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Ruark wrote: ↑Thu Feb 23, 2023 10:20 am

srothstein wrote: ↑Wed Feb 22, 2023 12:11 am On another point, several people have mentioned the jury and how weird their rulings might be. I think we are seeing a a return to much more traditional Texas values recently. Even (especially?) in the big cities with liberal judges and district attorneys who will prosecute you, people are getting fed up with crime. I might be more willing than most to put my faith in a Texas jury.

Unfortunately, this is another factor to consider during that split-second when you're deciding whether or not to shoot. In some liberal, gun-hating cities, e.g. Austin, you might very well be indicted for a serious crime even in a clear self defense case. I can see a pink-haired tattooed liberal Austin jury deciding that you murdered that poor thief because he was running away with your wallet. Or at least, a DA taking it to a grand jury and making your life miserable for awhile.

In contrast, in other communities (e.g. I used to live down the road from Gatesville), especially some smaller rural towns, the local sheriff would slap you on the back and say "hey, good shot, buddy."

Considering that two-thirds (well, technically 65.8%) of the entire population of Texas live in just four metropolitan areas (DFW, Houston, San Antonio, and Austin), that is a consideration for most people.

To one of Steve's points, when I mentioned the contents of a wallet I didn't bother to include photos as something worth sending a bullet over. Possibly a few decades ago, but it never dawned on me that anyone would keep original photographs in a wallet where they'll get damaged and abused from just day-to-day carry. It costs very little to have original photos scanned (and even retouched) and have copies made if you want a physical copy in your wallet (mine are digitized and on my phone; I can also carry a lot more of them that way, and they're backed up to the cloud automatically). If a shoot ever got to a jury trial and protection of original photos was a rationale for the defense, it isn't difficult for me to imagine a prosecutor asking why, if the value of the photos was equivalent to a human life, that you didn't spend $5 and have FedEx Office make a copy for you.

I'm honestly not trying to take a devil's advocate position here. But in the described scenario, with no other elaboration or clarification (for example, the scenario says nothing about whether other family members are with me; whether I'm male or female, or 75 years old or 35; where the robbery takes place, e.g., crowds or no crowds, quick access to cover or not, day or night, surveillance cameras or not; item stolen was just a wallet, so I can go by only what I carry; no demands for your car keys, your cell phone, or anything else; as presented, the bad guy already has the wallet and is fleeing; as presented, there is no mention of the bad guy being a continued threat, e.g., he hasn't turned back around to look at you or raised his gun back in your direction) then, no, I don't believe this would end up being a justifiable shoot.

In the real world, I think the point would likely be moot, anyway, because the robbery was, statistically, probably in a parking lot or parking garage (and probably in one of those four metropolitan areas) and, by the time you make a decision (remember, you're under stress and have evidently taken no action to prevent or interrupt the robbery), by the time you access your firearm and get a good sight picture which will allow you be certain of a hit and no stray rounds (adrenaline will have your front sight hopping around), the guy has probably already turned behind a line of cars or made some other move that prevents him from being in your stable line of sight. Even if he's stupid enough to run in a straight line, remember the Tueller Drill? The guy would be around 21 feet from you in 1.5 seconds, 14 or 15 yards in less than 3 seconds. If you're Dave Sevigny waiting for the buzzer to start a course of fire at the USPSA Nationals, you're good to go. If you're the Average Joe "Responsible Person" who's just been traumatized by an armed robbery and experiencing an adrenaline dump and sensory compression, you may already be out of your league. If you can draw, aim, fire, and successfully hit a running suspect in less than 3 seconds under stress, I'd also expect the prosecutor to question intent: whether you had already made up your mind you would shoot before the bad guy ever turned around (and remember that where 66% of the Texas population lives, there are cameras all over the place).

No, as described, I think there's enough in the penal code to make something like this at least a "gray area" shoot. The stipulations in the penal code may prove to be a defense to prosecution, but with no additional scenario information to go on, I still think you take the ride and that (for at least two-thirds of us) the DA sends it to a grand jury. Just my non-professional opinion only. I think it's a different story if you shoot while attempting to prevent the robbery or during its commission.

It would be interesting to turn this around and ask our certified LTC instructors how they would respond to this question while teaching a class. "If someone robs me at gunpoint, takes only my wallet, and then turns around and runs away, is it okay for me to shoot him in the back?"

Soccerdad1995 wrote: ↑Tue Feb 21, 2023 12:04 pm

Rafe wrote: ↑Tue Feb 21, 2023 9:18 am For the scenario, to me, PC §9.42 is fairly clear the requirement is that one reasonably believes the use of deadly force is immediately necessary "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 [the actor] reasonably believes that the land or property cannot be protected or recovered by any other means."

I'm not saying that I would shoot someone over material possessions. But in regard to the law, it doesn't say "replaced". It says "protected or recovered". What other means would I reasonably expect to use to recover the wallet itself (could be worth $100+) and whatever amount of cash I had in it?

That may sorta come down to what the definition of "definition" is. IANAL either, but I approach trying to interpret these things first and foremost using the "reasonable person" criterion...in large part because so many statutes get so convoluted and bloated over time due to the piecemeal way so mush of the text is written by legislative modification. In other words, the "reasonable person" standard created to provide courts and juries with a hypothetical logical and moral strawman in order to weigh actions against intent or negligence.

I don't need to resort to deadly force to "protect or recover" the actual credit cards or insurance cards that are in the wallet because I can easily get a replacement. I'd argue that easy replacement might well constitute protection or recovery in the eyes of many, if not most. That's how I feel a jury would use the "reasonable person" criterion in a case where a guy was shot in the back while running away with your wallet. And what would be the "reasonable person" evaluation of the value of $100 versus a human life (mind you, I'm not Alec Baldwin so I have no delusions that I can get away with whatever I want )?

It's also probably worth noting that everything in PC Chapter 9 relating to justifiable force or justifiable deadly force is a defense to prosecution only (§9.02); nothing is exclusionary or permissive; nothing says, "You can do this." The trigger gets pulled and then it comes down to the DA, a grand jury, and possibly a trial jury. The more clear-cut the justification is under the penal code, the better stance you have in that process; e.g., the use of deadly force is likely more defensible if done in the prevention of "imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime" than if a fleeing criminal is shot in the back while trying to escape with a wallet.

Might also be worth noting that §9.05 specifically removes all defense to prosecution "if in doing so he also recklessly injures or kills an innocent third person," which I imagine would almost always be a consideration if taking a back-shot at someone fleeing from you after a robbery. Statistically, most of these kinds of things take place in parking lots or similar, not in a rural setting where the downrange is clear. Under an adrenaline surge, hitting a rapidly moving target, even if it's moving linear to your position, ain't a gimme. And even if you're in a unpopulated parking lot and your round over-penetrates or you miss with the first attempt, guess who would be liable for damage done to vehicles or other items? I mean, I have a basic liability umbrella rider, but the deductible would end up costing me a lot more if a bullet I launched went into the dashboard of a late-model Mercedes than the cost of nice wallet plus a hundred bucks of cash inside it.

Riding on top of all the Subchapters of PC Chapter 9 is §9.22, "Necessity." It has three elements: #1, "immediately necessary to avoid imminent harm," stands alone. Numbers 2 and 3 both have to be met: "the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear."

There's that "reasonable person" business. So it isn't just that there is a clause somewhere else in the chapter that the use of deadly force is a defense to prosecution under certain conditions, it's that a "reasonable person" also must conclude that "the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct."

I think it would always come down to a case-by-case evaluation, but the scenario as presented doesn't imply anything remarkable about the possessions stolen. Just a wallet. We know the thief would also ask for your cell phone, but the scenario didn't include even that. You supposedly still have that to call 911 as well as your car keys. So my humble but completely uninformed opinion is that the "reasonable person" analysis of back-shooting someone in the scenario wouldn't hold up.

Now, assuming viable cover isn't just a step away, did you draw and acquire target on the running broadside in case the bad guy turns back around and starts to point his gun at you? You may very well have done that. And I think that would be a sane and very reasonable precaution. If you have to fire at that point, the ballistics are going to substantiate it had become a defense of person scenario rather than one to "protect or recover" property.

Edited to add: Note to self. Take too long typing and others will show up and say basically the same thing using only about 50 words.

I am not an attorney; I am not a law enforcement officer; I can barely spell "penal code." But my uninformed opinion is that, no, as described the use deadly force is not lawful. If the bad guy confronts you and starts fumbling at drawing the Glock he has stupidly stuck in the waistband of his pants without a holster, different story. That would then fall under PC Chapter 9, Subchapter C, "Protection of Persons." But "Protection of Property" in Subchapter D is a different animal.

For the scenario, to me, PC §9.42 is fairly clear the requirement is that one reasonably believes the use of deadly force is immediately necessary "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 [the actor] reasonably believes that the land or property cannot be protected or recovered by any other means."

There may be extenuating circumstances (e.g., the code to unlock the deadly virus research repository at UTMB Galveston is in your wallet) and/or you might get a lenient grand jury. But...if the bad guy has already turned around and is running away and is no longer threatening you with his gun, I think it would be an uphill battle to persuade a jury that a reasonable person would have believed the contents of the wallet could not be protected by any other means. For most of us, we have a couple of state licenses (replaceable), insurance cards (replaceable), a few credit or debit cards (replaceable and usually cancellable with just a phone call), and maybe some cash.

There are so many different possible robbery scenarios that, many years ago, I started carrying two wallets. My real one is in a front pocket, which is typically not the first place it's expected to be. The second is one of those flat, minimalist wallets, one with no "windows," just slots, in my left back pocket. It has four expired credit/debit cards (none with correct, current account numbers) that I've "distressed" to make it very difficult to read the expiration dates, plus I keep $65 dollars in it in two 20s, four 5s, and five 1s. In the small wallet, that makes the cash look fairly thick.

I hope I never get the chance to try it out, but the notion is that if I'm ever a victim of a quick hit-and-run robbery that I don't see coming, the bad guy won't take time to stand there and closely inspect what's in the wallet I toss to him. That he might see some credit cards and a small wad of cash and be on his way. In which case I'm out almost nothing and my licenses and items showing my home address stay in the wallet in my front pocket. Except that the $65 in the throw-away wallet is the only cash I keep on me nowadays. Might work; might not. But I never saw a downside to going that route.