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wil

wil wrote: ↑Sun Nov 28, 2021 6:31 pm
wil wrote: ↑Sun Nov 28, 2021 6:16 pm
oljames3 wrote: ↑Sun Nov 28, 2021 3:03 pmWil, these links go to Texas Government Code chapters 311 and 312.
https://statutes.capitol.texas.gov/docs ... GV.311.htm
https://statutes.capitol.texas.gov/docs ... GV.312.htm

This article, by Texas lawyers, explains that deadly force is not justified against trespassers.
Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.
https://www.uslawshield.com/defend-property-texas/
I read the article and it does not answer some questions.

1. what constitutes 'force' under 9.41? It is not defined, only stated.

2. if it's non-lethal, what is that? Physical restraint via hands-on? Physically forcing whatever party off the property via the same? 9.41 does not define what constitutes force.

3. what is the recourse under 9.41 if that is not a viable option. Such as disparity of physical strength, outnumbered, etc.

4. the article doesn't really address a situation such as Lubbock. The individual is told to leave, doesn't and advances in a hostile and threatening manner. Are we forced to go hands-on with the genuine potential risks involved with that?
Trespass means someone has been told to leave, they refuse to do so and display hostile and aggressive intent, what is the force allowed to make them leave under 9.41?

If it is physical force only, We have no way of knowing whether or not that individual has training in unarmed combat such that they are far overmatched to ourselves.
An 60 year old individual is generally not a physical match for someone 20+ years or more younger in terms of strength, physical ability, etc.
These are not extreme examples, they are real possibilities.

9.41 does not address any of these questions and it's why I brought up the fallacy of "are you going to shoot a 9 year old kid for tresspassing?' No, there is no likely physical disparity where that childs physical abilities present a danger to oneself if physical force is what is covered in 9.41. A 19 year old is a different story is a different story in terms of physical ability.

9.42 addresses these questions in terms of physical risk to oneself.

these are reasons why I tend to think 9.41 works in conjunction with 9.42 and the article doesn't specify if they are non-related and if so, why.
Also 9.41 not defining what constitutes force leaves the question as to how it applies to 9.42, which specifically mentions if force is legal under 9.41, then it seems 9.42 applies. The article does not address this or 9.42.

still the same question.
Edit: here is 9.42 in it's entirety.

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.
_________________________________________________________________________________________________
the things that stand out in this:

part 1. if force is justified under 9.41. Trespass and they refuse to leave after being told to do so.

item B under part three, "to protect land and if doing so would expose the actor to a substantial risk of death or serious bodily injury."

Perhaps it does beg the question, do we have to have every single element of that entire section of the code in place to use lethal force under 9.41 and 9.42? or are those sections attempting to address individual situations?
Hence if lethal force under 9.41 alone is not legal, and that sounds reasonable. Tell someone to leave and they don't and you have the ability to use force under 9.41, you don't have the right to shoot them. However if force under 9.41 is not a reasonable option then 9.42 applies.

9.41 allows for force, depending on what that actually is, if it's non-lethal, then what happens if that's not a viable option for the individual? Such as the examples I gave? And it exposes someone to grave risk of injury or death?

Then my thinking is 9.42 covers that in part (A) cant be done by any other means, or part (B) places oneself in grave physical risk.

I could be wrong however that seems to be a reasonable line of thinking.

wil

wil wrote: ↑Sun Nov 28, 2021 6:16 pm
oljames3 wrote: ↑Sun Nov 28, 2021 3:03 pmWil, these links go to Texas Government Code chapters 311 and 312.
https://statutes.capitol.texas.gov/docs ... GV.311.htm
https://statutes.capitol.texas.gov/docs ... GV.312.htm

This article, by Texas lawyers, explains that deadly force is not justified against trespassers.
Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.
https://www.uslawshield.com/defend-property-texas/
I read the article and it does not answer some questions.

1. what constitutes 'force' under 9.41? It is not defined, only stated.

2. if it's non-lethal, what is that? Physical restraint via hands-on? Physically forcing whatever party off the property via the same? 9.41 does not define what constitutes force.

3. what is the recourse under 9.41 if that is not a viable option. Such as disparity of physical strength, outnumbered, etc.

4. the article doesn't really address a situation such as Lubbock. The individual is told to leave, doesn't and advances in a hostile and threatening manner. Are we forced to go hands-on with the genuine potential risks involved with that?
Trespass means someone has been told to leave, they refuse to do so and display hostile and aggressive intent, what is the force allowed to make them leave under 9.41?

If it is physical force only, We have no way of knowing whether or not that individual has training in unarmed combat such that they are far overmatched to ourselves.
An 60 year old individual is generally not a physical match for someone 20 or more years younger in terms of strength, speed, etc.
9.41 does not address any of these questions and it's why I brought up the fallacy of "are you going to shoot a 9 year old kid for tresspassing?' No, there is no likely physical disparity where that childs physical abilities present a danger to oneself if physical force is what is covered in 9.41. A 19 year old is a different story is a different story in terms of physical ability.

9.42 addresses these questions in terms of physical risk to oneself.

these are reasons why I tend to think 9.41 works in conjunction with 9.42 and the article doesn't specify if they are non-related and if so, why.
Also 9.41 not defining what constitutes force leaves the question as to how it applies to 9.42, which specifically mentions if force is legal under 9.41, then it seems 9.42 applies. The article does not address this or 9.42.

still the same question.

Edit: here is 9.42 in it's entirety.

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.

the things that stand out in this:

part 1. if force is justified under 9.41. Tresspass and they refuse to leave.

item B under part three, to protect land and if doing so would expose the actor to a substantial risk of death or serious bodily injury.

Perhaps it does beg the question, do we have to have every single element of that entire section of the code in place to use lethal force under 9.41? or are those sections attempting to address individual situations?

9.41 allows for force, depending on what that actually is, if it's non-lethal, then what happens if that's not a viable option for the individual? Such as the examples I gave? And it exposes someone to grave risk of injury or death?

Then my thinking is 9.42 covers that in part (A) cant be done by any other means, or part (B) places oneself in grave physical risk.

I could be wrong however that seems to be a reasonable line of thinking.

wil

oljames3 wrote: ↑Sun Nov 28, 2021 3:03 pmWil, these links go to Texas Government Code chapters 311 and 312.
https://statutes.capitol.texas.gov/docs ... GV.311.htm
https://statutes.capitol.texas.gov/docs ... GV.312.htm

This article, by Texas lawyers, explains that deadly force is not justified against trespassers.
Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.
https://www.uslawshield.com/defend-property-texas/

I read the article and it does not answer some questions.

1. what constitutes 'force' under 9.41? It is not defined, only stated.

2. if it's non-lethal, what is that? Physical restraint via hands-on? Physically forcing whatever party off the property via the same? 9.41 does not define what constitutes force.

3. what is the recourse under 9.41 if that is not a viable option. Such as disparity of physical strength, outnumbered, etc.

4. the article doesn't really address a situation such as Lubbock. The individual is told to leave, doesn't and advances in a hostile and threatening manner. Are we forced to go hands-on with the genuine potential risks involved with that?
Trespass means someone has been told to leave, they refuse to do so and display hostile and aggressive intent, what is the force allowed to make them leave under 9.41?

If it is physical force only, We have no way of knowing whether or not that individual has training in unarmed combat such that they are far overmatched to ourselves.
An 60 year old individual is generally not a physical match for someone 20 or more years younger in terms of strength, speed, etc.
9.41 does not address any of these questions and it's why I brought up the fallacy of "are you going to shoot a 9 year old kid for tresspassing?' No, there is no likely physical disparity where that childs physical abilities present a danger to oneself if physical force is what is covered in 9.41. A 19 year old is a different story is a different story in terms of physical ability.

9.42 addresses these questions in terms of physical risk to oneself.

these are reasons why I tend to think 9.41 works in conjunction with 9.42 and the article doesn't specify if they are non-related and if so, why.
Also 9.41 not defining what constitutes force leaves the question as to how it applies to 9.42, which specifically mentions if force is legal under 9.41, then it seems 9.42 applies. The article does not address this or 9.42.

still the same question.

wil

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amI agree that the ambiguity with which most laws are written is one of the worst things about the law.

where they placed that word "and" changes the relationship between both of those codes. Had they put it at the beginning of 9.42 it would read far more clearly. It is a damnable thing the way so much of the law is written.

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amYou can get some clues on reading them by checking Government Code Chapters 311 and 312 on Code Construction as general guidelines to the interpretation of the laws. I am not a lawyer either, so any reading I give may be as wrong as anyone else's. My training in this taught me to use the terms "and" and "or" like logic requires instead of what may occur in normal speaking or writing. "And" requires the terms on both sides of the word to be met, while "or" says either side or both can be met. So, I read this as saying in 9.42 that to use deadly force, subsections 1, 2, and 3 must all be true.

it is a question owing to the grammer, the words 'and' & 'or' can be synonyms depending on the grammatical usage.

'This' and ''this' meaning it covers both. 'This' or 'this', meaning it covers both. Now we get into splitting hairs, does 'or' mean the two are separate yet covered the same? whereas 'and' means they are connected and have to have both? It gets to be a real rabbit hole.

Also where do I find chapters 311 & 312?

the penal code I wrote came from this:

https://statutes.capitol.texas.gov/

are those chapters in there? I looked but didn't find them. if they're somewhere else let me know & I will read them.

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amWe can agree to disagree on this. I freely admit that I could be wrong and you could be correct. However, I do strongly suggest that you ask a lawyer (preferably the one you would hire if you ever need a defense attorney) for his interpretation before you rely on either of our interpretations.
And I also agree that proposing ridiculous theoretical cases helps no one in an understanding of the law.

I dont consider it a disagreement, more so an attempt to answer a question. Both of us could be entirely wrong or one of us has a correct understanding.
I would absolutely agree consulting an attorney for a clarification is the best course of action. One of the dangers of perhaps reading the law from a standpoint of essentially common sense or understanding is that is not how the law is written.
We don't have qualified immunity and can't stand behind the claim that we genuinely believed this is what the law says owing to how it is written.
Neither can we claim the law is written in such confusing fashion that there's no genuine way for us to have a clear understanding of it and hence abide by it.
It is another damnable aspect of the law, LE can claim they were acting in good faith yet we are held to an entirely different standard, yet both face the same in terms of reading & understanding the law.

wil

I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.
[/quote]

[/quote]I suggest you read that again. 9.41 is just the justification for force and not deadly force. 9.42 is the section justifying deadly force and it does not list trespass.
[/quote]

9.42(1) cites 9.41. If force is justified in 9.41, then lethal force is justified under 9.42(1). trespass is specifically called out in 9.41, 9.42(1)cites 9.41 as grounds for lethal force.
[/quote]
Yes, but 9.42 has a AND clause where it must be justified by 9.41 AND meet the other conditions in subsection 2 and 3. Since trespass is not listed in subsection (2), lethal force cannot be justified to stop it.
[/quote]

I'm not an attorney however the word 'and' carries the meaning of 'in addition to..' meaning as well as section 9,41, there are other situations this applies to.
An attorney would probably be able to answer that more clearly if needed,however reading that as its worded thats what it comes across as, I don't see any reason to read it otherwise.

In addition to that, 9.41 doesn't specify what force it's calling out, only the use of force. however 9.42 calls out lethal force if force is justified under 9.41.

We can argue this till the cows come home, it is one of the most damnable aspects of the law, how it's written and how unclear it is generally.
If someone can clarify these two sections, so much the better however I don't see those two sections being different from my understanding of them.

And the usual arguments of: "are you going to shoot a 9 year old kid for trespassing?" Or other such 'what-if's" That'd be no and a foolishly extreme example. It's self-evident arguments such as that don't fit the laws.

wil

srothstein wrote: ↑Fri Nov 26, 2021 9:42 am
wil wrote: ↑Fri Nov 26, 2021 8:47 am
srothstein wrote: ↑Thu Nov 25, 2021 11:59 pm I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.
Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.
I suggest you read that again. 9.41 is just the justification for force and not deadly force. 9.42 is the section justifying deadly force and it does not list trespass.

9.42(1) cites 9.41. If force is justified in 9.41, then lethal force is justified under 9.42(1). trespass is specifically called out in 9.41, 9.42(1)cites 9.41 as grounds for lethal force.

wil

srothstein wrote: ↑Thu Nov 25, 2021 11:59 pm I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.

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