Law Trivia and Discussions

[tvc184]

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

 

[rupert3]

3 hours ago, tvc184 said:

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

 

In schools the intent of safety is to slow a shooter etc. is to make it harder for the perp to carry out his plan.  Most school shooters have a drawn-out plan and if anything changes or something makes it difficult for him to carry out his plan then chances are it won't happen.  At least that's what law enforcement tells us at school.  This doesn't count the kid that sneaks a gun into school.   IMO

[tvc184]

23 minutes ago, rupert3 said:

In schools the intent of safety is to slow a shooter etc. is to make it harder for the perp to carry out his plan.  Most school shooters have a drawn-out plan and if anything changes or something makes it difficult for him to carry out his plan then chances are it won't happen.  At least that's what law enforcement tells us at school.  This doesn't count the kid that sneaks a gun into school.   IMO

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.

 

[rupert3]

6 minutes ago, tvc184 said:

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.

 

Very good point.  I was off base a little about the signs being useless.  I guess our intent at school and the signs is, so the law-abiding public know not to bring their lawful guns on the school grounds. A gun free zone

[tvc184]

44 minutes ago, rupert3 said:

Very good point.  I was off base a little about the signs being useless.  I guess our intent at school and the signs is, so the law-abiding public know not to bring their lawful guns on the school grounds. A gun free zone

What can such a law prevent?

 What can such a law cause?

[rupert3]

15 minutes ago, tvc184 said:

What can such a law prevent?

 What can such a law cause?

Thet's a loaded question.  I guess it just makes other folks feel safe knowing they are in a gun free zone.  Phycological, I guess on both counts.  Cause, I'm not sure.

BTW I never hear about anyone being charged or convicted for having a gun in a bar or saloon etc

[tvc184]

2 hours ago, rupert3 said:

Thet's a loaded question.  I guess it just makes other folks feel safe knowing they are in a gun free zone.  Phycological, I guess on both counts.  Cause, I'm not sure.

BTW I never hear about anyone being charged or convicted for having a gun in a bar or saloon etc

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.

[tvc184]

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?

[SmashMouth]

20 hours ago, tvc184 said:

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.

 

 

Yeah, I was simply replying to @WOSdrummer99’s comment that law doesn’t try to keep criminals away from schools even in today’s climate…

[tvc184]

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?
 

[WOSdrummer99]

1 hour ago, tvc184 said:

If the facts as I presented them appear to be true, could deadly force in such a situation to be lawful?

 

Shoot 1st ask questions later?

Absolutely not.

[tvc184]

1 hour ago, WOSdrummer99 said:

Shoot 1st ask questions later?

Absolutely not.

So it would be unlawful and Murder?

[LumRaiderFan]

3 hours ago, tvc184 said:

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?
 

I would say in this case you’re going to be in trouble, even in Texas.

[WOSdrummer99]

1 hour ago, tvc184 said:

So it would be unlawful and Murder?

Unlawful...

You said shoot the suspect? 

[tvc184]

8 minutes ago, WOSdrummer99 said:

Unlawful...

You said shoot the suspect? 

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

[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,…..

[tvc184]

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.

[tvc184]

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.

[WOSdrummer99]

17 hours ago, tvc184 said:

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

Shoot does not equal murder.

[tvc184]

2 hours ago, WOSdrummer99 said:

Shoot does not equal murder.

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.

[tvc184]

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

A pen?

A piece of paper? 

[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. 

[SmashMouth]

57 minutes ago, tvc184 said:

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

Yes

Yes

[SmashMouth]

34 minutes ago, tvc184 said:

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. 

I have firsthand knowledge of this. Corporal punishment by a parent is legal in Texas and can also be administered by the school, caregiver, etc if allowed by the parent.

[tvc184]

16 minutes ago, SmashMouth said:

I have firsthand knowledge of this. Corporal punishment by a parent is legal in Texas and can also be administered by the school, caregiver, etc if allowed by the parent.

That is correct.

For those that may not know, acting in “loco parentis” is Latin for in place of the parents. The law in use of force on a child actually says by the parent or a person acting in loco parentis.