Off-duty North Carolina deputy who killed man who police say jumped on his truck

[thetragichippy]

Thoughts?

Personally I think he "jumped the gun"  a little quick, but at the same time, the guy made a pretty stupid decision to jump on a mans vehicle and act crazy with his family in the vehicle.....

 

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[bullets13]

It's really entirely impossible to say from the article, which gives basically no context as to what happened.  I can imagine scenarios where i'd shoot someone who jumped on my truck and scenarios where I would not.  This article leaves it all to those imaginary scenarios.  I do see that there are protests, which is not surprising, considering they have the same lack of information as I do at this point, so he "definitely did nothing wrong."

[thetragichippy]

22 minutes ago, bullets13 said:

It's really entirely impossible to say from the article, which gives basically no context as to what happened.  I can imagine scenarios where i'd shoot someone who jumped on my truck and scenarios where I would not.  This article leaves it all to those imaginary scenarios.  I do see that there are protests, which is not surprising, considering they have the same lack of information as I do at this point, so he "definitely did nothing wrong."

I have read other articles that give witness statements. The read in one he slowed down, a man jumped on his vehicle, started yelling, broke off one of his windshield wipers and banged it on his windshield......the off duty officer got out of his car and shot him. I agree, more questions, did he charge at the man when he got out, etc.....

Here is a better explanation based on the 911 call

 

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[CardinalBacker]

In Texas you have the right to defend your property with force...  I'm thinking that this would be justified in my mind, but I've been wrong before.  If you're trying to defend your property from continued criminal mischief at night, I think that you should be fine legally.  It's not prudent, and in my mind I probably wouldn't want to end somebody's life over my vehicle, but if my family (or like in the case of that guy with a horse trailer back in 2020 in a BLM riot) being threatened, I'd probably put somebody down. 

In texas anyways. 

TVC should weigh in.  

[tvc184]

1 hour ago, CardinalBacker said:

In Texas you have the right to defend your property with force...  I'm thinking that this would be justified in my mind, but I've been wrong before.  If you're trying to defend your property from continued criminal mischief at night, I think that you should be fine legally.  It's not prudent, and in my mind I probably wouldn't want to end somebody's life over my vehicle, but if my family (or like in the case of that guy with a horse trailer back in 2020 in a BLM riot) being threatened, I'd probably put somebody down. 

In texas anyways. 

TVC should weigh in.  

Generally in Texas it is lawful to use force but not deadly force to protect property.

Sometimes there is a misunderstanding of the words “force”. A law might say a person can use the force necessary.  That is different than deadly force necessary.

There are extremely limited reasons to lawfully use deadly force to protect property but they do exist.

The nighttime criminal mischief is many times overstated in my opinion. Deadly force is not legal to stop criminal mischief unless “property cannot be protected or recovered by any other means”. (Quoting Texas law)

If a person uses deadly force to stop teenagers from throwing toilet paper, that is probably murder.

If a person is breaking your windshield wiper, there had better be a high risk of you getting killed by trying to stop him or again, it is probably murder. The law doesn’t talk about speculation either. It goes by what is known to the person at the time who is using the force. For example at 12 year old kid “could” have a pistol and “might” kill you. If 12 your kid is throwing confetti in your yard, you cannot shoot him and say well I thought he might have a pistol. If he produces the pistol, that isa different issue. If you’re 5 foot 110 pound woman and there’s a 6’2” 220 pound man doing something, that might be a reasonable belief.

So far protection of property either from theft or criminal mischief the first requirement is it be during the night. The second requirement to make deadly force lawful is that there were not other reasonably means to stop theft or criminal mischief. If you could just yell at someone and scare them away, and that is what is “necessary”.

Remember that when a person uses deadly force, that person might be in front of a jury trying to explain why he killed someone in the nighttime for throwing eggs.

[CardinalBacker]

15 minutes ago, tvc184 said:

Generally in Texas it is lawful to use force but not deadly force to protect property.

Sometimes there is a misunderstanding of the words “force”. A law might say a person can use the force necessary.  That is different than deadly force necessary.

There are extremely limited reasons to lawfully use deadly force to protect property but they do exist.

The nighttime criminal mischief is many times overstated in my opinion. Deadly force is not legal to stop criminal mischief unless “property cannot be protected or recovered by any other means”. (Quoting Texas law)

If a person uses deadly force to stop teenagers from throwing toilet paper, that is probably murder.

If a person is breaking your windshield wiper, there had better be a high risk of you getting killed by trying to stop him or again, it is probably murder. The law doesn’t talk about speculation either. It goes by what is known to the person at the time who is using the force. For example at 12 year old kid “could” have a pistol and “might” kill you. If 12 your kid is throwing confetti in your yard, you cannot shoot him and say well I thought he might have a pistol. If he produces the pistol, that isa different issue. If you’re 5 foot 110 pound woman and there’s a 6’2” 220 pound man doing something, that might be a reasonable belief.

So far protection of property either from theft or criminal mischief the first requirement is it be during the night. The second requirement to make deadly force lawful is that there were not other reasonably means to stop theft or criminal mischief. If you could just yell at someone and scare them away, and that is what is “necessary”.

Remember that when a person uses deadly force, that person might be in front of a jury trying to explain why he killed someone in the nighttime for throwing eggs.

The whole thing is so subjective.  I watched the guy in the dually with his horses and family that ended up getting caught up in a riot and thought "I'd have probably opened fire" if they were mobbing my truck trying to injure my livestock, etc... That guy had his family and potentially his livelihood at the risk of that mob in broad daylight.  I'm probably shooting my way out of there if I'm that guy.  Same difference if I'm a truck driver and they start trying to yank my air hoses to disable my truck.... I'd rather be judged than get Reginald Denny'd. Daylight or not. 

 

This one is difficult... 

[tvc184]

20 minutes ago, CardinalBacker said:

The whole thing is so subjective.  I watched the guy in the dually with his horses and family that ended up getting caught up in a riot and thought "I'd have probably opened fire" if they were mobbing my truck trying to injure my livestock, etc... That guy had his family and potentially his livelihood at the risk of that mob in broad daylight.  I'm probably shooting my way out of there if I'm that guy.  Same difference if I'm a truck driver and they start trying to yank my air hoses to disable my truck.... I'd rather be judged than get Reginald Denny'd. Daylight or not. 

 

This one is difficult... 

The law is not subjective and is clear. Human opinion is absolutely subjective.

This was difficult because we really don’t know what happened.

 “What if” can give a lot of scenarios.

[SmashMouth]

Hey @tvc184, there have been a rash of 3/4 ton truck thefts in my area recently. If someone is stealing my truck out of my driveway, what rights and methods of force do I have to legally stop the theft as they are backing down the driveway in my truck?

[tvc184]

4 hours ago, SmashMouth said:

Hey @tvc184, there have been a rash of 3/4 ton truck thefts in my area recently. If someone is stealing my truck out of my driveway, what rights and methods of force do I have to legally stop the theft as they are backing down the driveway in my truck?

This is not legal advice but just telling you what I think the law says after almost 38 years in the business and being to probably over 150 homicide scenes. 

To use deadly force to protect property only from a theft, there are two requirements.

1. it has to be in the nighttime. AND

2. You had a reasonable belief that the property could not be recovered by other means OR trying to stop the person would expose you to a  substantial risk of serious bodily injury or death.

The same requirements apply to recovering property that was taken in a burglary, robbery or aggravated robbery except……

The difference is that those do not require to be taken place in the nighttime. The way I read that law says that for example you come home during the daylight and you found your home has been broken into. The person is still there and runs away and you can see that he has your wife’s purse in his hand. Again, if there is a reasonable belief that the property would not be recovered (in my opinion meaning that he gets away) or that trying to stop him with less the deadly force would expose you to a substantial risk of serious injury or death, then deadly force would be lawful. Entering your home unlawfully to steal something is a burglary. Now let’s say the exact same situation during the day but this time your wife left her purse on the porch. No entry was gained so it was just a theft and not a burglary. A daytime theft does not authorize deadly force in any situation. if that was true then a store owner could shoot a shoplifter running out with a pack of gum. So the only difference between these two situations is that the guy went into your home to steal a purse or he stayed outside and stole the same item. One might be seen as justified and the other might get your life in prison.

If a person has not displayed a weapon and you cannot see something that may be a weapon on him such as a handgun under a shirt, you might have a hard time claiming that the person posed a substantial risk to you. We can play what if with different scenarios such as he looked like a high school linebacker and a guy like me who 66 years old and overweight might be no match for him. That might bring a reasonable belief that he would be a substantial risk of seriously injuring me. If it is a guy that appears to be unarmed, is elderly and limps, it might be hard to say that he was a serious risk or going to get away. So it depends on the situation at hand. Is the person getting away with property a substantial risk or is it likely the person will get away with the property? If the answer is yes, then deadly force is likely lawful under Texas law… assuming it is nighttime or to stop a burglary or robbery.

Using the case of an aggravated robbery as an example (and again not legal advice), a guy pulls a gun or knife on you and takes your wallet and turns his back and runs. The  questions become, are you trying to recover property? Yes if he still has your property. If he throws it down then they use of deadly force is not lawful as you are  no longer trying to get your property back. If the answer is yes he still has it, would it expose you to the substantial risk of serious injury or death? I would say that the mere fact that he has a knife or a gun and just pulled it on you makes irt clear in my opinion that he poses a substantial risk and therefore deadly force is authorized.

This is the actual law…

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. 

What I can tell you about reading a law is, pay attention to “and” and “or”.  If you say the word “and”, then everything previous to that is required. If you see the word “or”, each part of the sentence or section of the law stands alone. So if a law says (a), (b) AND (c) then all 3 are required. If a law says (a), (b) OR  (c) then each stands alone. 

Examples from above.:

(2)(A) above does not require (B). It says to prevent the crimes listed under (A) … OR… (B) to prevent escape.

If one of those situations exists (only one is required since it says “or”), then you are required to also refer to (3) because after (2) it says “and” (3).

So…. 

For deadly force to be legal to protect property you must meet the requirements in (2)(A) or (2)(B) and the requirements in (3)(A) or (3)(B).

So here’s the legal options if these situations exist in my opinion….

(2)(A) + (3)(A)

(2)(A) + (3)(B)

(2)(B) + (3)(A)

(2)(B) + (3)(B)

This law says (2) and (3) are required to use deadly force to protect property. Both have an (A) or (B) option. 

It also says (1) is required but that requires you had a lawful right to the property, the other person had no lawful right to the property and the use of force one “immediately necessary”.

I hate to be that long winded and it’s really not that difficult but you have to read it exactly as it is written. Reading or understanding only part of it May lead to a bad understanding and consequences.

And I almost forgot, back to your question. If a guy is driving away with your truck can you use deadly force? Let’s apply that law.

If it is just stolen property and it is daylight, then the answer in my opinion is no.  if it is the nighttime then you have met one element. Then it goes to, is the guy likely to get away or will expose you to a substantial risk of death or serious injury. Without going any further into it my inclamation and say yes, if you try to stop a guy driving away in a vehicle it would expose you to serious injury or death and he is also likely to get away.

To go just a tad further, what if he pulled a gun on someone in order to steal the vehicle?. That would become an aggravated robbery and I think the production of the weapon would make a deadly force in such a situation lawful. Even further, you see a guy trying to hotwire your truck and you are outside to stop him. He does not display a weapon but tells you if you come closer he will kill you. That likely just became a robbery with the threat of death during a theft and like the law stated above, you could use deadly force to stop a burglary, robbery or aggravated robbery or theft in the nighttime.

Whew!!!

[tvc184]

And that’s trying to adequately explain a relatively short and easy to understand law…….    

[SmashMouth]

1 hour ago, tvc184 said:

And that’s trying to adequately explain a relatively short and easy to understand law…….    

Lol. That’s excellent information, and actually what my very basic understanding would be. I’m not sure if I would take a life to regain a material possession (even a vehicle) unless the theft itself posed a life threatening situation (my grandchild is in the vehicle at the time or the perpetrator is trying to run over me to get away). That being said, you never know what your actions would actually be unless you’re in a specific situation. 

[Hagar]

On 1/19/2022 at 2:18 AM, SmashMouth said:

Lol. That’s excellent information, and actually what my very basic understanding would be. I’m not sure if I would take a life to regain a material possession (even a vehicle) unless the theft itself posed a life threatening situation (my grandchild is in the vehicle at the time or the perpetrator is trying to run over me to get away). That being said, you never know what your actions would actually be unless you’re in a specific situation. 

I don’t see it as killing someone to protect property.  I’m thinking he feared for his life.  I can but a new windshield wiper, but I’m 76 and not in the best of health.  Someone jumps on my hood and starts beating in the windshield, I assume he hopes to beat on me.  Most of the above post are concerned with property.  I have to think the driver was concerned for his life.  How the law in Texas addresses that, I’ve no idea.

[thetragichippy]

On 1/19/2022 at 12:30 AM, tvc184 said:

And that’s trying to adequately explain a relatively short and easy to understand law…….    

I don't think you get enough thanks for all the long and detailed explanations you give. I would guess between this page and all the others you frequent, you have stopped a few "I know the law" gun nuts, or "I know my rights" guys from making some terrible decisions, after getting their legal advice from the self proclaimed Facebook lawyers......

 

=So THANKS!

[tvc184]

2 hours ago, Hagar said:

I don’t see it as killing someone to protect property.  I’m thinking he feared for his life.  I can but a new windshield wiper, but I’m 76 and not in the best of health.  Someone jumps on my hood and starts beating in the windshield, I assume he hopes to beat on me.  Most of the above post are concerned with property.  I have to think the driver was concerned for his life.  How the law in Texas addresses that, I’ve no idea.

That is why in my comment previously I said, it was difficult because we really don’t know what happened. We could easily do a what if scenario where the officer jumped out of his truck to stop the guy and the guy reached into his pocket and said I’m going to stab you. At that point the game changes. It would be easy for a witness 50 feet away who did not hear or see exactly what was happening to tell the media, he shot the guy for breaking his windshield wiper. I could probably fill up a book with things I have heard during investigations that was not a lie but turned out not to be true. It is what the person saw or heard and from their vantage point it looked like something that it was not.

Add example locally was a few years ago when an off-duty officer in Orange shot and killed a guy at an auto parts store. A guy was making racial slurs and causing at disturbance at the store when an off duty officer who was shopping at the store in plain clothes, told him to be quiet. The officer then told the man he was under arrest. The man made some comments something like the also was not in uniform so he didn’t have to comply or he was not a real cop or whatever. The guy tried to get into a truck to leave (as a passenger) and the officer pulled a handgun and pointed at the guy and told him to stop. At some point in the interaction the guy tried to head butt or lunge for the officer’s  weapon. He fired one time and killed a man. Of course the comments came out that the office duty officer killed a man for profanity and racial slurs. No, he tried to arrest the man for the comments but used deadly force in self-defense of his person when he reasonably believe the man was trying to take his gun away. Just like the off-duty officer with the windshield wiper, it may not have been what started the incident but it may have escalated to a point of lawful deadly force.

Deadly force to protect yourself from an attack is a lot more simple to explain I think. Generally the other person has to be doing something unlawful that can cause you serious bodily injury or death. Under Texas law as long as you’re legally at your location, you have no duty to retreat but you cannot be committing a crime. An example would be if you broke into someone’s house and they pulled a gun on you, you could not shoot them in self-defense. You were the one committing the crime of burglary by breaking into the home.

In Texas if you can make a claim of self-defense, the burden of proof is on the state to prove beyond a reasonable doubt it was not self-defense.

Also in Texas, you can use force or deadly force to protect another person or another person’s  property just as if it was your own if you have a reasonable belief that if you were in the same situation, it would be lawful.

[bullets13]

4 hours ago, Hagar said:

I don’t see it as killing someone to protect property.  I’m thinking he feared for his life.  I can but a new windshield wiper, but I’m 76 and not in the best of health.  Someone jumps on my hood and starts beating in the windshield, I assume he hopes to beat on me.  Most of the above post are concerned with property.  I have to think the driver was concerned for his life.  How the law in Texas addresses that, I’ve no idea.

If my kids are in the car with me i'm erring on the side of their safety when it comes to my decision making in a situation like this.  

[tvc184]

31 minutes ago, bullets13 said:

If my kids are in the car with me i'm erring on the side of their safety when it comes to my decision making in a situation like this.  

Like driving away to be safe and not creating the confrontation…..

[tvc184]

4 hours ago, thetragichippy said:

I don't think you get enough thanks for all the long and detailed explanations you give. I would guess between this page and all the others you frequent, you have stopped a few "I know the law" gun nuts, or "I know my rights" guys from making some terrible decisions, after getting their legal advice from the self proclaimed Facebook lawyers......

 

=So THANKS!

Thanks…. 
 

But some might think I am a self proclaimed facebook lawyer. 😆

[bullets13]

8 hours ago, tvc184 said:

Like driving away to be safe and not creating the confrontation…..

If that’s a viable option, for sure.