Armed robbery scenario

[Ruark]

I know there are a million self-defense scenarios out there, but this one is pretty clear cut and actually quite possible. I would like to hear your opinions on it.
You're walking somewhere and suddenly, out of the blue, a robber jumps out in front of you and points his gun at you point blank, finger on the trigger, and demands your wallet. You're carrying concealed, but drawing at this point would be suicidal. Having no choice, you hand him your wallet. He grabs it out of your hand, turns around and starts to run off. At this point, under Texas law, would you be justified in stopping him with deadly force? Think carefully.

[philip964]

In Texas:

Daytime you may call 911, if you still have your phone.

Nighttime, you may fire away, then call 911 and wait. I would not retrieve your wallet as that is your evidence of a legal shoot. Allow the police to recover your wallet.

Approaching the victim to fire a head shot is a no, no.

Approaching the victim to render first aid, while charitable, could put you at risk.

If bystanders approach to give aid, I would warn them that he is armed. I would begin filming lest they remove evidence in lieu of providing aid.

Back shooting someone during a clean getaway is something I most likely might not do if I still had my wits with me. The loss of a wallet while not fun, would be far less than the call to my attorney, the anguish that might also cause would also be significant. The last time I was in a dangerous situation I was a mass of nerves and I had to have someone else dial 911. I am no Batman.

Obviously if the robber has shot or hit someone during the robbery this would change things.

Most important would be to reholster your weapon immediately after it was safe to do so.

I am not an attorney and maybe only stayed at that motel once or twice.

[Grayling813]

In Texas:

Daytime you may call 911, if you still have your phone.

Nighttime, you may fire away, then call 911 and wait. I would not retrieve your wallet as that is your evidence of a legal shoot. Allow the police to recover your wallet.

Approaching the victim to fire a head shot is a no, no.

Approaching the victim to render first aid, while charitable, could put you at risk.

If bystanders approach to give aid, I would warn them that he is armed. I would begin filming lest they remove evidence in lieu of providing aid.

Back shooting someone during a clean getaway is something I most likely might not do if I still had my wits with me. The loss of a wallet while not fun, would be far less than the call to my attorney, the anguish that might also cause would also be significant. The last time I was in a dangerous situation I was a mass of nerves and I had to have someone else dial 911. I am no Batman.

Obviously if the robber has shot or hit someone during the robbery this would change things.

Most important would be to reholster your weapon immediately after it was safe to do so.

I am not an attorney and maybe only stayed at that motel once or twice.

1. call your attorney. 2. Shut up

[carlson1]

If they are leaving I pray I have enough self control not to shoot over things. People different story. I carry my money and credit cards in my front pocket and my wallet in my back pocket has very little in. I learned that for one of the older wiser gentlemen on this morning.

Coming and going at the hospital at night does not make me feel very safe. They have a rolling metal detector at the ER in Baylor now here in Irving. I really wished Texas with so away with these non carry places durning this legislation, but I will not hold my breath. Off area carry areas are nothing except breeding ground for thugs.

Not wanting to beat anyone with a stick, but I set in Baylor (Irving) ER the other night and watched the security guard play on his phone for more than hour before he ver moved.

[RoyGBiv]

IANAL. This is not legal advice, just my opinion.

Do you think the chance is really zero that the armed robber won't turn around and shoot you as he's leaving? IMO, he is a deadly threat until you are in a place where the robber is not able to shoot you. Thinking otherwise could get you killed.

Emphasis mine....

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);

(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.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.



Sec. 9.34. PROTECTION OF LIFE OR HEALTH. (a) A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself.

(b) A person is justified in using both force and deadly force against another when and to the degree he reasonably believes the force or deadly force is immediately necessary to preserve the other's life in an emergency.



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.

[Rafe]

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.

[Paladin]

What if, because the robber is in my face with a gun, instead of handing him my wallet, I just take his gun from him?

[Soccerdad1995]

First I lament my poor decision(s) that led to my loss of SA. Then I drop the wallet instead of handing it to him. If he's after your money he'll grab the wallet off the ground. If he's intent on harming you in addition to getting your money, then your in bad shape no matter what you do. Dropping the wallet at least gives you a fighting chance.

[Soccerdad1995]

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?

Sure I could work, earn more money and buy another wallet, but I don't think that meets the definition of "recover" in this context. If that's the meaning then this whole section of the law is pretty irrelevant.

Then again, IANAL.

[OneGun]

My concern is optics. Once he starts fleeing, am I still in danger? More importantly, how will a jury of my peers view my actions? While robbing you, you can blast away. However, its the turning and fleeing part.

[G.A. Heath]

I recently had the opportunity to review video of a takeover style armed robbery. I can't go into detail, but I will share my observations. The target was a business, two goblins entered moments after an employee left but before the last employee had secured the front door. Suspects were in and out quickly taking a healthy sum of cash in the process. The employee that was still working had no chance, even if he had been armed, to act against them. The suspects took the employees phone and keys, but tossed them prior to fleeing too far.

[Soccerdad1995]

My concern is optics. Once he starts fleeing, am I still in danger? More importantly, how will a jury of my peers view my actions? While robbing you, you can blast away. However, its the turning and fleeing part.

I agree with this 100%

[Rafe]

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.

[Ruark]

As the OP, I have several things to throw into this discussion: some people mentioned the whims of jury, which is always a consideration, but I'm focusing more on protections that are built into the law, regardless of what the jury thinks.For example, if somebody kicks in my front door and storms into the house waving a gun, I'm protected by the Castle Doctrine, even if a liberal Austin jury thinks I'm a murderer.

It also refers to your wallet, but it would remain intact if it referred to your phone or wristwatch.

At least some of the language tends to disfavor using deadly force in this scenario, because it says,

"... to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery..."

In this case, it's not imminent; it's already happened. I think the "imminence" concept is out the window here.

That leaves:

"... "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."

This clearly does not mean "replaced" or "you can get another one with your insurance." And I don't think "difficulty of replacing" is viable. So if it's one credit card, it's easy to replace, but if it's five credit cards, it's too difficult and you can shoot? No, that doesn't work. Again, it's not about "replacing." Heck, if it were about "replacing," this language would be almost meaningless, because then no matter what they stole, you could just go to the store and buy another one, i.e. "replace" it. This is about "protecting" or "recovering." I don't think the value of the property is really relevant here. Like if your wrist watch was worth over X number of dollars, you're justified in shooting to protect/recover it. Naw....

One thing about scenarios in general is that no matter how cut and dried they are, there are always little nooks and crannies that can defy clarification. For example, that's a good point about not picking up your wallet afterwards, because that's evidence that he robbed you of it. But hey, I need to immediately call a lawyer (or legal protection coverage, which many of us have). And to do that, I need to get their card out of the wallet to get the phone number. So that could be problematic.

Your own preparation and practice could be a factor, as well. Assuming you don't open carry in an OWB holster, do you practice drawing and firing quickly from concealment? If so, and you're fast enough, maybe you would be able to distract the robber by throwing or dropping your wallet (or phone or watch or whatever) and then drawing and firing when he looks down and bends over to pick it up. My wallet, for example, is a loose, simple bifold design, so cards and money fall out of it easily. I could toss it so its contents would scatter on the ground somewhat, which could increase the opportunities to bring the firearm into action.

[RoyGBiv]

At least some of the language tends to disfavor using deadly force in this scenario, because it says,

"... to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery..."

In this case, it's not imminent; it's already happened. I think the "imminence" concept is out the window here.

Specifically on this point, I disagree....
Some random guy that just committed aggravated robbery on me and is still close enough to shoot me is absolutely an IMMINENT threat.... Even if he appears to be leaving. Like no bad guy ever changed their mind about not shooting someone...

I'm happy to have my attorney explain that to a jury, rather than a police officer explain it to my family after the bad guy kills me.

YMMV, of course.