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So in a different state, a couple's car is stolen, then a few days later they find it, box it in in a parking lot, then the owner gets out and holds the occupants at gun point waiting on police to arrive. One of the suspects runs, but the owner does not shoot/chase.

http://www.kvue.com/news/crime/victim-p ... /446176568

I'm glad he got his car back, and I personally have no problem with how he handled the situation. However, I was thinking about Texas law. The threat of deadly force by the production of a handgun is only the use of force, so I wonder if the use of force would have been justified in this situation?

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:
(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.

Subsection (b) would not apply because it was not immediately or in fresh pursuit. But what about (a)?
"A person in lawful possession of ... 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 ... terminate the other's ... unlawful interference with the property.

What is a laymen's definition of "unlawful interference with the property"? Or what is the difference in (a) and (b) when it comes to tangible, movable property?

One other thing I think about, is that the original owner of the vehicle has no way to know that the car hasn't already been sold or borrowed to another party and that they were the occupants of the vehicle, other than there would not have been a title to sign over.

He would be justified under Texas Law. The lawful owner is not required to determine how many people may have been in possession of the vehicle, before taking action to reacquire it. The people who were in possession of the stolen property, would be the ones to prove that they came by it in a manner, that a reasonable person would believe was lawful. As you stated, when there is no title to transfer, that assumption, would not be reasonable.

IANAL, but I have read about similar cases, where the lawful owner held someone at gunpoint until police arrived. One was a backhoe stolen in the county where I live several years ago. The people who were in possession were arrested, and the owner was not charged with any crime.

IANAL but I think a reasonable case that, theft = the unlawful interference with the property, thus the use of force would most likely be justified to recover or prevent it from being stolen.

If your question is "Would it be justified under subparagraph A for the owner to hold the thief at gunpoint?", then I would think the answer would be qualified as to whether the rightful owner still had possession of his property when the force was used to protect it. (This is taken from the plain wording of "A person in lawful possession of land or tangible, movable property is justified ....". )

In other words, since in this example the rightful owner had been dispossessed of his property (ner-do-well had already absconded with his car for days), my understanding is that subparagraph A wouldn't apply. And as you indicated, subparagraph B wouldn't apply since it wasn't immediately/fresh pursuit. That would be my non-lawyer layman's terms understanding.

However, as Jusme addressed, there's 254 counties in the State. How local LEOs/prosecutors 'might' handle it will depend on where you're at. I just wouldn't rely on Subparagraph A to find legal justification.

Mike S wrote:If your question is "Would it be justified under subparagraph A for the owner to hold the thief at gunpoint?", then I would think the answer would be qualified as to whether the rightful owner still had possession of his property when the force was used to protect it. (This is taken from the plain wording of "A person in lawful possession of land or tangible, movable property is justified ....". )

In other words, since in this example the rightful owner had been dispossessed of his property (ner-do-well had already absconded with his car for days), my understanding is that subparagraph A wouldn't apply. And as you indicated, subparagraph B wouldn't apply since it wasn't immediately/fresh pursuit. That would be my non-lawyer layman's terms understanding.

However, as Jusme addressed, there's 254 counties in the State. How local LEOs/prosecutors 'might' handle it will depend on where you're at. I just wouldn't rely on Subparagraph A to find legal justification.

That was my other thought - once you no longer have it, are you in possession? Probably not. So it looks like 9.41 wouldn't provide you protection to hold them at gunpoint. TPC chapter 9 does not have anything for using force for theft except in this section (9.41) and the use of deadly force for theft at nighttime, but you can only use that deadly force if you met 9.41 (which I don't think he would meet).

Looking deeper into TPC, you could make the case for citizen's arrest:

Art. 14.01. OFFENSE WITHIN VIEW. (a) A peace officer or any other person, may, without a warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as a felony or as an offense against the public peace.

and a decent car would most likely be over $2,500.
Theft classification:

(4) a state jail felony if:
(A) the value of the property stolen is $2,500 or more but less than $30,000...

However, if the vehicle owner did not witness the theft, I don't think you would meet the requirements for 14.01 (a), which makes this case void as well.

And yes I realize that you would be hard pressed to find a jury in Texas that would convict this guy, but I like to play devil's advocate to get a better understanding of the law.

Well does the code refer to lawful possession mean as in legal ownership or just being under your control? You don't cease to be the lawful owner of the car just because they stole it, thus it is still your lawful possession.


Edited to add link: http://legal-dictionary.thefreedictiona ... possession

Isn't this essentially what OJ Simpson is in prison for right now? Holding people who were in possession of his stolen property at gun point?

Caveat to add that the Simpson case was in Nevada, I do not know if OJ had a LTC equivalent in Nevada, and IANAL.

Soccerdad1995 wrote:Isn't this essentially what OJ Simpson is in prison for right now? Holding people who were in possession of his stolen property at gun point?

Caveat to add that the Simpson case was in Nevada, I do not know if OJ had a LTC equivalent in Nevada, and IANAL.

Not sure what Nevada law is in regards to force/protecting of property. Plus if I remember the case(I may have slept a few times since then ) a big part of the trial if I remember, was that he held them there for some period of time before leaving and never called the cops if I recall correctly. I believe that's what brought about the kidnapping charges... The other factor if I remember correctly is they could not prove the legal ownership of the memorabilia or at least that it was stolen. This is all from memory so I may have all/a few details wrong about Simpson's case.

Cars are a lot different because of the whole transfer of title thing that comes into play of purchasing a car. A lot easier to prove you legally own a car because of VIN and Title paperwork.

Pariah3j wrote:Well does the code refer to lawful possession mean as in legal ownership or just being under your control? You don't cease to be the lawful owner of the car just because they stole it, thus it is still your lawful possession.


Edited to add link: http://legal-dictionary.thefreedictiona ... possession

When used as a noun (like the definition you hyperlinked to), then yes I agree the car would still be your possession (n), and lawfully because you are the legal owner (you have a title with your name on it, & you didn't sell or give it away; the crook stole it from you). You are indeed the rightful owner.

However, the language of TPC 9.41 uses "in lawful possession of", which means you (legally) + (have possession of) the item. It's important to pick out the nuances. Think of possession (v) in this way as 'having physical control of' the item. Perhaps a real lawyer or legal scholar can offer a better explanation.

I don't think the car owner did anything wrong here, but as the officer noted, a lot of things could have gone very wrong. Remember those bounty hunters trying to arrest the guy at the car dealership last week. When you confront a group of criminals, things can go south fast. Calling the police while waiting and observing at a safe distance would probably be much more advisable. As far as I can tell, the fellow here didn't do anything illegal. I suppose an aggressive DA could see it differently though.

once you no longer have it, are you in possession? Probably not. So it looks like 9.41 wouldn't provide you protection to hold them at gunpoint.

Or would he have "retaken possession" when he blocked it in, walked up to it with a key in his pocket? At that point, he's got way more than the thief inside the restaurant.

Mike S wrote:However, the language of TPC 9.41 uses "in lawful possession of", which means you (legally) + (have possession of) the item. It's important to pick out the nuances. Think of possession (v) in this way as 'having physical control of' the item. Perhaps a real lawyer or legal scholar can offer a better explanation.

You obviously have physical control if you're driving it, but what if it's in your driveway? No physical control.

What if you come out of the supermarket and see somebody stealing your car from the parking lot? They have more physical control than you. Are you saying you're not in lawful possession of your own car because they're stealing it?

Alf wrote:You obviously have physical control if you're driving it, but what if it's in your driveway? No physical control.

Yes, I believe you still have control over the vehicle in a legal sense if it's parked in your driveway.

Alf wrote:What if you come out of the supermarket and see somebody stealing your car from the parking lot? They have more physical control than you. Are you saying you're not in lawful possession of your own car because they're stealing it?

Not sure if you're being serious here, jesting, or being obtuse. TPC 9.41(b) covers the immediately or in fresh pursuit after the dispossession part. (You are allowed to use reasonable force to prevent the theft; already covered by Locke-n-Load's OP). For that matter, TPC 9.42 might even allow you to use deadly force if the offender "(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death" while you're attempting to prevent them from committing this act, as then it might rise to the offense of Robbery. (TPC 9.42 provides justification for deadly force to prevent a robbery). However, justification at that point may also be found in TPC 9.32 under self defense against deadly force.

flechero wrote:

once you no longer have it, are you in possession? Probably not. So it looks like 9.41 wouldn't provide you protection to hold them at gunpoint.

Or would he have "retaken possession" when he blocked it in, walked up to it with a key in his pocket? At that point, he's got way more than the thief inside the restaurant.

Flechero may be onto something here. It was in a public place; at what point does the possession reattach? If he had found his SUV parked in the thief's garage I'd opine he would have better standing with contacting LEOs to recover it. However, finding it outside the McDonald's the unlawful dispossession may have just been re-set.

Mike S wrote:

flechero wrote:

once you no longer have it, are you in possession? Probably not. So it looks like 9.41 wouldn't provide you protection to hold them at gunpoint.

Or would he have "retaken possession" when he blocked it in, walked up to it with a key in his pocket? At that point, he's got way more than the thief inside the restaurant.

Flechero may be onto something here. It was in a public place; at what point does the possession reattach? If he had found his SUV parked in the thief's garage I'd opine he would have better standing with contacting LEOs to recover it. However, finding it outside the McDonald's the unlawful dispossession may have just been re-set.

I could see possession becoming his again, if there weren't other actors inside the car and the owner was outside the car.