Austin: Clerk charged with murder after shooting shoplifter

[seamusTX]

In Austin, Monday, a clerk at a convenience store was charged with murder after he fatally shot a fleeing shoplifter. The shoplifter was reportedly not armed. The shooting occured around midnight the previous day.

According to Sgt. Joseph Chacon, while Texas law allows residents to take reasonable measures to defend their property, officials determined that “at least on the face of it,” the shooting was not reasonable.

... “Ultimately it will be decided by a jury or grand jury whether it was reasonable,” Chacon said.

http://www.statesman.com/blogs/content/ ... kills.html" onclick="window.open(this.href);return false;

- Jim

[mr.72]

I think the law is very clear that this was a justified use of deadly force. We'll see how it plays out. Quite the lively discussion of it on this morning's KLBJ shows.

Unfortunately the way the general public sees this is a "kid was killed over a 12-pack of beer". I kind of wish the police etc. wouldn't tell the news reporters what was stolen. Story should read, "22 year old man was shot after robbing a convenience store" with no mention of what was stolen. The law doesn't say that you can only use deadly force in the event that the value of the thing the robber has taken is over a certain dollar amount. The whole method of reporting this is intent on creating an emotional (negative) response from the general public.

[seamusTX]

Keep in mind that this was theft, not robbery.

Regardless of the legality of shooting over a minor theft, the clerk is at least going to have to pay thousands of dollars to bond out, or else sit in jail for months, maybe hire a lawyer, and maybe be convicted of a felony.

And he didn't even get the beer back.

- Jim

[casingpoint]

Ultimately it will be decided by a jury or grand jury whether it was reasonable

I reckon that all depends on how bad you need a beer. Me, right now, I'd no bill that clerk.

[Keith B]

A 12 pack does not justify shooting someone over. This could have just as easily been a kid shoplifting a pack of gum. The clerk was trigger happy, chased the guys out of the store and fired at them. There was no threat of bodily injury or death to the clerk. I hope they find him guilty.

[tallmike]

A 12 pack does not justify shooting someone over. This could have just as easily been a kid shoplifting a pack of gum. The clerk was trigger happy, chased the guys out of the store and fired at them. There was no threat of bodily injury or death to the clerk. I hope they find him guilty.

Exactly.

[mr.72]

I hope they find him guilty.

Guilty of what? Murder?

This is "theft in the night time" (1:00 am), which is a justification for the use of deadly force according to TX PC 9.42. This is the defense of the property of a third person, with a (likely) reasonable belief that the clerk had a duty to protect the property of the third party (owner of the store) according to TX PC 9.43.

The only questions at hand are whether "the actor reasonably believes the force is immediately necessary to ... recover the property" and whether "the other accomplished the dispossession by using force, threat, or fraud against the actor", neither of which can be determined from the news story.

Certainly there must be a history of rulings on these types of cases (shoplifting, basically).

My gut tells me that shooting a fleeing shoplifter is probably not justified, but I am having a hard time finding it specifically laid out that way in the law.

Isn't this basically the same thing as the Joe Horn case, technically?

[Lindy]

Even if the shooter is no-billed, there are many things which are legal to do but are stupid to do.

This would be one of those.

[Keith B]

Even if the shooter is no-billed, there are many things which are legal to do but are stupid to do.

This would be one of those.

[mr.72]

Even if the shooter is no-billed, there are many things which are legal to do but are stupid to do.

This would be one of those.

Well I'll agree that he could rightfully be found guilty of being stupid.

But not guilty of the charge for which he is being held: murder.

I think any time we find someone guilty who, according to the letter of the law, was likely justifiably using deadly force, just because we find the value of the property being protected below some emotional threshold, we are chipping away at our own rights to self defense as well as the meaning of the rule of law. The law is the law. You don't have to feel good about it. Some people think you should be convicted of a crime for owning a gun, or for carrying one, etc. Those are emotional arguments no different than the argument "a twelve-pack of beer is not worth shooting someone over". That's an imaginary line, an imaginary crime that has been committed.

[Pete92FS]

Even if the shooter is no-billed, there are many things which are legal to do but are stupid to do.

This would be one of those.

I can think of other words beside stupid - trigger-happy, cold-blooded, low regard for human life. Whether he's within the law or not; every person needs to look within himself and determine if a human life is worth the price of a $12.99 12 pack of beer especially when he wasn't threatened himself.

[A-R]

Sorry to take up room copying the entireity of Sec 9.41, 9.42, & 9.43 below but I have highlighted certain sections of these statutes that I believe COULD be used against the store clerk to show that he illegally used deadly force. I'm just brainstorming at the moment and opening this up for further discussion.

A few points from story I read in the paper copy of the newspaper this morning:

1. Clerk threw away the beer after shooting the guy. A few bottles broke etc., he threw away the rest ... so what was the point? What stolen property was he "trying to recover?" To me, this is key. Even with "theft in the night" there seems to be some necessary legal justification of trying to recover the stolen property, correct?

2. Clerk tried to cover his tracks - picked up shell casings, cleaned up the mess etc ... not necessarily grounds for a murder charge, but certainly some sort of tampering or obstruction of justice charge

3. Store owner SPECIFICALLY said he did not know the clerk had a gun, did not authorize the clerk to have a gun, and certainly did not authorize the clerk to use a gun to protect the store.

http://www.statutes.legis.state.tx.us/D ... 9.htm#9.42" onclick="window.open(this.href);return false;

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.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

If clerk threw away the beer after "recovering it", then does this section apply?

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

did the kid use force, threat, or fraud to take the beer? He just "took it" - certainly no force or threat (this was theft, not a robbery) .... perhaps taking something without paying is "fraud" in a legal sense, but it's not like he passed a bad check for the beer or showed a fake ID .... I'm not sure how this applies, just highlighting it for discussion

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

does "recovered by any other means" include insurance claims? in this case, I doubt a quick stop store would file insurance claim over a 12-pack, but what if someone is stealing your TV and you have homeowner's insurance?

(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.

Should he have used "force" - point the gun and yell stop - instead of "deadly force"?

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

I fail to see where the store clerk is justified under either of these two scenarios

(C) the third person whose land or property he uses force or deadly force to protect is the actor's spouse, parent, or child, resides with the actor, or is under the actor's care.

[TxRVer]

A lot of information is still missing, but in another report the clerk was clearly trying to cover up the incident.

http://www.kvue.com/news/top/stories/08 ... cf9e3.html" onclick="window.open(this.href);return false;

Police say the clerk did not call police to report the theft or the shooting. In an arrest affidavit, police say that after the shooting, Romero admitted picking up shell casings from the parking lot and putting them in his car; picking up the beer from the parking lot and throwing it in a trash bin; tampering with the store's video surveillance system; and deleting images of the incident from the store's computer.

I don't think he was concerned about getting back the beer if he tossed it in a trash can. Maybe that's why he was charged with murder.

[seamusTX]

Mr.72, a person who intentionally causes the death of another human being has committed the elements of the crime of criminal homicide. (Texas does not currently have a crime called murder.)

The penal code offers defenses to prosecution, not exceptions. Two of those are preventing or stopping theft in the night time or recovery of stolen property.

The statue very clearly includes the words "when and to the degree he reasonably believes the deadly force is immediately necessary."

If the defendant cannot articulate why deadly force was immediately necessary, as opposed to tackling the thief or shooting the tires of the vehicle, he is guilty. This was a young, able-bodied guy, so he doesn't have much of a disparity of force argument.

Defense attorneys are not allowed to address the grand jury, but pretend that you are this guy's defense attorney and explain why deadly force was immediately necessary.

I know I sound like a scold, but these defenses to prosecution are not some kind of get-out-of-jail-free card. Situations like this one result in long-lasting misery for the defendant.

P.S.: I was typing while AustinRealtor posted.

- Jim

[mr.72]

I don't think he was concerned about getting back the beer if he tossed it in a trash can. Maybe that's why he was charged with murder.

Just playing devil's advocate: what the clerk did with the beer after he recovered it is irrelevant.

And recovery of the property is not the same thing as replacement of the property (less deductible) by virtue of an insurance claim. The insurance is not mandatory or required, and it is not just some insurance fairy that gives it. The insurance exists, at the expense of the property owner, in the event that stolen property cannot be recovered (in this case, in saleable condition). However the presence of insurance does not negate your right to defend your property in the first place.

Mostly I don't like the precedent or the double-standard imposed by trying this guy for murder while someone like Joe Horn gets no-billed.

Jim, you make good points. I think the law is sufficiently vague, FWIW, that it can go any way.