OIS today in Austin - bloggers already at it

[C-dub]

After a short break I think I've figured out what my question is.

If there is no complaint against a person and the person has a legal right to be where they are and are legally allowed to be carrying a gun, does a LEO have the right or authority to disarm them? In this case, I don't think that authority given to an officer due the person having a CHL makes a difference because he was on his own property where he could have been carrying anyway. No one called the police to complain about the man shooting a dog. No one called to complain about him walking around out front with his gun visible. I think this is the problem I'm having with this. I don't know what legal right or authority the officer had in the first place to attempt to disarm or handcuff the man. I understand an officer's desire to be in control of a scene and be the only one with a weapon, but where does that desire fall when compared to another person's rights?

[jmra]

After a short break I think I've figured out what my question is.

If there is no complaint against a person and the person has a legal right to be where they are and are legally allowed to be carrying a gun, does a LEO have the right or authority to disarm them? In this case, I don't think that authority given to an officer due the person having a CHL makes a difference because he was on his own property where he could have been carrying anyway. No one called the police to complain about the man shooting a dog. No one called to complain about him walking around out front with his gun visible. I think this is the problem I'm having with this. I don't know what legal right or authority the officer had in the first place to attempt to disarm or handcuff the man. I understand an officer's desire to be in control of a scene and be the only one with a weapon, but where does that desire fall when compared to another person's rights?

If the officer was uncomfortable at this point, he should have stepped to the other side of his car and called for backup. I don't see this ending well for the officer.

[mojo84]

I have mixed feelings on this one as I think both overreacted to the other in this situation and the ending was permanent and severe for one of the parties involved.

With that said, I sometimes question where the fine line is between "disarming" and confiscation. I know many will say "intent" of the officer. Well, what about the intent of the subject? Neither party's intent can be known with absolute certainty. I understand the officer needs to be able to in control and secure a scene of an investigation but where does it stop? But at the time he arrived, the now dead man was the complainant and not the suspect.

[K.Mooneyham]

Reading back through this, I would say that the older man is dead because he was on his own property and here is why. Being on HIS property, he probably felt that being armed was completely okay and why should the LEO want to disarm him. IF he had been on someone else property, or on public property, I'm thinking he would have had a different mindset. Of course, this is 100% speculation on my part, but the man was a CHLer, so he had to have been through the class, and have been told that an LEO can temporarily disarm you for "officer safety". I'm just saying that maybe he didn't feel like that applied to him because the property was his.

[texanjoker]

I still don't know what the deceased did that was illegal. And by that, I mean something that would have given the officer the legal ability to attempt to handcuff the guy. Was the dispatcher's advice to leave his gun inside legal notification that he could not carry on his own property? Is the mere presence of a gun that threatening? I don't know about Texas, but I think courts in other states have already said that where it is legally allowed the mere presence of a holstered gun is not reason enough to suspect someone of committing a crime. Or something like that. I know I kind of butchered it up a bit, but hopefully not too bad.

If the officer had no legal basis for attempting to handcuff the guy wouldn't that be considered assault to the level that the guy could defend himself? Maybe not, but I'm not sure.

The officer can disarm you during a criminal investigation. This was a criminal investigation as the suspect shot a dog. The police knew he shot the dog because he called the police. It sounds like he was repeatedly told to not come out armed. He came out front armed. The officer was in a place he had a legal right to be as this was in front of the house. Officers can detain somebody in hand cuffs. The officer can also use any reasonable and necessary force to effect the detention or arrest up to deadly force if warranted. Since the guy was armed and uncoop he went to handcuff him. IMO there is nothing wrong with that. I have handcuffed many a bad guy to safely remove their weapon. Unfortunately this suspect then pointed a gun at the officer so deadly force was the option he left the officer. I see the grand jury correctly clearing the officer. There will be a civil suit as 99.99% of all OIS have a civil suit so that is nothing shocking.

[gigag04]

I still don't know what the deceased did that was illegal. And by that, I mean something that would have given the officer the legal ability to attempt to handcuff the guy. Was the dispatcher's advice to leave his gun inside legal notification that he could not carry on his own property? Is the mere presence of a gun that threatening? I don't know about Texas, but I think courts in other states have already said that where it is legally allowed the mere presence of a holstered gun is not reason enough to suspect someone of committing a crime. Or something like that. I know I kind of butchered it up a bit, but hopefully not too bad.

If the officer had no legal basis for attempting to handcuff the guy wouldn't that be considered assault to the level that the guy could defend himself? Maybe not, but I'm not sure.

The officer can disarm you during a criminal investigation. This was a criminal investigation as the suspect shot a dog. The police knew he shot the dog because he called the police. It sounds like he was repeatedly told to not come out armed. He came out front armed. The officer was in a place he had a legal right to be as this was in front of the house. Officers can detain somebody in hand cuffs. The officer can also use any reasonable and necessary force to effect the detention or arrest up to deadly force if warranted. Since the guy was armed and uncoop he went to handcuff him. IMO there is nothing wrong with that. I have handcuffed many a bad guy to safely remove their weapon. Unfortunately this suspect then pointed a gun at the officer so deadly force was the option he left the officer. I see the grand jury correctly clearing the officer. There will be a civil suit as 99.99% of all OIS have a civil suit so that is nothing shocking.

Don't cloud the thread with facts and assertions - here we have a great chance to bash police again and I for one won't have that right quelled because this looks to be a good shoot...

[A-R]

Don't cloud the thread with facts and assertions - here we have a great chance to bash police again and I for one won't have that right quelled because this looks to be a good shoot...

[mojo84]

Is shooting a vicious aggressive dog that is not yours but on your property a crime?

[Keith B]

Is shooting a vicious aggressive dog that is not yours but on your property a crime?

Yes. It is a crime just like shooting a human is homicide. It has to be investigated and then you may be found justified if you were protecting yourself or others.

§ 42.09. CRUELTY TO ANIMALS.
(a) A person commits an offense if the person intentionally or knowingly: (1) tortures an animal;
(2) fails unreasonably to provide necessary food,
care, or shelter for an animal in the person's custody;
(3) abandons unreasonably an animal in the person's
custody;
(4) transports or confines an animal in a cruel
manner;
(5) kills, seriously injures, or administers poison to
an animal, other than cattle, horses, sheep, swine, or goats,
belonging to another without legal authority or the owner's
effective consent;
(6) causes one animal to fight with another;
(7) uses a live animal as a lure in dog race training
or in dog coursing on a racetrack;
(8) trips a horse;
(9) injures an animal, other than cattle, horses,
sheep, swine, or goats, belonging to another without legal
authority or the owner's effective consent; or
(10) seriously overworks an animal.
(b) It is a defense to prosecution under this section that
the actor was engaged in bona fide experimentation for scientific
research.
(c) For purposes of this section:
(1) "Abandon" includes abandoning an animal in the
person's custody without making reasonable arrangements for
assumption of custody by another person.
(2) "Animal" means a domesticated living creature and
wild living creature previously captured. "Animal" does not include
an uncaptured wild creature or a wild creature whose capture was
accomplished by conduct at issue under this section.
(3) "Cruel manner" includes a manner that causes or
permits unjustified or unwarranted pain or suffering.
(4) "Custody" includes responsibility for the health,
safety, and welfare of an animal subject to the person's care and
control, regardless of ownership of the animal.
(5) "Necessary food, care, or shelter" includes food,
care, or shelter provided to the extent required to maintain the
animal in a state of good health.
(6) "Trip" means to use an object to cause a horse to
fall or lose its balance.
(d) An offense under Subsection (a)(2), (3), (4), (9), or
(10) is a Class A misdemeanor, except that the offense is a state
jail felony if the person has previously been convicted two times
under this section.
(e) It is a defense to prosecution under Subsection (a)(5)
that the animal was discovered on the person's property in the act
of or immediately after injuring or killing the person's goats,
sheep, cattle, horses, swine, or poultry and that the person killed
or injured the animal at the time of this discovery.
(f) It is a defense to prosecution under Subsection (a)(8)
that the actor tripped the horse for the purpose of identifying the
ownership of the horse or giving veterinary care to the horse.
(g) It is a defense to prosecution for an offense under this
section that the person had a reasonable fear of bodily injury to
the person or to another by a dangerous wild animal as defined by
Section 822.101, Health and Safety Code.
(h) It is an exception to the application of this section
that the conduct engaged in by the actor is a generally accepted and
otherwise lawful:
(1) use of an animal if that use occurs solely for the
purpose of:
(A) fishing, hunting, or trapping; or
(B) wildlife control as regulated by state and
federal law; or
(2) animal husbandry or farming practice involving
livestock.
(i) An offense under Subsection (a)(1), (5), (6), (7), or
(8) is a state jail felony, except that the offense is a felony of
the third degree if the person has previously been convicted two
times under this section.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1975, 64th Leg., p. 917, ch. 342, § 12, eff.
Sept. 1, 1975; Acts 1985, 69th Leg., ch. 549, § 1, eff. Sept. 1,
1985; Acts 1991, 72nd Leg., ch. 78, § 1, eff. Aug. 26, 1991.
Renumbered from V.T.C.A., Penal Code § 42.11 and amended by Acts
1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994. Amended by
Acts 1995, 74th Leg., ch. 318, § 15, eff. Sept. 1, 1995; Acts
1997, 75th Leg., ch. 1283, § 1, eff. Sept. 1, 1997; Acts 2001,
77th Leg., ch. 54, § 3, eff. Sept. 1, 2001; Acts 2001, 77th Leg.,
ch. 450, § 1, eff. Sept. 1, 2001; Acts 2003, 78th Leg., ch. 1275,
§ 2(116), eff. Sept. 1, 2003.

[anygunanywhere]

Please clarify.

Murder is a crime.

Homicide means a human, a hominid, died.

All human deaths are homicides. Not all human deaths are murder.

The investigation is to determine the cause and the circumstances behind the death, the homicide. If the circumstances and evidence leads the investigators to belive that the individual died under malicious intent then the individual responsible for the death is charged with murder.

Is this not correct?

Just because someone calls 911 and reports that a dog has been shot and killed does not mean that a crime has occurred. A crime has not occurred until the evidence is gathered that supports charges be filed.

Anygunanywhere

[Keith B]

Please clarify.

Murder is a crime.

Homicide means a human, a hominid, died.

All human deaths are homicides. Not all human deaths are murder.

The investigation is to determine the cause and the circumstances behind the death, the homicide. If the circumstances and evidence leads the investigators to belive that the individual died under malicious intent then the individual responsible for the death is charged with murder.

Is this not correct?

Just because someone calls 911 and reports that a dog has been shot and killed does not mean that a crime has occurred. A crime has not occurred until the evidence is gathered that supports charges be filed.

Anygunanywhere

OK, let me clarify. It is a Penal Code violation and an arrestable offense.

[Panda]

Is shooting a vicious aggressive dog that is not yours but on your property a crime?

If so, on the scale of crimes, its so far below shooting a retiree who was attacked by that dog in his own yard, its not even visible on the chart.

[Keith B]

Is shooting a vicious aggressive dog that is not yours but on your property a crime?

If so, on the scale of crimes, its so far below shooting a retiree in his own yard, its not even visible on the chart.

Until we have all of the facts or see video of the actual incident, we do not know exactly what transpired to cause the officer to shoot. Speculation at this point is futile.

[brainman]

Reading back through this, I would say that the older man is dead because he was on his own property and here is why. Being on HIS property, he probably felt that being armed was completely okay and why should the LEO want to disarm him. IF he had been on someone else property, or on public property, I'm thinking he would have had a different mindset. Of course, this is 100% speculation on my part, but the man was a CHLer, so he had to have been through the class, and have been told that an LEO can temporarily disarm you for "officer safety". I'm just saying that maybe he didn't feel like that applied to him because the property was his.

I agree with this.

I've seen an awful lot of "from my cold dead hands" talk lately, on this forum and others. It's very easy to draw the line when there's a full-on revolt. Prior to that, everybody draws their line in the sand somewhere. Perhaps this man's line was in his yard, when he was the one that called the police in the first place.

[Panda]

Until we have all of the facts or see video of the actual incident, we do not know exactly what transpired to cause the officer to shoot. Speculation at this point is futile.

On both sides? And does that apply when dogs are shot too, or just when old guys are shot?