Would it have been justified?

[HGWC]

My personal rule of thumb that has kept me on the right side of both my conscience and the law for over 35 years of LEO and civilian carry is: Deadly force is used only when there is no other reasonable way to protect an innocent person from serious injury or death. This complies with virtually every use of force law I've ever seen anywhere in the US. Yes, I know it's a stricter standard than the law in some cases, particularly with respect to night time theft in Texas and castle doctrine provisions here and in several other states, but I'm not looking for an excuse to shoot someone, and it's a choice that works for me.

Self defense is not an all or nothing proposition, and my stance should not be misinterpreted to mean that I'm not prepared and willing to take appropriate action to protect myself and my property. It just means that I'll use options other than deadly force to do so whenever they are reasonable and available.

It's a bit off topic, but to me the castle law guarantees us something we can't get in your philosophy above, and that is protection from repeat offenders where the only way to keep them from coming back is to kill them. If a guy is burglarizing your car tonight, and you just run him off, he may very well be back tomorrow or even later tonight. Now, he might not be much of a threat to you or your family's safety, but tomorrow might be a different story. If he's dead, he can't ever come back.

[Purplehood]

I just cant imagine ANYONE not soiling themselves when looking down the barrel of a gun ...

Some people can do it without flinching or hesitating. You can find countless stories of people who charged cops, sometimes multiple cops, when any rational person would have known he would be shot.

I can't get inside their heads, either; but there are plenty of them out there.

There are also thieves who literally think they own what they're stealing, and they will kill to keep it.

- Jim

You don't know what you will do until it happens to you. When I was a good-for-nothing 16-year old I had a gun muzzle pointed between my eyes at about 2 inches distance by an irate home owner. Without thinking, I simply reached up and swung the barrel away. His eyes went wide open and I immediately began practicing for the Olympics as I soared off into the distance.
Looking back, that was not something I would normally plan on doing.

[Excaliber]

My personal rule of thumb that has kept me on the right side of both my conscience and the law for over 35 years of LEO and civilian carry is: Deadly force is used only when there is no other reasonable way to protect an innocent person from serious injury or death. This complies with virtually every use of force law I've ever seen anywhere in the US. Yes, I know it's a stricter standard than the law in some cases, particularly with respect to night time theft in Texas and castle doctrine provisions here and in several other states, but I'm not looking for an excuse to shoot someone, and it's a choice that works for me.

Self defense is not an all or nothing proposition, and my stance should not be misinterpreted to mean that I'm not prepared and willing to take appropriate action to protect myself and my property. It just means that I'll use options other than deadly force to do so whenever they are reasonable and available.

It's a bit off topic, but to me the castle law guarantees us something we can't get in your philosophy above, and that is protection from repeat offenders where the only way to keep them from coming back is to kill them. If a guy is burglarizing your car tonight, and you just run him off, he may very well be back tomorrow or even later tonight. Now, he might not be much of a threat to you or your family's safety, but tomorrow might be a different story. If he's dead, he can't ever come back.

You're absolutely correct that the dead won't come back. Any bullets you send on their way can't be recalled either.

These are good concepts to keep in mind when thinking about the fact that many situations that appear to be one thing at first turn out to be something completely different when all the circumstances become known. Taking unnecessary irrevocable action on what turns out to be a bad interpretation of what was really going on can ruin your whole day, and quite a few days after that. As a general principle, the wise man thinks carefully before committing high consequence acts that can't be undone when simpler and less permanent solutions are available to address the actual need.

Prevention of repeat offenses by killing people who might someday be a threat is not within my civilian responsibility, authority, or understanding of the law, and the castle doctrine legislation you refer to is not intended to support a "kill 'em all, let God sort 'em out" approach to defense of life and property.

If someone doesn't present a deadly threat today, it is my personal choice is to use lawful options other than deadly force unless and until he does so, even if the law says deadly force may be used in those circumstances. Some may feel otherwise and perhaps they're smarter than I am, but that's my considered choice made over time after involvement in and investigation of more violent incidents than I could possibly count.

I spent over 20 years making these decisions as a front line LEO and senior police commander on the streets in real life and real time several times a week in the New York metro area, and I've had a few occasions to make them as a civilian since.

During that time I've observed that some folks who've never had to make these choices for real and have never managed the aftermath of a deadly force incident up close and personal have a much easier time advocating a much lower threshold for resorting to violence than I do. We read about them frequently here on the forum.

[boomerang]

I spent over 20 years making these decisions as a front line LEO and senior police commander on the streets in real life and real time several times a week in the New York metro area, and I've had a few occasions to make them as a civilian since.

During that time I've observed that some folks who've never had to make these choices for real and have never managed the aftermath of a deadly force incident up close and personal have a much easier time advocating a much lower threshold for resorting to violence than I do. We read about them frequently here on the forum.

Texas and New York are very different. It seems criminals get away with a lot in NYC that they would never survive in Texas, especially rural Texas.

There are a lot of bad guys who get shot in Texas and don't even make a blip on the local news.

[Excaliber]

I spent over 20 years making these decisions as a front line LEO and senior police commander on the streets in real life and real time several times a week in the New York metro area, and I've had a few occasions to make them as a civilian since.

During that time I've observed that some folks who've never had to make these choices for real and have never managed the aftermath of a deadly force incident up close and personal have a much easier time advocating a much lower threshold for resorting to violence than I do. We read about them frequently here on the forum.

Texas and New York are very different. It seems criminals get away with a lot in NYC that they would never survive in Texas, especially rural Texas.

There are a lot of bad guys who get shot in Texas and don't even make a blip on the local news.

I didn't work in NYC itself most of the time, although some of my investigations inevitably required visiting some of the more entertaining areas where, if you were 10 minutes late meeting detectives at the local precinct, they would assume from experience with the neighborhood that you'd been shot on the way in and start looking for you. No, I'm not exaggerating - I saw this happen.

Texas and New York are indeed much different, and that's why I choose to live here. However, it would be a mistake to think that bad guys don't get shot in New York. During my years up there, the bad guys in my city (about 25 miles north of midtown Manhattan), including members of major terrorist groups, decisively lost every gunfight with my officers except in one case where the officer was hit in the leg by a ricochet. Our folks were seriously well trained, and most of the folks who made the mistake of using guns when they tangled with our guys won't be bothering anyone ever again.

Much of upstate New York (which starts about 50 miles north of NYC) is very rural. It's hilly, forested, and sparsely populated. It and rural Texas have much more in common than you might think. Someone in those areas of NY state who called the state police (which patrol much of the unincorporated area) to report a burglary in progress was often told to shoot the intruder if he got inside. The troopers would send a unit as soon as they get one free if the bad guy was still there.

Not everything that happens in either place makes the news. Rural areas are like that in most parts of the country.

[G.A. Heath]

Isn't there a potential problem with the threat of deadly force here though?

I believe that encountering an armed individual (Screwdrivers make excellent stabbing weapons), who is obviously committing a crime (Burglary of the OPs vehicle), would be be grounds for the threat of deadly force as a reasonable person could expect to be attacked by the armed individual.

[newlife12176]

Here is a small story of a man just last week in Odessa who chose to shoot a few people who were attempting to burglarize his vehicle....not much to the story. I would like to know more about the time of day and if the man was charged with anything. I may be mistaken, but this is not simple theft. Nor was it simple theft in the OP either. Simple theft is a person just walking off with your lawnmower when you go inside. Breaking into your home or vehicle is considered burglary. Now we cant use deadly force to stop simple theft in the daytime, we can use deadly force to stop a criminal from committing burglary or getting away after committing burglary if they are running away with your property and there is no reasonable way to get it back without placing yourself in harms way....

In my opinion, if they were not running away with your property, you would not have been justified in shooting them. Now if you just walked outside and popped them in your car while they were in there, I think you would have been legally justified. Who knows if they had a gun. You could have walked out there without drawing your weapon and they could have drew down on you and maybe shot you. Now as far as morals are concerned....that is a completely different story. You were legally justified, but would it have been worth it? Who knows. Only you can say that. I have a $2,500 competition stereo system in my car. I sure would feel justified and angry enough to pop some knuckleheads for breaking my windows, stealing my stereo, or potentially stealing my car. However, I don't think I want the headache of what could potentially come after that. Not to mention the nightmares and unknown guilt that may arise....I don't know...tough call. Sure am glad it turned out as well as it did for you. Below are all the important pertinent legal codes regarding burglary and the use of deadly force with burglary..

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.

Here is the penal code regarding burglary of a vehicle.....

Sec.A30.04.A A BURGLARY OF VEHICLES.A (a)AAA person commits an
offense if, without the effective consent of the owner, he breaks
into or enters a vehicle or any part of a vehicle with intent to
commit any felony or theft.

http://www.newswest9.com/Global/story.a ... =menu505_2" onclick="window.open(this.href);return false;

Vehicle Owner Shoots Burglary Suspect

Posted: June 25, 2009 09:31 AM
Chasity Grooms
Chasity Grooms

ODESSA - A would be car burglar gets blasted with a bullet.

The shooting happened at the Woodlands Apartments in Odessa on Wednesday.

Police say a man spotted two people breaking into his car, so he fired two shots.

19-year-old Chasity Grooms avoided the bullets, but her partner, 20-year-old Abram Vigil took one to the leg.

The car owner held the pair until officers arrived.

Both are charged with burglary of a vehicle.

The case now goes to a grand jury.

[srothstein]

One important clarification: breaking into a vehicle with the intent to commit a theft is not "burglary" (PC 30.02) but "burglary of a vehicle" (PC 30.04). In the chapter listing the crimes for which deadly force can be used, I believe the courts would say they are referring just to the actual crime of burglary under PC 30.02 and not the whole cahpter on burglary or all types of burglaries. My logic for this is the reference following it where they list both robbery and aggravated robbery. These are two sections of the same chapter, much as burglary and burglary of a vehicle are. If they list specific sections for that chapter, I must conclude they were referring to specific sections in each chapter.

I must say that I agree with the OP on his conclusion and actions. He would not have been legally justified in shooting though he was justified in pulling his weapon and aiming it. If the suspect had charged at him instead of running, he MIGHT have been justified in shooting then. And his moral compass on killing over property was just right, IMO, and guided him properly in this case.

[fickman]

and there is no reasonable way to get it back without placing yourself in harms way....

. . . and one thing that muddies this principle is INSURANCE. You might not get that specific unit back, but if you have insurance, you can get it replaced. A cunning DA will plant this idea in the minds of a grand jury.

I think the OP did exactly right. Stop the burglary, maintain a safe distance, and evaluate the situation. If the BG charged, the threat is now against his person, and deadly force would be justified. Since the BG ran the other way, there's no sense in risking missing him, not having justification, or spending the money on a legal defense team.

Well done. Can you provide a link to auto security system you have?

[boomerang]

and there is no reasonable way to get it back without placing yourself in harms way....

. . . and one thing that muddies this principle is INSURANCE. You might not get that specific unit back, but if you have insurance, you can get it replaced. A cunning DA will plant this idea in the minds of a grand jury.

The law says "recovered" not "replaced" and a DA who would lie to a jury about that is more evil than anyone they ever prosecuted.

[Liberty]

and there is no reasonable way to get it back without placing yourself in harms way....

. . . and one thing that muddies this principle is INSURANCE. You might not get that specific unit back, but if you have insurance, you can get it replaced. A cunning DA will plant this idea in the minds of a grand jury.

I think the OP did exactly right. Stop the burglary, maintain a safe distance, and evaluate the situation. If the BG charged, the threat is now against his person, and deadly force would be justified. Since the BG ran the other way, there's no sense in risking missing him, not having justification, or spending the money on a legal defense team.

Well done. Can you provide a link to auto security system you have?

Insurance seldom pays 100%,

[mr.72]

One important clarification: breaking into a vehicle with the intent to commit a theft is not "burglary" (PC 30.02) but "burglary of a vehicle" (PC 30.04). In the chapter listing the crimes for which deadly force can be used, I believe the courts would say they are referring just to the actual crime of burglary under PC 30.02 and not the whole cahpter on burglary or all types of burglaries. My logic for this is the reference following it where they list both robbery and aggravated robbery. These are two sections of the same chapter, much as burglary and burglary of a vehicle are. If they list specific sections for that chapter, I must conclude they were referring to specific sections in each chapter.

That is a very interesting distinction. I would like to offer a counterpoint, just for the sake of discussion.

I think they listed both "robbery" and "aggravated robbery" in order to clarify that it is not only "aggravated robbery" which justifies the use of deadly force, but in fact also 29.02 robbery. I would also note that there are only two definitions of robbery (29.02 and 29.03) so they listed them both. I suggest this may require clarification for the simple reason that it may not be a normal assumption for people (including those on this forum) that deadly force is justified to protect property if the robber has not threatened you with a weapon or there is not some other disparity of force (you are disabled or elderly). So the listing of both "aggravated robbery" and "robbery" may be intended to communicate that robbery in the absence of the conditions for "aggravated robbery" still justifies the use of deadly force. So in this case, there is an increased risk of bodily harm if you are subject to "aggravated robbery" than just plain old "robbery", so they intended to provide the distinction that the conditions of increased risk of "aggravated robbery" are not necessary to justify the use of deadly force.

However the listing of burglary in general rather than all five sub-sections (including 30.05 and 30.06) seems to me to lack this level of distinction simply because there is no defined difference in risk associated with 30.02 "burglary" (of a building) vs. the other two burglary definitions (vending machine, vehicle). In other words, if you run upon someone breaking into your car or vending machine, you are not at any greater risk of bodily harm than if you run upon someone breaking into your home or office. So unlike the case of "aggravated robbery" vs. "robbery", there is no need to provide any clarification that elevated risk conditions are not necessary in some particular definition of "burglary" in order to justify the use of deadly force. In fact, there is no definition of "burglary" that defines any increased risk of bodily harm or disparity of force, as there is with "robbery".

Now just to head off the counter arguments, realize that the offense of "burglary" does not presume that you are home at the time of a burglary of your home. Some may presume therefore that "burglary" is intended to assume you are at home at the time of the burglary (which is not the case), and you may suspect that this increases your risk of bodily harm since you must be bodily present to be bodily harmed. But this misses the point entirely since we are talking about a use-of-force response that requires your presence to begin with, so the assumption must be that in whatever case of burglary (building, car, vending machine), you are present to respond with deadly force. So while it would take an extreme fool to try and break into my car to commit a burglary while I am sitting in the car, and it is far more likely some burglar might break into my home while I am in it, this in itself does not represent a legal distinction in risk since there is no special category of burglary that I can find which includes the condition that a person is present in the building being burglarized. On a practical note, if someone is breaking into my car, then I have a very high expectation that even if they didn't have a gun before they began the burglary, they may well emerge from my car armed with my own gun.

So, I think it is not clear that by omitting the categories of "burglary of coin-operated or coin-collection machines" and "burglary of a vehicle" they intend to imply that deadly force is justified only in the case of burglary of a habitation or building.

Furthermore, the chapter 30 is "Burglary and Criminal Trespass", so the distinction in this case seems to me to be the omission of "Criminal Trespass" from the justification for the use of deadly force, given that of the five sub-sections, three are "Burglary" and two are "Criminal Trespass".

[dwhitley]

I know a DA can go anyway... but several LEO's decended on the area after 911 was called. Not one said I should not have pulled my gun, and not one said I would have been wrong shooting the guy since he was caught in my truck. I am trying to remember but I dont think I actually point my gun at him I had it more of a 20 degree in front of me. Not knowing if he would have a gun too then I would be poised to shoot first if he did. I do not think any item I have in my truck is worth taking the life of anyone. I have been blessed with making a good living and I can replace any of that stuff but a life I cannot. Now had this been someone coming into my home they would be shot with no hesitation. Any officer you ask I believe would say draw your weapon if you can when approaching your vehicle being broken into as you just dont know what the BG might do. I think I was ok in the way I dealt with it seeing that no LEO had a issue with me. But I do welcome all of your feed back I think we all learn from this stuff. Thanks David

[seamusTX]

David,

Can you say which force this was?

I can assure you that many police chiefs and sheriffs do not approve of citizens defending themselves, and probably broadcast that attitude down the ranks. Many CHL holders have reported here being disarmed during traffic stops. How do you think one of those cops would have responded to this situation?

- Jim

[dwhitley]

My force or his? I think that yes there are LEO's that have a issue of CHL's carring cause they want that all to themselves. I think the law is the law and we have a right to defend our lives and our property to what extent that is on each person to decide. Let me tell you everyone can say what they would have done I did what I felt was right for me at the time and I have to take what comes with it. All I know is drawing my gun for any reason is not something I want to do ever, but will if my life or my familes is in danger. We here a lot of what people think might be the law but not what the real law is because its so not clear which is typical politics called talking out both sides of their mouths. I would not shoot a person for stealing out of my car, but I sure want him to know that yes I could have and I want to be ready in case he pulls out a gun or knife and comes out me. The last thing you want is to try and get ready for the attack you should be ready. D