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Legal Ramifications: Shooting to defend property -- specifically, a gun

Discussion in 'Legal' started by dev_null, Feb 20, 2012.

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  1. dev_null

    dev_null Member

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    I realize the codes differ from state to state, and that only the courts can decide on specific cases, but I'm wondering what the 'legal landscape' is like these days in regard to defense of property when it's a firearm.

    Sample scenario (I'm sure you can think of others): Guy breaks into your home (or car, or trailer, etc.), and you come in just as he's about to make off with one of your guns.

    Possible variations:
    (a) He has the drawer/cabinet/whatever open but hasn't actually touched the gun yet.
    (b) He has it in his hands but it's unloaded.
    (c) He has it in his hands and it's loaded - he may or may not be aware of this.

    Okay, so (c) sounds like you'd be justified: fear of your life, immanent danger, etc. But what about (a) and (b)?

    Me, I'm not the kind of guy to shoot someone, possibly fatally, over a laptop, a stereo, or a handful of CDs. But if he's about to grab my shotgun and I have a pistol on me, what is my legal standing?

    Please note: I'm not looking for "screw the law, I'm gonna ... " answers.

    Let me throw one more scenario into the mix, possibly even more contentious:

    What if you're open carrying and someone is about to grab your weapon?

    (Again: not looking for OC vs CC debate here. Beat that horse somewhere else, please?)
     
  2. Bubba613

    Bubba613 member

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    At a gun shop here a guy was stealing long guns off the rack. Clerk shot him in the back, with the explanation that he might have loaded them. Jury cleared him. Somehow.

    It will come down to: Did you have a reason to be in fear of death or severe bodily harm to yourself or another?
     
  3. Ford Prefect

    Ford Prefect Member

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    You live in TX? As long as the bad guy is dead, your story is the only one that counts. As long as your story sounds reasonable and there is no evidence to the contrary you will probably be questioned and the gun taken. That's it. Good night sir. You will sleep in your own bed tonight. In NYC things will be the opposite.
     
  4. Rob G

    Rob G Member

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    As Ford Prefect (I love that book) said, you're in TX. You're unlikely to be have legal issues in any of those scenarios. Don't forget we have Castle Doctrine here. The fact that they've broken in to your house gives you legal authorization to use deadly force. They could be twenty feet from the gun in question and it's still a good shoot. I'm pretty sure it's also still legal to use deadly force to protect your property so that would be two different laws now that would protect you.

    Short answer you're covered in this state. As for any other state? I have no idea. They're all over the map with their laws.
     
  5. ClickClickD'oh

    ClickClickD'oh Member

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    He has immediate access to a lethal weapon. You have no clue if it's loaded or not, and you have no legal obligation to determine such. If you have reasonable fear that an intruder with a lethal weapon might use it against you, you have the right to use lethal force against him. We haven't even touched on defense of property laws, that's defense of a person right there. The laws on the use of force in the defense of property also state that you can use lethal force to stop a burglary, but you better be pretty sure the property would be unrecoverable by any means.

    As for the OC scenario, you have the right to defend yourself using any force necessary to prevent him from taking your weapon from you since the reasonable assumption is that he is going to use it on you if he gains control. However, if at any point he stops fighting for it or surrenders, you may no longer use lethal force against them. With the caveat: If he surrenders because you get your weapon out and point it at his head, it's probably a good idea to keep it pointed at his head until he is secured or the popos arrive. You just don't get to shoot him unless he goes rodeo on you again.
     
  6. Ford Prefect

    Ford Prefect Member

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    I should clairify a little. This assumes there is some evidence of a break in. You don't know the bad guy. He, or someone else, doesn't give a different story than yours, etc.

    If you know the guy or it looks like a domestic argument gone bad, then the outcome could be very different even in TX.
    If the police smell anything fishy (even if unreleated to the shooting) when a shooting/death are involved you can count on an exam to every orifice you have, and then some. $10,000 for the first check to the lawyer, arrest, seizure, investigation, court appearances, bond, loss of rights and travel, etc, etc. That's just the first week, before any conviction or plea.

    Most people agree going though the system is intended as punishment prior to any conviction. Most (98%) agree to plea down to a lesser charge to avoid going through it, regardless of guilt or justice.
    Obviously, you should try to stay clear of trouble to avoid becoming a victim of the "system", truth and justice have little to do with, but it does help sometimes.
     
  7. Kleanbore

    Kleanbore Moderator

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    No!

    The law does not give anyone "authorization" to use deadly force.

    The law (including the case law) does state that if the actor knew, or had reason to believe, that the person had unlawfully and with force entered the occupied domicile, there is a presumption that deadly force had been immediately necessary.

    That presumption is rebuttable.

    Was the invader attempting to leave? Had he surrendered? Do not discount the power of forensic evidence.

    Had there been prior dealings indicating possible motive?

    Is there the possibility of earwitness testimony?

    Under some circumstances, when there is no other safe alternative, yes.

    But even when it is an open and shut case, the adverse impact upon the actor and his or her family may far outweigh the value of the property so protected.

    On the other hand, if "protecting the property" involves preventing a violent criminal actor from gaining access to a lethal weapon, we are not really talking about protecting property, are we?
     
  8. ClickClickD'oh

    ClickClickD'oh Member

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    ...Um.... No.

    It doesn't matter one little bit if you know the guy. There is absolutely zero legal requirement for the use of lethal force in the defense of the person or property that pertains to a persons relationship with the perpetrator. If he's in your house without your permission with one of your guns in his mitts, you still have exactly the same legal rights and protections as if the person was Random John Doe #1 off the street. If his presence in your house and his possession of your firearm causes you to fear for your life (finding people with your guns in your house when they aren't supposed to be there generally does that to folks) you can use lethal force to defend yourself, even if he's your grandfather, that uncle ever family seems to have or your nephew. There have been way too many people killed by people they know over the years to even consider alter self defense laws to include exemptions for personal familiarity of the perpetrator.


    Well, maybe, maybe not.

    First off, the police will always think something is a little fishy when they roll out to a dead guy call. Someone is dead, that's fishy. However, in the above scenario where you walk in the door and there's a guy with your guns, it's pretty easy for the cops to tell so. Car keys in the door or your hand or pocket, maybe some mail or groceries that you brought from the car, you are wearing shoes, the location of the bullet holes probably indicating a firing direction into the house, cabinet drawers or your gun safe that have been opened. I know people around here like to malign cops, but some things are pretty easy to figure out.

    You may not even need to get lawyered up. You see, here if you shoot someone it's most likely going to the Grand Jury. If you kill them with said shooting it WILL go to the Grand Jury. No defense council allowed at the Grand Jury, so until an indictment is handed down you can save on the lawyer bills and obey the 5th (not Beethoven). If it was a clean shooting and the popo agree, the DA is likely to walk in, tell the GJ he isn't going to follow prosecution and they No Bill you since they know going to trial would be a waste of time.

    That's if it's a good shooting.

    Now, it gets a lot harder if it wasn't a good shoot... but I don't give advice for that sort of thing so those peeps can bugger off.
     
  9. dev_null

    dev_null Member

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    Kleanbore:
    Well, that's the crux of the biscuit, isn't it? I presume you mean because it goes from protecting property to protecting lives? Care to elaborate?
     
  10. BSA1

    BSA1 Member

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    The three elements required for use of self-defense are opportunity, ability, and jeopordary. If you will study these three elements you will have the answer to your questions.
     
  11. hermannr

    hermannr Member

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    He has hold of one MY guns in MY house? He is dead only if I'm quicker than he is.

    I hold to the rule, a gun is always loaded, no mistakes are made when you hold that rule...so, my guns ARE always loaded, and then there is no question if they are loaded or not.

    Actually home invasion, burglery with the owner present, is very very hazardous to the health of a criminal here in WA.
     
  12. Jim K

    Jim K Member

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    "Scenarios" are fun, and have no relationship to reality. In the first place, most folks seem to think they have to convince some cop of their innocence. Not true; the cop can't and won't just let you go. You or your lawyer might convince the DA not to prosecute, but that is iffy.

    Self-defense is not a "right", even in states with a Castle law. It is an affirmative defense, in court, to a charge of murder, attempted murder, manslaughter, or whatever the charge is. In other words, it is a "plea", just like a plea of insanity, and your lawyer has to convince a judge or jury that it is valid. Note also that when you "cop a plea" you are admitting you are guilty of the basic charge, so you are no longer "innocent until proven guilty." The burden of proof to support your plea shifts to you and your attorney and you have to convince the judge or jury that your plea is valid.

    Jim
     
  13. dev_null

    dev_null Member

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    Jim K:

    I get that. When I ask what the 'legal landscape' is like in regard to these scenarios (and I disagree that they have no relationship with reality, a statement that implies they cannot and do not happen), one of the things I'm asking is what has happened to people placed in similar situations in the past. (I'm also trying to get an idea of legal questions around the scenario, such as what I think Kleanbore is getting at, as well as some of the other legal points others have been pointing out in regard to Castle Doctrine, various ramifications I might not think of unless/until someone here points them out, and so on...)
     
  14. Alaska444

    Alaska444 member

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    As stated in OP, no, you make the point, "He is about to leave." Sorry, that doesn't imply imminent threat and a statement like that will get you a murder charge in most places. If your assessment is that he is in the process of leaving even with your property, you no longer have the legal elements of self defense.

    If you encounter him and he appears to place you in jeopardy and imminent threat of death or grave bodily harm, that is a self defense shooting. There are lot's of situations where you can "fear for your life," that would not invoke the elements of self defense. That is commonly quoted, but it is not really an element in self defense. Fear is quite subjective. The objective elements of imminence, jeopardy and ability all must be in place at the time you respond with lethal force.

    As written in OP, I would state that is not a self defense shooting. Federal law prohibits lethal force for property.
     
  15. Owen Sparks

    Owen Sparks member

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    The opening battle of the American Revolution was actually in defense of property in the form of firearms. See for yourself: http://en.wikipedia.org/wiki/Battles_of_Lexington_and_Concord
    Come to think of it the entire Revolution was fought over property. King George did not want to KILL anyone, he just wanted to confiscate a portion of their property in the form of taxes, search their homes at random and use them to quarter soldiers. The only people who were shot by the British were those who resisted.
     
  16. xXxplosive

    xXxplosive Member

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    Years back a gun shop I dealt with was being robbed...the owner was upstairs when some guy breaks in and starts loading up guns on the counter to cart out....he triggers the silent alarm and LE shows up. They come in the rear entrance and catch the guy red handed. The owner is still upstairs and had no clue this was going on....just as they go to cuff this guy he makes a break for the front door. One LEO lets him have a round of 00 at about 5 feet and blows this guy through the front door and down the steps....the owner comes down to find this guy laid out in front with the shotshell wad sticking out of his bicep....I came to the shop the next morning to find the doors boarded up...The owner who was also a friend of mine explained what had happened....LE felt they had sufficient cause to use deadly force.....and they did.
     
  17. Alaska444

    Alaska444 member

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    That is an interesting observation, not sure if I agree with it completely, but it is not the law of the land today. Shooting someone for property is a sure way to end up going to jail.
     
  18. Rob G

    Rob G Member

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    Maybe. Maybe not. Joe Horn shot two men in Pasadena TX in 2007 for robbing his neighbor's house. Both were shot in the back while fleeing and died. An officer who witnessed it refused to arrest Mr. Horn and ultimately a Grand Jury no billed it.
     
  19. Hypnogator

    Hypnogator Member

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    FWIW, military guards are authorized to use deadly force to prevent perpetrators from escaping with weapons.

    Makes the Gunwalking scandal doubly heinous, from my perspective. :uhoh:
     
  20. Alaska444

    Alaska444 member

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    If you look at the Joe Horn case, he testifies that he believed that the two men were going to attack him. TX is a different animal. Just as we saw jury nullification of a black man in LA called OJ, this very questionable "self defense" case is really just another example of jury nullification. This time by the grand jury.

    In any case, I would not hold up Joe Horn as either hero or an example of a good self defense shoot. Simply because a jury of his peers decided to no bill this case, does not in the end analysis justify his actions. I would certainly not recommend anyone in the future try to do the same. In many ways, the Joe Horn case is very troubling. The bottom line, Joe Horn through his attorney admits it was mistake to shoot these men. Not something that any of us should emulate. He truly got away with it this time. Not likely to have lighting strike twice.

    The law stands clear, well I guess everywhere but TX some might say, but shooting a person over property is not the law of the land.
     
  21. JRH6856

    JRH6856 Member

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    Might want to rethink that. See D.C v. Heller. The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.
     
  22. CapnMac

    CapnMac Member

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    I'm wondering here if Dev Null is thinking of a situation where you are motoring along home to Williamson County, and you pull up in the drive and there are a couple of goblins with your safe on a dolly--so what do you do, sitting there in your-still-running pickup desperately trying to get over dumbfounded?

    Because I like kleenbore, let's not muddy the water with it being anywhere near to dusk or dawn not dark of night (just have to love the intricacies and convolutions of Texas laws). If they have the safe, I'd let them drop it <cringe> and flee, getting the cell out and mashing the "9" button to connect to 911.

    If, instead of the safe, they come out of the garage carrying an armload of longarms, that could be the stuff of much legal wrangling. That's a situation where no one is "in" the domicile. And, our putative driver will have to exit their vehicle to interact with hoodlum(s). In the driver's defense, in that hormone dump accompanying the dumbfounded, there is not going to be a great deal of foveal vision to pick out if that 870 is "yours" or the goblin's; or that SKS or other non-customized weapon.

    I think that a reasonable person has to start from "all weapons are loaded" and procede from that point. I'm just a reasonably-knowledgeable person who has lived a life mostly in Texas. I strongly suspect that a person in that situation is going to need a very good attorney skilled in such things, to file the sort of cogent, precise writs, motions and the like that might/ought/should convince who ever it takes to prevent consignment to durance vile.

    As to the O/C question, that probably rates its own thread. To my mind, my understanding of it, a person lays their hand upon my weapon without permission, it's a battery in the same way as if they lay a hand on any other part of my person. Maybe. Probably. Perhaps.
     
  23. Rob G

    Rob G Member

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    I will say that I didn't bring up Joe Horn as an absolute example of law but more as an interesting case study in what could potentially happen. I don't agree with what he did and I wouldn't do it myself. I do however find it interesting that it didn't go up for trial. I don't think that his self defense claim was the whole reason though. Texas does have laws providing for the possibility of using deadly force to protect property in certain situations. This also extends to a third person's property which sort of fits Joe Horn's case. I'd imagine that somewhere in the Grand Jury testimony they probably figured he fit in to one of those exceptions and let him go.

    And yes the law is a little murky in TX at times. But after having gotten to know my neighbors (I'm from up north originally) I'm not surprised Horn was let go.
     
  24. Alaska444

    Alaska444 member

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    Texas is a different animal than anywhere else in the US. Wow, don't mess with those folks down there. This is why Joe Horn walked.

    Sec. 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
    (2) the actor reasonably believes that:
    (A) the third person has requested his protection of the land or property;
    (B) he has a legal duty to protect the third person's land or property; or
    (C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

    Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.


    http://www.statutes.legis.state.tx.us/docs/PE/htm/PE.9.htm

    I do believe he could be open to prosecution under Federal statutes if they wished. The Texas law is opposite of Federal law. Not sure how that washes down in Texas. The Rodney King officers were prosecuted under Federal statutes.
     
  25. Kleanbore

    Kleanbore Moderator

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    True, in terms of the law involving the use of deadly force to protect property.

    Pure speculation, I'm afraid--the Grand Jury deliberations were secret.

    However, there are credible reports contained in legal articles that (1) there is nothing in the public record indicating that Horn ever claimed that he had been requested by his neighbor to protect the property; (2) that Horn's attorney intended to mount a defense on the basis that Horn was defending is own life; (3) that a detective who had responded to the 911 call testified that the criminals turned back and approached Horn; and that (4) the forensic evidence was such that it was not possible to conclude that the location of the entry wounds indicated that the perps had been escaping rather than attacking.

    In any event, some months went by before the no bill decision was made, and Joe Horn has not had a happy time with the aftermath--he has said he wouldn't do it again.

    Should one be inclined to use deadly force to protect the property of a third person in Texas, it would be very advisable indeed to have that person's request in writing and kept in a safe place.
     
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