tvc184

I had a call one day about child abuse. Two children called to say that their father was abusing them. They were about 12 and 14. At school they were told by their teacher that it was illegal for a child to have pain inflicted on them in Texas even if it was for punishment. So they went next-door to the neighborhood and called the police and I showed up. When I arrived, the two children went back home next-door and the father came out and started talking. As a general rule, I at first speak (or used to ) with the person who called the police. People that did not call always want to step in and certainly the officer could listen to that side of the story first if he wishes. So the children ran down the story to me. Their father spanks them for punishment and the teacher was talking about the law and said that was illegal. They wanted something done. I asked if they ever had any broken bones or serious bruises, requiring medical attention or anything of that sort. They said no injuries except pain (which is considered an injury in Texas just as much as a bruise or laceration). The father, who had been very respectful and sat back and listened without interfering, then gave his side. Yes, he spanks then on occasion is corrective measures. “Is that a problem?” By Texas criminal law, can a teacher, parent, baby sitter, aunt who the children are with for the summer, etc., use corporal punishment if the intent is to correct an action if he believes that action might harm the child later in life? Example might be a parent catching his son stealing something or his daughter going to a dance after being told not to go.

While speaking of deadly force and/or a deadly weapon, by law is a knife a deadly weapon? A pen? A piece of paper?

Yes it does for the sake of this discussion. It is identical, the use of deadly force in defense. The law doesn’t say shoot but that was the scenario I started with. The law says deadly force. A baseball bat, knife, gun… to stop the unlawful action.

So if the question is, under Texas law can you use force or deadly force to protect your own property or the property of another person if certain circumstances are met, the answer is yes. I would not do it to protect a third person’s property and I probably would not do it to protect mine, but I can understand the anger factor of seeing someone run away with your property. I am sure that any lawyer would recommend not using deadly force in such a situation, even if it is lawful. Otherwise the lawyer might be defending you in court.

Now that I have more time: Part 2 What about my question about a neighbor’s property or the property belonging to a “third person”? It reminds me of the talking heads on CNN about 15 years ago when Joe Horn shot and killed two guys breaking into the neighbor’s home. If I remember correctly, the neighbors had just moved in and Horn didn’t know them. The guys broke into the neighbor’s home in daylight (I think) and Horn called 911. He told the dispatcher that he had a gun and wasn’t going to let them get away. The dispatcher told him several times to put the gun down and don’t go outside. So Horn went out to confront them and them killed both. The thing about that story was the CNN story about the incident while it was nationwide news. One of the lawyers said something like, everyone knows that you could never shoot somebody to recover property. Another lawyer on the panel said something like, apparently you’ve never read Texas law. Back to the question…. We went over the Penal Code 9.41 and 9.42 on force and deadly force to protect your own property. Now let’s check out 9.43. Sec. 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and: (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or (2) the actor reasonably believes that: (A) the third person has requested his protection of the land or property; (B) he has a legal duty to protect the third person's land or property; or (C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child. The section starts out with a sentence that says you can use force and deadly force to protect the property of a “third person”. Before we delve into this further, you can see that deadly force to protect another person’s property is in some circumstances, lawful. What are those circumstances listed above. In the first sentence it says that a person is justified in using force or deadly force to protect the property of another person if “he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property“. So it begins with saying that he can protect another person’s as if it was “his own land or property”. AND…. If the conditions in (1) or (2) exist. Note the “or” between (1) and (2). That means that (1) and (2) stand alone. Each gives a different justification for using the force. (1) says, if the actor (the person using deadly force) “reasonably believes” that the action constitutes attempted or consummated theft or criminal mischief of tangible, movable property. The law says that you can protect a third person’s property as if it was your own and you “reasonably believe” it was “immediately necessary” (described in 9.41 & 9.42). OR…. (2) The actor (the person using deadly force) reasonably believed that (A) the third person requested it OR (B) he had a legal duty (security?) OR (C) it belonged to your parents, child or spouse. I guess if one of those people was at work and you went by to check on the house he saw one of the listed situations, you could use the force needed. So: (1) (2)(A) (2)(B) or (2)(C) …are listed in the Penal Code as justifications to use deadly force to protect the property of another person.

Part 1, self defense of your own property. I am not suggesting nor recommend any of the following. It should not be taken as legal advice but merely a discussion of the Texas law on defense of property, I am going to quote and explain what I believe the law says. Texas in self defense lists and distinguishes between “force” and “deadly force”. They are two separate terms, for example the law says that a person may use “force” to remove a person trespassing. You can’t then kill a trespasser and justify it legally if you say, “the law says I can use force”. Force? Yes. Deadly force? No. They are different. To protect your own property? SUBCHAPTER D. PROTECTION OF PROPERTY Sec. 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. We can see in 9.41 that you can use force to protect your property by removing the suspect from the property or use force to stop the unlawful interference….. in other words, to get your property back or stop it from being taken. That section does NOT mention deadly force. So can you use deadly force to protect your property? Sec. 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 to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury. This one is a bit more detailed because it lists circumstances that justify deadly force. First you had to have the right to protect your property under 9.41 that was previously discussed. Basically someone is unlawfully taking your property. Then… one of the following circumstances. You can use deadly force “when and to the degree he (meaning you) believes that deadly force is immediately necessary”: So it is a “reasonable belief” (your opinion) that deadly force was “a immediately necessary”. It should be viewed (with the same concept of the police use of force) from the perspective of the person using the force. After all, it is your reasonable belief when faced with the situation. But deadly force to prevent what? That is listed in (2)(A), to prevent the commission of 1. Arson 2. Burglary 3. Robbery 4. Aggravated Robbery 5. Theft during the nighttime or 6. Criminal Mischief (vandalism) during the nighttime. So….. if you reasonably believe that deadly force is immediately necessary to stop any of the listed crimes, it is justified. A huge point however. A grand jury will likely be and a trial jury might potentially be sitting in judgment if it was reasonable from your perspective. Examples. You are physically fit 30 year old man and witness your 14-year-old 110 pound neighbor going into your garage to steal some which is committing a burglary. Would it be a reasonable belief from your perspective that the only way to stop reasonably stop that was deadly force? I’m going to say that you would have a difficult time (nearly impossible?) trying to explain that you had a reasonable belief that killing that small 14 year old was the only way to stop it. What you are a 65 year old man who has had covid and can no longer walk more than a few steps without gasping for breath? What if the neighbor was a 16 year old 220 pound starting linebacker on his high school football team? What if you are an average sized woman? Those things matter. The grand jury will look at the facts and in my opinion and like I stated, the law says it is from your perspective (stated that you reasonably believe). Another point of law is that self-defense is considered a “defense to prosecution” under state law. Without going into too deep of that discussion….. if evidence of self-defense is submitted to a trial jury, the district attorney has to prove beyond a reasonable doubt that you had no such reasonable belief. So if a juror thinks, I am not sure if that was immediately necessary, that is not beyond a reasonable doubt. “Not sure” pretty much should end a criminal case. To put it into an easier perspective, a person doesn’t have to prove self defense. The state has to prove that it wasn’t self defense. But what if the person has already committed the crime and is fleeing? That is under (2)(B) and (3)(A) or (B). Again, if it is your “reasonable belief” that (3)(A) a property would not likely be recovered by other means (an unknown person is running away with your property and you can’t catch him?) or (3)(B) if you try to stop the person, it would expose you to a risk of serious injury or death. So a woman chasing the 220 linebacker or the fit 30 year old chasing the skinny 14 year old kid? Not to mention, if you recognize the 14 year old neighbor, would it be reasonable to believe that you could not get your property back by other means? When not just go next-door, knock on the door and tell daddy that his 14-year-old just stole a bicycle out of your garage? Remember that is the questions that a grand jury and possibly a trial jury will be answering. So there you have it. In Texas under some circumstances you can use deadly force to protect property only. If nothing else, when you hear people make arguments that it is never legal to protect property with deadly force, that is absolutely incorrect under Texas law. In 9.42 above it basically says… oh yes you can. But what about another person’s property,…..

Yes, shoot the guy going over the neighbor’s fence with the neighbor’s property.

So it would be unlawful and Murder?

Your neighbor is out of town. You have spoken a time or two but you really don’t know each other. During daylight hours you hear glass break at the neighbor’s home. You grab your gun and go outside to investigate. You get to the back of the neighbor’s home and find that the glass patio door has been broken out. A couple of moments later a guy comes out through the broken door with a pillowcase full of items from inside the house. The suspect starts running toward the back 6 foot privacy fence with the pillowcase still in hand. He has no obvious weapons and has not made a threat but being kind of elderly and overweight, you know that he is going to get away. You shoot the suspect in the back to keep him from getting away with the property of the neighbor, that you barely know. 1. You barely know the neighbor 2. The neighbor did not ask you to look out for his house (or would that matter) 3. It is in daylight 4. The suspect is apparently unarmed and has made no threat and; 5. The suspect appears to escaping with property only If the facts as I presented them appear to be true, could deadly force in such a situation to be lawful?

As far as a bar, I have put several people in jail for firearms in one. They just don’t make the news. In Jefferson County there are probably 12,000 arrests per year. How many make the news?

The point of hating the gun free zone is that it benefits no one but a criminal. Anyone that feels safe because a sign says it is safe, hasn’t been paying much attention. All the gun free zones do is to keep honest people from being there with a firearm for fear of being a felon. A criminal bent on mayhem has no such fear because he wants the outcome that he is likely to happen. Laws have two main purposes. One is a deterrent and the other is punishment if the deterrent didn’t work. Most people have a fear of being caught in a criminal act whether it’s a serious crime or a speeding ticket. They don’t want to do time in prison but they also don’t want to pay that $250 speeding ticket. Laws and logic simply don’t apply to a person who has decided to commit a mass murder.

What can such a law prevent? What can such a law cause?

The part you quoted was on gun free zones. Those have to be the biggest folly in any active shooting whether at a school, mall, etc. If a person is intent on carrying out an attack that will either end his life (mostly likely scenario) or life in prison or the death penalty…. what will a sign do? It is like a politician believes that such a person would think…. Gee, I was going to carry out this horrific and evil attack on dozens of innocent people but now I can’t because a sign told me that I can’t carry a gun. Every school shooter committed a felony when he/she walked into the school with a firearm and before the first shot was ever fired at a person. A sufficiently hardened target may push a person on to another set of victims at another location. It may reduce the casualties…. or it may increase them.

Laws such as gun free zones and trespassing aren’t worth the paper they are written on as far as stopping a violent attack.

Okay. When I was talking about trespassing, I didn’t know that you were implying an active shooter. There is nothing in criminal law that I am aware of that can stop a person with an obsession and the time to plan.

There is no enhancement for C misdemeanors in general and none for trespassing on school grounds. If there was then it would be listed in the same section that I posted. Usually the law is phrase something like… It is a C misdemeanor, however with a prior conviction, will become a B misdemeanor. A C misdemeanor by law usually carries no future burden however… (remember lex specialis) there are specific laws such as any degree of theft can be enhanced to a felony. So, if a person steals a television from Walmart and gets convicted of a class B misdemeanor and then a couple of years later gets caught doing the same thing. That is two prior convictions. If the person then gets caught stealing a $1 pack of gum after that, the district attorney has the option of filing felony charges for the $1. It is technically not a class C misdemeanor being enhanced but the theft law, which says any theft can become a felony with two prior convictions. With what you mentioned, if there is intent to commit another crime then it would likely be another and more serious crime. Stalking, Assault, weapons on school property, etc. Even in the trespassing situation at a school, according to what happened, an officer might have additional charges as options. Examples would be if the person is yelling profanities then it could be disruption of a class or disorderly conduct such as discussed under the Chaplinsky case. Those are still both C misdemeanors however just as an example, there are often more than one law violated. If the person is on school grounds doing something more serious than just yelling then there’s a good chance of a more serious crime. An example of that would be if a guy beats up his ex girlfriend. Under Texas law that would be covered under Family Violence (called “Domestic Violence” in most states). In such a case, the victim could get a Protective Order (people often call it a restraining order which is incorrect) on the suspect. The Protective Order could restrict the suspect from being on school grounds where the victim attends school. In that case to go on school grounds would not be a trespass, but Violation of Protective Order. I could be up to a year in jail and a $4,000 fine. What may be interesting in a Protective Order is that it is a mandatory arrest for the violation if it occurs in the presence of a police officer. An officer is not required to make an arrest even in a murder but is absolutely required to make an arrest for the violation of a protective order if he witnesses the violation. Also a Protective Order can not be negated by the victim. If the girlfriend/victim makes up with her ex boyfriend but he has a Protective Order and is found to violate the order (such as being at a school) the victim cannot stop the mandatory arrest. If an officer fails to make the mandatory arrest, he violates the law and can personally be sued. That is just a single example but in such cases where the person is on school property to cause a problem, the class C misdemeanor trespass is probably the least of his worries.

Since there are no comments…. No, it is not correct that an officer can arrest for any crime witnessed even though there is a law that clearly says an officer can arrest for any crime within his presence or view. Lex specialis derogat legi generali means the specific over the general. You can translate that to mean that if there is a law (or part of a contract) that appears to conflict with another, the specific law is to be followed, not the general law. In this case you have a law that says an officer can arrest for any offense but in the Transportation Code (traffic laws are in that code) we have this: Sec. 543.004. NOTICE TO APPEAR REQUIRED: CERTAIN OFFENSES. (a) An officer shall issue a written notice to appear if: (1) the offense charged is: (A) speeding; (B) the use of a wireless communication device under Section 545.4251; or (C) a violation of the open container law, Section 49.031, Penal Code; and (2) the person makes a written promise to appear in court as provided by Section 543.005. So an officer cannot make an arrest for speeding, texting or open container of alcohol as long as the person agrees to sign the citation which is an arrest (on Texas) but a promise to appear in court to plea guilty or not guilty and ask for a trial. It has the effect of being arrested and signing yourself out of jail on your own recognizance since all traffic citations in Texas are considered an arrest. Another example of lex specialis is Trespassing in Texas is usually a B misdemeanor that carries up to 6 months in jail and/or up to a $2,000 fine. But if on school grounds, in the Education Code there is this: Sec. 37.107. TRESPASS ON SCHOOL GROUNDS. An unauthorized person who trespasses on the grounds of any school district of this state commits an offense. An offense under this section is a Class C misdemeanor. So trespassing on school grounds is only a C misdemeanor, carrying a maximum fine of $500 and no jail time. I am assuming this is like the angry momma law. A parent (or any person) is causing a disturbance at school because of an issue with a child and is asked to leave but stays to keep arguing. The problem has to be solved but do we really think that momma needs to spend 6 months in jail. Or perhaps an angry parent/person at a high school baseball game that refuses to leave after being thrown out by an umpire. So under the concept of lex specialis, trespassing at a business would be the B misdemeanor but there is a specific law for trespassing on school district grounds of a C misdemeanor and a fine only.

It makes for quick criminal justice.

An easy one…. Lex specialis derogat legi generali Using that Latin phrase as a guideline for this discussion: Texas has 30+ codes. Probably the most well known for most people is the Penal Code. That is most crimes that we normally think of like murder, theft, assault, cruelty to animals, DWI, trespassing, etc. There are other fairly common criminal offenses that are not in the Penal Code. Most traffic laws are in the Transportation Code. Possession of drugs like cocaine or marijuana are in the Health and Safety Code. While juveniles can be charged with any of those crimes just like an adult, how to handle them is in the Family Code, etc. For the police and prosecutors, probably the most important code is the Code of Criminal Procedure(CCP). While those other codes define what is a crime, there is nothing in those codes that say a person can be arrested, charged in a crime, how or when arrests can be made (particularly without a warrant), how charges are brought to court against a person, how much force can be used, what is allowed as evidence, when and how are confessions made and so on. So while the Penal Code says that it is a crime to assault a person, okay, then what? For that we have the CCP. Back to Lex specialis…. In the CCP in Chapter 14 is where it gives the circumstances to make a lawful arrest without a warrant. Right at the beginning we have the first section (14.01) which says: CHAPTER 14. ARREST WITHOUT WARRANT Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace. (b) A peace officer may arrest an offender without a warrant for any offense committed in his presence or within his view. In (a) it says that “any” person may arrest for an offense (crime) within his presence or view if it is a felony. That is the citizen’s arrest law. If any person witnesses a felony, he can lawfully make an arrest just as if a police officer. Presence or view in this case means that you don’t have to see it. View means that you actually saw a crime happen. But what if you didn’t actually see it? You heard glass break at 2:00am and looked around the corner of a closed business and saw a man with a hammer in his hand and broken glass on a store and getting ready to step inside to commit a burglary. Was it in your view? No. Was it in your presence? Yes. So in that case an arrest would likely be lawful. There was probable cause to make a reasonable person believe that a burglary was in progress, which is a felony, and it was within your presence. You were close enough to know that a crime happened. Also note that under citizen’s arrest is it lawful to make an arrest for a misdemeanor within a person’s view or presence if it’s a breach of the peace. That kind of goes back to the discussion on Chaplinsky but several crimes such as DWI have been ruled by courts as a breach of the peace. I am not suggesting by any imagination that people should go out and start trying to arrest other people. There are certainly certain circumstances that make it lawful, however. If you see an assault in progress feel compelled to step in, a citizen arrest might be lawful. But that wasn’t the question or comment that I had in mind. In (b) you can see that police (peace) officers can arrest for ANY offense within presence or view. So if an officer sees you driving a motor vehicle at night on a public roadway and your license plate light is out, he can arrest you without warning and take you to the county jail. In Port Arthur there is a city ordinance that if you cross a street not at a crosswalk, it must be straight across the road (crossing the roadway at less than 90°). So if you walk like a 45° angle across the street, you can be arrested even though it’s not a state crime but only a city ordinance. That is clear enough. If a cop, witnesses a crime, even the most minor of crimes, he can make an arrest. Right?

This was exactly Chaplinsky. What you call correctly, something is going to happen…. SCOTUS and state laws call a breach of the peace. And yes, the police got tired of his nonsense but used a lawful city ordinance to end it. Probably thousands of times every day police officers in this country are called to situations such as this. The most common response from the officers is, leave or shut up. There is no required warning to enforce the law yet I see (and have done) on hundreds of occasions where officers are demanding or practically begging people to stop. Just leave or just be quiet. Sometimes they don’t heed the warning. The police in Chaplinsky didn’t run in with handcuffs. They simply said be quiet and move on. They already had a valid criminal charge on him but like 99.8% of the time, they tried to end it without action. Chaplinsky wasn’t about to get his rights be stopped!

Disorderly Conduct might definitely be an issue face to face. It is not on a social media rant.

I would not speak for other police officers but I would believe that some (Most? All?) tend to be humored when people are standing in the middle of the street shouting, cursing, etc. and when told to be quiet… follow up with, “It’s my right!!”. The SCOTUS disagrees……

The Chaplinsky decision gave us “fighting words” or words that would cause an immediate breach of the peace. That is why I said in another comment, words cannot be banned but situation may be. This is a quote from the several pages of the decision: …… "fighting" words -- those which, by their very utterance, inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality."Resort to epithets or personal abuse is not in any proper sense communication of information or opinion safeguarded by the Constitution, and its punishment as a criminal act would raise no question under that instrument." Then this quote: . . The English language has a number of words and expressions which, by general consent, are 'fighting words' when said without a disarming smile. . . . [S]uch words, as ordinary men know, are likely to cause a fight. And: The statute, as construed, does no more than prohibit the face-to-face words plainly likely to cause a breach of the peace by the addressee, words whose speaking constitutes a breach of the peace by the speaker -- including 'classical fighting words,' words in current use less 'classical' but equally likely to cause violence, and other disorderly words, including profanity, obscenity and threats." It is not the words but the kind of in your face provocation that incites a breach of the peace or tends to start a fight. There is a line to be drawn on what is free speech and what may be a crime. So it is a protected right to get on a podium and say that Trump, Biden or any other public person is an idiot, should be jailed, is a low life piece of crap or whatever. While it will certainly make some people very angry, those are not funny words. It’s the same guy, giving a public speech, jumped off the podium and got in your face and started pointing his finger and saying, “YOU are a $&/£€ and your family is !-@%¥!!!!”…. those would likely be fighting words. Think of two guys on a corner in public chatting amongst themselves. They are using a racial slur towards each other in casual conversation. So they for example, calling each other Bob for the most offensive word you can think of for any particular group. It goes like…. “Hey Bob” “What’s up my Bob” Are they offended? Hardly or as we have heard, it’s a friendly word of endearment. But along comes a guy, typically from another culture, who points a finger and says… “Hey Bob! You are causing problems in our neighborhood” Would the same word(s) tend to be seen as harmless in one situation and fighting words in the other? Or a person gets on a loud speaker at 2:00am and starts yelling Vote Democrat! The whole neighborhood is now awake. Would that seem to cause an immediate breach of the peace? In that case it is not profanity, not slurs, not directed at anyone in particular and a purely protected political opinion. Breach of the peace? In my example in the first comment I made was about Chaplinsky preaching and giving an opinion publicly. It was not at 2:00am and probably on a busy street. People could simply ignore him and go about their business or engage him likewise . He is absolutely has that right. It goes south however when he starts shouting at people and starts calling them an offensive names such as damned fascists. Especially think of the time frame and the political atmosphere (I think 1940) with WWII having begun with the nazis and fascists trying to take over the world. All rights have limitations. The Supreme Court has unanimously decided that fighting words cross that line.

No permit is required to be assemble for a protest. That would be a violation of the First Amendment in my opinion. Cities can require a permit for things like a parade if a march would block the road. This particular case is Chaplinsky v. New Hampshire. The US Supreme Court decisión was unanimous. The criminal charges were upheld and he was not protected by the First Amendment. [Hidden Content]

It is somewhat correct (I am assuming from experience) that the police were tired of his nonsense. They used a criminal charge to end the disturbance. That is fairly common actually. Discretion is a major part of law enforcement and criminal justice which is okay as long as it is legal. This case of disturbing the peace (disorderly conduct) went all the way to the Supreme Court. Read on…