Help explain Penal Code 9.42

[packinmama]

Can someone help me understand how deadly force is justified for criminal mischief at night?

According to PC 9.42, deadly force is justified:
"to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime"

I know it ultimately comes down to - was it reasonable and necessary, but I can't think of any criminal mischief situation where deadly force would be reasonable and necessary.

Thanks in advance for the clarification!

[srothstein]

Many times, criminal mischief is the precursor offense to another more serious offense. For example, a burglar wants to break into a home that has a locked fence around it. Cutting the lock on the fence is criminal mischief. If the suspect were caught by the owner while in the yard, we can all guess that a burglary was intended, but there may be no proof.

I have seen this defense actually used in San Antonio a few years ago when a gang member was caught tagging the side of a bar at around 2:00 a.m. The bar owner shot him and the DA declined to press charges because of this law. It is debatable what more dangers a gang sign by a bar may bring forth later, of course.

On the opposite side of the coin, what this law does say is that if you catch some teenagers toilet papering you house at night, you can shoot them. I would hate to see that case happen and I doubt the law would be upheld if it did occur. But it is the law.

But, to keep this law in its proper perspective, I believe it truly relates to old time agricultural laws. Cutting fence wire is criminal mischief but was really part of the crime of rustling. Many of our laws truly date back to much older scenarios than we think.

Overall, I think you are right that the law is meant to be applied with common sense and based on what is reasonable and necessary. It is interesting sometimes to consider the extreme ends of a law, both the best and worst of it.

[packinmama]

That is helpful! Thank you, Steve!

[Skiprr]

For further reference, the term "criminal mischief" is defined in PC §28.03 (http://www.statutes.legis.state.tx.us/D ... .htm#28.03):

28.03. CRIMINAL MISCHIEF. (a) A person commits an offense if, without the effective consent of the owner:

(1) he intentionally or knowingly damages or destroys the tangible property of the owner;

(2) he intentionally or knowingly tampers with the tangible property of the owner and causes pecuniary loss or substantial inconvenience to the owner or a third person; or

(3) he intentionally or knowingly makes markings, including inscriptions, slogans, drawings, or paintings, on the tangible property of the owner.

But I believe it's also important to closely read PC §9.42:

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.

The first requirement is that use-of-force is justified under PC §9.41, which opens with the statement that force is justified "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." PC §9.42 repeats this important qualification: use of deadly force is justified only "when and to the degree he [the actor] reasonably believes the deadly force is immediately necessary."

So the "Reasonable Person" criterion is clearly noted. Steve gave the example of neighborhood teenagers toilet-papering a tree in your yard. I can't imagine any grand jury adjudicating a couple of rounds of .45 ACP to be a reasonable solution...not to mention that the act doesn't meet the PC §28.03 definition of "pecuniary loss or substantial inconvenience."

Also, the way the statute is worded, it is a requirement to justify use of deadly force that "the land or property cannot be protected or recovered by any other means; or 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."

A cursory reading of PC §9.42 may look as if use of deadly force for "criminal mischief during the nighttime" is justified, but I'd caution that there are several qualifiers involved that make the slope slippery. Steve's sage advice applies: "...the law is meant to be applied with common sense and based on what is reasonable and necessary."

[Keith B]

As stated, in the penal code is says 'if land or property cannot be protected or recovered by any other means', then it would be justified.

In the course material we teach we ask 'If I find kids toilet papering my yard at night can I shoot them? TP'ing is criminal mischeif.' We will get both yes, no and maybe answers. What we are really fishing for is the answer 'If no other means exists'.

In the case of TP'ing, probably just running out on your porch and yelling 'You kids get out of my yard!' (insert old man voice here ) would be sufficient. At most a good soaking with the garden hose would work.

[RoyGBiv]

Determining what a criminal is exactly intending to do In the dark of night is more difficult than in the light of day. Is that a knife? A gun? A club? Hard to see at night from more than a few feet away (too late). Seems to me that reducing the threshold to "mischief" at night moves the "benefit of the doubt" to the side of the property owner.

Might not be what was intended, but that seems to be the effect.

[gljjt]

In the case of TP'ing, probably just running out on your porch and yelling 'You kids get out of my yard!' (insert old man voice here ) would be sufficient. At most a good soaking with the garden hose would work.

The correct verbiage is "get off my lawn".

[Keith B]

In the case of TP'ing, probably just running out on your porch and yelling 'You kids get out of my yard!' (insert old man voice here ) would be sufficient. At most a good soaking with the garden hose would work.

The correct verbiage is "get off my lawn".

Advice taken from someone who is apparently an expert in this field.

[ryanj]

In the case of TP'ing, probably just running out on your porch and yelling 'You kids get out of my yard!' (insert old man voice here ) would be sufficient. At most a good soaking with the garden hose would work.

The correct verbiage is "get off my lawn".

Garand in hand? LOL!