, 2007, 12:04 AM
If you or someone else decide to shoplift in the near future, then you should remember that you MIGHT just have a bullet with your name on it waiting for you by someone who does not share your views.

Well, then you might want to consider the likely hood of having a serial number and cell mate waiting for you when you find out the DA doesn't share your view of the TX penal code on defense of property.

Really, it's the attitude of the DA that will put you in jail for this or set you free. If he thinks the property, or it's value is recoverable and you still used deadly force... you will go to jail.

Someone had better be stealing the Mona Lisa, your breeding stock, or the cure to cancer before you use deadly force just to prevent theft.

Never forget the recoverable clause. The DA won't.

The second thing the DA will throw at you, consistancy. They will look through your balance sheets to see if you have been suffering theft losses before. If you have, and you haven't been using force to prevent those incidents the prosecutor is going to make the jury think you went Rambo. I don't think I have to say, that's not a good thing. Unless you can produce a company policy statement dictating a change in enforcement behavior he's going to fry you as a loose cannon enforcer type out to prove himself, especially if the prevous method has just been to notify the police.. or even worse to just write off the loss.

So, things to consider
1) Is the loss recoverable in terms of actual item or value
2) Has the previous response differed. This will be used to show that in similar circumstances it wasn't believed lethal force was necessary.

Lucky45
September 14, 2007, 01:08 AM
ClickClickD'oh Quote:

Really, it's the attitude of the DA that will put you in jail for this or set you free. If he thinks the property, or it's value is recoverable and you still used deadly force... you will go to jail.


Well according to your suggestion, then you are saying that whenever anyone is being carjacked by a man with a gun, that everyone should get their butts out the car and let them have it. Because obviously the carjacker is not their to harm you, they just want the car for other personal purposes. Plus your car must have insurance since it is on the public highway, so you are covered and can recover your loss.
So no need to use deadly force here, so I guess we should call for the repeal of all castle doctrine LAWS.

JKimball
September 14, 2007, 01:20 AM
Here's a recent story from my neck of the woods about a clerk who didn't confront the beer thieves, but tried to get the license plate number as the thieves were getting in the car to drive off. The clerk was shot by the thieves while he stood watching them at the door.


http://www.ksl.com/index.php?nid=148&sid=1526709

Beer Thieves Suspected of Shooting Clerk
July 24th, 2007 @ 5:02pm
Sandra Yi Reporting

An overnight beer run ended with a shooting. Police are now looking for three men.

Police say the clerk was standing by the door, trying to get the license plate of the robbers' car, when he was shot.

It happened around 2:30 this morning, at the 7-Eleven store on 500 North and 300 West. Police say three men walked into the store, all them were armed and showing their weapons. When the thieves left the store with some beer, the clerk walked over to the door and tried to get a vehicle description. That's when the beer run turned into a much more serious crime.



Salt Lake City Police Lt. Craig Gleason said, "The shooting was a surprise to everyone. There's all kinds of displaying of arms that happens in these kind of things. There's no sense in shooting a clerk over a 12-pack of beer, so no one expects that to happen, but it did here."

The clerk was shot once. He was taken to the hospital in serious condition.



Police are now looking for the three men involved in this. They have only a vague description of the men. They say their best lead is the store surveillance video. Police say the quality of that video is pretty good, and they are looking at it.

Lt. Gleason said, "What was going on in the store, it was happening pretty fast. There were gunshots involved. Most of the people ran or hit the floor, so we don't have a good vehicle description. It's really that video that's going to be the best evidence we have leading us to the suspects."

If you have any information, call Salt Lake City police.



One sure gets the impression this is a dangerous line of work, and I can understand why the clerk in the OP was on a hair trigger. I don't think he acted in his own best interest when he followed the thief, but I wouldn't say he wasn't justified in what he did.

ClickClickD'oh
September 14, 2007, 04:27 AM
Well according to your suggestion, then you are saying that whenever anyone is being carjacked by a man with a gun, that everyone should get their butts out the car and let them have it.
Not at all.

Operating within the confines of the law is an exercise in being able to properly articulate yourself to authorities. A man carjacks you with a gun, you should be reasonably able to state that you felt that your life was in danger. You aren't then defending your property, you are defending yourself.

Because obviously the carjacker is not their to harm you..Then what is the gun for? Pointing a gun at a person in the conduct of a crime is a defacto intent to cause harm. All arguments about property defense are moot when the thug starts the encounter with a gun. It's simply not about property at that point.

beaucoup ammo
September 14, 2007, 07:52 AM
"properly articulate yourself "

Very important. On so many levels. Cool heads prevail for a reason. Not the least of which is the ability to convey vital information when it's needed most.

Lucky45
September 14, 2007, 07:53 AM
ClickClickD'oh Quote:

Not at all.

Operating within the confines of the law is an exercise in being able to properly articulate yourself to authorities. A man carjacks you with a gun, you should be reasonably able to state that you felt that your life was in danger. You aren't then defending your property, you are defending yourself.

Then what is the gun for? Pointing a gun at a person in the conduct of a crime is a defacto intent to cause harm. All arguments about property defense are moot when the thug starts the encounter with a gun. It's simply not about property at that point.

REALLY!!!????!!!!! I never said the BG pointed the gun at the you. He was just showing it in his waist band. So now you have no mention of being able to recover the property by other means.
So are you now agreeing that the clerk's action was not about the beer, after the thief started to reach around for what the clerk reasonably thought to be a GUN. "Is it simply not about the beer at that point?" Seems like we have a convert.

ClickClickD'oh
September 14, 2007, 12:04 PM
REALLY!!!????!!!!! I never said the BG pointed the gun at the you. He was just showing it in his waist band.Now you are being disingenuous with your arguments.

You said, ...whenever anyone is being carjacked by a man with a gun...

However, that doesn't actually change anything. If a man is trying to force me out of my vehicle against my will and is displaying a weapon, either in his hand or in his waste band, he is using a weapon as a threat in the commission of a crime. He gets the standard response drill.

Texas Penal Code 29.03(a)2 [Aggravated Robbery] Uses or exhibits a deadly weapon

Texas Penal Code 9.32(a)3[B] [Deadly Force In Defense of Person] to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.



So are you now agreeing that the clerk's action was not about the beer, after the thief started to reach around for what the clerk reasonably thought to be a GUN.Please do not assume what my argument is based upon you presenting a disingenuous argument, it's bad form.

The clerk put themselves into the shooting situation by following the criminal, while carrying a firearm. It is very easy for a prosecutor to argue that the use of lethal force by the clerk started when they armed themselves and followed the criminal, thus invalidating any claim to self defense from later actions. The same way I couldn't claim self defense if I took my firearm and drove around the bad parts of Dallas trying to get carjacked.

Lucky45
September 14, 2007, 01:30 PM
The law says that if you are legally where you are supposed to be, like a place of employment, and carrying a concealed weapon with license (like the clerk) then you are justified to use deadly force in certain instances. That is what transpired with the clerk. He has CHL, he did not just arm himself. He was armed from the time he recieved his license.

My point about the gun was to show that the gun does not have to be displayed in a menacing way for you to use deadly force, because I would not wait until it was pointed my way when someone has already committed a crime against you.

Titan6
September 14, 2007, 02:27 PM
When dealing with weapons and crime we are discussing a different topic than shoplifting.

The argument goes that the clerk in the OP had no weapon, was fleeing the scene and posed no threat to the clerk. The clerk was only legally justified in shooting the shoplifter as it was in hours of darkness and he was in the state of Texas. In another state, or if this had occured during the day time the clerk would be facing a Grand Jury.

A man with a gun who is trying to rob you either through the display of a weapon or pointing it at you is likely committing assault and should be dealt with differently.

The weapon clarifies the issue regardless of how you insert it into the situation, even if the weapon is not capable of causing harm (say unloaded or a non-firing replica) in most states and certainly for me regardless of the state.

ClickClickD'oh
September 14, 2007, 02:32 PM
That is what transpired with the clerk. He has CHL, he did not just arm himself. He was armed from the time he recieved his license.


That argument isn't going to stand up in court. Wearing a weapon, and being licensed to carry a weapon is not the same thing as drawing your weapon. You aren't using deadly force when you wear a concealed weapon. You are using deadly force when you draw your weapon with the intent to use it.

As I said before, if the prosecutor can show that there was another method to recover the product, or the value of the product, or that the store had previously considered this level of loss not to be up to the level of the use deadly force, or even much less normal force.. then any claim of justification for the use of deadly force goes right out the window.

Yes, the law says you can use deadly force to protect property. BUT, and this is a giant BUT, it also says you can't do that if there are other means of recovery and only if it's considered immediately necessary.

If the prosecutor shows that the establishment didn't consider the use of deadly force necessary in similar circumstances in the past, you're sunk.

Why is this important?

Simple. If the prosecutor invalidates the claim of lethal force in defense of the property, the person has zero recourse as to why he put himself in the situation that he claims to have had to use lethal force in defense of himself. He illegally put himself into a shooting situation. A self defense claim won't stand there, any more than a carjacker could claim self defense when his victim shoots at him.

If the perp had whipped out a pistol while inside the store taking the beer, the story would be completely different. Then it would be an immediate case of self defense in which the actor did not have to put himself into the position to use deadly force. As it is though, the actor invalidates that claim by following the thief out of the store.

ClickClickD'oh
September 14, 2007, 02:39 PM
In another state, or if this had occured during the day time the clerk would be facing a Grand Jury.

Sorry for the double post, but a point of Texas law.

This case will face a Grand Jury, as is required by Texas law. All fatal shootings in Texas go before the Grand Jury no matter how clear cut they are. If the man is indicted or no-billed on this case is likely to be a result of the attitude of the DA. If the DA wants, he may just go before the Grand Jury and tell them he sees no reason to pursue the case, or he may press for an indictment. Of course, just because the DA decides not to follow the case doesn't mean you followed the law. The reverse is also true, the DA pushing for an indictment doesn't mean you broke the law. Remember, Texas DAs are elected.

Flak_Jakett
September 14, 2007, 08:53 PM
Flak_Jakett wrote:

So if a criminal does not want to change his actions although knowing the consequences: then why should an owner change their reactions.
I don't think the guy knew he was going to get shot.

Isn't there an old saying that IGNORANCE OF THE LAW IS NO EXCUSE.

Is there a law which sates that shop lifting is punishable by death?

If you or someone else decide to shoplift in the near future, then you should remember that you MIGHT just have a bullet with your name on it waiting for you by someone who does not share your views.

I believe that tailgaters put people's lives at risk. More at risk than shoplifters for sure. Would it be okay for me to shoot tailgaters? I bet they don't share the same views on it as I do.

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