Employee shoots shoplifter - facing aggravated assault?

[MrsFosforos]

Link to article http://www.terrelltribune.com/articles/ ... 651088.txt" onclick="window.open(this.href);return false;

News
Bottle of liquor causing trouble for employee, robbery suspect
By Tricia Scruggs
Published: Wednesday, March 18, 2009 12:01 PM CDT
reporter@terrelltribune.com

Both a store employee and a suspect are in trouble over a bottle of liquor.

Terrell Police Department officials say around 6 p.m. Tuesday a male suspect entered 34 Beverage in the 1700 block of State Highway 34 and allegedly stole a bottle of Hennessey.

As he fled, the clerk fired several shots, striking not only the get-away vehicle, a silver 1990 Chevrolet pick-up truck, but also the suspect. The man was struck in the stomach but managed to drive away and was later apprehended after being pulled over, outside city limits, by a Kaufman County Sheriff’s officer for speeding.

TPD Spokesman Capt. Arley Sansom said the suspect has been charged with shoplifting and upon further investigation it’s likely the shooter will be referred to the Kaufman County District Attorney’s office for possible grand jury referral.

“Texas law does not allow you to use deadly force to protect personal property unless it’s night-time,” Sansom said.

Had the incident occurred two weeks earlier, the shooter may not have violated the law since the sun would have set by that time.

Officials say the DA’s office could charge her with aggravated assault with a deadly weapon. The suspect has been charged with theft over $50 but under $50.

[seamusTX]

The cop stated correctly that you cannot legally use deadly force to prevent simple theft in the day time.

PC 9.42 contains three clauses with the word and between them. This case, as reported, does not meet all three conditions.

It's also clear that the police do not like people shooting at fleeing vehicles. IMHO, that is a very dangerous thing to do, both because you can inadvertently hit a bystander or cause significant property damage, and because a wounded driver might have a serious collision.

With felony charges, you have to remember that arrest is just the first step. The DA has to decide whether to prosecute, and then get an indictment from the grand jury (which he probably would in this case).

I would be surprised if this case was not resolved with a misdemeanor plea.

- Jim

[Biga9999]

Not worth it for a bottle of liquor.

If he is pointing a gun at you, sure, defend yourself. But a guy swiping a bottle of liquor? File a report and let it go. Just my 2 cents

[Purplehood]

[seamusTX]

I remember when liquor stores kept everything except heavy cases behind the counter. You had to ask the clerk for whatever you wanted. It's still that way in some states -- the store cannot legally put booze where someone can touch it without having their age verified.

Stores went to open layouts because they increase sales and reduce manpower. Shoplifting is the price that they pay for that.

They really ought to keep the expensive stuff behind the counter. It wouldn't hurt to have a remote door lock, either.

Regardless of the ethical question of whether you should use deadly force to recover something of minor value, it's clear that in Texas today, doing so may cost you a lot of money and heartburn.

In most states, there would be no question at all about this incident being charged as aggravated assault or deadly conduct.

- Jim

[ninemm]

... The DA has to decide whether to prosecute, and then get an indictment from the grand jury (which he probably would in this case)...- Jim

If the DA wants an indictment from the grand jury, he will get one. The grand jury system has outlived its original purpose and nowadays is simply a tool of the DA.

[Aric]

... The DA has to decide whether to prosecute, and then get an indictment from the grand jury (which he probably would in this case)...- Jim

If the DA wants an indictment from the grand jury, he will get one. The grand jury system has outlived its original purpose and nowadays is simply a tool of the DA.

I disagree with this statement.. I was on a grand jury and plenty of times we disagreed with the DA and no-billed someone. But 95% of the time we did agree, but these where clear cases.

[seamusTX]

The reason that I said the grand jury would indict in this case is that the store clerk, according to the news report, clearly committed the offense of aggravated assault.

You (ninemm) are correct that the prosecutor has a great deal of influence over grand juries. However, prosecutors do not always get indictments. I don't know (and can't find) statistics on how often state grand juries return a no bill, but I can remember some prominent cases where prosecutors failed on multiple attempts to get an indictment.

There are also many attempts to get indictments that are not made public, such as in organized crime cases. Those efforts are kept secret while investigators continue to develop evidence.

You also have to keep in mind that most people who are charged with felonies are guilty. The state may ultimately fail to prove that beyond a reasonable doubt, or the case may be dismissed for technical reasons, but there are nearly always enough facts to find probable cause.

- Jim

[LarryH]

I don't know (and can't find) statistics on how often state grand juries return a no bill, but I can remember some prominent cases where prosecutors failed on multiple attempts to get an indictment.

- Jim

The number of times Ronnie Earle tried to get an indictment against Tom DeLay before he finally succeeded is a perfect example.

[seamusTX]

I was thinking of Mr. DeLay. Also, several self-defense shootings have been no-billed multiple times, when the prosecutor obviously wanted a conviction.

BTW, when I said that most defendants are guilty, I was referring to crimes like burglary, robbery, rape, and drug dealing. There is no legal justification for these acts, so if the elements of the offense can be proven, the grand jury must return an indictment.

In the case of a self-defense shooting, there is a subjective question about whether the defender meets the standard of "reasonably believes the deadly force is immediately necessary." In that case, the prosecutor can think that the use of force was not justified; but a couple of mugging and rape victims on the grand jury can have a different opinion.

- Jim

[DoubleJ]

maybe the shopkeeper was afraid that because the robber was getting into a car with the liquor, the robber was going to Drink and Drive, and we all know that'd be bad.

so, in effect, he was trying to prevent another's attempted Vehicular Manslaughter!!! Maybe if he'da been a better shot....

[ninemm]

...but I can remember some prominent cases where prosecutors failed on multiple attempts to get an indictment.- Jim

High profile and (possible) corruption cases are probably an exception to a DA getting an automatic indictment . And perhaps in a large county a DA has less control. But in a small county, if the DA wants a felony indictment, he'll get it nearly every time. It only takes a majority of the jurors to vote a true bill. Since they are practically hand picked by the DA, they have quite a bit of loyalty to him/her.

[03Lightningrocks]

It really scares me when folks use firearms this way. Shooting at a vehicle as it is driving away is about stupid. Stupid with guns deserves a life sentence.

Again...I want to bring up the obvious. What happens if a person does not see part one, but witnesses part two of this debacle? Blam...they pull out their weapon and fire on the ding dong shooting at a moving vehicle. How do I know the shooter isn't a mass murderer gunning down people randomly?

[seamusTX]

I have to point out that in this case, the store clerk did not miss the vehicle.

Having shot skeet and trap, where you have to hit within a yard of a moving object, I would never try to fire a handgun or rifle at a vehicle that way.

Your question points out how you should be very careful about intervening in situations where you are not the target of an attack.

- Jim

[HankB]

Some thoughts, based on the story as reported above . . .

* Were I the store employee, I would not have fired. A bottle from my employer's liquor inventory isn't worth placing myself in that kind of legal jeopardy.

* Were I to serve on a grand jury, I would not vote to indict the store employee.

* Were I to serve as a juror in a trial of the store employee, I would not convict.

Hmmm . . . perhaps the store employee thought she saw the perp threaten her with a gun? One the perp would have had plenty of time to discard between the shooting and his apprehension outside town?

One final thought: since the perp WAS a shoplifter, and the shooter IS female, a Texas grand jury may be predisposed to favor her . . .