Homeowner shot confronting intruder in NH- how could this have been different?

[Deaf Smith]

I have, of course, read it.

What on earth has given you the idea that "the police cannot question you"?

They cannot question your fear for your life. That is the Castle Doctrine in Texas provide a presumption of using force (and lethal force) against another person who is unlawfully and with force entering or attempts to enter your habitation. Just read the law and understand you don't have to say a thing. THEY must automatically presume you were in fear of your life.

Deaf

 

[Kleanbore]

The Texas Castle Doctrine has NOTHING to do with the 'night'.

You are, of course, correct.

Read the law. Penal Code §9.31 (self-defense), §9.32 (defense of another),

You have your code sections confused. 9.31 relates to the use of force; 9.32, to the use of deadly force. 9.33 pertains to the defense of a third person.

 

[Kleanbore]

That is the Castle Doctrine in Texas provide a presumption of using force (and lethal force) against another person who is unlawfully and with force entering or attempts to enter your habitation. Just read the law and understand you don't have to say a thing. THEY must automatically presume you were in fear of your life.

The law provides a presumption that the use of force would be reasonable under the listed circumstances.

That presumption is rebuttable. Information could be brought forward that would negate the presumption.

They must automatically presume absolutely nothing. It's just that your defense would be made a whole lot easier by that provision of the law. Most states have similar provisions today.

No, you do not have to say a thing--thank the Fifth Amendment for that. It's not a matter of the "castle doctrine".

Do not believe for a moment that that protection against self incrimination would shield you from a routine criminal investigation, a likely referral to a Texas Grand Jury, or possibly, prosecution.

Or from civil proceedings, which are much harder to defend against--no BARD standard, not requirement for a unanimous jury verdict..

 

[Deaf Smith]

The law provides a presumption that the use of force would be reasonable under the listed circumstances.

That presumption is rebuttable. Information could be brought forward that would negate the presumption.

They must automatically presume absolutely nothing. It's just that your defense would be made a whole lot easier by that provision of the law. Most states have similar provisions today.

No, you do not have to say a thing--thank the Fifth Amendment for that. It's not a matter of the "castle doctrine".

Do not believe for a moment that that protection against self incrimination would shield you from a routine criminal investigation, a likely referral to a Texas Grand Jury, or possibly, prosecution.

Or from civil proceedings, which are much harder to defend against--no BARD standard, not requirement for a unanimous jury verdict..

First off there won't be any 'civil proceedings'. YOU CAN'T BE SUED UNDER THE CASTLE DOCTRINE IN TEXAS if your home is invaded. That's in the law to. Neither the attacker nor his/her family can sue you. Look up Section 83.001 of the Civil Practice and Remedies Code.

And as it applies to what I've posted, to wit,

Well if you break down my ##!! door at night while I'm telling you go away I dang will be happy to live with it. And being Castle Doctrine state, it will be justified. DON'T GO BUSTING DOWN DOORS IN TEXAS.

I am quite confident I'd be covered by the doctrine. DON'T GO BUSTING DOWN DOORS IN TEXAS.

Deaf

 

[old lady new shooter]

That is not quite true. It applies that at night, in your home, you have a presumsion of being subject to a deadly threat. It does not apply in the daytime in your home, nor anywhere else at night.

I think the "night" part is if someone is outside on your property stealing your stuff, Texas is well known on that point. But even here in California castle doctrine is not limited to nighttime.

 

[old lady new shooter]

Click seems to think that EVERYONE has a house exactly like his. It's one thing to give advise to set up other's house like their own to HELP the discussion, but to simply assume everybody's situation is the same as his and then talk down to anyone who doesn't see eye to eye, well, I hope I never take a class from someone like that. A good teacher needs the ability to listen as well as teach. Or at the very least some reading comprehension skills.

You're arguing the case of Schroeder's cat. Until you visually see an intruder, you don't know if he's there or not so you have to assume he's both there and not there.

In Click's world, he's already opened that box and seen the cat so he knows if the cat is alive or dead. But he fails to understand that the VAST majority of the people reading this thread to not have multiple layers of protections and alarms set up, they don't KNOW if there is an intruder or not without visual confirmation.

Um, I think his point is that it's very worthwhile to set up one's house with "multiple layers of protections and alarms".

 

[Snyper]

bassjam said: ↑
Click seems to think that EVERYONE has a house exactly like his.

It's one thing to give advise to set up other's house like their own to HELP the discussion, but to simply assume everybody's situation is the same as his and then talk down to anyone who doesn't see eye to eye, well, I hope I never take a class from someone like that.

A good teacher needs the ability to listen as well as teach. Or at the very least some reading comprehension skills.

Good points.

 

[RPZ]

I think the "night" part is if someone is outside on your property stealing your stuff, Texas is well known on that point. But even here in California castle doctrine is not limited to nighttime.

Texas law is very specific on this. Inside your home at night. There are also things like prevent a theft at night, prevent criminal mischief at night - crimes on or against your property but outside the home.

 

[david58]

And every jury I've ever been on has been cognizant of that reality and pretty much everyone on the jury (except for the ones that seem to have a grudge against government in general) seem to me to have been more than willing to rely on the training and judgment of the LEO unless there was something in the behavior leading up to the incident suggesting that the LEO was looking for a fight.

And every jury I have been on has been loaded with folks that do NOT want to be there. In one case, the proper verdict was rendered. In the other (I was an alternate, so sat thru the trial), impending graduation parties resulted in blaming the victim of a gang rape as rationalization for letting the instigator go free. I would never want to have to trust my well-being to a jury of my peers.

 

[RPZ]

The Texas Castle Doctrine has NOTHING to do with the 'night'.

Read the law. Penal Code §9.31 (self-defense), §9.32 (defense of another), §9.41, and §9.42. If any difficulty with that then just read this.

https://www.versustexas.com/criminal/castle-doctrine-texas/

Deaf

Well I am making a distinction between the use of deadly force inside the home - at night, where any intruder in your home can basically be considered a deadly threat - even if a weapon, disparity of force etc is not present. Do that in the daytime in Texas and you are going to get a stretch in the state spa.

 

[Kleanbore]

First off there won't be any 'civil proceedings'. YOU CAN'T BE SUED UNDER THE CASTLE DOCTRINE IN TEXAS if your home is invaded. That's in the law to. Neither the attacker nor his/her family can sue you. Look up Section 83.001 of the Civil Practice and Remedies Code.

And as it applies to what I've posted, to wit,

I am quite confident I'd be covered by the doctrine. DON'T GO BUSTING DOWN DOORS IN TEXAS.

Deaf

You are again confused about the laws in Texas.

You are correct in you assertion that code Section 83.001provides for civil immunity in the case of a justified self defense case.

But it does not prevent lawsuits. What it does do is shield the amor from civl liability when the ac was lawfully justified.

Of course, a court will decide whether lawful justification existed.

Do not assume that a discussion by state or by a criminal court jury of prosecute or convict will provide that evidence of rustication. A different burden of proof threshold applies.

As in the case of the castle doctrine, that law is by no means unique to Texas.

We have stickies on both subjects in the ST&T Forum.

 

[bassjam]

Um, I think his point is that it's very worthwhile to set up one's house with "multiple layers of protections and alarms".

You're probably right, but he did an extremely poor job of communication that idea and got pretty argumentative in the process.

 

[Deaf Smith]

You are again confused about the laws in Texas.

You are correct in you assertion that code Section 83.001provides for civil immunity in the case of a justified self defense case.

But it does not prevent lawsuits. What it does do is shield the amor from civl liability when the ac was lawfully justified.

Of course, a court will decide whether lawful justification existed.

Do not assume that a discussion by state or by a criminal court jury of prosecute or convict will provide that evidence of rustication. A different burden of proof threshold applies.

As in the case of the castle doctrine, that law is by no means unique to Texas.

We have stickies on both subjects in the ST&T Forum.

Didn't say it prevented lawsuits, only that in the Castle Doctrine cases they cannot sue. Nor did I 'assume' anything. Breaking down one's door will defiantly be considered justified under the circumstances I outlined. Been through the courts here already.

Deaf

 

[Deaf Smith]

Well I am making a distinction between the use of deadly force inside the home - at night, where any intruder in your home can basically be considered a deadly threat - even if a weapon, disparity of force etc is not present. Do that in the daytime in Texas and you are going to get a stretch in the state spa.

No. Texas Castle Doctrine does not make any distinction as to day or night. Kick in someone's door (as I outlined) and you just walked into a free-fire zone. Again, under the circumstances I outlined.

Deaf

 

[Kleanbore]

Didn't say it prevented lawsuits, only that in the Castle Doctrine cases they cannot sue....

And exactly what does that mean?

Nothing says that a person "cannot sue".

If a court determines that the use of force was justified, a suit would be dismissed.

Of course, unless an attorney saw a reasonable chance of winning a case and receiving a contingent fee, it would likely not get that far.

Breaking down one's door will defiantly be considered justified under the circumstances I outlined. Been through the courts here already.

Probably so, assuming that there are no other issues that might be relevant. Goes to what it might take to rebut the presumption of reasonableness.

 

[Kleanbore]

Texas Castle Doctrine does not make any distinction as to day or night.

Correct.

The confusion about nighttime probably stems from one aspect of Code Section 9.42, which relates to the user of deadly force in cases of theft or criminal mischief.

 

[Sav .250]

Your chances are no better than the intruders. Now ,maybe some of the cowboys on here will re-think their
plans. No disrespect to any cowboys.....................

 

[Deaf Smith]

You are again confused about the laws in Texas.

You are correct in you assertion that code Section 83.001provides for civil immunity in the case of a justified self defense case.

But it does not prevent lawsuits. What it does do is shield the amor from civl liability when the ac was lawfully justified.

Of course, a court will decide whether lawful justification existed.

Do not assume that a discussion by state or by a criminal court jury of prosecute or convict will provide that evidence of rustication. A different burden of proof threshold applies.

As in the case of the castle doctrine, that law is by no means unique to Texas.

We have stickies on both subjects in the ST&T Forum.

Prevent or no.. I don't care. They still can't sue.

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.

If the lawyer TRIES to sue anyway it will be a frivolous lawsuit and you can counter sue. Again, under the circumstances I outlined (which is quite justified under the law.) People have tried to break in here in Texas and shot dead under the castle doctrine. No lawsuits, no criminal charges.

So I ain't worried. Just don't come to Texas and break into people's houses drunk or no, friend or no, college student or no.

And that is what this is all about.

Deaf

 

[ClickClickD'oh]

Read Texas Castle Doctrine law. The police cannot even question you as to if you felt you were in danger.

Uh... What you think the law says, and what the law actually says, are two completely different things.

Who was your LTC instructor? I need to have a chat with them.

First off, in the section you are talking about, a "finder of fact" means a prosecutor, not a police officer. Second, that second only states that they can not bring into consideration your failure to retreat before using lethal force.

Law enforcement, investigators and the court will absolutely question the reasonableness for your stated fear. Now, the law does state that if a person is unlawfully and with force entering your occupied habitation, your use of lethal force is presumed to be immediately necessary BUT, 9.31 must still apply, the presumption can be rebutted and of course the word everyone overlooks on the internet, "unlawfully and with force" A drunk person entering your home doesn't meet muster.

But what do I know, I just teach this class every weekend...

 

[ClickClickD'oh]

Prevent or no.. I don't care. They still can't sue.

Yes they can, and they will, unless you were shown to have been justified. If your shooting got no billed by a grand jury, that's not being shown to have been justified.

People have tried to break in here in Texas and shot dead under the castle doctrine. No lawsuits, no criminal charges.

Questionable anecdotal evidence...

Yes, there have been shootings where no one was charged and there were no lawsuits. Yes, there have been shootings where people have been charged and there have been lawsuits. Without speaking of specific cases and the specific circumstances of the case, no real point can be made. And yes, there have even been cases where charges probably should have been filed, but as you said, this is Texas. There's also parts of Texas where you will probably get charged even if you shouldn't...because not all of Texas is the same.

 

[ClickClickD'oh]

What if the original position was an "absurd extreme"?
Do you call the police over every unexplained noise?

Congratulations, you also join the logical fallacy crowd.

No one has said anything like you suggest. No one is saying to call the police over every unexplained noise.

Seriously guys, stop embarrassing yourselves. Read the thread.

 

[Snyper]

No one has said anything like you suggest. No one is saying to call the police over every unexplained noise.

I didn't say they were
I asked a question.

Seriously guys, stop embarrassing yourselves. Read the thread.

I've read it,
That doesn't mean there's a requirement to agree with everything, or that your opinion is more valid than anyone else's.

But what do I know, I just teach this class every weekend...

That might matter to you. It has nothing to do with anything I've said.

 

[RPZ]

No. Texas Castle Doctrine does not make any distinction as to day or night. Kick in someone's door (as I outlined) and you just walked into a free-fire zone. Again, under the circumstances I outlined.

Deaf

I beg to differ.

Scenario...

You are home alone one day and walk from the bathroom to your kitchen to seen an apparently unarmed man - who is unknown and uninvited, facing you 10 feet away, says nothing, and just stands there. If you shoot him, you'll be up for murder.

 

[Robert]

For the love of Mike why do all of these Castle Doctrine threads end up in a yelling match about what is legal in Texas? The event under discussion happened in New Hampshire, not Texas. After six pages and the seemingly inevitable descent in to I can shoot who I want where I want when I want in Texas, we are done here.