Anti-Burglary Devices using OC Spray

[Greybeard]

Re: Anti-Burglary Devices using OC Spray

Anyone (LEOs, lawyers or normal folks ) have opinions or experience with such devices to protect firearms/ammo in Tejas?

http://www.stopthecrime.com/products.htm

§ 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.

§ 9.44. USE OF DEVICE TO PROTECT PROPERTY. The
justification afforded by Sections 9.41 and 9.43 applies to the use
of a device to protect land or tangible, movable property if:
(1) the device is not designed to cause, or known by
the actor to create a substantial risk of causing, death or serious
bodily injury; and
(2) use of the device is reasonable under all the
circumstances as the actor reasonably believes them to be when he
installs the device.

[Paladin]

I'm no expert, but not sure that's such a good idea.

If the device does work, and OC gets sprayed when a criminal trips it, the criminal may still be able to trash your place even if they give up on robbing it.

Then there's the issue of all the OC in your living space. Kinda nasty to clean it out.

Maybe it would work to guard a gunsafe in a garage or something like that?

[Charles L. Cotton]

I won't offer an opinion as to the legality of this product in Texas, but make sure you are comfortable with Texas law before using such a device. Spring guns have long been unlawful, as are other devices that fall within the scope of Section 9.44. The intent of Section 9.44 is not to prevent the use of deadly force (defined to include serious bodily injury) when it is warranted, but to prevent its automatic use without a human determining it is warranted.

I presume the chemical dispensed is not one that could be expected to cause death or serious bodily injury to most people, but I could envision situations where it might. For example, if the person entering your property had asthma or another respiratory condition, it could effect them more than the average person.

Regards,
Chas.

[dolanp]

While no doubt the person breaking into your car would deserve a good spray to the face, this kind of thing sounds like a bad idea as far as lawyers would be concerned. I could see you getting sued pretty easily over something like that these days.

[rickb308]

The intent of Section 9.44 is not to prevent the use of deadly force (defined to include serious bodily injury) when it is warranted, but to prevent its automatic use without a human determining it is warranted.
For example, if the person entering your property had asthma or another respiratory condition, it could effect them more than the average person.
Regards,
Chas.

(some snips for brevity)
Serious question.
Here's the rub. Example:
BG breaks into my home, wife sprays him with OC. He has asthma, drops, dies.

Quote: "but to prevent its automatic use without a human determining it is warranted." Unquote.

#1. He is in my home uninvited. It's warranted. Period. Full stop.
#2. My wife is not a medical doctor, nor has she evaluated his medical records, therefore she does not know his medical history.
#3. How is her spraying him any different than a mechanical device when he comes thru a door or window?
#4. Here is where I have a problem with lawyers and the legal profession in GENERAL. My wife won't have time to determine his medical condition, or his intent. The beagles have days, weeks, & months to Monday morning quarterback and go over every nuance of an event that someone has literally a split second to decide.

[Lindy]

Rick: in general, the use of lethal force is warranted to protect human life. A mechanical device cannot have its life threatened by an intruder, therefore it is not protecting its life since it has none.

No one, especially Charles, is arguing that your wife should not protect herself by whatever means necessary, up to and including lethal force, from an intruder in your home. I know Charles, and shoot with him, and I think I have a good idea about his opinion on that subject.

There are two points here, one being that "non-lethal" devices may, in fact, be lethal under some conditions, and the other is that lethal devices may not by long-standing legal precedent, be deployed by traps or other automatic means. That's all.

[Charles L. Cotton]

With your wife in her home, she is in fear of her life, thus the use of deadly force is justified. Therefore, it doesn't matter that the use of what would normally be a less-than-lethal weapon may/does cause serious bodily injury or death. The only "evaluation" your wife has to make is whether she is in reasonable fear for her life, or the lives of her family. She doesn't have to know the goblin's medical history or the likely effect of the chemical weapon on him or her.

Also, mere uninvited entry into your home does not justify the use of deadly force. Knowing this is the law, I presume no one would shoot an intruder solely because they are present in their home, but because they are in reasonable fear for their lives, or the lives of their family or guests.

If no one is home when the burglary or other illegal entry occurs, then no one is in reasonable fear for their life and deadly force is not justified. Remember, the general rule is that deadly force is not justified solely to protect property. There are exceptions, but those are limited and require a reasonable belief on the part of the property owner which is not possible if you are not home at the time of the entry.

Again, I am not expressing an opinion as to the whether these devices are legal in Texas. I have my personal opinion, as opposed to a professional opinion, and I certainly have great concerns in the civil arena where I practice. Admittedly, I'm more concerned about an accidental gassing of an innocent person due to mistake or malfunction, but that is not my sole concern.

Regards,
Chas.

[Charles L. Cotton]

Lindy:
Your post was right on point. We must have been typing at the same time, but just like on the range, you're faster than me!

Sorry for essentially duplicating your response.

Regards,
Chas.

[Greybeard]

' Appreciate the replies, guys. I've not had time for being around 'puter much lately, but it looks like this got some minds to clickin'.

The potential civil problems aside for a minute, the key words I see on the criminal end are in bold below.

if:
(1) the device is not designed to cause, or known by
the actor to create a substantial risk of causing, death or serious
bodily injury; and
(2) use of the device is reasonable under all the
circumstances as the actor reasonably believes them to be when he
installs the device.

Having recently been through a patent infringement/breach of license agreement suit, I know for a fact that it is quite easy for laywers to burn through hundreds of thousands of dollars over the meaning of just 4 words, not the least of which was "substantially" ...

But, back more on topic - and more potential "lawyer talk", there is also this thing called "Law of Competing Harms" ... The risk of potential injury to a criminal in the act of burglary vs. the risk of potential human injury if the criminal defeats conventional security measures and gets away with firearms and ammunition.

Recalling what DPS's Lady Lawyer of That Year had to say back in '95, "In today's society, a law suit does not have to have merit, only opportunity."

[rickb308]

Again, I am not expressing an opinion as to the whether these devices are legal in Texas. I have my personal opinion, as opposed to a professional opinion, and I certainly have great concerns in the civil arena where I practice. Admittedly, I'm more concerned about an accidental gassing of an innocent person due to mistake or malfunction, but that is not my sole concern.

Regards,
Chas.

Points taken. Thanks Charles.