TX: Lubbock potential self defense death occurs

[srothstein]

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.

I agree that the ambiguity with which most laws are written is one of the worst things about the law. You 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.

We 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.

[rtschl]

Is it me or does it appear that the Dad (green shirt) was set up for this? Maybe not to be shot, but to record for custody battle?

Domestic disputes between parents over custody and visitation can be very dangerous when there is a lot of bitterness. From what I understand from video, the Dad was there to pick up child and mother was wanting to keep him a few hours longer than what was agreed to or ordered.

Boyfriend should not have gotten weapon. Dad should not have kept fighting with mother and boyfriend. Dad should have walked away when weapon brought out - if not sooner. Boyfriend should have never fired weapon. The biggest loser in this is the child.

I would hate to be on the grand jury to sort this one out with what we know so far. I think I would be inclined to indict for at least voluntary manslaughter at this point.

[oljames3]

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]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.

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.
[/quote]

No, Texas law does not provide for the use of deadly force for mere trespass. Texas lawyers explain:

Going back to the example above, if you grab your firearm, go outside and fire a shot at the trespasser or someone merely creeping around your yard, you will likely find yourself facing a serious felony. In these circumstances, Texas Law only permits the use of force, not deadly force.

https://www.uslawshield.com/defend-prop ... authority.

[oljames3]

The latest from the Lubbock Avalanche-Journal. Posted 1:30pm 11/26/21.

https://www.msn.com/en-us/news/crime/wh ... d=msedgntp

The Texas Attorney General's Office is reviewing the shooting after Lubbock police officials turned over their files on their investigation.

As of this writing, no charges have been filed in the case.

[rtschl]

And here is Amy Swearer's twitter thread on it. She is a Fellow at the Heritage Foundation and 2A proponent and talks about Texas statute and implication in this case.
You can read the thread of 20 tweets even if you don't have a Twitter account. Pretty good analysis from a 2A attorney - though not from Texas.

[03Lightningrocks]

Boy o Boy! This one is going to get interesting.

[Texas_Blaze]

Boy o Boy! This one is going to get interesting.

A man, father and husband is dead, murdered by a coward that needed a gun to summon his courage. This is not exciting nor entertainment and only brings negative attention to 2A proponents.

[03Lightningrocks]

Boy o Boy! This one is going to get interesting.

A man, father and husband is dead, murdered by a coward that needed a gun to summon his courage. This is not exciting nor entertainment and only brings negative attention to 2A proponents.

That is a whole lot of assumption based off that one video. I will wait to see what shakes out before making my summation. As far as 2nd amendment proponents go, a kid shooting his cousin with a nerf dart gun will set them off. Personally, I'm not the type to whip out a gun to try and scare someone off so I start off thinking that was a bad move. I don't know if he did it because he was a coward or if he knows something about the guy he shot that we don't know yet. Who knows what kind of scary stories he has sat up late at night being told by the ex. We just don't know any of the details yet. I am as opinionated as you appear to be so I will spout mine off as soon as I get more details.

[K.Mooneyham]

Boy o Boy! This one is going to get interesting.

A man, father and husband is dead, murdered by a coward that needed a gun to summon his courage. This is not exciting nor entertainment and only brings negative attention to 2A proponents.

That is a whole lot of assumption based off that one video. I will wait to see what shakes out before making my summation. As far as 2nd amendment proponents go, a kid shooting his cousin with a nerf dart gun will set them off. Personally, I'm not the type to whip out a gun to try and scare someone off so I start off thinking that was a bad move. I don't know if he did it because he was a coward or if he knows something about the guy he shot that we don't know yet. Who knows what kind of scary stories he has sat up late at night being told by the ex. We just don't know any of the details yet. I am as opinionated as you appear to be so I will spout mine off as soon as I get more details.

You sort of covered what I was going to say. I'll add that thankfully, I've only been married to one woman for the majority of my adult life. Our kids were ours alone, and grown and moved off with their own lives. I have seen plenty of bad relationship and custody situations while in the USAF though, among those who served with me. There are a lot of details unknown here, and some that are muddy despite the news stories. Even though I've read a couple of news reports, I'm not even sure where the kid in question was at. There in the home, at someone else's home, or somewhere else entirely? I agree that we don't know the entire back story on this. We don't know if the biological dad was a good guy pushed too far, or a real cretin who was looking to cause trouble. We don't know if the boyfriend was a good guy genuinely worried, or a "tough guy" type. We don't know if the mom set up the situation to provoke a confrontation or not. Yes, sir, too many unknowns and variables to make a solid call on this one. There are many good reasons that police officers don't like going to domestic calls.

[dlh]

I think this case will go to grand jury. We see what happens.
I will add my two cents and say I do not believe Texas law allows lethal force for "mere" trespass.

[Mike S]

Oljames' interpretation is correct. Deadly force is absolutely NOT justified for mere trespassing.

When reading the penal code, AND's & OR's are important clauses. "And" requires both elements be present (if multiple elements are listed with "and" between them, then all the listed elements must be satisfied).

"Or" means one of the listed elements must be satisfied.

Under Texas law (TPC 9.41 / 9.42) deadly force is NOT justified for trespass. Force IS justified to prevent or stop a trespass (9.41), but only reasonable 'force' that is immediately necessary.

Unfortunately, the TPC doesn't define "Force". Therefore, the commonly understood meaning of 'force' is used.

These definitions of force are from Black's Law Dictionary:

force,n. Power, violence, or pressure directed against a person or thing.

force,vb. To compel by physical means or by legal requirement

reasonable force. Force that is not excessive and that is appropriate for protecting oneself or one's property.

unreasonable force Unreasonable or unnecessary force under the circumstances.

-----------------
And, it's the jury selected for your trial that will be the arbiters of whether it was reasonable under the circumstances.

[03Lightningrocks]

Oljames' interpretation is correct. Deadly force is absolutely NOT justified for mere trespassing.

When reading the penal code, AND's & OR's are important clauses. "And" requires both elements be present (if multiple elements are listed with "and" between them, then all the listed elements must be satisfied).

"Or" means one of the listed elements must be satisfied.

Under Texas law (TPC 9.41 / 9.42) deadly force is NOT justified for trespass. Force IS justified to prevent or stop a trespass (9.41), but only reasonable 'force' that is immediately necessary.

Unfortunately, the TPC doesn't define "Force". Therefore, the commonly understood meaning of 'force' is used.

These definitions of force are from Black's Law Dictionary:

force,n. Power, violence, or pressure directed against a person or thing.

force,vb. To compel by physical means or by legal requirement

reasonable force. Force that is not excessive and that is appropriate for protecting oneself or one's property.

unreasonable force Unreasonable or unnecessary force under the circumstances.

-----------------
And, it's the jury selected for your trial that will be the arbiters of whether it was reasonable under the circumstances.

It is a good thing that trespassing alone is not a legal reason for deadly force. There might be dead hunters all over the woods after crossing the wrong fence line while chasing a wounded deer. Haha

[Excaliber]

This doesn't look like a clean case either way to me.

I had to watch a few times and it's hard to see, but in the second video shot from a little further away, the deceased man appears to make a grab for the gun shortly after the shooter fired the shot into the ground.

To me it doesn't look like a determined disarm attempt, but it may be enough to take justification beyond trespass and support a defensive shooting in court.

The shooter isn't the brightest bulb on the string anyway for getting into a chest to chest confrontation while holding a long gun. That's begging for a disarming.

[03Lightningrocks]

This doesn't look like a clean case either way to me.

I had to watch a few times and it's hard to see, but in the second video shot from a little further away, the deceased man appears to make a grab for the gun shortly after the shooter fired the shot into the ground.

To me it doesn't look like a determined disarm attempt, but it may be enough to take justification beyond trespass and support a defensive shooting in court.

The shooter isn't the brightest bulb on the string anyway for getting into a chest to chest confrontation while holding a long gun. That's begging for a disarming.

And the feller he was chest to chest with appeared to have size on his side. He could have wrapped his arms around him and used his weight to take him down. Shotgun and all. The big issue I have always considered about pulling a gun is the other guy might call your bluff. If it was a situation the gun was not needed, it just turned it into one. Now the fight is over the gun. Pulling any gun in a fight is a VERY BIG decision. You darned well better be making the right one.

[J.R.@A&M]

Oljames' interpretation is correct. Deadly force is absolutely NOT justified for mere trespassing.

When reading the penal code, AND's & OR's are important clauses. "And" requires both elements be present (if multiple elements are listed with "and" between them, then all the listed elements must be satisfied).

"Or" means one of the listed elements must be satisfied.

Under Texas law (TPC 9.41 / 9.42) deadly force is NOT justified for trespass. Force IS justified to prevent or stop a trespass (9.41), but only reasonable 'force' that is immediately necessary.

Unfortunately, the TPC doesn't define "Force". Therefore, the commonly understood meaning of 'force' is used.

These definitions of force are from Black's Law Dictionary:

force,n. Power, violence, or pressure directed against a person or thing.

force,vb. To compel by physical means or by legal requirement

reasonable force. Force that is not excessive and that is appropriate for protecting oneself or one's property.

unreasonable force Unreasonable or unnecessary force under the circumstances.

-----------------
And, it's the jury selected for your trial that will be the arbiters of whether it was reasonable under the circumstances.

It is a good thing that trespassing alone is not a legal reason for deadly force. There might be dead hunters all over the woods after crossing the wrong fence line while chasing a wounded deer. Haha

Like on the King Ranch. https://www.reddit.com/r/UnresolvedMyst ... x_in_1936/