CHLer Arrested

[jmra]

TEX PE. CODE ANN. § 9.41 : Texas Statutes - Section 9.41: PROTECTION OF ONE'S OWN PROPERTY
(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

(b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

TEX PE. CODE ANN. § 9.42 : Texas Statutes - Section 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.

That's my reasoning above. I think he's good under 9.41 and 9.42. A stray bullet is a negligence issue, and since no one was hit, I think that would be a hard case to make too. Although I understand that the argument is whether the blue comes into play or not. The blue part is why we all would have erred on the side of caution and not done what he did. He may have "reasonably believed" differently than some of us.

Think what you will, but by my count you wouldn't fair well with a jury of your peers on this forum which means you wouldn't stand a chance with a real jury.

[WildBill]

In this case, is reckless behavior the same as negligence?

[03Lightningrocks]

I can see now that there is no doubt some guys got a CHL because they are out for payback rather than self defense. Good luck with that fellers.

Some of you seem to fancy yourselves tricksters with the law. Again, good luck with that.

[03Lightningrocks]

In this case, is reckless behavior the same as negligence?

In this case it seems reckless would be the situation. The actor intentionally fired his weapon in a reckless manner. Negligence would be if his weapon went off by mistake.


Negligence and recklessness are two related, but different, concepts that can be applied in a civil or criminal case. If you are representing yourself in a negligence lawsuit it is important to keep the two separate because each requires the plaintiff to prove and the defendant to discount different elements. Proving negligence requires demonstrating that the defendant deviated from exercising a standard and acceptable level of care, while proving recklessness is more difficult because the plaintiff must show that the defendant had a specific state of mind. Negligence is often the result of a mistake, while recklesness often involves intentional behavior. Have a question? Get an answer from a Lawyer now!

Read more: http://www.ehow.com/info_8433533_differ ... z2tMCMSYbT" onclick="window.open(this.href);return false;

[Keith B]

That's my reasoning above. I think he's good under 9.41 and 9.42. A stray bullet is a negligence issue, and since no one was hit, I think that would be a hard case to make too. Although I understand that the argument is whether the blue comes into play or not. The blue part is why we all would have erred on the side of caution and not done what he did. He may have "reasonably believed" differently than some of us.

Many times the LEO's will make a call to the DA's desk and let them make the call to arrest or not. If they arrest, then they can always look to drop the charges after the proverbial smoke clears. If they feel they have a strong case, then they will continue on with the prosecution. In this case, they must feel they have a strong enough case to continue on.

[cb1000rider]

If a guy punches you and runs, he is no longer a threat. At this point you are no longer shooting in self defense.

Ahh, but if he punches you, takes your phone, and starts running, wouldn't you say that's an in-progress robbery? Isn't that justified in Texas?
I'm not engaging in legal "trickery" - I'm legitimately asking the question.

To me, where he chose to fire was just a very bad decision.

[03Lightningrocks]

If a guy punches you and runs, he is no longer a threat. At this point you are no longer shooting in self defense.

Ahh, but if he punches you, takes your phone, and starts running, wouldn't you say that's an in-progress robbery? Isn't that justified in Texas?
I'm not engaging in legal "trickery" - I'm legitimately asking the question.

To me, where he chose to fire was just a very bad decision.

The question here is not whether or not one can legally shoot to retrieve stolen property. The question here is, can one do so in a manner likely to risk injury or death to a third party or damage to others property. The answer is ... Absolutely not.

Having the right to utilize self defense or deadly force, does not give you the right to commit a felony while doing so. If he had shot an innocent third person dead in the parking lot, you think he would have been able to use his right to recover his cell phone as a defense to prosecution?

I refer you to penal code section 9.05

[Superman]

If a guy punches you and runs, he is no longer a threat. At this point you are no longer shooting in self defense.

Ahh, but if he punches you, takes your phone, and starts running, wouldn't you say that's an in-progress robbery? Isn't that justified in Texas?
I'm not engaging in legal "trickery" - I'm legitimately asking the question.

To me, where he chose to fire was just a very bad decision.

The question here is not whether or not one can legally shoot to retrieve stolen property. The question here is, can one do so in a manner likely to risk injury or death to a third party or damage to others property. The answer is ... Absolutely not.

Having the right to utilize self defense or deadly force, does not give you the right to commit a felony while doing so. If he had shot an innocent third person dead in the parking lot, you think he would have been able to use his right to recover his cell phone as a defense to prosecution?

I refer you to penal code section 9.05

What if he had to shoot inside Walmart (let's say the robber kept punching him)? Walmart customers could have been hit...would that have been a felony too? That would have been a "manner likely to risk injury or death to a third party"...and it for sure would have damaged Walmart property. I'm not convinced your logic works.

[03Lightningrocks]

If a guy punches you and runs, he is no longer a threat. At this point you are no longer shooting in self defense.

Ahh, but if he punches you, takes your phone, and starts running, wouldn't you say that's an in-progress robbery? Isn't that justified in Texas?
I'm not engaging in legal "trickery" - I'm legitimately asking the question.

To me, where he chose to fire was just a very bad decision.

The question here is not whether or not one can legally shoot to retrieve stolen property. The question here is, can one do so in a manner likely to risk injury or death to a third party or damage to others property. The answer is ... Absolutely not.

Having the right to utilize self defense or deadly force, does not give you the right to commit a felony while doing so. If he had shot an innocent third person dead in the parking lot, you think he would have been able to use his right to recover his cell phone as a defense to prosecution?

I refer you to penal code section 9.05

What if he had to shoot inside Walmart (let's say the robber kept punching him)? Walmart customers could have been hit...would that have been a felony too? That would have been a "manner likely to risk injury or death to a third party"...and it for sure would have damaged Walmart property. I'm not convinced your logic works.

Quite frankly, I don't think you want to see any logic but your own. What you just asked is not what we are discussing. It is also not what happened. It is like you are asking me what if santas little elves had made a stardust sprinkle gun and the guy used it to shoot a fairy princess.

[Superman]

What if he had to shoot inside Walmart (let's say the robber kept punching him)? Walmart customers could have been hit...would that have been a felony too? That would have been a "manner likely to risk injury or death to a third party"...and it for sure would have damaged Walmart property. I'm not convinced your logic works.

Quite frankly, I don't think you want to see any logic but your own. What you just asked is not what we are discussing. It is also not what happened. It is like you are asking me what if santas little elves had made a stardust sprinkle gun and the guy used it to shoot a fairy princess.

I'm being genuine...and I'm not attacking anyone, so you really don't have to mock. Just trying to have a discussion and exchange of opinion.

I think my example is very relevant. Your premise...from what you stated, is that "The question here is, can one do so (legally shoot to retrieve stolen property) in a manner likely to risk injury or death to a third party or damage to others property." I'm saying that even if he engaged the robber inside walmart (where the incident originated), then it would still fall under your definition of a felony (it would have risked injury or death to a third party...walmart customers). By your definition of the felony, any gun self defense could be classified as a felony...any time you discharge you gun in self defense there is likelihood of the bullet striking something unintended, even if you hit your target. So I think your criteria is too broad.

[CoffeeNut]

I realize he was trying to sell the phone so it may have been deactivated but I know my Android and my iPod both have tracking software built in and it's incredibly accurate. You can run off with my phone and I'll let you - only to direct the police to your house.

I can't say why this guy did what he did or if he was justified but when I look at it I see a guy who was fueled on adrenaline thinking he had the right tool to get his cellphone back. Sadly he wasn't using the most important tool, the brain, clearly enough to realize it was only a cellphone and that Walmart might have shared the camera footage with the police in order to help get his phone back.

I have no idea what kind of thought process this guy had at the time but I know from reading on this forum that many of us practice for scenarios either in our minds or in actual training (or both) and I think that had this guy worked some of this out before loading up then the situation may have been avoided.

For example: If I'm in a bank and a guy slides a note to the teller demanding money I know that my money is insured and she's trained to hit the alarm so I have no reason to defend insured money.

Second Example: Guy comes in waving a gun around at everyone while making his way to the tellers then I would act accordingly while trying not to crap my pants.

Bottom line is he should have let the phone go once the guy had it in hand and was fleeing on foot in what is typically a place filled with people.

[03Lightningrocks]

What if he had to shoot inside Walmart (let's say the robber kept punching him)? Walmart customers could have been hit...would that have been a felony too? That would have been a "manner likely to risk injury or death to a third party"...and it for sure would have damaged Walmart property. I'm not convinced your logic works.

Quite frankly, I don't think you want to see any logic but your own. What you just asked is not what we are discussing. It is also not what happened. It is like you are asking me what if santas little elves had made a stardust sprinkle gun and the guy used it to shoot a fairy princess.

I'm being genuine...and I'm not attacking anyone, so you really don't have to mock. Just trying to have a discussion and exchange of opinion.

I think my example is very relevant. Your premise...from what you stated, is that "The question here is, can one do so (legally shoot to retrieve stolen property) in a manner likely to risk injury or death to a third party or damage to others property." I'm saying that even if he engaged the robber inside walmart (where the incident originated), then it would still fall under your definition of a felony (it would have risked injury or death to a third party...walmart customers). By your definition of the felony, any gun self defense could be classified as a felony...any time you discharge you gun in self defense there is likelihood of the bullet striking something unintended, even if you hit your target. So I think your criteria is too broad.

You are the only one to make the criteria broad with the last statement you made, "any time you discharge you gun in self defense there is likelihood of the bullet striking something unintended, even if you hit your target". You said this... Not me.

What I said was "....snip...... The question here is, can one do so in a manner likely to risk injury or death to a third party or damage to others property. The answer is ... Absolutely not". I never said, nor do I believe that, "any time a person discharges a gun in self defense there is a likelihood of the bullet striking something unintended".

I control the discharging of my rounds in a manner that will put NO PERSON at risk, other than my intended target, otherwise I don't fire.

There is a very real difference in the two statements. Allow me to simplify it a bit.

If you start flinging rounds around Walmart in a reckless manner, as this person did in the parking lot, no matter what your justification, you can and probably will be charged with deadly conduct and possibly reckless endangerment.

If you manage to shoot a third party, your justification for self defense is not a defense of prosecution for killing or wounding the third party. Maybe I worded that badly but the gist of it is, you don't get to blast holes in anything and everything around you because you have been or are presently under attack.

Read this. It is important for us all to remember!

PC §9.05. RECKLESS INJURY OF INNOCENT THIRD PERSON. Even though an actor is justified under this chapter in threatening or using force or deadly force against another, if in doing so he also recklessly injures or kills an innocent third person, the justification afforded by this chapter is unavailable in a prosecution for the reckless injury or killing of the innocent third person.

[Keith B]

...any time you discharge you gun in self defense there is likelihood of the bullet striking something unintended, even if you hit your target.

Here is the whole enchilada. The guy selling the phone was within the legal right to do what he did in trying to retrieve his stolen property. However, when he used deadly force he 'apparently' was very negligent in how he was shooting at the guy in a crowded parking lot. I believe had he been inside Walmart and the guy been attacking him or close enough that the shots were hitting or hitting close to the target the police might not have had grounds to arrest him. However, the police must have felt that when he was shooting outside the Walmart and the location of the bullets that didn't hit their target constituted negligence in the act of trying to retrieve his property, so they arrested him for that. You can't just go slinging lead everywhere. I was involved in an incident as a LEO where I had to not shoot because of a quick stop and glass windows with people behind the BG as he was running toward the building after shooting at us. I had already picked out my safe shot lane and was starting to pull the trigger of my handgun as he entered the zone when another officer had the clear angle and shot the BG. It was all very quick, but that is the type of decision you must be able to make on the fly in these situations. In this case the CHL didn't use good judgement in the method he used to try to recover his phone.

[rbwhatever1]

Seems like most of Society will calmly, with great dignity, compassion, bearing and poise...hand over our goods to criminals without a whimper and expect all to do the same. Except for Mr. Kwan. He's a rare bird in Society who fights criminals. We cannot have people fighting violent criminals in our Society unless all danger is removed from the equation. I haven't figured out how to remove "dangerous conduct" from responding to a violent assault using ones firearm in a public place, where most interaction with criminals happen, but I'm sure someone on this board has the answer for all of us to model our lives around. We can also read one Law that supports an act with another that may not. It appears the State has all avenues covered for controlling every action of the huddled masses, right or wrong.

Let's throw the bum in prison for having the audacity to try to defend himself, his property and his dignity (at night of course) as being one of those "humans" that refused to adhere to the Social contract between Law Abiding Citizens and Criminals...in a public place, and missing.

Seems like missing the criminal is more dangerous than the criminals violence towards the Citizen. Unless of course the Citizen is killed in the attack or an innocent house is shot.

Yes, I'm a nut.

Happy Saturday Armed Texans!

[rbwhatever1]

Funny story about shooting houses.

I once shot a house quail hunting. I was 9 or 10 and couldn't see it from the cedar's in the field and sloping terrain but my brother was in full view with a bright orange game vest. Funniest thing ever. Lead shot raining down on an old farmhouse with a tin roof (tink tink tink) and a very upset old lady yelling at my big brother standing in the open with a shotgun trying to convince her it wasn't him. He was yelling "COME HERE! COME HERE!" to me to prove it wasn't him and the old lady may have believed him for a few seconds until Julie, our Springer Spaniel sat in front of him with a bird in her mouth. Julie usually brought the bird to the shooter but he kept screaming "Come Here!" so she brought it to him.

We gave her the cleaned quail plus another and she was very happy after that. She liked our dog Julie too. I got punched hard later for that one. I think my big brother tired of my suppressed giggles throughout the day but the catalyst was when I fell to the ground laughing uncontrollably for about 5 minutes. He was trying to "punch" the fun out of me and he had a temper but finally started laughing himself between punches.

Sorry for the hi-jack of your thread!