Custody killing

[PAMFAM10]

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Thoughts 

[LumRaiderFan]

The guy didn’t seem to be a physical threat, I didn’t see a need to bring a gun out.  I have no problem with protecting your family and property with a gun but it looked like they could have called the police and waited.  BUT, I only saw a minute of video, have no idea of the history there.

[tvc184]

Going only by the video, it looks like murder to me.

This was in Texas. If the husband was trespassing, the homeowner/boyfriend has the right to tell him to get off of the property and can use force to remove him. Deadly force however is not allowed to remove a trespasser in Texas.

Pointing a gun at someone or threatening them with a gun when there is no lawful authority to do so is a crime. It looks to me like the boyfriend coming out with a gun is a crime. If it is a crime, that negates the ability to claim self-defense in Texas.

And this is part of the wording copied from section 9.31 of the Texas Penal Code under self-defense. 

“(2) did not provoke the person against whom the force was used;

and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone;”

 You can see that you can’t claim self defense is you: (1) Provoke the incident (2) Be violating any law except a traffic citation and (3) It can’t be in response to verbal provocation.

Texas law lists two kinds of force. It can be force or it can be deadly force. If “force” only is allowed it will simply say that. The law will say something like, a person may “use force if”….. In other situation it will use the phrase that a person may use “ force or deadly force“. 

This is the section of Texas law on using force against a trespasser.

”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.”

You can remove the person by force by using the amount of force you believe is necessary. It does not use the term deadly force. I don’t know how many times I have seen people claim that you can shoot somebody for trespassing in your yard. I have never seen any such provision in Texas or any other state law. I’ve been to many calls over the years where a person was trespassing on a store property. This was after management told the person to leave and the person either refused or returned later. Apparently under some peoples’ opinion, the manager could pull out a pistol and killed a person for trespassing. Uhhhhhhh…….. no.

There may be more evidence like maybe their husband called the boyfriend and said I’m on the way over to the house and I’ll have a pistol on me and I will kill you. So maybe he made a terroristic threat or a threat to kill the boyfriend. That can certainly change the outcome.

Just going by the video, I don’t understand under Texas law what allows you to threaten a person with a firearm because you’re mad or because they are trespassing. What will the district attorney or grand jury do? Who can tell? I did not read the article listed in the OP but read two or three other articles how about this incident. I think it said that the boyfriend was a relative of a judge or something like that. I am thinking, uh oh, here we go with another Ahmaud Arbery like a situation where the district attorney was indicted by the state police for covering up evidence that tended to show guilt by a former (I believe retired) police officer in that same county.

Going just by the video, it appears in my opinion to be murder. I would not hold my breath waiting for that outcome in Lubbock Texas however.

[BMTSoulja1]

Looking at the video, the victim was told to leave while being approached with a gun.  He refused and then tried to take the gun from the gunman.  He then made threats that he would kill him.  IMO, and I hate to say this, but the father asked for this to happen.  Especially since the mother of the kids was not even there.  Seems more like a bravado thing instead of actually just wanting to get his kids since it was know that she had an affair.  

[tvc184]

54 minutes ago, BMTSoulja1 said:

Looking at the video, the victim was told to leave while being approached with a gun.  He refused and then tried to take the gun from the gunman.  He then made threats that he would kill him.  IMO, and I hate to say this, but the father asked for this to happen.  Especially since the mother of the kids was not even there.  Seems more like a bravado thing instead of actually just wanting to get his kids since it was know that she had an affair.  

That is akin to a sexy woman walking down a lonely street at night, is asking to be sexually assaulted. To some extent that true.  I get the idea that some people do things that are not smart. That does not make them on the wrong side of the law however.

I am making no prediction how this will come out except I think there are politics involved but…

Once a person makes an illegal threat and the object of the threat is not violating a law, it is that other person who has the right to self-defense and to stand his ground. 

 

[bullets13]

Looked like murder to me.  Dude shot between his feet, and the guy actually grabbed the gun for leverage and pushed the shooter away.  The shooter was well clear of the victim, who didn’t appear to be moving towards him when the shots were fired.  

[thetragichippy]

On 11/27/2021 at 1:27 PM, tvc184 said:

Going only by the video, it looks like murder to me.

This was in Texas. If the husband was trespassing, the homeowner/boyfriend has the right to tell him to get off of the property and can use force to remove him. Deadly force however is not allowed to remove a trespasser in Texas.

Pointing a gun at someone or threatening them with a gun when there is no lawful authority to do so is a crime. It looks to me like the boyfriend coming out with a gun is a crime. If it is a crime, that negates the ability to claim self-defense in Texas.

And this is part of the wording copied from section 9.31 of the Texas Penal Code under self-defense. 

“(2) did not provoke the person against whom the force was used;

and (3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used. (b) The use of force against another is not justified: (1) in response to verbal provocation alone;”

 You can see that you can’t claim self defense is you: (1) Provoke the incident (2) Be violating any law except a traffic citation and (3) It can’t be in response to verbal provocation.

Texas law lists two kinds of force. It can be force or it can be deadly force. If “force” only is allowed it will simply say that. The law will say something like, a person may “use force if”….. In other situation it will use the phrase that a person may use “ force or deadly force“. 

This is the section of Texas law on using force against a trespasser.

”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.”

You can remove the person by force by using the amount of force you believe is necessary. It does not use the term deadly force. I don’t know how many times I have seen people claim that you can shoot somebody for trespassing in your yard. I have never seen any such provision in Texas or any other state law. I’ve been to many calls over the years where a person was trespassing on a store property. This was after management told the person to leave and the person either refused or returned later. Apparently under some peoples’ opinion, the manager could pull out a pistol and killed a person for trespassing. Uhhhhhhh…….. no.

There may be more evidence like maybe their husband called the boyfriend and said I’m on the way over to the house and I’ll have a pistol on me and I will kill you. So maybe he made a terroristic threat or a threat to kill the boyfriend. That can certainly change the outcome.

Just going by the video, I don’t understand under Texas law what allows you to threaten a person with a firearm because you’re mad or because they are trespassing. What will the district attorney or grand jury do? Who can tell? I did not read the article listed in the OP but read two or three other articles how about this incident. I think it said that the boyfriend was a relative of a judge or something like that. I am thinking, uh oh, here we go with another Ahmaud Arbery like a situation where the district attorney was indicted by the state police for covering up evidence that tended to show guilt by a former (I believe retired) police officer in that same county.

Going just by the video, it appears in my opinion to be murder. I would not hold my breath waiting for that outcome in Lubbock Texas however.

So you can use force to remove someone from your property, just not deadly force. If the person you are trying to remove escalates the force to over power you, since you provoked the initial force, is deadly force off the table and you have to take the beating if it gets that serious? 

I like these conversations, as many have no clue and do not read up on the law, just take Facebook advice. 

[bullets13]

33 minutes ago, thetragichippy said:

So you can use force to remove someone from your property, just not deadly force. If the person you are trying to remove escalates the force to over power you, since you provoked the initial force, is deadly force off the table and you have to take the beating if it gets that serious? 

I like these conversations, as many have no clue and do not read up on the law, just take Facebook advice. 

No, if you're using legal force to remove someone off of your property and they escalate it to a point where you can reasonably fear for your life or safety, you'd be able to use deadly force at that point.  If you start off with threatening deadly force, thus committing a crime, you can't then argue self-defense if it escalates.  TVC can correct me if I'm wrong, but i'm pretty sure I'm right.

[tvc184]

37 minutes ago, thetragichippy said:

So you can use force to remove someone from your property, just not deadly force. If the person you are trying to remove escalates the force to over power you, since you provoked the initial force, is deadly force off the table and you have to take the beating if it gets that serious? 

I like these conversations, as many have no clue and do not read up on the law, just take Facebook advice. 

The way you’re asking, deadly force is usually not off of the table. I guess technically it might never be completely off the table under certain circumstances. 

In one scenario it seems like it would not be allowed but I guess technically even then it could. For example a man goes into a store with a gun and he’s committing an armed robbery. By Texas law anyone can use deadly force to stop that robbery in progress if it was reasonably necessary. The robber  in that situation does not have the right to use self-defense and if he kills someone during that robbery, it is capital murder and death penalty eligible. In other words, he cannot pull a gun on you and when you pull a gun in self defense, he has no right to self-defense.  But…

What if the robber surrenders, throws down his gun and lays on the floor so you can make a citizen arrest? In anger you run up and start kicking him in the head and risk killing or seriously injuring him. Would he have a right to self-defense at that time since he has surrendered? I believe so.

Texas law on self-defense says that you cannot resist arrest from a police officer even for an unlawful arrest however, you can resist arrest if the officer is using more force than is necessary and the suspect did not offer resistance. The law in Texas generally says that you cannot resist arrest  no matter what, even it the arrest is unlawful (made without probable cause), unless… for example the officer says you’re under arrest and you say sure, turn around and put your hands behind your back and he walks up and starts beating you in the head with a baton. He is now using deadly force against you when you offered no resistance and you have the right to defend yourself. I have seen cases where people used force and sometimes even killed an officer and it was ruled  justified.

So, never say never.

In the situation that you ask about, removing a trespasser, like all cases in depends.  in my opinion, playing the What If game….

What if you order a man off of your lawn and be voluntarily leaves? Can you run up and start beating on him? My opinion no. He has offered no resistance and he’s leaving like you ordered. By the same reasoning, the man is voluntarily leaving and you run up behind him and try the stab him with a knife. Can he use deadly force to protect himself? I believe so. For trespassing in Chapter 9 of the Penal Code it says you’re allowed to use force to remove a trespasser. That means that your use of force is legal if necessary to remove the trespass. He is breaking the law by trespassing and has no self-defense claim to assault you. So the guy is trespassing and you grab him by the arm, pin it behind his back and start to shove him off of your property. He then pulls a gun and in my opinion he’s not justified because he is the one committing the crime of trespassing and you are using legal force to  remove him. Can you then defend yourself with deadly force? I think almost assuredly, yes. At that point the scenario changes. You’re not using deadly force to remove a trespasser, you are using deadly force to protect yourself which is a different section of the chapter. The use of force against trespassing has ended and now you’re under that different section which is a threat upon your life. I guess in the purest technical sense, you could never use deadly force to stop a trespasser however the trespasser might unlawfully escalate it and you are no longer under the section of the force for  trespassing but under the different section of defense of a person.

Clear as mud? 

I could make it a lot shorter by saying that if under the law you’re legally using force in self-defense and the other person tries to kill you, you are allowed to use deadly force to protect yourself. Whether you’re using that legal force to protect your property from trespassing, yourself from assault or even another person from assault (all justified in Chapter 9), the guilty person committing the crime generally has no such right. 

[thetragichippy]

4 minutes ago, tvc184 said:

The way you’re asking, deadly force is usually not off of the table. I guess technically it might never be completely off the table under certain circumstances. 

In one scenario it seems like it would not be allowed but I guess technically even then it could. For example a man goes into a store with a gun and he’s committing an armed robbery. By Texas law anyone can use deadly force to stop that robbery in progress if it was reasonably necessary. The robber  in that situation does not have the right to use self-defense and if he kills someone during that robbery, it is capital murder and death penalty eligible. In other words, he cannot pull a gun on you and when you pull a gun in self defense, he has no right to self-defense.  But…

What if the robber surrenders, throws down his gun and lays on the floor so you can make a citizen arrest? In anger you run up and start kicking him in the head and risk killing or seriously injuring him. Would he have a right to self-defense at that time since he has surrendered? I believe so.

Texas law on self-defense says that you cannot resist arrest from a police officer even for an unlawful arrest however, you can resist arrest if the officer is using more force than is necessary and the suspect did not offer resistance. The law in Texas generally says that you cannot resist arrest  no matter what, even it the arrest is unlawful (made without probable cause), unless… for example the officer says you’re under arrest and you say sure, turn around and put your hands behind your back and he walks up and starts beating you in the head with a baton. He is now using deadly force against you when you offered no resistance and you have the right to defend yourself. I have seen cases where people used force and sometimes even killed an officer and it was ruled  justified.

So, never say never.

In the situation that you ask about, removing a trespasser, like all cases in depends.  in my opinion, playing the What If game….

What if you order a man off of your lawn and be voluntarily leaves? Can you run up and start beating on him? My opinion no. He has offered no resistance and he’s leaving like you ordered. By the same reasoning, the man is voluntarily leaving and you run up behind him and try the stab him with a knife. Can he use deadly force to protect himself? I believe so. For trespassing in Chapter 9 of the Penal Code it says you’re allowed to use force to remove a trespasser. That means that your use of force is legal if necessary to remove the trespass. He is breaking the law by trespassing and has no self-defense claim to assault you. So the guy is trespassing and you grab him by the arm, pin it behind his back and start to shove him off of your property. He then pulls a gun and in my opinion he’s not justified because he is the one committing the crime of trespassing and you are using legal force to  remove him. Can you then defend yourself with deadly force? I think almost assuredly, yes. At that point the scenario changes. You’re not using deadly force to remove a trespasser, you are using deadly force to protect yourself which is a different section of the chapter. The use of force against trespassing has ended and now you’re under that different section which is a threat upon your life. I guess in the purest technical sense, you could never use deadly force to stop a trespasser however the trespasser might unlawfully escalate it and you are no longer under the section of the force for  trespassing but under the different section of defense of a person.

Clear as mud? 

I could make it a lot shorter by saying that if under the law you’re legally using force in self-defense and the other person tries to kill you, you are allowed to use deadly force to protect yourself. Whether you’re using that legal force to protect your property from trespassing, yourself from assault or even another person from assault (all justified in Chapter 9), the guilty person committing the crime generally has no such right. 

That actually did make sense! - Thanks