http://www.chron.com/disp/story.mpl/front/5374078.html
Falkenberg: Property outweighing people in Horn case
By LISA FALKENBERG
Copyright 2007 Houston Chronicle
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In Joe Horn's now-infamous 911 call reporting the burglary of his neighbor's home last month, there's a particularly disturbing refrain that made many of us cringe.
"I'm not going to let them get away with this," the Pasadena homeowner tells the dispatcher several times in various ways in the moments before he shot to death the two burglars, Miguel Antonio DeJesus, 28, and Diego Ortiz, 30.
To many of us, Horn's preoccupation with stopping the crime and recovering the stolen property — "a bag of loot," as Horn described it — seemed irrational and vengeful rather than heroic.
We agreed with the dispatcher, who repeatedly pleaded with the 61-year-old computer consultant to keep himself and his shotgun safe inside his own house while police headed to the scene.
"Ain't no property worth shooting somebody over," the dispatcher told Horn.
Property vs. human life
Human life is worth more than property. It seems like a universal truth. But apparently not in Texas, or other states with similar laws.
Over the past week, I've researched the Texas Penal Code and discovered some provisions that were surprising even to this fifth-generation Texan.
The law of our land seems to place more value on the property being stolen — even if it belongs to a neighbor — than on the life of the burglar stealing it.
A review of our state's protection-of-property statutes suggests that Horn's repeated declarations about not letting the burglars "get away with it" may be the words that ultimately set him free.
If Horn doesn't get indicted, don't blame the grand jury. And don't blame Harris County District Attorney Chuck Rosenthal. Blame the section of Chapter 9 of the Penal Code that deals with protection of property.
Justifiable homicide
Under the section, which has been in place at least since 1973, a person is justified in using deadly force to protect a neighbor's property from burglary if the person "reasonably believes" deadly force is immediately necessary to stop the burglars from escaping with the stolen property. It's also justified if the shooter "reasonably believes" that "the land or property cannot be protected or recovered by any other means."
Now, one might argue that, since the dispatcher told Horn that police were on their way, Horn should have reasonably believed authorities would nab the bad guys.
But the escalating anxiety in Horn's voice as he sees the burglars emerge from his neighbor's window with the goods, and his reiteration that "they're getting away" moments before he fires his 12-gauge may indicate to a grand jury that Horn didn't believe police would arrive in time.
Rosenthal wouldn't discuss the particulars of the Horn case, which he is still waiting to receive from Pasadena police. And police haven't revealed all the facts. A police spokesman disclosed last week that, according to a plainclothes detective who witnessed the Nov. 14 shootings, Horn shot the two men in the back after they'd ventured into his front yard.
The fact that they were on his yard may provide Horn with even more protection.
Rosenthal said he won't let the controversy surrounding the case influence his office's handling of it.
And the prosecutor won't make a recommendation to the grand jury, which Rosenthal said is standard for such cases.
"We'll take it to a grand jury; we'll present it straight up, and whatever the grand jury does, we'll follow it. And if they decide they want to indict the guy, we'll handle it and we'll suffer the slings and arrows, but that's part of the territory," Rosenthal said.
Even if they don't indict him, it doesn't mean Horn's actions were morally right. He chose to kill; he didn't have to. His own life and property were not in danger until he confronted the burglars.
There's a difference between what we can do and what we should do. Without careful judgment and discretion, the law can be a dangerous thing.
The same law that may protect Horn from indictment could also protect someone who, in the dark of night, discovers a group of teenage girls wrapping his front yard trees with toilet paper.
To a rational person, this is a harmless prank. Under Texas law, in a world without discretion, the girls are engaging in criminal mischief and the homeowner would be justified in mowing them down with a shotgun.