FL: "Castle doctrine" does not justify shooting trespasser

[Drewthetexan]

Criminal mischief is damaging property or a few other actions under Texas law (opening gates of livestock pastures, for instance). The details of these things are different in every state.

This guy was trespassing and probably intoxicated. Attempting to enter a house by turning the doorknob is technically attempted burglary, but I have never heard of someone being prosecuted for that alone.

- Jim

I'm probably mistaken then. Someone close to me was arrested for public intox and criminal mischief one night and as best as I can recall, there was no property damage. The short version of the story, as I remember it: her drink was spiked, she left the place she was staying the night in the middle of the night in a 'blackout', drove her car into a ditch, and according to police was going door to door in this neighborhood knocking on doors, presumably seeking help because she didn't have a phone or id or anything. I'd have to ask her about it to get whatever facsimile of the story she can offer.


More on topic: fundamentally speaking, what is the difference between this case and this one? It seems I can recall another story on this forum where a guy shot a teen for walking across his lawn. I don't remember enough about it or the outcome to hunt it down.

[thankGod]

seamusTX,

When I read your statement "The homeowner lost the Castle Doctrine immunity when he went outside." I took it to mean that because the homeowner did go outside, that he lost his protection under the Castle doctrine.

Then when I read "I think you have every right to move around on your own property" it just seemed as a contradictory statement. I was only trying to understand what you were saying.

I was also thinking about the man that shot the 2 burglars coming from a neighbors house with a shotgun. Sorry, I can't think of his name at the moment. Wasn't he covered by the Castle Doctrine, or am I just confused.

[seamusTX]

Someone close to me was arrested for public intox and criminal mischief one night and as best as I can recall, there was no property damage. The short version of the story, as I remember it: her drink was spiked, she left the place she was staying the night in the middle of the night in a 'blackout', drove her car into a ditch, and according to police was going door to door in this neighborhood knocking on doors, presumably seeking help because she didn't have a phone or id or anything.

The police can arrest a person for anything. Most charges are dropped in situations like you described. The police just want to get the person in custody for protection of herself and others.

They could legitimately have charged her with DWI.

More on topic: fundamentally speaking, what is the difference between this case and this one?

One factor is that the guy in Harris County was 69 years old. Someone that age has a defense in the form of disparity of force when confronted by a much younger person.

We don't know from this story what the "teen" who was shot may have said. Saying "I'm going to kill you" is a lot different from asking for a light.

The grand jury has not returned a decision in that case.

- Jim

[seamusTX]

When I read your statement "The homeowner lost the Castle Doctrine immunity when he went outside." I took it to mean that because the homeowner did go outside, that he lost his protection under the Castle doctrine.

Then when I read "I think you have every right to move around on your own property" it just seemed as a contradictory statement.

The "Castle Doctrine," as enacted in various states, says that you are presumed to be justified in using deadly force against someone who is breaking into your home, vehicle, or place of business (along with some other details).

You can move about on your property as you see fit, but you don't have Castle Doctrine protection on open land. In that case, the higher standard of the attacker's unlawful use of force is required.

I should mention again that this case was in Florida. The justifications for the use of deadly force in Texas are the broadest of any state. In most states, the defender must be in danger or death or serious injury.

I was also thinking about the man that shot the 2 burglars coming from a neighbors house with a shotgun. Sorry, I can't think of his name at the moment. Wasn't he covered by the Castle Doctrine, or am I just confused.

That was Joe Horn. He was not covered by "Castle Doctrine." He was justified by Penal Code 9.43.

And he was the luckiest person in Texas the day that the grand jury no-billed him.

- Jim

[casingpoint]

I want to say the Florida Castle Doctrine was expanded some years back to extend outside the home. It's been awhile since this has come up.

[C-dub]

Good evening Seamus.

So, rather than exiting my home, what if I were already outside, at night, and this person approached me in a threatening manner? Maybe making some threatening statements? Do I have to wait until he actually attacks me first?

[seamusTX]

You can do whatever you want. It's just a good idea to consider the possible consequences.

Some of the tactical steps that are fully justified under Texas law in such a case are

1. Tell him with a voice of command to back away.
2. If he doesn't, pepper-spray him.
3. If necessary, punch his lights out.
4. Go inside, call 911, and tell them that a drunk attacked you in your own front yard.

It's a lot cheaper and easier than explaining to a grand jury why you shot an unarmed drunk.

- Jim

[joe817]

[C-dub]

Well, if the drunk threatening trespasser were unarmed, I would probably be able to defend myself hand to hand. If he were of significant enough size it may be more difficult.

I know I don't have to wait until attacked to respond, but I meant to reasonbaly expect to not get in trouble if I did. I think I've seen the answer to this somewhere else here, but do the same ROE apply to my use of deadly force as the police? I think the answer is, yes.

I also thought that perception played a BIG part in whether or not my response was justified. If I believed I was in danger then I am justified. I wonder about this compared to someone that accuses another of sexual harrassment. That is determined by a person's perception and I thought the use of deadly force was the same. The threat could be real, but sometimes it is not and we only find that out after the fact.

I don't mean to be a bother about this, but am curious.

[seamusTX]

... do the same ROE apply to my use of deadly force as the police? I think the answer is, yes.

Police officers have the same justifications for the use of deadly force as every person. They are also legally justified in using deadly force to effect an arrest or prevent escape from custody, which the rest of us are not.

That's the law.

Then there is the perceived authority of LEOs who are trained, licensed, and uniformed. Most jurors will be swayed by that. Granted, some will be hostile to the police, based on their experiences.

Also, LEOs get decent legal counsel paid for by someone else, either the police union or the agency, maybe both.

I also thought that perception played a BIG part in whether or not my response was justified. If I believed I was in danger then I am justified.

Again, that is the law. But you must be able to articulate why you felt that your life was in danger and persuade a jury. That is not so easy with an unarmed attacker.

I will say it is not impossible.

I wonder about this compared to someone that accuses another of sexual harrassment. That is determined by a person's perception and I thought the use of deadly force was the same.

Apples and oranges, IMHO. Sexual harassment is a civil tort, not a criminal offense (except in special cases).

All of these issues boil down to what a reasonable person with full knowledge of the law would have done. That is determined by the finder of fact, either a judge or jury. Every trial lawyer says that a jury trial is a gamble. You might have enough intelligent people on the jury to find in your favor, or you might have a jury with the collective IQ of a rack of billiard balls.

All of the above is IMHO, IANAL, I don't have a law degree, I didn't even sleep in a Holiday Inn Express last night, etc. These are just the understandings that I base my actions on.

- Jim

[seamusTX]

Update:

http://www2.tbo.com/content/2009/aug/04 ... -breaking/" onclick="window.open(this.href);return false;

The homeowner is out $20,000 no matter what happens.

- Jim

[joe817]

This will be interesting to follow. Please keep us posted Jim, and thank you.

[Liberty]

Update:

http://www2.tbo.com/content/2009/aug/04 ... -breaking/" onclick="window.open(this.href);return false;

The homeowner is out $20,000 no matter what happens.

- Jim

Bail is refundable, but I think your point is still valid. Its gonna cost him some money.

[dicion]

You might have enough intelligent people on the jury to find in your favor, or you might have a jury with the collective IQ of a rack of billiard balls.

But.. I thought I was supposed to get a jury of my peers! Ya know, Gun-friendly homeowners with a military background, and an above average intelligence!

Then again, I guess if applied in reverse, Gang Bangers would get their gang buddies on their juries.. and we don't want that.

Last time (the First time!) I got called for jury duty, I was sort of sad that I didn't get picked... I wanted to actually make a difference, and be able to apply the unbiased rule of law to an actual situation!

[seamusTX]

Bail is refundable, but I think your point is still valid. Its gonna cost him some money.

I shouldn't have said he was out $20,000.

If he could put up cash or his house as bond, he will get it back when he shows up for trial. If he had to use a bail bondsman, he's out $2,000 for good.

The legal bills will be far more than that.

- Jim