Shot Fired

[sawdust]

Gemini,

I think that I understand your emotions and thusly, your subsequent actions. I would be offended that someone would dare steal my property or make other (serious) transgressions against me. In a situation such as you describe, I,too, would try to chase him down to recover whatever property he had stolen from me. That's the way I'm wired. Of course, whether I actually could catch him would be in great doubt. [sounds of gasping]

I have a hard time accepting the premise that by trying to recover my property in the immediate moment, it can be considered to be an "escalation" on my part, thereby somehow putting me in some sort of legal jeopardy as events transpired. Every time I hear reasoning of this sort, a western movie scenario flashes into my mind where all of the townspeople are afraid to act on their own, thoroughly cowed by the bad guys that come into town to render mayhem. Sometimes it is necessary and appropriate to say to the mayhem-makers, "Not me. Not this time".

In the heat-of-the-moment decision-making of a situation like Gemini has described, how we will react will be determined by our own ethos, our own sense of "rightness", modified by our instincts and training. How we are wired will determine whether we chase, or shrug our shoulders, or trust that one day the perpetrator will eventually get his just dues.

Life is not exclusively about simply being safe. How many have joined the military because it was "safe"? Think about it: In times of the various wars that we have been involved in, men have left their wives and families, possibly putting them in some type of risk, financial or otherwise. The men's own safety was not an issue. They went into a possibility of peril because of their own sense of what should be done.

I'm glad that you were able to take direct action that resulted in the apprehension of the thieving micreant. It may well be that his "I was shot at!" will be a life-changing revelation to him in many ways.

I know that what I have written can be dissected with a lot of "yeah, but what if......"'s. I'm just offering my own view of a tiny part of our world, and giving a few words of support to Gemini.

[baldeagle]

While Keith's point is well taken, I want to point out that Texas law is pretty clear in this area. I have highlighted the sections that I believe are apropos in the OP's situation.

SUBCHAPTER D. PROTECTION OF PROPERTY

Sec. 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.

Sec. 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 OP was justified in using force and he was in fresh pursuit. If he reasonably believed that there would be no other way to recover the property or the use of force other than deadly force would expose him or his son, he was justified in using deadly force. I personally do not believe that if this situation was questionable the police would have acted as they did simply because he missed rather than hit the suspect. Deadly force is deadly force whether it results in injury or not.

As Keith points out, it can depend on the district attorney as to whether or not charges are brought, but the OP has, in my opinion, a very winnable case, if he were to be charged. So, while he could be exposed to the expense of defending himself, I doubt seriously he would be found guilty of anything, if tried, and I would be surprised if the DA really wanted to pursue the case.

[Keith B]

While Keith's point is well taken, I want to point out that Texas law is pretty clear in this area. I have highlighted the sections that I believe are apropos in the OP's situation.

SUBCHAPTER D. PROTECTION OF PROPERTY

Sec. 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.

Sec. 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 OP was justified in using force and he was in fresh pursuit. If he reasonably believed that there would be no other way to recover the property or the use of force other than deadly force would expose him or his son, he was justified in using deadly force. I personally do not believe that if this situation was questionable the police would have acted as they did simply because he missed rather than hit the suspect. Deadly force is deadly force whether it results in injury or not.

As Keith points out, it can depend on the district attorney as to whether or not charges are brought, but the OP has, in my opinion, a very winnable case, if he were to be charged. So, while he could be exposed to the expense of defending himself, I doubt seriously he would be found guilty of anything, if tried, and I would be surprised if the DA really wanted to pursue the case.

I don't disagree with you, but trust me, if you shoot someone you WILL require an attorney; good shoot or not. And that attorney will NOT be free. Also, there is gonna be a LOT more paperwork for the LEO's, and they will make sure you are involved in their filling out that paperwork. There will also be other LEO's and individuals that will have to talk to you and fill out paperwork, so you will be tied up quite a bit with the investigation.

So, while yes the law is the law and you should end up no billed if you were defending yourself, my point is just that the few inches difference will make a big difference in time, money and stress levels.

[OldCurlyWolf]

Keith knows whereof he speaks.

[gigag04]

Did you call a lawyer before talking to the cops?

[gemini]

I'll try to answer or comment on several things instead of trying to respond to each post.

Keith B: I agree. It will be more trouble, time and expense. However, I have thought long and hard
about when, where and under what circumstances I am willing to commit to pulling my weapon and
not hesitating to use it. I believe if you have a CHL, each and every person needs to think those
issues out, BEFORE carrying a weapon.In no way do I want my original post to appear flippant or that it was a spare of the
moment decision. It's what I was personally willing to "go to the mat" for. The decision was made
along time ago. Others may have different scenarios or levels of violation before they are willing to react.

Sawdust: Thank you Sir.

gigag04: No. I simply restated exactly what I told the 911 operator. Scenario and description of BG.
After crime scene finished with the car, a list of stolen items. The responding LEO's were pro citizen.
IF I had shot and hit, I would have still called 911 and said the same things, but I would refuse to be
interviewed, either at the scene or later, without my atty present.
I have a very good lawyer. Board Certified Criminal Defense atty that actually was the one that helped me year
before last to put pressure on the State Fair of Texas (different thread). Former felony prosecutor, pro 2nd A.
We have discussed in detail exactly what to say, not to say, under dire circumstances. Basically to shut up.

[Keith B]

I'll try to answer or comment on several things instead of trying to respond to each post.

Keith B: I agree. It will be more trouble, time and expense. However, I have thought long and hard
about when, where and under what circumstances I am willing to commit to pulling my weapon and
not hesitating to use it. I believe if you have a CHL, each and every person needs to think those
issues out, BEFORE carrying a weapon.In no way do I want my original post to appear flippant or that it was a spare of the
moment decision. It's what I was personally willing to "go to the mat" for. The decision was made
along time ago. Others may have different scenarios or levels of violation before they are willing to react.

Sawdust: Thank you Sir.

gigag04: No. I simply restated exactly what I told the 911 operator. Scenario and description of BG.
After crime scene finished with the car, a list of stolen items. The responding LEO's were pro citizen.
IF I had shot and hit, I would have still called 911 and said the same things, but I would refuse to be
interviewed, either at the scene or later, without my atty present.
I have a very good lawyer. Board Certified Criminal Defense atty that actually was the one that helped me year
before last to put pressure on the State Fair of Texas (different thread). Former felony prosecutor, pro 2nd A.
We have discussed in detail exactly what to say, not to say, under dire circumstances. Basically to shut up.

Gemini,

Please don't think I am saying you were in the wrong. From what you have stated in your posts you reacted appropriately IMO. And, I also feel you have the right mindset on where your lines are drawn and what you need to do to defend yourself or others. I just wanted others to understand how your situation could have played out with a MUCH different outcome had you actually hit the guy.

[esxmarkc]

Really great to hear first hand accounts.

I think several in this thread have questioned why you chose to pursue the individual. One way to answer this question is to remove the gun from the equation. If this was a couple years ago (when I wasn't carrying) and I caught someone breaking into my car I would certainly have tried to run them down. In fact, in my 20's my car had a pager alarm and the vehicle stayed silent. It woke me up at 2am one morning and my older brother and I were certainly out the door and after the guy. He too was on foot and knew his path back across the neighborhood fences and lost us. Similar event a year later when we heard our neighbor's tailgate getting stolen. And one other time when someone broke out the window on my brother's truck parked out front. We must be slow cause we never sacked anybody.

So if this happened tomorrow I can't say I'm wired any different than I was back then. So I'd likely give it a good foot chase. I run about 15 miles a week anyway.

Question is as in your dilemma: The guy you are pursuing isn't likely to just stop and comply with your commands so what do you do? If he is not threatening your life and continues to just "leave" you are justified in using "force" (not deadly force, just force) to apprehend him but a struggle with him while having your gun strapped to your side is likely to turn deadly.

If it were 20 yeas ago and it were me and my older brother giving chase I wouldn't sweat it. We could probably take down a water buffalo. But this ain't 20 years ago and my brother lives in east Texas. So you posting this story certainly has me rethinking things. Thank you for posting it up.

[gemini]

KeithB: Thanks. I agree with what you posted. My point was to have thought out in advance
when, where and under what circumstances you're willing to jump through the legal hoops
involved AFTER the fact.

esxmarkc: As previously posted, and what should be covered extensively in any
CHL (Texas) class;

Sec. 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.

I believe I could have fired the second shot, hit, and still been no-billed. Although I was angry, I
am glad I did not. If the guy had been running away with my Strat, '68 J-45, tools etc. then I would do
whatever was necessary to stop him. Each situation has a ton of variables.
Folks are wired different. Some are willing to call it in and be a good witness, some turn a blind eye,
others are willing to assist or become directly involved. I'm probably one of the later. Not trying to be
a hero. Just the difference in the way folks respond.

[esxmarkc]

I believe I could have fired the second shot, hit, and still been no-billed. Although I was angry, I
am glad I did not. If the guy had been running away with my Strat, '68 J-45, tools etc. then I would do
whatever was necessary to stop him. Each situation has a ton of variables.

Yup after I made that post I went back and reread Sec. 9.42 (certainly covered in CHL but I don't have a photographic recollection) and the 3B sub section certainly covers the dilemma I was concerned about:

3) he reasonably believes that: (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 is if you could see that he had your property in your hands.

In your case, If you could not see that he was carrying any of your property you may be on thin ice under section 9.42.

[Purplehood]

I believe I could have fired the second shot, hit, and still been no-billed. Although I was angry, I
am glad I did not. If the guy had been running away with my Strat, '68 J-45, tools etc. then I would do
whatever was necessary to stop him. Each situation has a ton of variables.

Yup after I made that post I went back and reread Sec. 9.42 (certainly covered in CHL but I don't have a photographic recollection) and the 3B sub section certainly covers the dilemma I was concerned about:

3) he reasonably believes that: (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 is if you could see that he had your property in your hands.

In your case, If you could not see that he was carrying any of your property you may be on thin ice under section 9.42.

I was just thinking the very same thing. I got the impression from my read that he interrupted the guy and forced him to run off before he was able to take anything. If this is the case, wouldn't firing at the guy NOT be justified?

Actually, I wouldn't even respond to my question.

[gemini]

Section 9.42
(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

section (3) ADDS other conditions which would allow deadly force. Difference between and/or.

[esxmarkc]

Section 9.42
(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

section (3) ADDS other conditions which would allow deadly force. Difference between and/or.

Exactly. And once your were chasing him after his commission of burglary and he is fleeing then (2)(A) no longer applies.

(2)(B) applies if he has your property. If he does not have your property I'm assuming it doesn't apply.

Of course I am in no way a lawyer or even pretend to be. And maybe one could chime in and clarify. But as I see it, once the "other" is fleeing 2B and (3A or 3B) only apply if he has your property.

Don't get me wrong gemini, I have no attack here on what actions you chose. And posting here certainly adds fuel for thought. If I were on your jury I certainly wouldn't convict you but keith certainly has good points on what you could expect had you actually shot the guy.

[A-R]

Since we're now talking about a different hypothetical scenario of shooting the guy merely as he tries to flee with stolen goods (NOT for the turning with apparent weapon in hand), I'd just think VERY LONG AND HARD about whether you're willing to shoot another person who is merely fleeing with stolen tangible property. There is not much I own that is worth the cost of a human life, even the life of a dirtbag criminal. Just because a black-n-white reading of the statutes says you CAN shoot someone fleeing with stolen property doesn't necessarily or always mean you SHOULD do so. This is just my own personal feelings on the subject; not saying I'm right and someone with a different set of beliefs is wrong. Just asking everyone to think about this - do a cost-benefit analysis of the situation in your head as you mentally prepare.

From a legal aspect, look no further than the Austin convenience store clerk convicted of murder (later reduced to manslaughter on a sentencing technicality) for shooting a thief fleeing his store with a stolen case of beer.

viewtopic.php?f=108&t=41103" onclick="window.open(this.href);return false;

[esxmarkc]

You'b better check this thread if you think it would have been ok to fire that second shot or even the first.

http://texaschlforum.com/viewtopic.php?f=23&t=25714

Here are some of the pertinent highlights:

Lemes told authorities he shot Glass after the 19-year-old turned and lunged at him as he was fleeing. He'd been trying to detain the intruder until police arrived, he said.

Lemes indicated at the time of the shooting that he was protecting himself, but prosecutors said Thursday they sought the indictment because he shot the unarmed man five times after Glass already had fled the house without any of the homeowner's belongings.

Texas law traditionally allows a homeowner to fire at an intruder if he believes it's the only way to protect his property, but prosecutors said Glass was empty-handed.

“In this instance, the trespass had been terminated,” she said. “The guy's running down the street and away. There was no gun found. There was no indication of deadly force being used against the defendant.”

austinrealitor makes a pretty good point. Certainly has me rethinking things.