interesting incident in houston

[tuj]

The case [Joe Horn] had nothing whatsoever to do with the Castle Doctrine.

You are incorrect.

castle doctrine (also known as a castle law or a defense of habitation law) is a legal doctrine that designates a person's abode (or, in some countries, any legally occupied place [e.g., a vehicle or workplace]) as a place in which that person has certain protections and immunities permitting him or her, in certain circumstances, to use force (up to and including deadly force) to defend himself or herself against an intruder, free from legal responsibility/prosecution for the consequences of the force used.

Stand your ground laws are an extension of castle doctrine, which has existed since Roman times.

Let's examine the exact law, section 9.32

(a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and (2) when and to the degree the actor reasonably believes the deadly force is immediately necessary: (A) to protect the actor against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment; (B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or (C) was committing or attempting to commit an offense described by Subsection (a)(2)(B); (2) did not provoke the person against whom the force was used; and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section. (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

and 9.41

Sec. 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.

and finally, 9.43

ec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

Kleanbore, just because you are mod, please do not ascribe the label 'ignorant' to me. I was in Houston at the time and I am very aware of the circumstances, although you are right it was a GRAND jury, not a criminal jury that did not bring charges. My mistake. Also, I hope because one of the assailants was Puerto Rican, you aren't lumping me in with them...

 

[AKElroy]

Delete

 

[Sam1911]

I'm curious, what would be considered a "reasonable" way to try to stop a car from running you over?

Ha ha.... uh, MOVE. If you have time to shoot it you've probably got time to move out of its way. If you DON'T have time to move out of its way, shooting it won't do a LICK of good. Even if you killed the driver outright and disabled the engine with a miraculous shot, that car's still going to be visiting you mighty soon.

Really, some folks will say, "but I can't move fast," or whatever. So? Putting a couple of 1/4 or 1/2 OZ. slugs into a 3,000 POUND (ahem...48,000 oz.) machine moving at even a couple miles an hour won't do anything at all to reduce it's momentum or change its direction.

 

[hso]

I find it interesting that there is no indication of a following civil suit

Who'd sue for a couple of criminals with a long record having come into the country illegally and with no family? C'mon.

what would be considered a "reasonable" way to try to stop a car from running you over?

Don't be in the street or driveway near it. That's the stuff of TV and movies and only children or fools are likely to believe that you can stop a speeding car without endangering yourself and others.

 

[old lady new shooter]

only children or fools are likely to believe that you can stop a speeding car without endangering yourself and others.

Here's a young man who stopped a motorcycle chase by walking out into the road forcing the driver to swerve to avoid him, the bike turned over and the driver started running, the young man pursued him right into the arms of local law enforcement -- watch the interview, guaranteed to put a big smile on your face:
http://hotair.com/archives/2015/04/...e-chase-with-his-body-apologizes-for-cursing/

 

[hso]

A motorcycle isn't a car or truck. The rider is at as much risk in such a collision as the person on foot so it's not relatable to the situation sufficiently to be applicable.

 

[old lady new shooter]

A motorcycle isn't a car or truck. The rider is at as much risk in such a collision as the person on foot so it's not relatable to the situation sufficiently to be applicable.

Oh, I knew it was a bit of a tangent but just remembering the story brought a smile to my face so I wanted to share it, he was such an unspoiled character.

 

[Kleanbore]

tuj, Horn's defense would have been based on the contention that he had been faced with an imminent threat of death or serious injury.

"Castle doctrine" is a term that applies to the use of force to defend against an unlawful entry into a domicile. It has been extended in law and in practice to cover conveyances, places of business, and places of employment.

That's it.

The Horn shooting occurred in the great outdoors.

Mr. Horn apparently believed that he was acting to protect the tangible movable property of someone else.

That's not castle doctrine.

The part of Code Section 9.43 that you quoted relates to theft or criminal mischief that occurs at night. Not applicable.

Code Section 9.41 obviously does not apply.

 

[tuj]

1. Just because you are outdoors does not mean you are not on your own property. For example, say you are a farmer and see someone entering your plot and they are armed. You could be outside, on your property, and afraid for your life.

2. Just because you are outdoors does not invalidate Stand Your Ground.

3. Castle Doctrine is part of common-law for centuries. Stand Your Ground is an extension of such doctrine. Stand Your Ground To Protect Property of a 3rd Person, is quasi-legal in TX, see 9.43.

4. As for precedent, the non-indicidment by the Grand Jury itself could be used as a defense in a latter criminal case.

5. I think we all agree Mr. Horn was beyond foolish, however the case (and the Zimmerman case) stirred up a lot of controversy about SYG laws.

Six years after her decision, Brainerd does not want to divulge how she voted, but she said that the decision not to indict was far from unanimous and the voting process was by a show of hands.

"There were those of us who felt this gentleman's life was not in danger which is supposedly when you are able to stand you ground," Brainerd said.

http://www.click2houston.com/news/local-grand-jurors-insight-into-joe-horn-case_20151123152009721

As recent events for the police have unfolded, we have seen how difficult it is to establish if you are "justifiably" afraid for your life. How can one ever determine this? Very gray area.

 

[jim in Anchorage]

Someone's got to help me with this insured/uninsured angle. So if see someone stealing my truck [insured] I can't shoot them, but if I see them stealing my 4 wheeler [uninsured] I can?

 

[Kleanbore]

Posted by tuj:

1. Just because you are outdoors does not mean you are not on your own property. For example, say you are a farmer and see someone entering your plot and they are armed. You could be outside, on your property, and afraid for your life.

True, but whether or not you are on your own property has nothing to do with the justification for the use of force. Horn could have been in the town square, and that would not have affected anything.

2. Just because you are outdoors does not invalidate Stand Your Ground.

True--now. Until not too long ago, the Texas Code had an explicit requirement for retreat. Fortunately, that was eliminated.

3. Castle Doctrine is part of common-law for centuries. Stand Your Ground is an extension of such doctrine. Stand Your Ground To Protect Property of a 3rd Person, is quasi-legal in TX, see 9.43.

What you must mean is that the use of deadly force may, under some limited circumstances, be lawfully justified when it is necessary to protect the property of a third person in Texas.

4. As for precedent, the non-indicidment by the Grand Jury itself could be used as a defense in a latter criminal case.

The defendant could probably introduce that fact as precedent, but it would not mean anything. The Grand Jury's decision simply means that they did not believe that the State would have been successful in proving beyond a reasonable doubt that Horn had committed a crime. It did not mean that the Grand Jury believed that Horns actions had been lawfully justified.

In a civil trial, the burden is much lower--the preponderance of the evidence standard would apply.

Had Horn presented sufficient evidence in court to show, by the preponderance of the evidence, that his action had been justified, he could have been immune from further criminal or civil proceedings.

His defense would surely have been based on the contention that he had a basis for a reasonable belief that deadly force had been immediately necessary to protect himself for data or serious injury. The arriving first responder testify to that effect, but in a trial, that testimony would have been impeachable.

It is extremely doubtful that Horn's defense would have touched on the property laws, even though he may have seen that as justification when he headed out with his shotgun.

Had the criminal case gone to trial, he would only have to present evidence that would raise reasonable doubt in the minds of the jurors. Should there have been a subsequent civil trial, his burden in that trial would have been a lot higher.

One cannot have a legal precedent without an appellate court ruling.

5. I think we all agree Mr. Horn was beyond foolish, however the case (and the Zimmerman case) stirred up a lot of controversy about SYG laws.

He put himself at at risk of harm, and he lost his home and his fortune and almost went to trial, and that could have all been avoided had he remained indoors.

The fellow in the recent case in Houston put himself at risk of death or serious injury, and he risked harming someone and facing the risk of either criminal or civil consequences or both. As it is, he risks being charged with Deadly Conduct.

All of that could have been avoided had he remained indoors.

 

[Kleanbore]

Posted by jim in Anchorage:

Someone's got to help me with this insured/uninsured angle.

That has to do with the part of the law that has to do with whether the property can be recovered in any other way.

So if see someone stealing my truck [insured] I can't shoot them, but if I see them stealing my 4 wheeler [uninsured] I can?

You can shoot anyone you can see, but expect end up impoverished and in jail for a long time unless you can prove immediate necessity. And doing that could bankrupt you.

Even if you can and do, you will be forever wishing that you had not created for yourself the need to do so.

DON'T LOOK AT IT AS A MATTER OF WHAT YOU "CAN" DO.

 

[jim in Anchorage]

When I said can I meant legally not just able.

 

[Kleanbore]

Posted by jim in Anchorage:

When I said can I meant legally not just able.

One more time, don't look at it that way.

You may be able to mount a successful defense of justification--or you may not.

It will depend upon the evidence, and that evidence will likely be incomplete--what you do will not be recorded on a sound stage.

Eyewitnesses or earwitnesses may dispute your testimony. The forensic evidence that can be found may be contradictory.

You mentioned "stealing." That means theft.

Here are the words from the applicable statute:

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.

There is a legal definition of what constitutes nighttime in the context in Texas.

So, if you can at least create a reasonable doubt in the minds of the jurors that you did not violate that statute, you would be okay "legally"--in terms of the criminal aspect. Your burden would be much higher in a civil case.

Keep in mind that some else will determine whether what you believed had been reasonable---it's not for you to say.

I cannot imagine anyone believing that the expenses of mounting a defense of justification would be a reasonable investment to prevent the taking of an uninsured four-wheeler.

Or that the risk of failure in either criminal or civil court would be anywhere nearly worth it.

 

[old lady new shooter]

1. Just because you are outdoors does not mean you are not on your own property. For example, say you are a farmer and see someone entering your plot and they are armed. You could be outside, on your property, and afraid for your life.

I think the castle doctrine rules might be different from one state to the next. The California version of castle doctrine says the intruder has to have "unlawfully and forcibly" entered the "residence". IANAL, but I think the first question is whether a farmer's fields are his or her "residence", the second question is whether the property is completely fenced and if so, the third question is whether entry to those fields is only through a locked gate.

Of course, even if castle doctrine didn't apply the farmer could still have a justified case of self-defense, but s/he might lose the presumption of having been in fear for their life.

Here is the section from the Penal Code:

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.
As used in this section, great bodily injury means a significant
or substantial physical injury.

 

[Sam1911]

I think the castle doctrine rules might be different from one state to the next.

They are. But they rarely (that I know of) cover your "property." Just your residence. And all they (again, generalizing) is to remove one of the things you as the defendant in a homicide case have to prove in order to establish a claim for self-defense. They basically say that if you find someone breaking into your home the state accepts that you were in fear of your life, so you don't have to provide additional proof of that.

They DO NOT say that if you find someone, essentially, trespassing on your property you'll get the same presumption.

 

[Sam1911]

I think the castle doctrine rules might be different from one state to the next.

They are. But they rarely (that I know of) cover your "property." Just your residence. And all they (again, generalizing) is to remove one of the things you as the defendant in a homicide case have to prove in order to establish a claim for self-defense. They basically say that if you find someone breaking into your home the state accepts that you were in fear of your life, so you don't have to provide additional proof of that.

They DO NOT say that if you find someone, essentially, trespassing on your property you'll get the same presumption.

 

[Kleanbore]

Posted by Sam1911:

And all they [(caste laws)](again, generalizing) is to remove one of the things you as the defendant in a homicide case have to prove in order to establish a claim for self-defense. They basically say that if you find someone breaking into your home the state accepts that you were in fear of your life, so you don't have to provide additional proof of that.

That's a very good summary.

Of course, that presumption is rebuttable.

Most of them, I think, also clearly state that retreat is not required within or from the domicile or auto or place of business (depending upon the state).

They DO NOT say that if you find someone, essentially, trespassing on your property you'll get the same presumption.

They most assuredly do not.

We have read here of instances in which the presentation of a firearm in an encounter with a trespasser led to jail time, a criminal record, and a life-long loss of gun rights.

A superior court opinion in the Commonwealth of Virginia put forth, by way of explanation of a decision upholding a trial court conviction, the thought that, should a landowner pull a gun on a trespasser, the trespasser might well be lawfully justified in shooting the landowner in self defense.

 

[double bogey]

The part of Code Section 9.43 that you quoted relates to theft or criminal mischief that occurs at night. Not applicable.

Kleanbore, where in 9.43 is night mentioned?

 

[Kleanbore]

Kleanbore, where in 9.43 is night mentioned?

In referring to 9.42.....

 

[double bogey]

Sorry, double post

 

[double bogey]

Thanks, I knew it was in this area, and I hadn't seen it in this thread, or didn't remember as I have been in and out the last few days. but 9.43 says: the actor would be justified under Section 9.41 or 9.42