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(TX) Clerk shoots reported beer thief

Discussion in 'General Gun Discussions' started by Drizzt, Sep 6, 2007.

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  1. Bartholomew Roberts

    Bartholomew Roberts Member

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    Thanks, your analysis mirrors the analysis of the court perfectly in both cases.

    The facts of the original case:

    "It is undisputed that on October 26, 1971 at approximately 11:00 p.m. Robert Howsley, who was eighteen years of age, was engaged in attempting to steal a battery from Dr. Gilliam's car. The car was parked in the driveway of Dr. Gilliam's home. Harlan Gilliam, Dr. Gilliam's minor son, heard a noise in the front yard, looked out and saw someone attempting to open the hood of his father's car. He informed his father of what he had seen. Dr. Gilliam obtained a .22 rifle from a closet and went upstairs to his son's room to observe from a window. Dr. Gilliam's position at the window was approximately thirty feet from the event he was observing.

    Though it was dark, Dr. Gilliam was able to perceive the shadowy figure of a person bent over the engine compartment of his automobile. He saw this person lift the battery out of the car, set it down in front of the car, and close the hood. At this time Dr. Gilliam decided to fire a warning shot at the intruder's feet in order to apprehend him and to keep him from running away. The rifle shot, however, which traveled the approximate thirty-foot distance, struck Howsley in the head, killing him instantly."

    The family of the 18yr old sued Dr. Gilliam in civil court for negligent/wrongful death. Both the trial court and court of appeals granted summary judgment to Dr. Gilliam based on the "theft at night" rule under discussion. The Texas Supreme Court then overturned that ruling using the analysis that a warning shot was negligent.

    However, let's look at the facts. The distance was 30' (10yds) and Dr. Gilliam claimed to be shooting at the man's feet and instead hit him in the head? Does that sound plausible to you? Do you think the court considered it?

    In the second case, the shooter was breaking into cars left at a Bennigan's parking lot when the car owners returned. Rightly upset at the damaged steering column and broken window, they beat the shooter and proceeded to damage his car in retaliation as well as stealing his tires and car radio. The shooter retrieved a gun and came back to the scene and shot several of his theft victims. During his appeal, he claimed both self-defense and defense of property. He was denied the self-defense claims because the court determined he had no reasonable fear of death or serious injury. He was denied the defense of property at night because the court reasoned that one of the men had his car disabled and was unable to flee with the property and so the jury could have rationally believed that deadly force was not necessary to prevent escape with property.

    Note the part in bold because it is real relevant to the discussion here. You have accurately characterized and applied the law and clearly know what you are talking about. It seems to me the tricky part is the "the jury could have found" part. That is the part where things can get dicey.

    Assuming, the "he was going for something" defense doesn't hold up, could the grand jury in thithe beer case decide that deadly force wasn't necessary to prevent the escape with the property? That maybe calling the police might have been a more prudent option? I think 9.22(2) doesn't offer a lot of reassurance on that point.

    The final point I would make is that the trend in Texas law seems to be limiting the use of the "theft/criminal mischief at night" defense, not expanding it. Both of the cases I mentioned were the most recent appellate level cases I could find on that subject and both found reasons (albeit generally acceptable ones) not to allow the defense. You have to go back to the 1940s to find an appellate court upholding the defense. That seems to suggest to me that the trend in the future is likely to be a narrower view of this law.
     
  2. Lucky45

    Lucky45 Member

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    Hey Bartholomew Roberts,

    First, in the future can you post the full case like you just did. Because earlier you paraphrased it and lead some people on here to believe that the law is not applicable because these two people lost their case. They lost their cases because of other reasons, not because of the "theft during nighttime" section of TX Law.

    Secondly, you are checking Appellate Court cases, but I would figure that more than half of the cases of deadly force in TX do not get that far, because the shooter is NO-BILLED (found not guilty) by the Grand Jury. Then you noticed too, that these were CIVIL cases. Since they were no billed in the CRIMINAL CASE side of it, then the family went to civil court to "get justice."
    Luckily, as of few days ago,Section 83.001, Civil Practice and Remedies Code in TEXAS, effective Sept 1, 2007, a person who uses deadly force is immune from civil liability for personal injury or death that results from the defendant's use of force or deadly force, as and are no-billed by a grand jury

    Now to your response.

    All of that doesn't matter. A reasonable person would agree that a DOCTOR is NOT a SNIPER. Therefore, jumping up all excited at 11pm (night) and possessing an instrument(RIFLE) that is not part of your usual element, that he would not be able hit a elephant 20ft in front of him. If you doubt that scenario, just go to your nearest gun range and LOOK UP. Then tell me what you see?? The target is 10yd, 15yd, 25yd away in the other direction. So, could an average doctor aim at someone's feet at night with a rifle? I would say NO!!! That is why he was found NEGLIGENT. Negligent in TRAINING, AIMING AND REASONING.


    I would suprise if it doesn't hold up. He did not use deadly force to prevent escape with the property. That is the big thing that most people are missing. Right now, the jury will not be concerned about BEER. Everything he did so far has been according to the law.
    1. He was the owner or person with authority to represent the owner of the store. ie. clerk.
    2. He visually witnessed the theft.
    3. He was trying to prevent the other who is fleeing immediately after committing theft during the nighttime from escaping with the property.
    4. He believed the other had no claim of right when he dispossessed the store of the property.
    5. the deceased accomplished the dispossession by using force, threat, or fraud against the store clerk.
    6. he reasonably believes that:(A) the 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 property would expose the clerk or another to a substantial risk of death or serious bodily injury.

    His justification is not about the beer (property), but about SELF DEFENSE.
    The deceased made a motion by reaching for something,that after all of the above events had occurred, that the clerk BELIEVED was alluding to accessing a weapon. Therefore, the clerk REASONABLY BELIEVED that his use of deadly force was immediately necessary to avoid imminent harm, death or serious bodily injury.

    And that is what matters in TEXAS. It doesn't matter what was stolen or who stolen it. But what would a reasonable person believe in those circumstances. Would you, the reasonable person believe that he was reaching for his wife photo to show you, or his business card to solicit business or a lighter to light a cigarette.

    That is what the grand jury will look at and decide if they would have thought he would have been reaching for a weapon or not from all the facts that were know at that time by both parties. Remember, we don't know what words were exchanged during the whole incident, but I bet it wasn't in British cordial manner either.

    P.S. What if he said those magic words that will most like get a grown man shot by another grown man in 2007. I will K I S S you????
     
  3. Bartholomew Roberts

    Bartholomew Roberts Member

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    Both cases asserted a defense of property due to theft at nighttime under Section 9.42 of the Penal Code. That is why I cited them. If you look at Vernon's Texas Code Annotated, those are the last two cases in the "Theft by Nighttime" section of the annotated comments.

    I don't understand how this is relevant since I have never argued that the cases represented what will usually happen regarding "theft/criminal mischief at nighttime" and instead were offered to show that simply because you think it may fit into that category, doesn't mean a grand jury or court will and it is unwise to interpret those provisions broadly when making a decision to use deadly force.

    Please look again. Only the first case is a civil case. The second case is a criminal case appealing a murder conviction.

    Just a correction; but Section 83.001 of the Civil Practice and Remedies Code says exactly zero about being no-billed by a grand jury. It says that if the shoot is found justified under Section 9.42 of the Penal Code you have civil immunity. You still have to prove in court that the shoot was justified under 9.42 as an affirmative defense.

    You missed my point entirely. The doctor was not found negligent in training or aiming. He was found negligent because he said he was only firing a warning shot and instead struck the thief in the head when he was aiming at his feet. However, the distance was 10 yards with a .22 rifle - not exactly sniper distance and not exactly the type of shoot where you aim for the feet and hit the head.

    I think a more likely explanation is that the doctor shot the boy intentionally and later felt bad about his decision and rationalized it to police as a warning shot. Instead of protecting him though, it actually exposed him to more legal liability than a deliberate shot might have. That was one of my points. The other point is that the Texas Supreme Court in 1975 has a few justices who know a thing or two about rifles and I doubt they bought the warning shot story either; but they were still willing to use it to give him legal liability after two lower courts had given the doctor a pass.

    Maybe you should take a little more time to read my posts; because I am having trouble understanding your reply despite reading it several times. I said "Assuming, the "he was going for something" defense doesn't hold up" and then you say you wouldn't be surprised to see that happen and then go on to say it is all about self-defense (i.e. he was going for something).

    Second, in a court you would assert both self-defense (he was going for something) and defense of property; because if the jury doesn't believe you on self-defense, they might still find it justified under defense of property.

    Except that it isn't what I think is a reasonable belief or what you think is a reasonable belief. It isn't even what the clerk thinks is a reasonable belief. It will be what the grand jury reviewing the case thinks is a reasonable belief. The clerk is lucky that the grand jury in Texas is selected with considerably more scrutiny than the regular jury because otherwise he might be facing a real problem.

    Since I am having difficulty understanding you, and you are clearly not understanding me, let me give a nice summary of my overall argument:

    It is improvident to assume that simply because there is a theft at nighttime you are justified in using lethal force. A quick look at the statutes on Necessity and Defense of Property that you cited earlier should provide ample illustration of that.
     
  4. Tom Servo

    Tom Servo Member

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    There's a Chevron in Atlanta where the owner has a tick-marked tally of his kills on the front counter. Last time I saw, he was up to 8. It was the only gas station where you didn't see shady folks congregating after dark.

    More power to him. Is that how I'd do things? No. There might be a certain degree of cowardice to it, but I'd just set up shop somewhere safer (of course, I don't know his circumstances).

    That said, even shoplifting is crime. It is a disregard for the law, and law is what keeps us civilized. In itself, it is not a violent crime, but as others have pointed out, the perpetrators may be inclined to violence under the wrong stimulus.

    I once worked a convenience store. I refused to sell a box of cigars to a young woman who could not provide ID. She went outside, and her boyfriend/husband came in with a tire-iron and threatened to kill me with it. Over cigars.

    Like most other corporations, that one had a "don't confront, don't chase" policy. Such policies are typical, and they're drafted to protect the corporation from lawsuits that may arise if the perp is injured. They are not written to protect employees, just like the "no guns" policies they have.

    (Incidentally, I was nearly fired when the security feed showed me drawing a gun in self-defense)

    In the case quoted OP, the cashier would have had it much easier if he'd just let the beer go. I understand how frustrating it can be, but it wasn't his beer or his money. He could have gotten killed protecting the possessions of someone who's not likely to show much gratitude. As it is, his future now hangs on the selection of a jury. I'd not want to be in his shoes.

    If someone wants to blow away thieves and make an example, I'm not going to question it. However, I'm not going to risk a long prison sentence by turning a criminal into a "victim" over replaceable things.
     
  5. Lucky45

    Lucky45 Member

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    Bartholomew Roberts quote:
    I'll break it down for you. Because I don't know where you are getting your info and it is probably old. HERE IS A SUMMARY OF THE TEXAS LAW.


    HERE IS THE WAY IT IS WRITTEN IN THE LAW.


    I don't know why you feel I am making this up. This is straight from the State of Texas website. Notice, it says justified under Chapter 9 of the Penal Code, not only one section of the chapter. In TX, NO-Billed means that you were justified in your actions.
     
  6. Titan6

    Titan6 member

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    Gosh Eric F, thanks for the support. If that dosen't prove my case than nothing will. The shooter is posting him killing bad guys and they still steal knowing that death is a near certainty. 8 kills and they still keep coming? Are you sure you aren't just making that up?
     
  7. Lucky45

    Lucky45 Member

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    Bartholomew Roberts wrote:
    I think you missed my point. I was trying to give you the example that people go to gun ranges everyday and aim at targets 10ft away and yet they shoot holes in the roof. So it is NOT HARD to believe that an average doctor would aim a rifle at someone feet who is standing 30ft away and hit them in the head. Two words, FLINCHING and RECOIL. My opinion about his negligence probably came out in the trial. I garauntee that those topics came up in his trial from the plaintiff's lawyer.
    Training ---when was the last time you shot that WWII rifle, DOC?
    Aiming ---- how often you practice?? Do you know how to sight the scope?? How good of a marksman are you, DOC???
    Reasoning ----After answering those previous question, do you think were competent enough to pick up that rifle and aim and shoot someone near their feet, DOC???
     
  8. Bartholomew Roberts

    Bartholomew Roberts Member

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    No, it means the grand jury didn't indict you. It doesn't mean you are justified in your actions. In fact, the District Attorney can even resubmit the case to a different grand jury later, though they rarely do anything like that.

    Whether you are justified under Chapter 9 of the Penal Code is determined by a civil trial (just as other immunity issues like sovereign immunity and official immunity are). You have to prove in a court that you were justified under Chapter 9 of the Penal Code in order to claim civil immunity. Assuming you can get the lack of indictment from the grand jury entered as evidence, I am sure that would be a major piece of evidence and the law itself is a big deterrent to lawyers who might otherwise take the case; but just because the grand jury no-billed the criminal charges doesn't mean you are never going to see a civil trial.
     
  9. Lucky45

    Lucky45 Member

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    You are MISQUOTING me. I said, although I dropped one word, that " I WOULD BE suprise if it doesn't hold up. (the "he was going for something" defense)
    Then secondly, he has to assert 2 defenses. 1) that he was within the law when he was trying to protect his property; and therefore justified.
    2) that he was within the law when tried to avoid imminent harm by using deadly force; and therefore justified.
     
  10. Lucky45

    Lucky45 Member

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    Bartholomew Roberts wrote:
    I'm trying to figure out how you connected the dots. Isn't a person indicted for violating a penal code then tried in a criminal court.??? Therefore, if you are not indicted by a grand jury, there is no criminal case. So some families get mad and file a lawsuit in civil courts claiming wrongful death caused by the shooter. So since 9/1/07, defendants being sued now have immunity from civil liabilty for their actions that have been determined to be justified under Chapter 9 of the Penal Code.
    You don't have to prove in court that you were justified, the grand jury already determined that. Maybe that was the case before, but not since 9/1/07.

    Am I wrong??
     
  11. Lucky45

    Lucky45 Member

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    Bartholomew Roberts wrote:
    I already made that statement. Read previous post. Here is what I said.
     
  12. tallpaul

    tallpaul Member

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    I love the crowd that feels the life was worth more than the beer etc... ya all wonder why crime is up. If more of this went on and there could be no criminal or civil suite brought crime would fall exponentially.

    It boils down to the if the thief did not steal then he would not be dead... so it is his fault like it or not. Believe it or not. His actions cause his issues not the other way around.

    ya all that think it too harsh ect should just go hug a criminal today meetin or sumthin ;)
     
  13. Bartholomew Roberts

    Bartholomew Roberts Member

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    Well, I would just be guessing since no cases have been filed on this since 9/1/2007 that I am aware of; but looking at all the past cases on immunity to civil liability, I would say "yes."

    For example, if you want to sue a state official and they claim official immunity, the state official still has to go to court and prove he qualifies under the law.

    So in a hypothetical shooting, the grand jury no-bills the shooter. There is no criminal case, so there is also no findings in criminal court. The family is angry and files suit. There isn't any process in place to see whether you have immunity when a suit is filed. They will file pretty much any nutty suit you want. So as the shooter, you will get served with the lawsuit and if you don't read THR, you'll think "What the heck? I thought I was immune from this!"

    Likely the first thing you will do then is contact a lawyer. The lawyer will draft a response to the suit and then probably file a motion for summary judgment to dismiss the suit under Section 83.001. If I were a lawyer for the other side, the first thing I would do is argue that while it might appear you are protected under Section 83.001, we believe that in taking discovery we will discover evidence showing that this isn't really the case and the court should allow such discovery. The court is likely to agree to this because throwing out your suit before you get to depose any witnesses or collect any evidence tends to suggest unfairness.

    If I am a real bottom-feeder, I will then open up your personal life (and bulletin board posts) like a can of worms searching for anything I can use to support my case. I will depose you for the maximum time limit and I won't make it comfortable. In short, I will use discovery as much as legally allowed to encourage you to settle the case (hypothetically spoken as a hypothetical bottom-feeder).

    If I don't find anything incriminating (like your "shoot, shovel, shut-up" post here at THR) that I can use against you, then your attorney will probably renew his motion for summary judgment and that will probably be granted by the judge prior to the trial. On the other hand, if I get lucky and find some good dirt, then we go to a civil trial and a jury decides whether you fit under Chapter 9 or not. If so, then no judgment against you and you can try and collect your legal fees (You don't want to sit through a six-hour deposition without an attorney right? Going rate for a first-year associate right out of law school at a big firm in Dallas would be around $200/hr).

    Despite that the law isn't toothless by any means. It acts as a very strong brake against attorneys wanting to take those kinds of civil suits to begin with (and it wasn't popular in Texas even before that); but you shouldn't assume that just because you have been no-billed by the grand jury that you are home free. That probably is the case; but you don't know for sure.

    I think between this case and the one where Carter Albrecht got shot, you are likely to see some caselaw testing the new law very soon.

    Here is why I feel confident you are wrong in your interpretation: Where in Texas law is a procedure that tells the court clerk that someone has been no-billed by a grand jury and has immunity from civil suit? Where is the procedural law telling the clerk what happens to such a claim? There is no law; most likely because they intend to use the same procedure they use to determine every other civil immunity case - the civil court system (not the grand jury).
     
    Last edited: Sep 9, 2007
  14. camslam

    camslam Member

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    In the simplest terms, this is correct. If the thief had not been stealing he would most likely still be alive right now.

    There are always going to be differing sides of the debate. One thing that has surprised me over the course of this thread in particular is the number of THR members that have said let the thief go.

    We still don't know exactly what happened and if the clerk already had his gun drawn or what, but just for the principle of not tolerating crime, I thought there would have been more support for the clerk. Obviously, legally he may not have made the best decision, but in the end, whether it was 18 cans of beer or $57 in the till, or a bag of chips, or something else, it doesn't really matter, when you start stealing and robbing, you have officially put yourself in a bad position.

    In the end it comes back to the thief and making poor decisions.
     
  15. Blackbeard

    Blackbeard Member

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    "Not indicted" does NOT equal "justified". Not indicted can mean not enough evidence to get a conviction.
     
  16. Bartholomew Roberts

    Bartholomew Roberts Member

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    Thanks Blackbeard, I missed that.

    No, they did not. See my earlier comment. Bernard Goetz (the infamous subway vigilante) was no-billed by the first grand jury to hear charges on him. The prosecutor resubmitted the charges and he was indicted.

    If a grand jury finding was the equivalent of finding that you were justified, then that wouldn't be possible. A no-bill by the grand jury doesn't mean anything besides they didn't issue an indictment at this time.
     
  17. Lucky45

    Lucky45 Member

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    Bartholomew Roberts wrote:
    Once again you are misquoting a criminal case to make it suit your agenda.
    First, Goetz was no-billed on all charges in the first case, which were ATTEMPTED MURDER, ASSAULT AND CRIMINAL POSSESSION OF A WEAPON. People v. Goetz, 68 N.Y.2d 96

    Then 2 years later, he was convicted after appeal, of CRIMINAL POSSESSION OF A WEAPON.People v. Goetz, 73 N.Y.2d 751 Reason why?????? He did not have a CONCEALED HANDGUN LICENSE. PERIOD. If he had a permit, he would have been ACQUITTED of all charges.
     
  18. Lucky45

    Lucky45 Member

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    camslam wrote:
    Most likely, the clerk has a concealed handgun permit. In the store he would not need one, but when he went outside armed then it tells me high probability that he has a license. If he didn't, they would have charged him with PC §46.02 Unlawful Carrying of Weapon.
     
  19. Bartholomew Roberts

    Bartholomew Roberts Member

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    No, I am trying to explain fairly basic concepts of law to you. If you don't like Goetz as an example, you can use Dick Simakhin who was submitted to a federal grand jury on tax evasion charges three times (2001, 2002, 2003).

    Also for the record, we are both incorrect as to Goetz (however, I'll just assume you are human and made an error rather than accuse you of deliberately misquoting information to fit your agenda):

    Goetz was indicted by the first grand jury on January 25, 1985. The prosecution later amended the charges to present more evidence and Goetz was indicted by a second grand jury on March 27, 1985. Both of these relate to your first case, not your second.

    So Goetz was never no-billed on any charges. The charges were dismissed by the Court of Appeals (your first cite).

    However, my main point remains the same: A no-bill by the grand jury doesn't mean anything besides they didn't issue an indictment at this time.
     
    Last edited: Sep 10, 2007
  20. Flak_Jakett

    Flak_Jakett Member

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    Do you think that beer is more valuable than life?
     
  21. Lucky45

    Lucky45 Member

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    Let me correct what I wrote earlier. Goetz was no-billed on these charges in the first case, which were ATTEMPTED MURDER, ASSAULT. He was indicted on the charge of CRIMINAL POSSESSION OF A WEAPON.

    But enough of Geotz, here is the link and you can read for yourself. http://en.wikipedia.org/wiki/People_v._Goetz
     
  22. Bartholomew Roberts

    Bartholomew Roberts Member

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    No, he was not no-billed in the first case. According to your link (which is the exact same content as the link I posted), he was indicted by the first and second grand jury and the charges were dismissed by a court of appeals. Do you understand that dismissal of charges by a court of appeals is different from being no-billed by a grand jury?

    It may seem like a small difference if you aren't familiar with the law; but from a practical perspective it is a big difference in both cost and time since Goetz had to file the motion to dimiss charges, be denied by the trial court and then appeal that decision. Had the grand jury just no-billed him, that would have been immediate and he would not have had to take any action to avoid prosecution.
     
  23. Titan6

    Titan6 member

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    Flak Jacket- There lies the issue. There is actually a majority here that holds that property (even near valuless property) is more valuable than human life if the person giving up their life is a suspected thief.

    This is an ethical issue that will not be resolved tonight. Taken to it's extreme it would seem to justify say the killing of renters who fail to pay their rent or those who don't pay off credit card loans or even write a bad check.... After all these people are stealing as well, they are just using a different technique. People don't like to think of themselves as thieves when they do these things but they are.

    I would submit that if you are strong and dealing with the very bottom rung of society you might be able to afford a little more benevolence. And certainly if you are strong than there are ways of dealing with the disenfranchised, intoxicated, mentally ill and morally uneducated that don't involve injecting them with 180 grain hollow points.


    I would also submit unless you are grown up enough to take charge of a high stress situation involving people ....without a gun.... maybe you shouldn't carry a gun until you develop that skill set. Just a personal thought on the matter. It might save you some trouble in the long run. After all a gun is not really a magic wand that waving it around will suddenly cause people to do whatever you deem is the right thing for them to do. In fact there really is no telling how a person will react to a gun in the face except to say not as you would likely expect.

    Amazing how many potential shootings I may have averted with the simple phrases of ''Hey Dude, are you going to pay for that?'' and ''I already called the cops... you can put it back or start running now...'' or ''You do know we have cameras on the beer cooler right?''

    Oh and by the way a ''no bill'' does not give immunity to civil prosecution. If the killer was found innocent he would be GTG. In our sue-happy country I would be surprised if the GSV does not sue.
     
  24. Officers'Wife

    Officers'Wife Member

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    My biggest problem is the clerk followed him out to the car. He had a description, he could have got the plate number. Instead he chose a confrontation. It's one thing when trouble finds you, but quite another when you go looking for it. I'm just glad I'm not on the jury.

    Selena
     
    Last edited: Sep 10, 2007
  25. hamourkiller

    hamourkiller Member

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    We can also take it to the ridiculous other extreme. You so love humanity in all of its wonderful diversity that you are willing to allow any downtroden scum sucking animal come into your house/property and take all of your stuff. Yes you will be one with them as you and your family sit in the street because all of your stuff was taken. Yes you can be warmed by the fact you are a better human than I.

    The reality is you who will not defend property are like the anti gunners who refuse to put gun free signs on their houses. You depend upon those of us who will defend property for your protection. With out us every thing you have would be leaving before your eyes. I can with out fear place a sign stating my intentions to defend my property with lethal force. Are you willing to place a sign stating your pacifist position of not defending your property? Basically a come and get it sign if you dont threaten me or my family. After all life is more precious than mere property.

    I believe the clerk when he says the thief reached for something and the thief went to hell for it. Wonder if that beer is still cold down there?
     
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