Friendswood: Man arrested for pulling gun on trespassers

[mr.72]

Mr. Cambell was tresspassing and penal code sec 9.41 permits the use of force:

snip

And 9.04 permits the production of a weapon and the threat to use it where force is justified:

This is exactly right.

To arrest this guy is harassment, pure and simple.

If, for any reason, one has decided to enter my property and then fails to leave after I have told them to leave, this is the plain definition of trespassing. There is no way to read the law that does not result in my being justified to use the threat of deadly force in order to induce the trespasser to promptly leave my property.

[LarryH]

This is exactly right.

To arrest this guy is harassment, pure and simple.

If, for any reason, one has decided to enter my property and then fails to leave after I have told them to leave, this is the plain definition of trespassing. There is no way to read the law that does not result in my being justified to use the threat of deadly force in order to induce the trespasser to promptly leave my property.

you planning to take that tack when the census worker comes to your door?

This is probably another incident about which the newspaper article leaves out a lot of information. The officer obviously didn't agree with your viewpoint.

[tacticool]

you planning to take that tack when the census worker comes to your door?

http://www.click2houston.com/news/23502317/detail.html

[mr.72]

you planning to take that tack when the census worker comes to your door?

There is no exemption in the Texas law requiring me to allow the unimpeded trespass of census workers. If a census worker comes to my door and I tell them to leave, then they are under the same compulsion as anyone else.

This is probably another incident about which the newspaper article leaves out a lot of information. The officer obviously didn't agree with your viewpoint.

The officer may not necessarily understand my argument. I can cite many examples of LEOs including police chiefs in Texas who are ignorant of the law, or actively oppose the correct enforcement of the law.

[PUCKER]

Here's an alleged case of a census worker gone bad...

http://www.fox59.com/news/wxin-women-ra ... 8244.story" onclick="window.open(this.href);return false;

FWIW - if my wife is home and a census worker (real, fake or pretty much anyone else for that matter), she let's the great dane do the talking (barking).

[mr.72]

http://www.statesman.com/blogs/content/ ... of_sh.html" onclick="window.open(this.href);return false;

Now, since the census worker thing has been brought up, it appears that the census is hazardous business both for census workers and also for compliant citizens.

The point is, it's easy pickins for criminals to pose as a census worker in order to gain entry into your home, and it also the opinion of many that the census' attempts to collect information amounts to an infringement of an individual's right to privacy. In any event, there is little reason to allow a census worker to enter one's residence. A legitimate, non-criminal census worker with no malevolent intent should tread lightly and rapidly comply with a citizen's demands for them to depart the property if only to preserve their own safety. If one presenting themselves as a census worker does not immediately depart when asked to leave, there is a fair chance that the homeowner is going to consider that they may not be who they say they are and proceed to utilize force to remove them from the property.

To reduce the risk of hijacking this thread, I should point out that anybody who enters private property for any reason, and then declines to immediately leave when they are told to do so by the owner of the property is putting themselves at great risk of bodily harm. We have home invaders, craigslist posers, fake census workers and all kinds of other dangerous people to thank for this. Belligerence is risky business when one is trespassing.

[Charles L. Cotton]

I don't know if the couple parked on the homeowner's property or not. The available reports are not at all clear on that issue. If they did park on his property, then the homeowner may be able to beat the charge either under a claim of self-defense or pursuant to TPC §9.04 Threats as Force. If he does, he will have spent a lot of money to be victorious. If the car was on an easement or otherwise not on the homeowner's property, then his chances of winning are slim. Either way, I bet he wishes he could do this all over again.

This case is a great example why I end every CHL class with the same admonition -- "Be responsible, not merely legal." As a trial lawyer, I promise you you don't want your attorney to have to explain to a jury why you walked up to an alleged trespasser, ordered them off your property, then pulled a gun on them when they tried to explain why they were there. Add this to the mix - the woman had just lost her brother in a fiery plane crash. Some will argue that this is irrelevant, but I beg to differ. I've won a lot of cases by what I was able to put into the hearts of jurors. And don't think for one second jurors don't ignore the instructions and definitions contained court's "charge." If a jury decides you are a jerk, they're going to find a way to let you know how they feel.

Chas.

[Charles L. Cotton]

Its pretty simple really.

This could have all been avoided had the couple NOT tresspassed. It was not their property and they had absolutely NO right to be there.

Compassion for the couple plays no part in this. They had a family member die in a plane crash. I understand this and feel bad for them. However, this does not give them full reign. They can't just park in anyones driveway because they want to. If there was no place to park in the immediate area find one further down the road and walk.

We must remember that this couple did not trespass when they parked in his driveway, if that is what they did. The property was not posted against trespassing, and they wouldn't become trespassers unless they were told to leave and they did not. TPC §30.05 does not set a time requirement as to how quickly someone must leave the property. I suggest that offering an explanation to the property owner as to why they were there does not constitute "failing" to leave when told to do so.

Chas.

[boomerang]

TPC §30.05 does not set a time requirement as to how quickly someone must leave the property. I suggest that offering an explanation to the property owner as to why they were there does not constitute "failing" to leave when told to do so.

Isn't it the same time requirement as 30.06?

[seamusTX]

Isn't it the same time requirement as 30.06?

The time frame for leaving when you get oral notice is however long it takes the cops to get there.

- Jim

[Charles L. Cotton]

TPC §30.05 does not set a time requirement as to how quickly someone must leave the property. I suggest that offering an explanation to the property owner as to why they were there does not constitute "failing" to leave when told to do so.

Isn't it the same time requirement as 30.06?

I'd say "yes" if your notice under TPC §30.06 was verbal.

Chas.

[Charles L. Cotton]

Isn't it the same time requirement as 30.06?

The time frame for leaving when you get oral notice is however long it takes the cops to get there.

- Jim

And when they get there, the COPS are going to have the property owner tell you to leave in his presence and if you don't, then you get arrested. This isn't technically required, but that's how every agency I'm familiar with does it, unless there is a prior trespass warning on file with the PD.

Chas.

[chabouk]

If the car was on an easement or otherwise not on the homeowner's property, then his chances of winning are slim.

Or, if it was parked within the right-of-way setback.

Most people believe they own the dirt and grass all the way to the pavement. They are mistaken: from the center line of the roadway, they only own the land up to a line 50', 75', whatever (depending on the class of road). The rest belongs to the government authority that owns the road (assuming it's not a private road). Even on city streets.

Of course, some local governments will prosecute you for not mowing or maintaining "their" property, insisting that it's yours to keep up. And meanwhile, other agencies will prosecute you for riding your 4-wheeler on the same strip of land. I wonder who wins if you're using your ATV to tow a mower to maintain the right-of-way?

[GOP]

I don't know if the couple parked on the homeowner's property or not. The available reports are not at all clear on that issue. If they did park on his property, then the homeowner may be able to beat the charge either under a claim of self-defense or pursuant to TPC §9.04 Threats as Force. If he does, he will have spent a lot of money to be victorious. If the car was on an easement or otherwise not on the homeowner's property, then his chances of winning are slim. Either way, I bet he wishes he could do this all over again.

This case is a great example why I end every CHL class with the same admonition -- "Be responsible, not merely legal." As a trial lawyer, I promise you you don't want your attorney to have to explain to a jury why you walked up to an alleged trespasser, ordered them off your property, then pulled a gun on them when they tried to explain why they were there. Add this to the mix - the woman had just lost her brother in a fiery plane crash. Some will argue that this is irrelevant, but I beg to differ. I've won a lot of cases by what I was able to put into the hearts of jurors. And don't think for one second jurors don't ignore the instructions and definitions contained court's "charge." If a jury decides you are a jerk, they're going to find a way to let you know how they feel.

Chas.

This is exactly the sentiment I have.

Legal or not, brandishing a firearm can, and often does, lead to a lot of legal fees. Never mind actually pulling the trigger.

[jimlongley]

If the car was on an easement or otherwise not on the homeowner's property, then his chances of winning are slim.

Or, if it was parked within the right-of-way setback.

Most people believe they own the dirt and grass all the way to the pavement. They are mistaken: from the center line of the roadway, they only own the land up to a line 50', 75', whatever (depending on the class of road). The rest belongs to the government authority that owns the road (assuming it's not a private road). Even on city streets.

Of course, some local governments will prosecute you for not mowing or maintaining "their" property, insisting that it's yours to keep up. And meanwhile, other agencies will prosecute you for riding your 4-wheeler on the same strip of land. I wonder who wins if you're using your ATV to tow a mower to maintain the right-of-way?

As a telephone "Transmission Technical Support Engineer" (really just a fancy title for a catch-all job) I used to have a love/hate relationship with "right of way" and easements, and I once cost GE lots of money because they built a power switching station right over one of "my" telephone cables. Tree trimming, always a hot button topic, was another one - if it's growing in the right of way, it belongs to the right of way, not the property owner.

But I have a surprise waiting for AT&T, they have a service drop run right across my property to my neighbor, outside of their right of way, and this fall I plan on planting a tree right there. We gonna have fun!