tvc184

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…

That is an interesting take on it. The question then becomes, does violence have to occur before any disturbing the peace or (as Rupert suggested), inciting a riot? Again, not saying that you are right or wrong but these types of questions come up in cases and in fact in front of the Supreme Court. If you ever listen to the arguments, sometimes you were hear a justice ask something like…. well if that is true does that mean blah blah?

What if he is not arrested for inciting a riot but for disturbing the peace for the words he used and location? The Supreme Court has stated that no words can be banned. Situations can be. Both state and federal courts have ruled that flipping the bird at the police for example, is free speech. In a recent case from 2021 the US Supreme Court ruled that a student going on an F bomb rant on social media had her rights violated when she was kicked off the cheerleading squad. She was on the JV squad but missed the varsity squad so she did her snapchat tirade saying to xxxx school, softball, cheerleading, etc. She was kicked off of the JV squad for violating school rules. SCOTUS in Mahanoy v. BL in an 8-1 decision said that her free speech was violated because although she said her comments about “school”, “softball”, etc., she never demeaned her school, teachers and so on . It was just a non-specific screw everybody rant. [Hidden Content] So under inciting, what if it was a pro Trump supporter who was simply standing there in public saying that Trump is great? A crowd gathers and starts throwing rocks. Does the Trump supporter go to jail for inciting? If so, any free speech can be negated simply by causing violence against the free speaker. So, I am not saying that you are wrong but wanted to make those legal positions known. Any reconsidering or anyone else want to comment?

A pastor decides to start preaching from a sidewalk in public. He is using his First Amendment rights of freedom of speech, freedom of religion and freedom of assembly. Some people don’t like what he is saying (remembering that the very intent of freedom of speech is to be able to offend people). They start yelling at him and he starts calling all organized religion a racket. People get angry and call the police. They hear the man say that they are a bunch of damned fascists. He accuses the people in the crowd as being damned racketeers. The police get tired of his nonsense and arrest him for disturbing the peace. Is it freedom of speech, assembly and religion therefore a violation of First Amendment rights or a lawful arrest?

If I haven’t told this one before…. Two guys are golfing and two women are in front of them playing slow. One guy says that he will run up there to see if they will let them play through. He runs about 100 yards toward the women but comes right back. He tells the other guy that he can’t go up there, one is his wife and one is his girlfriend. The second guy tepeats the same process. The first guy asked what happened. The second guy said… “Small world ain’t it”.

Professional courtesy. Not personally but seen it on YouTube. Most issues are between the police and firefighters. I was going to put an EMS driver in jail over time but I screwed up and called my sergeant to tell him my intentions because I was sure it would generate a complaint. EMS heading south on Memorial Blvd in PA blew the red light at Gulfway Dr. As you know, a 6 lane highway crossing a 4 lane highway…. and there was traffic. Like moderate and leaning toward heavy traffic about 8pm. He bottomed out hitting the hump on Gulfway Dr., probably 80-85 mph. The emergency call on Proctor St? A sprained ankle. I did not interfere with his call or the trip to the hospital. That is when I called my sergeant and let him know my intentions. Instead I his an arrest my sergeant wanted me to discuss it with him and he would call the EMS supervisor. I had a rather terse discussion with the driver about an arrest for Reckless Driving, carrying up to 30 days in the hoosegow. Speeding? I don’t care. If this guy had been two seconds earlier or later, he might have been going to prison for manslaughter.