Return to “Texas LEO shoots family dog at wrong address”
dang no good Carnies.Pacifist wrote:In the interest of officer safety, and in order to prevent such potentially dangerous and/or injurious events from occurring in the future, new departmental guidelines have already been issued instructing officers to first empty their duty weapons into the passenger compartment of any vehicle prior to making any approach:
http://www.click2houston.com/news/monke ... index.html
They didn't execute a warrant at the wrong house. The warrant was for a person not an address. The defendant didn't live at his given address so they were checking other locations for him. The address was one of those other locations where they were going to do a stop and knock to see if they could locate the defendant or any possible info. They didn't get lost or type the wrong address into the GPS they were attempting to locate a person who gave a bad address.CoffeeNut wrote: Again since they executed the warrant on the wrong house the police department should at least pony up for the vet bills.
talltex wrote: Reminds me of one of the midday coffee regulars at the DQ who was sitting there when a couple of the early morning regulars came in and asked him where Ol' Joe was... he told'em: "After the rest of ya'll's early group left, he went off down to the pasture to argue with a fence post until time for the afternoon meeting."
No lawyer, and I'm tired of the google, but I think it would depend on why they were going back there.lrpettit wrote:It also seems that most of the posts are assuming you have to go through the gate to get to the front door. Do the same rules apply to a backyard that's fenced like us city slickers have? Not talking police, I know they can go back there.
You are just totally wrong by law. You have decided that you feel something should be a particular way and even with court decisions that say otherwise you still deny like repeating it makes it so. It doesn't. In Texas you must post or secure gates for entry to automatically considered criminal trespass.VMI77 wrote:More strawmen. Strawman #1: A UPS delivery is essentially by invitation. Strawman #2: the electric company has a lock on my gate, so they essentially have permission to enter. But if I lived in town, this is not the normal practice, so, if I needed to receive a delivery or the electric company needed to read the meter when no one was home, the gate would have to be left unlocked. I put a piece of metal so the latch can't be bumped and accidentally open the gate, but it isn't "locked." If you're not just demolishing strawmen, then I can only conclude you are one of these people who can't conceive of any legitimate reason for other people to conduct their lives any differently than you do.EEllis wrote: They wouldn't consider it trespassing when the UPS driver enters so you can't assume anyone else is trespassing. This is one of those times that reading the statutes will not give you the whole story.
Mind you you may very well be right in the fact that it might be dangerous. You can see just from this thread how misinformed many people are about the law so you may very well be met by someone with a gun, heck ever it would be worse at night, but that really doesn't matter legally speaking if there might be danger involved. Is a bit strange that people would be willing to stop someone at gunpoint but can't be bothered to post or secure a gate. Takes all kinds I guess.
Then laterAt least one Texas court has held that unlatching an ordinary latch on a closed, but unlocked, gate to approach the front door of a house is not an illegal entry by police. See Nored v. State, 875 S.W.2d 392, 396-97 (Tex. App. Dallas 1994, pet. ref d).
True these are cases involving police, but then again how many cases of trespass do you think go to appeals, these only went because of suppression issues. The logic tho is directly applicable. The police didn't make illegal entry because it would of been something a regular citizen would of done.In terms of the degree to which it signifies an intent to exclude the public, a remote control gate is somewhere between a locked gate or sign prohibiting entry and a gate closed with an ordinary latch, and is thus somewhat ambiguous. Although a remote control mechanism on a gate can support an inference that it is intended to prevent the gate from being opened otherwise and to thereby exclude the public, it can also reasonably support an inference that it is merely intended to hold the gate shut, like an ordinary gate latch, while also allowing it to be opened by remote control when convenient. Based on the latter inference, it would not have been an abuse of discretion for the trial court to conclude that the officers pushing the gate open to approach the front door was not an illegal entry.
Mr. Nieminski had the initial burden in this case to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his door for the ordinary purposes for which people knock on doors under similar circumstances.
Bull. No strawman argument to say getting fired by a private employer is different than a cop being prosecuted. I'm sorry if you are upset that a meter reading company would have different policies than a police dept but thats reality. What an employer does is their business the law is a different story you are the one who was trying to mix them probably because you can't make your point legitimately. Because you are wrong on the facts and your logic is non-existent. Personally I think you are letting your issues with cop color your reality a bit but so be it. There is no law that would keep private citizens with CHL's from legally entering private property. If while on that property conducting legal and reasonable activities, and this would be based on court cases not what every individual wacko thinks as reasonable, an individual is faced with a situation where the use of force would be ok on public property then they use force on private property is also OK.VMI77 wrote:
You're a real champion of the strawman argument, unless you're really obtuse. The whole thrust of what several people have posted, including me, is that everyone BUT law enforcement has to face consequences for killing someone's dog on their property, especially when it is inside a fenced yard. Mamabearcali explained how some companies handle entering fenced yards. No one not employed by LE is even allowed to carry weapons with which they can kill dogs while they are carrying out their duties. If cops faced just the same consequences as utility workers --being fired-- the number of dogs being shot like this would be greatly reduced. Everyone else seems to be able to conduct their business without killing dogs, and LE should be able to do the same. You can make up all the different scenarios you want but it won't change the fact that LE doesn't face any consequences for killing people's pets, even when they are clearly in the wrong.....but then, they rarely face consequences for getting the wrong address and killing innocent people either.
Yeah show me that law.No one not employed by LE is even allowed to carry weapons with which they can kill dogs while they are carrying out their duties.
Well as long as you have a sound legal basis.......Cedar Park Dad wrote:Shooting another person's dog in their back yard on their property ina fenced in area, yea you're going before the judge, assuming they don't shoot you first.EEllis wrote:Well it kind of depends on why doesn't it? If you can show, well excuse me that is backwards, unless the state can show you didnt have a legitimate reason for firing a gun in self defence killing a dog then your location is insignificant as long as you aren't there illegally.Cedar Park Dad wrote:Shooting a firearm in a residential neighborhood? Are you sure about that?
If you want a real solid case against trespassers and to insure against liability if someone enters then yes it does. In Texas case law is pretty clear. If you are entering a unlocked unposted fenced area for "normal" business then you are not trespassing until asked to leave and you refuse to do so. You say 6' fence and I would agree that would personally make me less likely to enter than a 3' chain link or a white picket fence. Primarily because the homeowner put much more effort into securing the area making me believe they don't want people on their property. But then again why would you go thru all that effort but not post or lock your gate? Several of my neighbors have such fencing but they only get locked when they are gone or at night. They wouldn't consider it trespassing when the UPS driver enters so you can't assume anyone else is trespassing. This is one of those times that reading the statutes will not give you the whole story.lrpettit wrote:I'm not a lawyer. I'm genuinely asking. I always considered a fence (gated or not) to mean I better have a good reason to cross it. 30.05 says notice includes "fencing or other enclosure obviously designed to exclude intruders or to contain livestock". It doesn't say anything that gates have to be locked.EEllis wrote:We have already established that the law, and most people, don't consider an unposted, unlocked gate to mean "STAY OUT!"
So maybe I'm rare when thinking it's probably not ok (in fact dangerous) to start opening people's gates and wondering in their fenced backyards (especially if there are no meters back there). But under the law does a 6 foot fence have to have locked gates for it to be "obviously designed to exclude intruders"?
Well it kind of depends on why doesn't it? If you can show, well excuse me that is backwards, unless the state can show you didnt have a legitimate reason for firing a gun in self defence killing a dog then your location is insignificant as long as you aren't there illegally.Cedar Park Dad wrote:Shooting a firearm in a residential neighborhood? Are you sure about that?
It's an option for those who find "No Trespass" to longapostate wrote:Thank goodness for purple paint.EEllis wrote:The gate being locked or posted does matter because without those things there is no trespass, it's the same as walking up to any door.
In all actuality you most likely wouldn't face charges just civil liability and the law does not consider houses to be the same as yards,RX8er wrote:A buddy of mine called me to come help him move a porch swing. I called him a few minutes before my arrival and he said he was out back getting it ready to move. When I showed up, I walked to the side of his house and though his gate. As I rounded the corner and his dog started to come at me barking with teeth showing. It was an aggressive dog and I feared for my life so I stopped the threat. As it turns out, I was at the wrong house. See he just moved in to his house and he is at 3632 Any Street but got confused on his address and told me he was at 3623 Any Street. I shot and killed someones treasured pet.
Now, all sarcasm aside, this didn't happen as I'm sure you could guess.
Other than a badge how is this any different? As a LEO, I'm pretty sure you would take me to jail for this. Now, I got to go lock my front door and gates because I just learned that if I don't put up a sign and have unlocked doors, anyone can just come walking in to my house or yard.
Employer policies and legal liability are two separate issues and the fact that many employers prohibit their employees from effectively being able to defend themselves is hardly worth mentioning when discussing the law. Truth is since it is not trespassing to enter the yard when it's unlocked and unposted there is every reason to believe that one could shoot a dog and successfully claim self defence. Now I assume the shooter would be doing so because they feared serious injury, and I hope they were correct and have evidence of such. Really though isn't this why we carry? What if you were walking you daughter as she sold GS cookies, or school candy, or whatever. We have already established that the law, and most people, don't consider an unposted, unlocked gate to mean "STAY OUT!" So if you were walking you kid and around the corner comes 2 barking shepherds do you really think you couldn't "get away" with shooting? Please.VMI77 wrote:I've never heard of a utility worker, letter carrier, or most other such people likely to show up on my property, that is allowed to carry a deadly weapon. The postal service most definitely prohibits letter carriers from possessing deadly weapons on duty. If a utility worker enters my fenced, gated (and locked) property and I have not contracted with that utility for any service, he is trespassing. I happen to work in the electric utility industry, for a VERY gun friendly company, and I can assure you that any meter reader who entered a customer's property armed would be fired (assuming the company found out). If he killed a customer's dog he would be fired. Some utility easements expressly forbid entering property with a gun in possession. And anyway, the company would expect that employee to contact the homeowner or person receiving service and ask them to secure their dog. That is because for those of us not in LE, there are consequences for killing our customer's pets.VoiceofReason wrote:Please site your source.
By entering your property, a utility worker or anyone else for that matter does not forfeit his/her right to self defence up to and including deadly force. If your dog attacks someone coming to your front door, that person can kill your dog if necessary to protect themselves, then sue you.
You're trying to equate your situation with a locked and secure gate to what the officer was faced with. It is not the same. Anyone can open an unlocked unposted gate because the contract you mention includes contacting the residents, which is what the officer was trying to do. Leave you gate unlocked and try it your way but TDC has really poor internet access so you probably won't be able to tell us to much about it.If my dog is running loose in a front yard, especially in a place where there is a leash law, and someone is attacked by my dog, he can sue, and I would not desire to see him punished for defending himself. If I found my dog attacking someone I would shoot it myself (at least if they weren't trespassing). That's not the situation here, where the officer was in the wrong location, and entered a fenced yard through a closed gate. Where I live, with my gate shut, they'd either have to call me or break the lock, and breaking the lock would be criminal trespass. There is either a contract or implied contract allowing entry for utility workers and deliverymen. Someone who enters my property without consent, unsolicited, or without such implied consent, is going to get charged with trespassing. I see them with a gun in their hand something more serious is likely to happen.
Can't answer the first but will say that is a dept policy issue and shouldn't be held against the individual officer as to the second I assume that is what this officer does. He gets a list and starts working. The more time and the longer it's on his list the more time he puts in. If no one was home I have no doubt he would of been on the road looking for the next name.Cedar Park Dad wrote:Again,
1. why aren't the police using pepper spray/mace on dogs instead of throwing lead in populated areas?
2. why are they going to back yard in the first place? Its at best a minor warrant.
Actually it does matter what the FL courts say. It is called precedent and if their statute is significantly the same as ours, which it is, then our courts can and do use cases in other locations to guide us. But be that as it may you conveniently ignored the Tx example that says the same thing when attempting to berate me. I said the Cop being there wasn't trespassing and I posted the law in response to those who said it was. So how am I moving the "goalpost"? And That same interpretation that says the cops were not trespassing , when they found evidence used to arrest people, was held so because it wouldn't of been trespassing for for an average citizen going about their business, like selling cookies. It is clear that entering a unposted yard with an unlocked gate is not trespassing in Texas if your motive for doing so is to go knock on the door. While people may want it to be different the courts have held to that interpretation again and again. Complain to them not me.RottenApple wrote:I couldn't care less about FL law. We're talking about Texas. And TX law is quite clear that the fence alone is barrier enough.EEllis wrote:Check again. If the fence is unlock and not posted then you can't show that it is intended to keep someone out, kind of useless putting up a security fence that doesn't lock right, so you can't get a trespass charge on it.
Here http://caselaw.findlaw.com/fl-district- ... 65541.html" onclick="window.open(this.href);return false; is a case in Florida. Now cops enter for totally different reasons and basicly this is about an appeal of a conviction but the part that may interest you is the court found that if you have an unlocked unposted gate and want privacy then....
Moving the goal posts again I see. I never said that the COP was trespassing. The hypothetical Girl Scout you brought up, OTH, most definitely was. 30.05 has a specific exemption for LEOs. So while this officer(s) weren't trespassing (which I think is a bunch of bull since they were at the wrong house), they were 1) at the wrong location, 2) discharged a firearm recklessly (3 shots, 1 hit, and a 6yo boy nearby), 3) traumatized a little boy & family due to their error, 4) should be held civilly and criminally liable for their mistake.EEllis wrote:Now some will complain again that cops are being treated differently being allowed to trespass but know the whole point is that it isn't criminal trespass for anyone.
RottenApple wrote:Then please show us exactly where I am wrong?EEllis wrote:You do know that is not the law right? If a kid entered not only would they not be in violation of any law but if attacked the dog owner would most likely be civilly and even criminally liable in some cases. I feel for the dog and glad the cop missed but ............
Edit: Nevermind. I'll just show you where you are wrong.
You can continue reading 30.05 if you like, but there is no legal requirement for a gate to be locked.§ 30.05. CRIMINAL TRESPASS. (a) A person commits an
offense if he enters or remains on or in property, including an
aircraft or other vehicle, of another without effective consent or
he enters or remains in a building of another without effective
consent and he:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
(b) For purposes of this section:
(1) "Entry" means the intrusion of the entire body.
(2) "Notice" means:
(A) oral or written communication by the owner or
someone with apparent authority to act for the owner;
(B) fencing or other enclosure obviously
designed to exclude intruders or to contain livestock
Really though is the UPS guy trespassing? The Postman? If not then the Cop wasn't either. Wait I know that was Florida so it doesn't count. Fine heres some Texas case law. http://law.justia.com/cases/texas/fourt ... 77346.html" onclick="window.open(this.href);return false;Mr. Nieminski had the initial burden in this case to establish that he had a reasonable expectation of privacy that included an expectation that citizens would not enter the property through the unlocked gate to knock on his door for the ordinary purposes for which people knock on doors under similar circumstances. He failed to establish that his expectation of privacy at this property included protection for such a limited intrusion.
Now some will complain again that cops are being treated differently being allowed to trespass but know the whole point is that it isn't criminal trespass for anyone.Absent express orders from a person in possession of property not to trespass, a police officer is not prevented from approaching the front door of a residence. See Cornealius v. State, 900 S.W.2d 731 (Tex. Crim. App. 1995). In this case, appellant cites no evidence of a sign prohibiting entry onto the property or that the gate was locked, but only that it was a motorized gate, operated by remote control, which the officers instead pushed open.
At least one Texas court has held that unlatching an ordinary latch on a closed, but unlocked, gate to approach the front door of a house is not an illegal entry by police. See Nored v. State, 875 S.W.2d 392, 396-97 (Tex. App. Dallas 1994, pet. ref d).
