Despite pleadings of 911 operator Texas man kills burglars exiting neighbor's house

[ravdin]

Doesn't it say somewhere in the Texas constitution that "he needed killin" is a valid defense?

 

[EeneyMinnieMoe]

He called 911 and killed the burglars leaving his neighbor's house? My neighbors would make a big deal out of picking up my mail for me.

Either he's a trigger happy homicidal maniac or the best neighbor on the planet.

 

[wahrheit]

The transcript of the 911 call reads like the protocol of murder to me.

The operator told that guy repeatedly to _not_ leave the house and that some stolen property is _not_ worth anybody getting shot, and that police officers are on their way to the scene.

He's on the phone with the police, they tell him to stay inside and not shoot anybody, and this guy basically says: "Screw you, I'm going out and shoot them". Excuse me? Watching your neighbor's house being robbed isn't nice, but it doesn't make you a one-person judge, deputy sheriff and executioner.

 

[technoextreme]

Wow. I wonder how the neighbor feels about two lives snuffed out for his easy-to-get-away-with stuff?

I'm generally OK with folks having shotguns for home protection, but this guy went way to far. Yet another reason I'm happy not to live in Texas (nope, this kind of thing would never happen in NC )

Well if you really want to feel flabbergasted the same exact scenario happened in Massachusetts and the guy was found not guilty. Technically, the difference was that it was his property.

 

[JoeEllison]

He called 911 and killed the burglars leaving his neighbor's house? My neighbors would make a big deal out of picking up my mail for me.

Either he's a trigger happy homicidal maniac or the best neighbor on the planet.

Could be both?

More likely, he's one of those nosy neighbors who is also the one who calls the cops if your dog barks more than twice in a month.

 

[Biff Starbuck]

This one is easy!

http://www.capitol.state.tx.us/tlodocs/80R/billtext/html/SB00378F.htm

Here's a couple of quotes from the actual law:

Here's the places where someone can use lethal force:

You can protect yourself in all cases on your property, OR protect others in cases of protecting another person from a crime against their person... NOT the other person's property.

You're right that it is easy, but wrong about the law. The right to use deadly force already existed under Texas law before the new law went into effect in September. The existing law clearly states he can use deadly force to prevent the crime of burglary or trespassing at night, even if he is doing so to protect a third party's property. The answer IS easy, he has an affirmative defense to prosecution in that he acted lawfully to protect the property of his neighbor. My guess is the grand jury will probably not even indict him.

But as Bikewer pointed out, he probably will get sued in civil court. And also as Bikewer correctly notes, law enforcement officers, even in Texas, are held to the US Supreme Court's definition of the use of deadly force as a seizure under the 4th Amendment. That means a peace officer in Texas CANNOT shoot someone just for burglarizing a building at night, but the average citizen can.

§ 9.02. JUSTIFICATION AS A DEFENSE. It is a defense toprosecution that the conduct in question is justified under this chapter.​

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.​

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:​

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.​

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

§ 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; or​

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and​

(3) he reasonably believes that: ​

(A) the land or property cannot be protected or recovered by any other means; or​

(B) the use of force other than deadly force toprotect or recover the land or property would expose the actor oranother to a substantial risk of death or serious bodily injury.​

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

 

[bignickel]

You're right that it is easy, but wrong about the law. The right to use deadly force already existed under Texas law before the new law went into effect in September. The existing law clearly states he can use deadly force to prevent the crime of burglary or trespassing at night,

And here's where he's going to lose: The law states he can use it to prevent the crime, but by the time the suspects were leaving, the crime was already committed.. At this point, they're committing 'transport of stolen property' (or whatever the wording is).

to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or[/INDENT]

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; ​

And even more important: this event did not happen during the nighttime. Thus removing another crucial element of his defense. If he had done all this as the criminals were breaking in he might have a chance in court, arguing that he thought his neighbors might be home... a chance mind you, but not a great one.​

 

[Biff Starbuck]

And here's where he's going to lose: The law states he can use it to prevent the crime, but by the time the suspects were leaving, the crime was already committed.. At this point, they're committing 'transport of stolen property' (or whatever the wording is).


And even more important: this event did not happen during the nighttime. Thus removing another crucial element of his defense. If he had done all this as the criminals were breaking in he might have a chance in court, arguing that he thought his neighbors might be home... a chance mind you, but not a great one.

My bad. I had seen another story which implied it was at night. I found another article indicating it was at 2pm. Even though most residential burglaries are committed in the daytime, often by kids who should be in school, I understand why they seem more threatening at night when people are more likely to be home. The law does also include the ability to use deadly force to stop suspects fleeing after a burglary with stolen property, but I agree the law does specifically state "at night."

I certainly do not think this is the poster-child case for self defense. Saying things like "boom you're dead" won't help him either before the grand jury or in the inevitable civil trial. But at the same time, my heart does not bleed too much for two burglars shot while escaping with stolen property from a burglary of a house. I am a big believer in the "home as a castle" docterine. If you intentionally break into someone's house, you should be prepared for the fact you might be killed.

 

[brodski]

You're right that it is easy, but wrong about the law. The right to use deadly force already existed under Texas law before the new law went into effect in September. The existing law clearly states he can use deadly force to prevent the crime of burglary or trespassing at night, even if he is doing so to protect a third party's property.

Can you quote the relevant statute please. The section of statute you quoted clearly only applies to " PROTECTION OF ONE'S OWN PROPERTY." as that whole section is entitled.

 

[Biff Starbuck]

Can you quote the relevant statute please. The section of statute you quoted clearly only applies to " PROTECTION OF ONE'S OWN PROPERTY." as that whole section is entitled.

9.41 is Protection of One's Own Property

Section 9.42 is entitled DEADLY FORCE TO PROTECT PROPERTY. It refers to the thresholds established in 9.41, and expands the principle to protecting the property of third parties.


Also, the Houston Chronicle covers some of the legal debate in a separate story:

http://www.chron.com/disp/story.mpl/metropolitan/5309288.html

 

[Biff Starbuck]

Also, I agree with the comment in the Houston Chronicle that the police dispatcher should be commended for his actions that day. He did everything possible to try to diffuse the situation.

 

[Ladewig]

Before I make up my mind, there is one piece of information that I want. Were they shot in the back or while they were facing him?

 

[BPSCG]

Fair enough.

I read the OP the samw way BPSCG did, which seemed to allow the use of force on behalf of other peoples' property.

Except that on further review (sorry, watching the Redskins-Cowboys game), I don't see anything in the new law that justifies what he did. I think he's toast, even in Texas.

 

[brodski]

9.41 is Protection of One's Own Property

Section 9.42 is entitled DEADLY FORCE TO PROTECT PROPERTY. It refers to the thresholds established in 9.41, and expands the principle to protecting the property of third parties.

No, section 9.41 is the use of [force] to protect ones own property, section 9.42 is use of deadly force to protect ones own property.
The expansion is in the amount of force which can be used, not the property which can be protected.

9.42 starts "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" (my bold).
9.42 only applies in cases were 9.41 already applies, in other words in the protection of ones own property, it authorizes the use of deadly force in certain circumstances where force was already allowed by 9.41.
It does not authorize the use of deadly force in circumstances where 9.41 does not allow the use of force at all.

 

[PogoPedant]

Regardless of whether the law considers this murder or not, I think it's fair to say the shooter is morally bankrupt. If the law does not consider him a murderer, then the law is also in some moral trouble. Assuming the opening post is accurate.

 

[EeneyMinnieMoe]

Could be both?

More likely, he's one of those nosy neighbors who is also the one who calls the cops if your dog barks more than twice in a month.

I can't imagine who would take it upon themselves to intervene like this. Most people would be hesitant to even call the cops if they saw a mugging in bright day light.

I've never been a witness to a crime so I can't say for certain what I'd do in that situation - probably call 9/11 and stay around until the cops and my neighbor arrived - but I know what I wouldn't do and that would be disregard a emergency line operator and play cops.

 

[quixotecoyote]

I can't imagine who would take it upon themselves to intervene like this. Most people would be hesitant to even call the cops if they saw a mugging in bright day light.

I've never been a witness to a crime so I can't say for certain what I'd do in that situation - probably call 9/11 and stay around until the cops and my neighbor arrived - but I know what I wouldn't do and that would be disregard a emergency line operator and play cops.

On multiple occasions when I was living in Kansas City I witnessed fights/beatings. I would call the police and keep driving/walking. Usually one person would gain the upper hand and just keep throwing punches into the other guy lying on the ground. I never directly intervened. I don't engage in streetfights on a regular basis and its obvious that at least some the people involved did. Of course with the 10-20 minute hold times on 9/11 calls, I doubt I did much good.

The only time I ever tried to intervene was completely unsuccessful. I was getting some spiced mead from a liquor store in Midtown KC and as I walked out to the car, I heard a woman's voice screaming "Help! Rape!" over and over from what sounded like a good distance past a tall cement wall in the lot. I called the police on the cellphone and waited on hold. About 5-10 minutes later, the voice started getting fainter like she was being dragged away, so I tried to go around the wall in the parking lot to find out exactly where she was. By the time I got around the wall I couldn't pinpoint the direction of the voice anymore and I didn't know which direction to go. Then it stopped.

TWENTY MINUTES after I called a dispatcher answered the phone and asked what the emergency was. I was quite rude (although it probably wasn't the dispatcher's fault) and told her that a woman had been screaming for help twenty minutes ago near the liquor store parking lot, but now it was over.

That was when I realized exactly how useless the police are for individual protection. I may disagree with the gun-nuts on a lot of things, but they are completely right when they say the people are not capable of providing protection on a per citizen basis.

 

[shuize]

While I have little sympathy for the burglars killed in the act, I think the shooter in this case is in deep trouble.

Absent his call to 911 and specific statements to the dispatch operator as to his plans he might have had a better chance of avoiding prosecution. As it stands, I don't see how he can avoid facing trial.

ETA: Re-reading the article, the shooter seems to say the burglars came on to his property. If so, that might change things. Even if he originally wrongfully intended to protect his neighbor's property by shooting them, he has a much better argument if they approached him or came on his property.

 

[Elizabeth I]

Doesn't it say somewhere in the Texas constitution that "he needed killin" is a valid defense?

No, but it should.

 

[EeneyMinnieMoe]

On multiple occasions when I was living in Kansas City I witnessed fights/beatings. I would call the police and keep driving/walking. Usually one person would gain the upper hand and just keep throwing punches into the other guy lying on the ground. I never directly intervened. I don't engage in streetfights on a regular basis and its obvious that at least some the people involved did. Of course with the 10-20 minute hold times on 9/11 calls, I doubt I did much good.

The only time I ever tried to intervene was completely unsuccessful. I was getting some spiced mead from a liquor store in Midtown KC and as I walked out to the car, I heard a woman's voice screaming "Help! Rape!" over and over from what sounded like a good distance past a tall cement wall in the lot. I called the police on the cellphone and waited on hold. About 5-10 minutes later, the voice started getting fainter like she was being dragged away, so I tried to go around the wall in the parking lot to find out exactly where she was. By the time I got around the wall I couldn't pinpoint the direction of the voice anymore and I didn't know which direction to go. Then it stopped.

TWENTY MINUTES after I called a dispatcher answered the phone and asked what the emergency was. I was quite rude (although it probably wasn't the dispatcher's fault) and told her that a woman had been screaming for help twenty minutes ago near the liquor store parking lot, but now it was over.

That was when I realized exactly how useless the police are for individual protection. I may disagree with the gun-nuts on a lot of things, but they are completely right when they say the people are not capable of providing protection on a per citizen basis.

Oh, man, I'm very sorry to hear that. At least you did the right thing. I've had experiences like that, too, with the police and with passerby.

As a matter of fact, I once was mugged at knifepoint in broad daylight with three pals from school by a gang of thugs, in a very public place in a public park, with dozens of people around and no one called the police.

You know that look people give you when they see you in trouble? They're walking and talking but drop everything they are doing and stare. Only when you try to make eye contact with them or signal them, they exchange glances with each other and look determinedly straight ahead of them and start walking faster.

We were eventually rescued by the park security guards or employees or whoever they are- don't know whether they saw us and intervened or were alerted.

Someone pointed out to me that the passerby could have not intervened because they had no way of knowing a mugging of four innocent kids was going on and that for all they knew, it was two groups of kids having a fight. Like you said, it could have looked like there was no need to intervene. And it's true, the park security at first treated us like criminals, too, and actually wanted to hold us for questioning.

Here's a horrifying story very much like that, if you want to hear it.

My father works at an apartment building near Central Park and there was this tenant, I believe she was an elderly divorcee, who was always giving her neighbors and the building staff a really hard time, constantly making trouble for everyone. So no one seemed to really miss her when she apparently went on vacation again.

The building staff just noticed that things suddenly seemed to be unusually peaceful and quiet- in retrospect, they were pretty surprised she wouldn't have told them she was leaving but they didn't give it much thought.

About two weeks later, the next door neighbors noticed a bad smell coming from the apartment and the woman's cats meowing and scratching.

So the building staff called 911 three times to explain the situation and got nothing for over two hours. No car, no ambulance, nothing. I don't think they ever did come.

The building staff took it upon themselves to force the door open but naturally no one went in and the boss finally flagged down a police car off the street. Even so, he had to practically pull their teeth to get the police officers to come over. They didn't even seem to register that someone had died in the building- they were even joking about not going into the apartment because it smelled.

Unbelievable. How can you call to say you have found a dead body and get no response?!