Clerk Shoots Beer Thief

[Teamless]

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Officials said a man went into the store at 3033 Elgin on Friday at 1 a.m., grabbed the beer and walked out. The clerk then pulled his gun and shot the man as he walked away, police said.

It does not sound to me to be a deadly force situation, and while the clerk was not arrested, I would think he would be arrested, unless it comes out that there were extenuating circumstances.

[WildBill]

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Officials said a man went into the store at 3033 Elgin on Friday at 1 a.m., grabbed the beer and walked out. The clerk then pulled his gun and shot the man as he walked away, police said.

It does not sound to me to be a deadly force situation, and while the clerk was not arrested, I would think he would be arrested, unless it comes out that there were extenuating circumstances.

One of the reader comments posted on the story pointed out that this was "theft at night". IMO, the clerk will be extremely lucky if he doesn't get indicted for this.

[Crossfire]

PC §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:
TEXAS CONCEALED HANDGUN LAWS 61
(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.

[WildBill]

From the law that Crossfire posted justification for shooting could be that the clerk reasonably believed:

1) if he didn't shoot the beer thief he could not recover the property because the thief would drink the beer.

2) if he tried to go after the thief to retreive the beer, the thief could have assaulted him.

[Keith B]

PC §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:
TEXAS CONCEALED HANDGUN LAWS 61
(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

Catheter?

[thenick_ttu]

PC §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:
TEXAS CONCEALED HANDGUN LAWS 61
(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

but subpart (3)(A) says that the person must reasonably believe that the property cannot be protected or recovered by any other means. A 12 pack of beer can easily be recovered/replaced (you can get a 12-pack at any grocery store). During my CHL class, the instructor suggested that if it is a common item, then deadly force would not be justified. If it was something such as a family heirloom then you could use deadly force because that cannot be easily replaced. Am I missing something here or was I mis-informed during my CHL class?

[thenick_ttu]

From the law that Crossfire posted justification for shooting could be that the clerk reasonably believed:

1) if he didn't shoot the beer thief he could not recover the property because the thief would drink the beer.

2) if he tried to go after the thief to retreive the beer, the thief could have assaulted him.

Beer can be replaced by other beer, right? While the clerk couldn't recover this specific beer, there is no difference between this 12 pack of bud light and that 12 pack of bud light... they are interchangeable.

[Keith B]

PC §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:
TEXAS CONCEALED HANDGUN LAWS 61
(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

but subpart (3)(A) says that the person must reasonably believe that the property cannot be protected or recovered by any other means. A 12 pack of beer can easily be recovered/replaced (you can get a 12-pack at any grocery store). During my CHL class, the instructor suggested that if it is a common item, then deadly force would not be justified. If it was something such as a family heirloom then you could use deadly force because that cannot be easily replaced. Am I missing something here or was I mis-informed during my CHL class?

It means THAT specific piece of proeprty cannot be recovered. Doesn't say replaced. Now, protected may mena insurance, as it is covered, but not sure there is case law on that.

My statement to people on this is, is the property they are taking worth the amount you will need to spend with a lawyer while waiting for the Grand Jury to decide if it was justifiable or not? Televisions, stereos, some vehicles, etc, and especially beer are not worth it IMO.

[Crossfire]

Here is the thing, from the news report:

"He came before, two or three times, and sometimes he came and stole a 12-pack. Before, he stole a 12-pack three or four times. We also reported to the law," said Nick Zaman, the store owner.

So, this thief, apparently, anytime he ran out of beer, just walked into the neighborhood store, and picked up a 12 pack. Didn't bother paying for it, just took it. Store owner has called the police several times. Still happening.

So, how would you react if this was YOUR business? YOUR livelihood?

[thenick_ttu]

It means THAT specific piece of proeprty cannot be recovered. Doesn't say replaced. Now, protected may mena insurance, as it is covered, but not sure there is case law on that.

My statement to people on this is, is the property they are taking worth the amount you will need to spend with a lawyer while waiting for the Grand Jury to decide if it was justifiable or not? Televisions, stereos, some vehicles, etc, and especially beer are not worth it IMO.

I definitely learned something here. I always thought this meant that it would be bad news for the CHL if the property could be replaced with a substitute, even though it may not be the exact item that was taken. I specifically remember my instructor saying that if someone is stealing your car and it just a common vehicle (not a classic collector's car, etc) then you wouldn't be justified since my stock F-150 could be replaced with another stock F-150... maybe I just misunderstood what he was trying to convey.

So in this case, let's assume the store does not have insurance (unlikely, I know)... So you think he would be justified since this specific beer cannot be recovered?

[WildBill]

It means THAT specific piece of proeprty cannot be recovered. Doesn't say replaced. Now, protected may mena insurance, as it is covered, but not sure there is case law on that.

My statement to people on this is, is the property they are taking worth the amount you will need to spend with a lawyer while waiting for the Grand Jury to decide if it was justifiable or not? Televisions, stereos, some vehicles, etc, and especially beer are not worth it IMO.

I definitely learned something here. I always thought this meant that it would be bad news for the CHL if the property could be replaced with a substitute, even though it may not be the exact item that was taken. I specifically remember my instructor saying that if someone is stealing your car and it just a common vehicle (not a classic collector's car, etc) then you wouldn't be justified since my stock F-150 could be replaced with another stock F-150... maybe I just misunderstood what he was trying to convey.

So in this case, let's assume the store does not have insurance (unlikely, I know)... So you think he would be justified since this specific beer cannot be recovered?

Your CHL instructor was giving his opinion about what he would do, not the law. Insurance has nothing to do with justification. I would bet that most of the forum members would think differently about their stock F-150.

[Jim Beaux]

PC §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:
TEXAS CONCEALED HANDGUN LAWS 61
(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

but subpart (3)(A) says that the person must reasonably believe that the property cannot be protected or recovered by any other means. A 12 pack of beer can easily be recovered/replaced (you can get a 12-pack at any grocery store). During my CHL class, the instructor suggested that if it is a common item, then deadly force would not be justified. If it was something such as a family heirloom then you could use deadly force because that cannot be easily replaced. Am I missing something here or was I mis-informed during my CHL class?

Couple of points:

As the history of this thief has shown, the beer he has taken has not been recovered, but replaced. As replacement involves an exchange of value; an additional expense (loss) is incurred.

This thief has robbed this store previously and his record supports the reasonable assumption that he will continue to steal ("property cannot be protected"), and that the beer will not be recovered.

[thenick_ttu]

I would bet that most of the forum members would think differently about their stock F-150.

I completely agree... I was just caught off guard with this whole scenario. I've been operating under an incorrect logic this whole time. I'm glad that I now understand what the law actually says. Not that I would automatically shoot someone for stealing my vehicle but its nice to know that I can indeed defend my property if needed.

[WildBill]

I would bet that most of the forum members would think differently about their stock F-150.

I completely agree... I was just caught off guard with this whole scenario. I've been operating under an incorrect logic this whole time. I'm glad that I now understand what the law actually says. Not that I would automatically shoot someone for stealing my vehicle but its nice to know that I can indeed defend my property if needed.

INAL - remember that there are different laws for certain crimes committed at night versus daytime hours.

[Jim Beaux]

thenick I believe we have a thread on this somewhere around here. Anyone have an update on this?

Police said a homeowner shot a man in the head after the man reportedly tried to steal a potted plant from the homeowner's property Wednesday morning

The injured man, in his 40s, was not critically injured and is expected to survive. Benavides said he will likely be charged with theft or burglary. The homeowner is not expected to be charged.

“He is protected because he was trying to prevent theft to his property,” Benavides said.

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