Can deadly force be used to recover property?

[Kleanbore]

Posted by verge: Then there is no reason for this conversation to continue because that [(ie, you can defend your property in Texas with deadly force and in fact people have done so without being prosecuted)] is all I and others have ever stated.

Not so fast.

You have also said "as a matter of practice these cases do not go to trial", without substantiation, though you have not really made clear what you mean by "these cases".

Based upon statements you have seen quoted in the media, you have also said "So far the PROSECUTORS say they do not PROSECUTE these cases", again without specificity, and have concluded that it is somehow a general policy.

You have also taken the prosecutor's arguments for a murder conviction in a theft case and argued that the case was therefore not about property.

You really do need to consult a Texas criminal defense attorney who has some knowledge and experience regarding Texas Code Section 9.42. He or she should be able to explain the meaning of the law; the differences between a Grand Jury no bill and exoneration; and some pertinent facts about civil liability.

 

[verge]

verge, you must be so proud, your state allows you to kill a boy stealing hubcaps but won't trust you in church or the bar with the same gun.
I doubt you will find a single thread in which any topic close to this is discussed in which someone from the lone star state proudly proclaims their right to shoot anyone in their sights after dark if he is trespassing.

I don't believe I have expressed either pride or disgust at that fact. I have simply stated it is the fact.

You are wrong about both, I carry in my church regularly it is not prohibited. The only bars prohibited are those which get more than 51% of their revenue from alcohol sales. NOT that I am advocating drinking and carrying either mind you. Simply don't want people interpreting incorrectly the way that you just did.

 

[Bartholomew Roberts]

I did a search for you and here is the closest thing I could find. The prosecutor having admitted that state law does allow for using deadly force in the defense of property determined that the clerk didn't care about the property and shot simply out of anger.

That is the way a trial works. You say you shot to defend property in accordance with the law and the prosecutor tries to prove you didn't. The prosecutor isn't going to win too many cases by saying the defendant was complying with the law.

Not exactly what I would say is a textbook case since it was a clerk, in a place of business who destroyed evidence and seemed joyful after the shooting but hey beggars cannot be choosers I guess.

There is nothing in the law that says you can't defend property in a place of business or be happy. So I am not sure why you feel those are relevant. My point is that the clerk claimed justification under Section 9.42 and that justification was denied. Certainly hiding evidence and obstructing an investigation don't help and the jury may well have interpreted those actions as evidence that the clerk did not meet the conditions of Sec. 9.41 and 9.42; however those are both separate charges that the jury could have convicted on had they felt the use of force was justified under Texas law.

If you'll read the thread (or just read the cases discussed in Vernon's Annotated version of Texas Penal Code Sec. 9.42 they will give you two more cases where a justification defense was denied (one civil, one criminal).

ETA: 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.

 

[Kleanbore]

@verge: and by the way, ask your attorney about this.

....shooting looters when they are "fleeing" with your TV...will end you up in prison with boring regularity. As I have said before, and will say again, for the vast majority of you Sec. 9.42.(2)(B) does not apply since you most likely have homeowners or renters insurance which will cover the loss of you TV... hence Sec. 9.42. (3)(B) the land or property cannot be protected or recovered by any other means

Financial restitution does count as property recovery unless the property was of a unique or unreplaceable manner. Since the vast majority of us don't have the Mona Lisa hanging on the wall in the den, using lethal force to prevent the escape of a burglar with your property is not a legal option in the State of Texas.

...and yes, I am an expert of the subject matter.

When this came up before, someone expressed surprise. I do not have a definitive answer, but the person making the challenge was advised to consult the gentlemen at Texas Law Shield, and he agreed to do so.

We have not heard back.

 

[kimbershot]

you can kill anyone you want. the question is, are you willing to spend a fortune defending yourself in court? would you be willing to spend time in prison. stuff is stuff. you can always get new stuff.

 

[Frank Ettin]

...you can defend your property in Texas with deadly force and in fact people have done so without being prosecuted....

And people have claimed to have done so and been prosecuted and convicted.

In the convenience store clerk case, the defendant claimed he was defending property as permitted under Texas law. In the cases I cited earlier, the defendants had asked for 9.42 (defense of property) jury instructions. The point is that you don't decide if you were justified; that will be up to others.

You might suggest that in those cases the defendants were not actually justifiably defending property. And that was the outcome. But they still claimed going in protection under Texas law, but their claims were found wanting.

 

[X-Rap]

So you don't think I just pull these sort of things out of my arse, this comes from the NRA/ILA site and it is what I followed last time I was I Texas.

It is unlawful for a handgun license holder to carry a handgun on the premises of: a government court; a business that derives 51 percent or more of its income from the sale of alcohol for on-premises consumption; a school or educational institution, high school, collegiate, or professional sporting event or interscholastic event that is taking place; a hospital or nursing home; an amusement park; a place of religious worship; a polling place on the day of an election; a meeting of a governing body; a race track; a secured area of an airport; a correctional facility; a correctional facility or within 1000 feet of such, on the day of an execution; the property of another after receiving notice that concealed handguns are forbidden on that property. It is unlawful to possess a firearm in a penal institution.

It is unlawful for a handgun license holder to carry a handgun while intoxicated. It is unlawful for a handgun license holder to carry a handgun and intentionally fail to conceal the handgun.

I have found there to be fairly heavy restrictions on carry down there especially in light of the seemingly cavalier way they view shooting petty thiefs.

 

[verge]

Not so fast.

You have also said "as a matter of practice these cases do not go to trial", without substantiation, though you have not really made clear what you mean by "these cases".

Let me make it clear for you. These cases are cases where someone shot a burglar trying to escape with property during the daytime or a simple thief trying to escape with property after dark.

Based upon statements you have seen quoted in the media, you have also said "So far the PROSECUTORS say they do not PROSECUTE these cases", again without specificity, and have concluded that it is somehow a general policy.

I am stating that appears to be the general policy and in the articles I have linked to both DA's and Prosecutors have also been quoted as saying the same.

You have also taken the prosecutor's arguments for a murder conviction in a theft case and argued that the case was therefore not about property.

I have taken the prosecutor's argument, I agree with it. The clerk did not report the incident and destroyed or tried to destroy evidence. That, to me, is a sign of a guilty conscience. I have also stated what I believe would have allowed the clerk to walk.

You really do need to consult a Texas criminal defense attorney who has some knowledge and experience regarding Texas Code Section 9.42. He or she should be able to explain the meaning of the law; the differences between a Grand Jury no bill and exoneration; and some pertinent facts about civil liability.

I don't need an attorney, I have never shot anyone, do not intend to do so and with God's grace I never will.

 

[Kleanbore]

Posted by verge: These cases are cases where someone shot a burglar trying to escape with property during the daytime or a simple thief trying to escape with property after dark.

Such as beer?

I am stating that appears to be the general policy and in the articles I have linked to both DA's and Prosecutors have also been quoted as saying the same.

I wouldn't put much stock in what "appears to be the general policy", or even in what some prosecutors have said publicly.

The prosecutor today may not be in office tomorrow; he may have a change of heart; or the incident may take place in another county.

I don't need an attorney, I have never shot anyone, do not intend to do so and with God's grace I never will.

You may not need one, but your understanding of legal matters as indicated in this post and elsewhere in this thread certainly indicate that you could benefit from some quality time with one.

I, too, hope that you never actually need one. By the way, you need not shoot someone to be charged with the unlawful use of deadly force, or to be sued for the use of excessive force.

That is not a personal criticism. It applies, quite frankly, to many laymen.

 

[OARNGESI]

Is your wallet really worth killing someone?

 

[Spats McGee]

At the risk of stepping into the middle of this free-for-all, . . .

verge, it seems to me that your reasoning is a little bit "circular," for lack of a better word. You've then asked for evidence that deadly force in defense of property is prosecuted in TX. Others then presented you with some evidence of the convenience store clerk being prosecuted. You then seem to believe that that particular instance is a bad example, that somehow it doesn't count, because the clerk was either not protecting property, or was joyful about it. Regardless of the outcome of that case, the clerk was prosecuted. As Frank Ettin noted:

You might suggest that in those cases the defendants were not actually justifiably defending property. And that was the outcome. But they still claimed going in protection under Texas law, but their claims were found wanting.

You've stated that as a matter of general practice and policy, cases involving deadly force for the protection of property are not prosecuted in TX. While I cannot access the texashuntfish article, I have no reason to dispute that it says what you claim it says, that it has a quote from (what is she?) the governmental relations person for the Deputy Prosecutor's Ass'n or some such. While I understand that you're not advocating killing someone over a set of hubcaps, I'd be extremely cautious about relying on a DPA's statements to the press to build my legal defense to a murder charge.

 

[verge]

That is the way a trial works. You say you shot to defend property in accordance with the law and the prosecutor tries to prove you didn't. The prosecutor isn't going to win too many cases by saying the defendant was complying with the law.



There is nothing in the law that says you can't defend property in a place of business or be happy. So I am not sure why you feel those are relevant. My point is that the clerk claimed justification under Section 9.42 and that justification was denied. Certainly hiding evidence and obstructing an investigation don't help and the jury may well have interpreted those actions as evidence that the clerk did not meet the conditions of Sec. 9.41 and 9.42; however those are both separate charges that the jury could have convicted on had they felt the use of force was justified under Texas law.

If you'll read the thread (or just read the cases discussed in Vernon's Annotated version of Texas Penal Code Sec. 9.42 they will give you two more cases where a justification defense was denied (one civil, one criminal).

I read the thread and in the criminal case Prayor v. State, 456 S.E.2d 664 (Ga. App. 1995): the defendant tracked down and shot a "thief" running away from his truck. The problem as I read your accounting of the case is the "thief" never actually stole anything. There was no property of the defendant on his person to be protected or recovered. In fact, Prayor testified that he fired his gun partly to get the thief to stop and partly in self-defense. He never claimed defense of property and he only claimed partial self-defense.

As far as I know, no state allows for a "partial self defense" affirmative defense.

I am unclear how you believe that case to be relevant to this discussion.

 

[verge]

you can kill anyone you want. the question is, are you willing to spend a fortune defending yourself in court? would you be willing to spend time in prison. stuff is stuff. you can always get new stuff.

I agree completely. The number one rule in my house: freedom means you can do anything you want as long as you are willing to accept the consequences.

 

[verge]

Such as beer?

This case is not useful in this discussion for all of the reasons already cited not withstanding the linked thread you provided which was full of guesswork, conjecture and incorrect case facts.

I wouldn't put much stock in what "appears to be the general policy", or even in what some prosecutors have said publicly.

The prosecutor today may not be in office tomorrow; he may have a change of heart; or the incident may take place in another county.

You may not need one, but your understanding of legal matters as indicated in this post and elsewhere in this thread certainly indicate that you could benefit from some quality time with one.

I, too, hope that you never actually need one. By the way, you need not shoot someone to be charged with the unlawful use of deadly force, or to be sued for the use of excessive force.

That is not a personal criticism. It applies, quite frankly, to many laymen.

 

[verge]

At the risk of stepping into the middle of this free-for-all, . . .

verge, it seems to me that your reasoning is a little bit "circular," for lack of a better word. You've then asked for evidence that deadly force in defense of property is prosecuted in TX. Others then presented you with some evidence of the convenience store clerk being prosecuted. You then seem to believe that that particular instance is a bad example, that somehow it doesn't count, because the clerk was either not protecting property, or was joyful about it. Regardless of the outcome of that case, the clerk was prosecuted. As Frank Ettin noted:


You've stated that as a matter of general practice and policy, cases involving deadly force for the protection of property are not prosecuted in TX. While I cannot access the texashuntfish article, I have no reason to dispute that it says what you claim it says, that it has a quote from (what is she?) the governmental relations person for the Deputy Prosecutor's Ass'n or some such. While I understand that you're not advocating killing someone over a set of hubcaps, I'd be extremely cautious about relying on a DPA's statements to the press to build my legal defense to a murder charge.

Hey no problem at all please feel free to step into the middle of this mess.

I am not saying that people can claim defense of property and get an automatic pass just by saying the words like "Open Sesame" would open the door to a treasure trove. I am saying I have NOT found and nobody else has provided a case where it appeared as if a legitimate case of a person using deadly force to protect their property was tried much less convicted. There are plenty of cases provided where such was the case and the case was no billed.

Does that mean that I am saying chasing down and shooting a "thief" with no stolen property, "partially in self-defense" is not legitimate or that shooting a thief then erasing the recording of the incident, cleaning up and not calling 911 means the case is not legitimate?

YES, that is what I am saying. Call me weird but I agree with the outcome of both of those cases. Maybe I am alone ...

The article was a repost of a DMN article. Here are a couple of other links you can try if you wish to read it.

http://www.policeone.com/legal/arti...le-law-has-brought-little-substantial-change/

http://gunowners.org/op0807.htm

 

[Spats McGee]

And here's the rub:

. . . .I am saying I have NOT found and nobody else has provided a case where it appeared as if a legitimate case of a person using deadly force to protect their property was tried much less convicted. There are plenty of cases provided where such was the case and the case was no billed.

I've underlined the problem. You've excluded evidence that cases involving laims of defense of property have been prosecuted, based either on the outcome (conviction) or your perception. The "circular" part of that reasoning is that you're discounting the clerk's prosecution, based on it having been "illegitimate." But the fact that he was convicted doesn't mean that he was never prosecuted.

As far as anyone having ever been prosecuted in spite of a claim of protection of property: (1) the clerk; (2) Drinkert v. State, 756 S.W.2d 844 (1988) (defendant acquitted, but later sued in Ex parte Drinkert 821 S.W.2d 953 (1981)(both of which might be worth the time to read))

 

[Bartholomew Roberts]

I read the thread and in the criminal case Prayor v. State, 456 S.E.2d 664 (Ga. App. 1995): the defendant tracked down and shot a "thief" running away from his truck.

If you read the entire thread, then you somehow managed to miss the discussion of two Texas cases on the subject. The case you are citing is a Georgia case (GA. App. 1995). You also seemed to have missed my edit in this thread where I provided a 2006 case from that thread and the summary.

At this point, it seems pretty clear to me that you don't have any interest in a discussion and will continue to argue whatever point you think you are defending, so I am going to bow out.

 

[verge]

And here's the rub:

I've underlined the problem. You've excluded evidence that cases involving laims of defense of property have been prosecuted, based either on the outcome (conviction) or your perception. The "circular" part of that reasoning is that you're discounting the clerk's prosecution, based on it having been "illegitimate." But the fact that he was convicted doesn't mean that he was never prosecuted.

As far as anyone having ever been prosecuted in spite of a claim of protection of property: (1) the clerk; (2) Drinkert v. State, 756 S.W.2d 844 (1988) (defendant acquitted, but later sued in Ex parte Drinkert 821 S.W.2d 953 (1981)(both of which might be worth the time to read))

Maybe you find it circular I do not. I know it is frowned upon these days but common sense must apply somewhere. You cannot shoot someone then take actions like cleaning up, trying to destroy evidence and not calling the authorities and then expect anyone to believe your claim that you believed it to be perfectly legal. My 12 year old would not believe such hogwash.

That said, please note that his conviction for "murder" netted him 8 years of PROBATION. The jury initially gave him 5 before the judge realized that it was not actually legal for the jury to give probation for a murder conviction. So the clerk pleaded guilty in exchange for an 8 year probation sentence. To get perfectly technical since that seems to be where this conversation is going in the actual conviction that is on the record the clerk did NOT claim defense of property he pled guilty in exchange for an 8 year probation sentence. As I said earlier the case is not clear cut and does not clearly apply in this conversation.

As for the civil case, I have made no arguments regarding what may or may not happen to you in a civil case. Anyone can sue anyone for anything given enough money and a lawyer with limited scruples. Juries may feel sorry for whoever put on the best show and award silly things like $10 million for spilling hot coffee in one's lap. You take your financial health into jeopardy every day just by existing ... such is life.

 

[Frank Ettin]

...I have NOT found and nobody else has provided a case where it appeared as if a legitimate case of a person using deadly force to protect their property was tried much less convicted. There are plenty of cases provided where such was the case and the case was no billed....

Of course not. If everyone agrees at the beginning that it's a legitimate use of force, it won't be prosecuted. But the DA/grand jury does not always agree with the actor's claim of justification; and such cases will be prosecuted, even though the defendant will continue to claim he was justified. Now it's a matter of outcome.

If the defendant is convicted, it counts as a determination that his claim was not legitimate. If the defendant is acquitted, it counts as a determination that the prosecution could not meet its burden of proof. You won't find the later cases reported as court of appeal decision because the prosecution is not permitted to appeal a jury verdict of acquittal.




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[verge]

If you read the entire thread, then you somehow managed to miss the discussion of two Texas cases on the subject. The case you are citing is a Georgia case (GA. App. 1995). You also seemed to have missed my edit in this thread where I provided a 2006 case from that thread and the summary.

At this point, it seems pretty clear to me that you don't have any interest in a discussion and will continue to argue whatever point you think you are defending, so I am going to bow out.

At this point I do not even know what you think I am arguing. It seems to be that you are arguing you must be super careful and think once, twice, thrice about using your weapon to defend or recover your property. May I say ... DUH. But you seem to be taking it even further implying Texas law is unclear or perhaps a person sitting in their house, discovering someone is fleeing their front yard with their property and shooting them dead will somehow be indicted, tried and convicted of murder. All I am saying is find that case.

If you are talking about this case;

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.

Really? Again, how is this relevant to the discussion. I am not and I don't believe anyone else is claiming that simply speaking the words "defense of property" or even "self defense" automatically result in a no bill or an acquittal.

I do not have the transcript or trial summary to read but this seems again like someone attempting to twist the law into a defense that does not fit.

 

[Spats McGee]

I think Frank has phrased it better than I did:

If everyone agrees at the beginning that it's a legitimate use of force, it won't be prosecuted. But the DA/grand jury does not always agree with the actor's claim of justification; and such cases will be prosecuted, even though the defendant will continue to claim he was justified. Now it's a matter of outcome.

If the defendant is convicted, it counts as a determination that his claim was not legitimate.

 

[Kleanbore]

Verge, you are now arguing with three of the most prominent attorneys on THR--apparently just for the sake of arguing.

I hate to put it quite this way, but considering your qualifications, your posts really do not present you in a very favorable light.

To summarize the subject for the benefit of others:

• Texas alone provides for the use of deadly force in the defense of moveable, tangible property whan necessary, and when certain conditions are met.
• People have been successful in mounting defenses of justification under that law, and some people have not.
• There are also serious civil ramifications, and as in all jurisdicions, the plaintiff bears a lesser burden of proof than a criminal prosecutor.
• There is a sparsity of case law regarding the individual provisions of the law, and some things remain to be tested; one issue that may not be clear is whether financial restitution constitutes recovery of property that is not unique.
• As in all serious use of force incidents in all US jurisdictions, the user of force puts himself at great risk, may well incur great expense, and may well suffer other long term consequences.

 

[Frank Ettin]

...this seems again like someone attempting to twist the law into a defense that does not fit.

Of course it looks that way in hindsight -- because it failed.




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[verge]

Verge, you are now arguing with three of the most prominent attorneys on THR--apparently just for the sake of arguing.

I hate to put it quite this way, but considering your qualifications, your posts really do not present you in a very favorable light.

To summarize the subject for the benefit of others:

• Texas alone provides for the use of deadly force in the defense of moveable, tangible property whan necessary, and when certain conditions are met.
• People have been successful in mounting defenses of justification under that law, and some people have not.
• There are also serious civil ramifications, and as in all jurisdicions, the plaintiff bears a lesser burden of proof than a criminal prosecutor.
• There is a sparsity of case law regarding the individual provisions of the law, and some things remain to be tested; one issue that may not be clear is whether financial restitution constitutes recovery of property that is not unique.
• As in all serious use of force incidents in all US jurisdictions, the user of force puts himself at great risk, may well incur great expense, and may well suffer other long term consequences.

Frankly, I do not care who it is I am arguing with moderators, attorneys, mensa members who really cares?

Their positions either make sense or do not.

They can either back up their positions with facts or they cannot.

I can throw cases at you all day long of gang members claiming self defense or rapists claiming fraudulent DNA testing ... blah, blah, blah, that does not mean that self defense is not a legitimate use of deadly force and it does not mean that claiming fraudulent DNA testing is a good defense against a rape charge.

The OP's question was:

Can deadly force be used to recover property?

Scenario: thug comes up behind you, punches you in the back of the head. You fall to the floor and the thug takes your wallet, phone, etc and starts to walk away. Unbeknownst to the thug you are carrying concealed. You draw your weapon and demand the thug stop and return you property. He keeps walking, totally ignoring you. Are you justified if you shoot or must you just stand and watch as your personal property disappears down the street?

My response was:

The answer to your question is these cases generally do not make it to court in Texas. If they are referred to the Grand Jury, which many of them are not, they are generally killed, "No Billed", by the Grand Jury.

We take our right to defend ourselves and our property and even that of our neighbors seriously in Texas.

http://www.newser.com/story/31381/no...-burglars.html

http://www.wfaa.com/news/crime/Dalla...176096051.html

http://www.texashuntfish.com/app/vie...right-to-shoot


This is where the argument started. Show me a case where someone was assaulted and robbed then used deadly force and was indicted, tried and convicted or even simply indicted in the state of Texas or stop telling me my response was wrong. You can either prove I was wrong or you cannot.

NONE of the cases brought to the table by you or any of the others relate to the scenario in question. Just saying that in blah blah case someone said they were protecting property and they were convicted is meaningless.

The scenario in question is being assaulted and robbed and using deadly force in response as the assailant and robber flees. My contention is these cases do not make it to trial in Texas. Prove me wrong or concede but don't use the bluster of so and so is an attorney to try to influence the discussion.

 

[Frank Ettin]

...Their positions either make sense or do not...

Whether it makes sense to you is not the litmus test. You are manifestly resolute in your position. I can't speak for Bart, Spats or Kleanbore, but my intent is to simply not let your erroneous perspectives go unchallenged. We're putting out sound, professional analyses. The readers of this thread can then decide for themselves.




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