(TX) Man Who Shot Musician May Not Be Charged

[camslam]

morally ok? necessary to preserve innocent human life? i have doubts.

flame away.

p.s. shooting through the door. sounds like violation of rule #4.

Every person is different, but the thing that stands out to me is you really don't know what is on the other side of that door. Some people say wait till the door is broken in and then fire, others say shoot a warning shot, and others say the guy did right. Who knows?

But I can say this, if someone were pounding on your door at 4 AM and they continued to try to kick the door in after being repeatedly warned, all bets are off. Some people may think they are taking the moral high ground by saying they would wait until the door was actually kicked in. To me given the description of the events, that is pretty dangerous. Some are saying take cover in your house somewhere and wait for the police, again, who knows what can happen in that situation.

Sadly this is something people will never come to an agreement on. It is no different than the arguments that rage back and forth with conceal carry permit holders. Do you retreat? Do you engage if you can defend another innocent? Etc.. Etc...

In the end I think these threads are very useful because they make us think personally what we would do in a given situation. To me that is the most important thing about all of this. Preparation is the key to any successful outcome, and thinking about the different scenarios we can encounter, what we would do in the situation, and then how would we deal with it afterwards.

Putting a lot of thought into these types of hypotheticals allows people to better live with the results of their actions. I hope the homeowner does ok with this, because in the end, he protected his life, his families life, and short of waiting for the guy to be right in his face, he tried to get him to stop.

 

[Master Blaster]

Imagine what this must have been like. You wake up at 4:00 am and there is a terrible crashing and smashing of your front door.
An extremely drunk and irrational person unknown to you is screaming curse Like I am going to F--ing kill you at the top of his lungs, while your front door is being bodily kicked, flexing plaster falling trim coming loose, nails popping out all around the jamb. You yell go away, and the cursing screaming and kicking is getting louder. You have no idea who this is, your beloved wife and young children are sleeping, well now they are cowering in fear, and some irrational maniac, is trying his best to kick down your door. Yo have 10 seconds to decide what to do or less, and you remember all those home invaison shootings you have heard about on the news, so now its some psycho, or your beloved family and wife whos life do you value more???

Yep I can imagine that, and I can't say I would have waited for the door to finally give way either.

Yep I can see shooting him through the door in self defense.

 

[TexasRifleman]

I'm thinking that the homeowner is less legally liable if he says he was shooting at the Bohemian outright than saying he was firing a "warning shot."

Nope. After Sep 1 there is no liability in cases like this in Texas. "Castle Doctrine" some call it.

 

[Bartholomew Roberts]

I'm thinking that the homeowner is less legally liable if he says he was shooting at the Bohemian outright than saying he was firing a "warning shot."

I agree 100% Thumper. First let's look at Ch. 9.42 of the Penal Code again:

9.42. DEADLY FORCE TO PROTECT PROPERTY. 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;

The argument I can see being used is "You did not reasonably believe that deadly force was necessary. As evidence of this, I offer your statement to police that you just intended to scare him away and not hit him by firing near the top of the door." If I knock out that element in court, you are no longer protected under 9.42.

Now realistically, this is Texas. This guy is going to get no-billed by the grand jury and this is going absolutely nowhere. It would have happened that way before September 1st and it will happen that way after September 1st. His use of force is covered by about three separate laws as long as he intentionally used a firearm realizing that it might result in death or serious injury; but the guy is lucky it is Texas and not some other jurisdiction where they might decide to be nasty about it.

Also a classic example of why you let your lawyer do most of the talking... the guy clearly didn't want to shoot and regretted that he had to shoot; but now his statement makes it easier for someone to try and twist his words and make it seem like he didn't mean to shoot. Even "I'm sorry I had to shoot him" can be made to look pretty bad in a courtroom.

 

[News Shooter]

They just released the 911 tape

The shooter says something like "I shot at the top of the door to try to scare him away and he's lying out there."

Funny thing he wasn't hyperventilating and didn't sound all that distraught.
Hard to read anything into that. I would be screaming and slobbering

 

[Thumper]

Nope. After Sep 1 there is no liability in cases like this in Texas. "Castle Doctrine" some call it.

You still misunderstand. We all know about Castle Doctrine. We also all know "criminal mischief at night." We all took the class.

These defenses have to do with the use of deadly force. You remove that defense if you, by your own admission, weren't trying to use deadly force, i.e. a "warning shot." A warning shot is just the reckless discharge of a firearm.

I STILL doubt it was a warning shot. He shot the door that he knew someone was kicking. As we all know, your brain and mouth might go on rationalization overdrive if you have to kill someone. Let your lawyer speak for you.

 

[MechAg94]

Since this happened befoer 9/1, is the new law retroactive to prior events?


I am not sure I would shoot through the door, but if I were on a jury, I can't see myself convicting him criminally or civilly.

In all honesty, it I were standing in the hallway with my shotgun staring at my door being beaten down, It would be extremely difficult just to sit there and wait for the door to break down. My front door is only about 15 feet from the bedroom door. Not much time to react after the door comes open.


I seriously doubt a lawyer would sue in this case. I bet it would be difficult to find a jury willing to find this guy was wrong.

 

[TexasRifleman]

These defenses have to do with the use of deadly force. You remove that defense if you, by your own admission, weren't trying to use deadly force, i.e. a "warning shot." A warning shot is just the reckless discharge of a firearm.

Nonsense. You fire a gun at someone it is considered deadly force, regardless of what you thought you were aiming at.

You may, in Texas, point a gun at someone without it being considered deadly force. Pull the trigger and it becomes use of deadly force, whether you meant to hit a toe or an eyeball.

Since this happened befoer 9/1, is the new law retroactive to prior events?

I'm pretty sure this happened after 9/1.

 

[joab]

True in criminal cases any use of a gun is considered deadly force but the reasons you chose to use that force will be considered.
If you declare that your use of deadly force was simply to scare the person then it could be considered that you did not feel the need to actually use that level of force
If that can be substantiated through the grand jury or whatever tribunal sits in judgment then you may very well lose the civil immunity that the Castle Doctrine affords you.

Just because the Brady Bunch has sold these laws as get out of jail free or shoot when threatened laws does not make it so

You still have to justify your use of deadly force the new laws just makes it a little easier

 

[Blackbeard]

I can't put myself into this guy's shoes, but I have to call bad shoot. He could not identify his target. He had no way of knowing if there were more than one person on the other side of the door. What if Albrecht's girlfriend were out there trying to restrain him? What if she caught the bullet instead?

Logic dictates that you don't shoot until you see the target. You take a defensive position, with the gun trained on the door. First one through the door gets a lead salad.

I realize I'm saying this from the serene comfort of my computer room, and not at my front door with a maniac beating on it at 4 AM.

 

[Thumper]

You may, in Texas, point a gun at someone without it being considered deadly force. Pull the trigger and it becomes use of deadly force, whether you meant to hit a toe or an eyeball.

Please reread what I wrote, then reread what you wrote and see if you can put your finger on what you're missing.

Hint: Your quote above is an exquisitely precise failure to describe a warning shot.

You seem to think that because a shooting is justified, a warning shot is justified. It is not. In fact, a warning shot when the shot should have been placed center mass can land you in jail.

Edited to add: joab just said it more clearly two posts above mine.

 

[wolfman01]

Sorry Blackbeard, but I must disagree. If someone is kicking my highly reinforced door in, I'm not about to wait untill they've busted it down. I would have shot through the door as well. You can call me calloused, but my life is more important to me, than that of someone in the process of going berzerk, who is tearing up my property that I worked damn hard to own, with a perceived intent to cause bodily harm once inside.

I don't fight fair. I fight to win.

 

[Double Naught Spy]

I can't put myself into this guy's shoes, but I have to call bad shoot. He could not identify his target. He had no way of knowing if there were more than one person on the other side of the door. What if Albrecht's girlfriend were out there trying to restrain him? What if she caught the bullet instead?

Logic dictates that you don't shoot until you see the target. You take a defensive position, with the gun trained on the door. First one through the door gets a lead salad.

I realize I'm saying this from the serene comfort of my computer room, and not at my front door with a maniac beating on it at 4 AM.

No, it was not a bad shoot. It may not have been the wisest way to shoot, but given that the only person harmed was the bad guy, the shoot was good. You can claim all the hypotheticals you desire as possible bad outcomes, but none of them happened and so the point is moot.

As for what logic dictates, it depends on your logic. The logic you suggest is the logic of a person with knowledge and/or skill in how to handle such matters.

You are right in that there could have been other folks outside that were non-combatants. Then again, there very well may have been several combatants outside who were awaiting the opportunity to charge in once the door was breeched.

I don't follow why so many of y'all thought the homeowner is somehow in the wrong or at fault. You are blaming the victim as he was acting in self defense.

Why it may or not matter to how y'all perceive the situation, I think several of y'all are assuming this happened at the front door. It did not. It was at the back door.

Here is the 911 call. The link will probably go bad in the near future, but will be archived elsewhere on the site. Right now it is on the main page of a local TV station...
http://www.myfoxdfw.com/myfox/

alternate...
http://www.myfoxdfw.com/myfox/pages...n=1&locale=EN-US&layoutCode=VSTY&pageId=1.1.1

It is an interesting clip. It is also a good example of several things folks should NOT say to the cops.

 

[TexasRifleman]

Hint: Your quote above is an exquisitely precise failure to describe a warning shot.

The point is that from a legal standpoint there is no such thing as a "warning shot".

You either fired a gun at someone or you didn't.

 

[Double Naught Spy]

These defenses have to do with the use of deadly force. You remove that defense if you, by your own admission, weren't trying to use deadly force, i.e. a "warning shot." A warning shot is just the reckless discharge of a firearm.

Thumper, please post the specific law that says that use of lethal force is no longer authorized if your intent was not to shoot the threat. Or please post the law that says a warning shot cannot be fired in a situation where the criteria are met for the use of lethal force. I have no recollection of any law that says lethal force must be used with any sort of specifc intent to harm another human being or other threat (i.e., attacking animal).

We all took the class.

Yes but your class apparently covered some very unique material the rest of us didn't get.

 

[glummer]

Unpleasant truth:

There are real-world situations wherein Rule 4 will get you killed. Sometimes you have to take the least-bad course of action.

gunsmith

Personally, I would have waited until the door got broken down and if the guy entered further after realizing he was in the wrong house then I would have shot, I do not believe in scaring people or warning shots.

If a thousand roughly similar situations arise over time, and all the victims follow your precepts, a significant number of them will die. Allowing the door to give way is a risk; you may choose to run such risks to safeguard the poor thug attacking you, but no one is legally, or morally, OBLIGATED to assume such a risk.

joab

If you declare that your use of deadly force was simply to scare the person then it could be considered that you did not feel the need to actually use that level of force

Considered so by whom? You? An imaginary jury?
Or can you point to actual laws, or verdicts, where this was really a factor?
I have never seen or heard anything that would lead me to conclude that the “warning shot” danger is more than an urban myth.

Blackbeard
I can't put myself into this guy's shoes, but I have to call bad shoot.

So the law is wrong? How would you change it?

He could not identify his target. He had no way of knowing if there were more than one person on the other side of the door.

It would be nice if it were possible, but nice is not always possible.

What if Albrecht's girlfriend were out there trying to restrain him? What if she caught the bullet instead?

It would be a sad accident, same as if she had tripped leaving her house and killed herself in the fall.

 

[joab]

Considered so by whom? You? An imaginary jury?

Perhaps you should have read the whole comment your question would have been answered

the grand jury or whatever tribunal sits in judgment

I have never seen or heard anything that would lead me to conclude that the “warning shot” danger is more than an urban myth.

Read Ayoob much?

The one thing all lawyers in any case will agree on is that you can never determine what they jury will do.

There are many cases where the thing that got a person convicted was his on words

Some I remember were the man that told police that he didn't want to get his ass kicked when he shot a man that was intent on killing him
Another was a case of a woman who shot her husband
When the police got there all she said was
"All he did was smoke my cigarettes and drink my beer" leaving out "and beat the hell out of me"
Those words convicted her even though the husband had a long history of abusing her and had threatened to kill her that night

We also know that it is only a matter of agenda whether a grand jury indicts or not
Remember the ham sandwich theory?

 

[Bartholomew Roberts]

Thumper, please post the specific law that says that use of lethal force is no longer authorized if your intent was not to shoot the threat.

Well, I'm not Thumper; but I think joab and I have both pointed out the problem with a warning shot is that it suggests you did not think "deadly force was reasonably necessary." (See Post #29 for more elaboration). If you do not have that belief, or more importantly if someone can convince a jury you did not have that belief, then you aren't protected under any of the self-defense claims in Texas law.

After hearing the 911 tapes, I don't think this guy did himself any favors. Some of the comments:

"I fired at the top of the door to scare him away'
"I didn't think he was that tall"
"I just wanted to scare him away"

All of those statements make it appear that the shooter did not intend to shoot the victim. If you do not intend to shoot someone and then shoot them, it is difficult to claim self-defense since it relies on you having a reasonable belief that it was necessary to use deadly-force on them.

I have never seen or heard anything that would lead me to conclude that the “warning shot” danger is more than an urban myth.

How hard have you looked? I know the cases are definitely out there that turn on the element of whether a shooting was intentional self-defense or accidental shooting during a stressful event. Just a search of the THR archives should yield several of them; but I'll try to find some examples for you later.

You are going to be held responsible for every round you fire. If your warning shot kills somebody, even if it kills someone who arguably needs killing, you are going to be held responsible for that shot.

I don't think anybody is arguing that this homeowner should go to jail; but I think if he were in a state that held less regard for self-defense he could easily be facing that problem at both the criminal and civil level.

 

[Cosmoline]

The home owner obviously did not think that killing Albrecht was necessary

I'd take the press reports with a huge grain of salt. For one thing, they're lying about the castle doctrine. It has long been perfectly legal to use deadly force to protect your home against intruders at night in Texas. The reporter is just trying to make it sound like this was some unfortunate tragedy. It wasn't. When someone is breaking into an occupied home and ignores warnings to leave, deadly force is often the only realistic option left. The home owner's personal feelings about the matter are not relevant in this case because the surrounding facts make it pretty clear deadly force WAS necessary, whatever his feelings. It was, however, pretty stupid for him to make this comment (if he actually did). In a closer case such a comment or an effort to use "warning shots" would be very bad news. It's another example of why you keep your trap shut, esp. when you're all emotional after shooting someone.

RULE IV: BE SURE OF YOUR TARGET

The target was whoever was kicking the door down. There was NO VIOLATION OF THIS RULE!

I thought about rule four violation too, thats why I wouldn't shoot , my target and what was beyond was not clear.

That is a potentially fatal misunderstanding of the rule. A rule which, btw, is just one man's invention and NOT LAW. Your target is whatever is kicking your door down. By the time you get a perfectly clear picture of whatever is kicking the door down, it's going to be way too late. Real life does not give you crystal clear targets. And Cooper's rule is not about delaying a life or death shot because you can't see the target's profile with precise certainty. It's generally a fair assumption that whoever would kick an occupied home's door in while screaming in rage and ignoring warnings is coming to kill you. Maybe they're drunk and mixed up, but unless you know that for certain it's a heck of a chance to take with your life and the lives of your family.

Now, if you KNOW it's a drunk neighbor and KNOW or reasonably suspect he has the wrong place, that may change matters.

 

[Thumper]

I just started to type, then realized I was simply restating what Cosmoline and BR were saying above.

If you fire and kill someone, then say you didn't mean to, you're hurting yourself. Is that hard to understand?

It was a good shoot. He protected himself and his family in a terrible situation.

He should have let his lawyer speak for him. Luckily, he's in Texas and the system will still take care of him.

 

[glummer]

Bart

I know the cases are definitely out there that turn on the element of whether a shooting was intentional self-defense or accidental shooting during a stressful event.

I’ve seen Ayoob’s account of the trial of the man who fired by accident, but that’s not the same thing. Here we’re talking of an intentional shot, clearly justifiable deadly force, where the victim was reluctant to kill if he could frighten instead. The distinction here is ‘willing to kill immediately’ vs. ‘hesitant, even though justified.’

if you do not intend to shoot someone and then shoot them, it is difficult to claim self-defense since it relies on you having a reasonable belief that it was necessary to use deadly-force on them.

I think your logic is faulty there. I may reasonably believe that it is necessary to leap from a high window in a burning building, but that does not mean I will do so without reluctance, or hesitation, or desperate attempts to avoid it.

Thumper

If you fire and kill someone, then say you didn't mean to, you're hurting yourself. Is that hard to understand?

It is very hard to understand. Why should my reluctance to kill be counted against me, when I clearly had the right to do so? Why would a jury be against me for trying NOT to kill him?

 

[Thumper]

It is very hard to understand. Why should my reluctance to kill be counted against me, when I clearly had the right to do so? Why would a jury be against me for trying NOT to kill him?

Because if you were trying NOT to shoot him, you failed. Negligent discharge resulting in death.

I don't know how to make this simpler for you:

If you don't HAVE to kill someone, you shouldn't.

Deadly force is a necessity. Warning shots are a decision.

 

[birdv]

+1 Thumper

 

[Browning]

Well he shouldn't have been bashing the homeowners door in despite repeated warnings. If he hadn't gotten drunk, flipped out, beat up his girlfriend (Dallas Morning News, I read the article) and then been stupid enough to go try to beat some guys door down then he'd be alive right now.

Personally if I was in that position (inside a house while some drunken and enraged idiot was beating on my locked door) I might have waited until the intruder made it through the door before I fired from a position of cover just to make sure that I was extra legally covered, but I don't see that the homeowner did anything wrong.

It's sad and it's a waste of talent, but it's the musicians fault, not the homeowners.

Now they're saying that some medication that he was taking to try and quit smoking sent him over the edge and made him psychotic. Who knows, maybe it's true. I've heard about some of that medication having some weird side effects. Mixed with alcohol maybe it makes the medication stronger.

http://www.dallasnews.com/sharedcontent/dws/news/city/dallas/stories/DN-musiciandead_05met.ART.State.Edition2.4247864.html

 

[Owen Sparks]

The way I see it you don't owe an assailant a fair fight.

The home owner did not choose to participate in this ruckus. It's not like a boxing match or a duel where both sides agree to conduct themselves as gentlemen and abide by the rules. The home owner did the right thing* by shooting while he had the advantage of that door between himself and an unknown danger.

* The right thing varies from state to state.

OS