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https://www.lubbockonline.com/story/new ... 754796002/

A Video has emerged, shot by girlfriend of dead father who was attempting to see his child per a court order and was fatally shot by ex wife’s boyfriend.

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From the limited information, this could be a case of provoker with intent. I will be interesting to see how this plays out.

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.

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.

Agreed. Shooter was in no danger until he returned to the porch with a weapon and proceeded to advance on the man. No apparent threat that would have justified lethal force. No good with come of this. IMHO, the shooter will spend a significant portion of his life in prison.

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.

How can it be trespass if he were legally allowed there to get his kids?

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'm not sure if others watched the same video as others here, but I saw the deceased guy repeatedly refuse orders to leave (trespass), advance repeatedly on an armed man after the shooter tried to move away, and grab the shooters gun (assault). If he had managed to get the gun, the shooter might well be the person who is dead now. I believe I also heard the deceased say "I'll take that from you" or words to that effect.

The actions immediately before the shooting are very similar to the first guy that was shot by Rittenhouse, IMHO. Especially the grabbing of his gun.

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.

Soccerdad1995 wrote: ↑Fri Nov 26, 2021 9:13 am I'm not sure if others watched the same video as others here, but I saw the deceased guy repeatedly refuse orders to leave (trespass), advance repeatedly on an armed man after the shooter tried to move away, and grab the shooters gun (assault). If he had managed to get the gun, the shooter might well be the person who is dead now. I believe I also heard the deceased say "I'll take that from you" or words to that effect.

The actions immediately before the shooting are very similar to the first guy that was shot by Rittenhouse, IMHO. Especially the grabbing of his gun.

The difference between this case and Rittenhouse is that this confrontation started before the gun was on the scene. The man then entered the house and returned with a gun, which could be seen as provoking and escalating the confrontation. But you could be right that these would make a difference.

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.

eyedoc wrote: ↑Fri Nov 26, 2021 8:30 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.

How can it be trespass if he were legally allowed there to get his kids?

The problem is one of who owns the property and can give him permission. If the mother was living there with him, she can give permission only up to a certain extent. The owner of the property can override it and revoke that permission. Some of it will depend on if his remaining on the property was reasonable given the circumstances. There was a SCOTUS case a few years ago about the wife giving permission to search and the man denying it. Both had equal rights to give permission. Court ruled his denial overruled her permission. I am applying similar logic though in this case, she did not have equal authority since she was only a guest in the house.

Some of it might be on the mother if she deliberately provoked the confrontation to try to get him killed and end his visitation. The step-mother's intervention in the custody case is going to be a very interesting separate case to watch. She may have a claim for visitation rights but I am not sure if it will get her custody over the mother.

wil wrote: ↑Fri Nov 26, 2021 9:54 am

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.

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.

We do not know what happened before the video, keep that in mind. This is not as clear cut as the Rittenhouse case for a number of reasons. The shooter left the scene, retrieved the weapon which caused the situation to escalate. The case could easily be made that the shooter could have secured the residence and called the police. This would still allow the use of deadly force had deceased attempted to break into the house.

The problem with the above is that the child's mother was still outside with the ex and his new wife(?) and still potentially in danger, especially if there is a history of domestic violence on the part of the deceased against the ex.

Another major difference between this and the Rittenhouse case is the deceased had a court order allowing him to pick up his child, a civil matter. Trying to enforce this order on his own could be seen as provocation and does not justify criminal trespass. Combined the self-help effort at enforcing a court order and criminal trespass could be seen as a threatening behavior, especially if the shooter had reason to believe the deceased was armed or otherwise a threat.

In the end I suspect this will boil down to was the shooter justified in going back inside and getting the weapon which escalated the situation. I would have handled the situation differently had I been involved with either side.

Why do some people get brave only when they are armed? Murder deserving of death row.

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.