Morons like this is why "we can't have anything nice".COLUMBIA, Mo. – A Missouri man told police he

[Tikkon]

Frank did you even read the example case you quoted? Terrible........the example is theft not at night and Mr. Jones had no idea if the people he suspected stole from him. Meanwhile the Missouri guy was ROBBED

Read about the Gilbert case since youre too good to click on my links. He was acquitted in 2013 and the only reason he was indicted is because they questioned whether he was engaged in an illegal act with an escort

 

[Sam1911]

these people don't think the law will protect them, they have a tantrum, do something stupid, and think if they blame a controversial law, someone on the other side will help them pay for a lawyer, and they can play victim.

That's not wrong. A lot of goobers do indeed simply act because they're mad, without thinking. I've met plenty though who would believe that the law does indeed allow you to act with violence to right a wrong or make someone do what they "should" do. That's less simply stupid, but still wrong.

 

[Tikkon]

No the reality is that you don't know what you're talking about.

If the Missouri guy did this in Texas then tell me, which condition would he not meet?

 

[Sam1911]

the state's monopoly on violence

Not sure if this was meant tongue in cheek, but I had to LOL

Not tongue in cheek, but maybe I should have written "lawful violence." The state does indeed hold to itself the right to decide to use violence against a citizen. You, a private citizen, cannot point a gun at someone and order them to do something. You, as a private citizen, cannot take your gun and go invade someone else's house to get back stolen goods. You, as a private citizen, cannot incarcerate someone, nor can you decide to execute them.

The state can do all these things, on behalf of all of us.

As a private citizen, even if you use force in self defense, it isn't legal. It's, rather, excused because of the specific extenuating circumstance of risk of losing your own life (assuming that you're found to have acted within the specific terms of the law).

So, yes, the state recognizes no other authority to use violence except its own.

 

[Carl N. Brown]

SYG justifies not having to retreat when you are where you have a right to be, are attacked and attempting retreat might expose you to imminent death or greivous bodily harm from the attacker.
It does not remove the option to safely retreat if it is possible; it removes the necessity of proving a negative: that you could not safely retreat.
It does not give the option to pursue a retreating threat either.
But the opponents of SD and SYG propagandize that it does.

Added: Max Webber who articulated that a defintion of a soveriegn state included a state monopoly on the lawful use of force also recognized that lawful use of force included personal self defense and private security forces operating under the rule of law. He saw post WWI Germany as a failed state with unlawful use of force prevailing, especially with street fights between national socialist and international communist gangs; if I read Webber right, he also considered state use of force contrary to the rule of law to be a failure also. State monopoly on force is an oversimplification without the important conditions.

 

[Tikkon]

SYG justifies not having to retreat when you are where you have a right to be, are attacked and attempting retreat might expose you to imminent death or greivous bodily harm from the attacker.
It does not remove the option to safely retreat if it is possible; it removes the necessity of proving a negative: that you could not safely retreat.
It does not give the option to pursue a retreating threat either.
But the opponents of SD and SYG propagandize that it does.

Good info and well explained

 

[Dog Soldier]

SYG justifies not having to retreat when you are where you have a right to be, are attacked and attempting retreat might expose you to imminent death or greivous bodily harm from the attacker.
It does not remove the option to safely retreat if it is possible; it removes the necessity of proving a negative: that you could not safely retreat.
It does not give the option to pursue a retreating threat either.
But the opponents of SD and SYG propagandize that it does.

Added: Max Webber who articulated that a defintion of a soveriegn state included a state monopoly on the lawful use of force also recognized that lawful use of force included personal self defense and private security forces operating under the rule of law. He saw post WWI Germany as a failed state with unlawful use of force prevailing, especially with street fights between national socialist and international communist gangs; if I read Webber right, he also considered state use of force contrary to the rule of law to be a failure also. State monopoly on force <i>is</i> an oversimplification without the important conditions.

Now that sound like real legal advise. Thanks, well presented.

 

[Sam1911]

State monopoly on force is an oversimplification without the important conditions.

LOL. As if any four word description of a principle of government isn't...

 

[Carl N. Brown]

^ I got that from paying attention to Eugene Volokh, Frank Ettin, Bartholomew, my wife's Uncle Orville, a couple of KPD detectives, and accepting correction when convinced I was wrong.

 

[entropy]

Frank did you even read the example case you quoted? Terrible........the example is theft not at night and Mr. Jones had no idea if the people he suspected stole from him. Meanwhile the Missouri guy was ROBBED

Read about the Gilbert case since youre too good to click on my links. He was acquitted in 2013 and the only reason he was indicted is because they questioned whether he was engaged in an illegal act with an escort

He's probably already read the case completely on Westlaw, as well as Missouri and Texas SYG law. In case you haven't gathered this, Frank is a lawyer. I hope you are not, for that would be a sorry comment on the Texas Bar.

 

[Elkins45]

Here's a question for the lawyers among us: is "But Gilbert got away with it!" considered an affirmative defense under Texas law?

Tikkon, your are pinning a lot of hope on one very lucky and very anomalous guy. You're treating his case as if it set some sort of precedent. This one case no more set a precedent then OJ set a precedent. That was my point in comparing the two cases, and I thought it was obvious why I compared them. The commonality is that both were obvious criminals but a sympathetic jury let both of them walk.

Besides, didn't you say you were leaving?

 

[Shaq]

I think such stupidity comes from the mindset of: "Now that I have a gun, I don't have to take crap from anybody."

 

[Haxby]

I just looked up Ezekiel Gilbert. Arrested, charged with murder. 3.5 years later, acquitted by a jury, after 2 days of deliberation.
Different jury, or different arguments, he could have been in prison for life.

 

[Frank Ettin]

Frank did you even read the example case you quoted? Terrible........the example is theft not at night .....

You never said anything about theft at night. What you said was:

In Texas one can use deadly force to recover stolen property......

There's nothing there about the theft having to take place at night. As far as anyone knows from reading your statement, if I'm in Texas I can hunt down the guy who stole my hat last month and shoot him to get it back. Are you saying now that you didn't intend to convey that impression?

Those cases cited and the explanation by Bartholomew Roberts explain why your one sentence is not an accurate statement of Texas law.

.....Read about the Gilbert case since youre too good to click on my links. He was acquitted in 2013....

I did read about Gilbert, and now I'll explain why it's irrelevant.

Ezekiel Gilbert was acquitted by a jury at his trial for murder. The prosecution did not appeal because the prosecution is not permitted to appeal a jury verdict of acquittal in a criminal case. For the purposes of trying to understand the law, acquittal by a jury in a criminal case really doesn't mean anything (although it does mean something to Mr. Gilbert).

First, a jury verdict of acquittal in a criminal case is not an affirmative finding that the defendant was innocent. The most that can be inferred from a jury verdict of acquittal in a criminal case is that the prosecution did not in the opinion of the jurors meet its burden of proving that the defendant committed all the elements of the crime. So it doesn't mean that the jury thought the defendant was innocent -- only that the prosecution didn't prove he was guilty.

Second, juries can and have acquitted people who were clearly guilty under the facts and applicable law. Juries have been known to do that if they decide that a strict application of the law in their particular case would be extremely unjust and/or if the have great sympathy for the defendant and/or they have a great animus for the victim. This is known as jury nullification.

So while being acquitted was nice for Mr. Gilbert, it tells us nothing about what the use of force law in Texas is.

.....the only reason he was indicted is because they questioned whether he was engaged in an illegal act with an escort

How could you possible know that? The proceedings of grand juries are confidential.

If the Missouri guy did this in Texas then tell me, which condition would he not meet?

Well for one thing, the theft was not at night. According to what hso posted it was in the afternoon. And it wasn't robbery because apparently the perpetrator did not knowingly injure, or threaten imminent injury to, Mr. Henson (see Texas Penal Code 29.02).

There may be other ways the incident would not have satisfied the Texas conditions for justifying the use of lethal force in defense of property, but we don't have sufficient information.

I just looked up Ezekiel Gilbert. Arrested, charged with murder. 3.5 years later, acquitted by a jury, after 2 days of deliberation.
Different jury, or different arguments, he could have been in prison for life.

Exactly.

^ I got that from paying attention to Eugene Volokh, Frank Ettin, Bartholomew, my wife's Uncle Orville, a couple of KPD detectives, and accepting correction when convinced I was wrong.

Thank you and very well done. You've learned a lot and it shows in the quality of your posts.

 

[Tirod]

Sam said "So, yes, the state recognizes no other authority to use violence except its own." And like it or not, that is the current state of things.

In the longer history of humans on this planet, it was incorporated in religion - and expressed in saying that only the Creator can take revenge. Those who were under his authority had to wait for divine providence to fall on the culprit. There was an exception, however, described with the Latin name, "Lex Talionus." Interpreted the way many of us would understand, it's expressed as the saying, " an eye for an eye and a tooth for a tooth." If someone was injured, then only the damage that occurred would be tolerated. Some have interpreted it more finely, "ONLY an eye for an eye, and ONLY a tooth for a tooth." This principle in regaining lost goods or at least exacting punishment existed long before laws were codified and voted on, or courts had interpreted things to the point we have today.

It goes a lot further, too - it provided an overall guideline in behavior that absent a long and challenging education in law would nonetheless provide for reasonably acceptable and humane results. In other words, it did not allow for the harmed person to somehow conjure up a reason to punish someone with death for a theft or injury that didn't deserve it. And it gave a quick answer to work thru while exigent circumstances were ongoing.

Basically it said you couldn't go full retard. And that IS what happened when the aggrieved individual seeing his phone disappearing in the distance did - he hauled out his shooting iron and used lethal force. He went full retard. Death was not an equitable price for the stolen phone. Not hardly.

Under Lex Talionus if you were injured by another negligently or deliberately, your response was limited to only the extent of that injury. ONLY and eye for an eye, and ONLY a tooth for a tooth. No more. It limited violent response and forced the common citizen to adhere to the framework of the Creator's morality.

As goverment's gathered powers and become our more common sociological organization, they took the right to exact punishment from the citizen and held it to themselves. For some good reasons, too - there were too many running around going full retard - taking things too far. The appropriate response wasn't enough, they were taking revenge, and as governments dealt with this on a daily basis over centuries, they found ways to enforce their monopoly on the use of violence.

What we have seen in the past decades are two opposite points of view over it. On the one side there are those who support only the government's monopoly, and they reserve to the government the only response. So, you and I should be disarmed and live (or die) with it. On the other hand are those who state they are capable of making that decision without the government interfering - and can carry guns to enact the most appropriate response needed.

The idea that there are morons running around ruining our ability to do so is just a partial view - there are plenty of morons running around ruining their opportunity to demonstrate that a government can be successful in controlling the violence. For every cell phone seller chasing a thief, I'm going to suggest there is a cop who can and should be prosecuted for murder - overreacting to a situation they percieve to be life threatening, when in close scrutiny the situation only existed in their mind.

If one side can claim justification for their actions as being afraid for their life, so can the other. If one moron can shoot at a thief - then so can a cop. It doesn't make either RIGHT, tho. I can suggest that if they had reasoned the decision with a view based on what was an equal and balanced response then things might have gone better. It should be obvious that neither are in many instances, and that both morons are the problem.

Since its difficult enough to study and parse the law into behavior codes that will work for every circumstance, we'd be better to study the laws ROOTS in moral principles that the laws writers encoded. That means studying more closely what "an eye for an eye and a tooth for a tooth" means. That's not going to be easy - and for the most part, the Department of Education has taken it off the school desk. Hence the reason so many of our children no longer attend government schools - they are depriving us of studying and understanding the documents that existed long before any of the current government's existed.

Don't worry about what state allows or disallows - understand the basic principle. It wasn't exercised in this case, and now both parties are going to be victims of government sponsored punishment. What is distasteful is that the government that punishes them is also the one that represses the education of where it's principles are founded. We need to support the idea BOTH can be done - limited government monopoly and the citizen taking action himself. We also need to be prepared that BOTH can make mistakes, because that recognizes what has and will happen.

 

[Sam1911]

What we have seen in the past decades are two opposite points of view over it. On the one side there are those who support only the government's monopoly, and they reserve to the government the only response. So, you and I should be disarmed and live (or die) with it. On the other hand are those who state they are capable of making that decision without the government interfering - and can carry guns to enact the most appropriate response needed.

But neither of those is right, nor the way the law works.

The law recognizes that it is the right of a person not to be violently killed, and thus provides a means by which a few very serious threats can indeed excuse the choice of a citizen to use deadly force.

But only a few, because assaulting someone or killing them over a piece of property is not the path to a civil society, as milenia have proved.

 

[EchoM70]

Of course I know what it means

If someone robbed you of your cellphone, do you think you would ever see it again?

If someone took your cellphone and you didn't think you'd ever see it again was/is there a way you could have recovered it in that instance without the use of deadly force?

Do you honestly think you could sit in front of a jury of your peers and convince them the only reasonable thing you could have done to retrieve your property was to give chase and use deadly force to incapacitate the person who committed a robbery against you?


If you do believe that, can you be the test case? Send me a post card with "I messed with Texas" when you get to prison.

 

[Sam1911]

One point that's been made in a few ... like ten or fifteen probably ... of these threads that get dragged off into shooting over property in Texas, is that that law was written in a time when if someone stole your livestock or many other pieces of property, that was likely to be a death sentence on you as you'd have no way to subsist -- and that if your livestock or property made it over the horizon there was practically no possible way you'd ever recover that lost worth.

These days, the former is simply out of the question, as no bit of personal property is so important to a citizens life that they'd literally die, or lose all hope of livelihood if it was lost, and the latter is really hard to support since we live in an age where all items of much value are generally covered by an insurance policy.

So he stole your car? You'll have a rental later that afternoon and the insurance company will cut you a check to go buy another by then end of the week.

Stole your thousand dollar big screen? Homeowner's policy will make that right.

A jury is very likely to look at the appropriateness of your response and give a lot of credence to a prosecutor who raises the idea that you did NOT have "no other way" of recovering.

 

[tuckerdog1]

I suppose the situation has a lot to do with what you can do and how things play out. Several years ago in Austin, Texas, a guy & his girlfriend came upon a guy breaking into the girlfriend's car. They of course stopped the theft of property, but the thief made comments to the effect that he'd seen the girlfriend's home address information in the car, and was going to be coming back to "get her". Then he ran off. The boyfriend gave chase. In an alley several blocks away, the thief made a sudden turn toward the boyfriend. Boyfriend thought he saw a weapon, fire & killed the thief. When the chase started, no property taken, no immediate threat to life. Boyfriend charged with murder. Defense was he was not chasing to shoot the thief, but rather to catch. They didn't know who he was, but he had address info & made threat to come back and do harm. Boyfriend only shot when he perceived a threat. He was acquitted, but legal fees were high. Sorry I cannot find a link to this case, but it happened.

 

[Tikkon]

Tuckerdog youre right and there are also plenty of examples in Texas where the victim doesnt get arrested. This is why I cited the Gilbert case. Only reason he was arrested is because they questioned whether or not he was engaged in an illegal activity. I just got off the phone with one of my Texas Ranger friends and he confirmed everything Ive said about Gilbert. Your example took place in Austin, Texas which is a super liberal city. Even there the victim was rightly acquitted. In rural Texas the guy wouldve never been arrested

<Deleted>

Dont take someone's property in Texas and dont mess with Texas

 

[Snyper]

In this post, another member of this board, Bartholomew Roberts, a lawyer licensed and practicing law in Texas, explains in detail, including citing applicable cases, why you are wrong:

That explains the circumstances under which it is in fact legal to use deadly force to retrieve stolen property, so you're not totally correct in saying it can't be done either.

It just depends on the details.

 

[Frank Ettin]

That explains the circumstances under which it is in fact legal to use deadly force to retrieve stolen property, so you're not totally correct in saying it can't be done either.....

Exactly where did I say it couldn't be done?

What I said was

In (post 15):

....Under Texas law lethal force may be used to protect property only under narrowly defined circumstances when specific conditions have been satisfied (Texas Penal Code Section 9.42, emphasis added).....

And in (post 17):

....one may use lethal force to protect property only under certain, specified circumstances.....

....The boyfriend gave chase. In an alley several blocks away, the thief made a sudden turn toward the boyfriend. Boyfriend thought he saw a weapon, fire & killed the thief. ....

Thanks for the information. Based on the facts as stated, the boyfriend would probably get off in pretty much every State (although giving chase might be a wild card in some jurisdictions). In a number of States I doubt that the boyfriend would even be charged.

The important point here is that the boyfriend did not use lethal force until the subject manifest an intent to immediately attack the boyfriend.

....there are also plenty of examples in Texas where the victim doesnt get arrested.....

There are plenty of examples in every State where the defender isn't charged. And there are also plenty of examples in which the defender is charged and then exonerated. It all depends on whether the actor's conduct satisfied the legal requirements justifying a use of force in self defense.

But it's important to understand when an intentional act of violence against another human may be excused as justified and to then make one's decisions accordingly. Because there are also plenty of examples where someone didn't understand the law, made a bad decision to act, and is now in prison with plenty of time on his hands to regret his ignorance.

 

[CapnMac]

You never said anything about theft at night.

I have suspected that Tikkon has confused different parts of extant and former Texas Code, and the use of "night time" reinforces that suspicion.

You see, until not terribly long ago (mid 1990s) the Texas Business Code (not the Penal Code) allowed business owners to, within reason, use deadly force to prevent the loss of their goods, if that theft was occurring at night
This law was put to test in the late 80s, as a south Dallas furrier, a victim of several previous robberies and thefts, on the occasion of a 15 y/o pulling a snatch and grab of a fur coat to put a .44mag round through the center thorax of the alleged thief. This occurred in the very early evening but not before local sundown. Which caused rather a furor at the time. What with the question of whether high summer before dusk was night time or not, or that the goods were rather "lost" as the youth was wearing the fur coat at the time of the shooting, and, of course the juvenile nature of the alleged thief.

It is my understanding that said language in the Business Code was struck durign the wave of revisions the Texas laws went through over the 90s.

It's also my understanding that the case law in Texas also hugely disagrees with Tikkon's assertion, as juries have held that the property in question needs to be of unique and high value to allow the use of deadly force. That your '09 Camry would not be "enough" but that your restored 7 1/2 Mustang might be. But, that is only my understanding of it.

I for one, would never recommend nor aver that mere property theft was an automatic carte blanc for use of deadly force, I wish I could be sanguine about the numbers of people who will so solemnly avow.

 

[Frank Ettin]

.....You see, until not terribly long ago (mid 1990s) the Texas Business Code (not the Penal Code) allowed business owners to, within reason, use deadly force to prevent the loss of their goods, if that theft was occurring at night....

.....It is my understanding that said language in the Business Code was struck durign the wave of revisions the Texas laws went through over the 90s....

The "theft in the nighttime" language is in the current Texas Penal Code statute dealing with lethal force to protect property. The statute was quoted by me in post 15 and in the Bartholomew Roberts post I quoted in post 47.

 

[tlynch]

I'm just excited to see so much dedication to the most effective anti-littering campaign I'm aware of:

Don't Mess With Texas

Regards,
Tom