A gun is neither a badge nor a judicial robe.

Texas gas station clerk arrested after fatally shooting accused thief | TheHill

If your life or someones else's life isn't threatened, walk away. Decisions have consequences.

Self defense 101 ..... don't shoot someone for stealing something (unless it's your daughter).

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Pass it on.
Mark

Over beer?

Nope, not justified legally.

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BTDT, Got The T-Shirt

While I agree with what has been said, I wonder if the penalty would be less severe if it happened at night. Seems I have read that shooting a thief under cover of darkness is a lesser crime, if none at all.

Unfortunately our laws are way too much in favor of the criminals.

A good rule of thumb is: If it’s not a capitol crime you probably should not use a firearm to resolve the situation.

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Old Cop
LEO (Ret.)

We’ll see what the grand jury says.

I was in ABQ a couple of years ago testifying in an old reservation rape case and had lunch with an AUSA friend. She had just been no-billed by the federal grand jury on a case where an older Native man who had been the victim of a bunch of thefts heard someone messing around with his horse trailer. He stuck his rez-standard Marlin Model 60 out the window and touched off a flurry of rounds. The next morning he went out to check and wondered: Hey! Who put this dead 19 year old girl by my trailer?

I agree shooting at people over some 7-11 beer is foolish. I’d just get the plate and call the cops, who would most likely not care.

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“What you got, ain’t new.”

There was some validity to that concept with regard to burglary of an occupied dwelling under common law, actually going back to Moses and Hammurabi. In a property crime where the thieves were pursued for recovery of the stolen property and then shot for refusing to comply I wouldn't expect "it was dark" to be any better defense than "he needed killing".

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I need ammo, not a ride.

Not American beer anyway.

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Thirty characters. Exactly...

PENAL CODE CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY

Morality questions aside about deadly force to protect property...

The event was a theft and did take place at night.

So baring any other information I believe the use of force was technically justified.

I want to know why no one has shot the thief in the other thread selling Sam Adams beer for $28 a pop?

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Possum—The other white meat!

Probably waiting for it to get dark...

It's not that the police don't care, it's the DAs. I read that flagrant shoplifting is rampant in many American cities because stealing items valued less than $950 is simply not prosecuted. Stores are closing right and left as the shelves are literally picked bare.

Welcome to Woke America.

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You're shy a few manners.

<<If it’s not a capitol crime you probably should not use a firearm to resolve the situation.>>

Unless it’s tresspassing at the Capitol.

At risk of causing law dilettantes to clutch their chests in horror, statutes on books frequently are invalid because of application of state or US Constitutional rules after the statute was written. I'd urge those wanting to school themselves on current legal rules on serious matters to find their state's current uniform jury instructions on the matter. These are continually updated by state courts of final appeals through an administrative office of state courts; the very best information on affirmative defenses is found there.

Here are New Mexico rules as an example - the current statute on justifiable homicide by citizen is wildly different.

14-5171. Justifiable homicide; self defense.1
An issue you must consider in this case is whether the defendant killed __________________ (name of victim) in self defense.

The killing is in self defense if:

1. There was an appearance of immediate danger of death or great bodily harm2 to the defendant as a result of __________________3;4 and

2. The defendant was in fact put in fear by the apparent danger of immediate death or great bodily harm and killed __________________ (name of victim) because of that fear; and

3. A reasonable person in the same circumstances as the defendant would have acted as the defendant did.

The burden is on the state to prove beyond a reasonable doubt that the defendant did not act in self defense. If you have a reasonable doubt as to whether the defendant acted in self defense you must find the defendant not guilty.

USE NOTES

1. For use when the self defense theory is based on necessary defense of self against any unlawful action; reasonable grounds to believe a design exists to commit a felony; or reasonable grounds to believe a design exists to do some great bodily harm. If this instruction is given, add to the essential elements instruction for the offense charged, “The defendant did not act in self defense.”

2. The definition of great bodily harm, UJI 14-131 NMRA, must be given if not already given.

3. Describe unlawful act, felony, or act which would result in death or some great bodily harm as established by the evidence. Give at least enough detail to put the act in the context of the evidence.

4. UJI 14-5190 NMRA (assailed person need not retreat), must be given if at issue. If at issue, UJI 14-5191 NMRA (self defense; limitations; aggressor) and UJI 14-5191A NMRA (first aggressor; exceptions to the limitation on self defense) should also be given.

[As amended, effective October 1, 1985; January 1, 1997; as amended by Supreme Court Order No. 19-8300-016, effective for all cases pending or filed on or after December 31, 2019.]


Now, here's the statute:

30-2-7. Justifiable homicide by citizen.
Homicide is justifiable when committed by any person in any of the following cases:

A. when committed in the necessary defense of his life, his family or his property, or in necessarily defending against any unlawful action directed against himself, his wife or family;

B. when committed in the lawful defense of himself or of another and when there is a reasonable ground to believe a design exists to commit a felony or to do some great personal injury against such person or another, and there is imminent danger that the design will be accomplished; or

C. when necessarily committed in attempting, by lawful ways and means, to apprehend any person for any felony committed in his presence, or in lawfully suppressing any riot, or in necessarily and lawfully keeping and preserving the peace.

History: 1953 Comp., § 40A-2-8, enacted by Laws 1963, ch. 303, § 2-8.


The reason lawyers are expensive is because they're worth it.

The Texas penal code cited is current and is the law in the state of Texas. At this point I have not seen any rules, state or otherwise, that change or nullify the statutes. I cannot see how instructions to a jury, after conviction, would change the law.

If charges are brought and a conviction is entered then the statute would not apply since a violation of the law is evident by the conviction.

None of this is to say the use of lethal force, as in this case, is reasonable in such a circumstance. Discretion is often better than action.

I probably would shoot someone over beer but you have to draw the line somewhere. Is he supposed to allow people to steal beer from the store whenever they want? That's a lot of money lost and will add up fast. You can run a business like that. I wish he got the 2nd one as well.

Sent from my SM-G991U using Tapatalk

How this would work is a defendant would be placed on trial for some degree of murder. He/she would raise the 'affirmative defense' of self-defense or other recognized defense. As the trial goes to the jury, the trial court judge must instruct the jury on the law as well as the defense - that's why jury instructions matter...they are how the jury is to apply the law.

Every state is different - you couldn't shoot someone over property in NM.

The “pure” defense of property, i.e., not including a defense against force and violence, is always limited to reasonable force under the circumstances. See, e.g., State v. Waggoner, 1946-NMSC-001, 49 N.M. 399, 165 P.2d 122; Brown v. Martinez, 1961-NMSC-040, 68 N.M. 271, 361 P.2d 152. In Brown, the Court held that resort to the use of a firearm to prevent a mere trespass or an unlawful act not amounting to a felony was unreasonable as a matter of law.

Thus the lack of... "I'm so thirsty I'd kill for a Coors" banners at Triathlon events held at Pikes Peak.

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Have Fun/Stay Safe

The person may not be placed on trial. A DA may decide to not press charges. A grand jury may no indict. Thus, at that point jury instructions would not take place.

Now a DA may decide to prosecute for a variety of reasons, not all of them legitimate. how many times have we seen over zealous prosecutors go after someone who has legally/legitimately used force? Remember the prosecution of the person who used a too powerful 10mm?

I absolutely agree that all states are different and I do not know of any other state that has such provisions in their use of force statutes. Thus while the cases you cite have applicability in NM they do not in Texas.

If you do have examples of Texas cases I'd truly like to read them.

Curious about something, Im not looking to start my own thread but when is shooting someone from behind justified? I know, probably a stupid question, but it seems like a total grey area

All of that is true, but depending on the goodwill of an ADA and the forbearance of a grand jury is a pretty shaky strategy.

I suspect if you'll cruise through Texas' uniform jury instructions you'll find more similarities than differences, but truly don't know Texas criminal procedure from binary algebraic problem-solving.

It depends. I watched a guy get shot in the back of the head - he never knew what hit him BUT he was shouldering a loaded 12 gauge which he pointed at a police officer 30 feet away at the end of a substantial crime spree. Generally, though, if someone is looking elsewhere, it seems reasonable to believe they aren't a deadly threat.

It’s imperative that folks know and understand the self defense laws of their own state as well as those of any states they intend to travel through while armed.

Understand that nothing you tell to the police who respond constitutes evidence that can be used in a court defense, your remarks can, however, be used against you.

If you intend to remain silent, indicate to the police that you are invoking your right to do so and then remain silent until you’ve gotten legal counsel, because simply refusing to speak without invoking your rights will be used against you in court.

You’re exceedingly unlikely to “beat the ride” by speaking to police without an attorney present and police are trained to get you to run your mouth to your great disadvantage.

Don’t turn a legitimate self defense shooting into a criminal offense.

Excellent advice here, and well worth the time to watch:

Don't Talk to the Police - YouTube

I have read of similar situations here in Texas where the shooter was never even arrested. Maybe there's some details we are unaware of.

Pure speculation, nothing more:

How much longer will the American people continue to accept rampant crime and violence without significant government response?

Rioters burning down blocks of buildings with TV cameras recording and broadcasting the events in real time, while police officers stand aside under orders not to interfere with "protestors".

Court houses and other public buildings besieged by organized gangs of violent thugs, all broadcast to the viewing public, with no consequences.

Mom and Pop businesses repeatedly victimized by criminals having no fear of any response.

Prosecutors dismissing violent felony cases with no explanation other than racial justifications.

How much longer can it be until people start understanding the concept of "Yeah, that one needed to be shot"?

How much longer will it be until calls aren't made to 9-1-1 for crimes in progress, just reports of dead bodies needing removal from neighborhoods?

Speculating, not advocating. Just wondering about tolerance levels among the general public.

By the way, stay off my lawn.

Depends. Robbing a store and point a gun in someones face isn't a deadly threat?

Massad Ayoob's books "Deadly Force: Understanding Your Right to Self Defense" and "The Law of Self Defense: The Indispensable Guide to the Armed Citizen" should be compulsory reading for everyone that carries. When it comes to concealed carrying, knowledge of the law is arguably more important than knowing how to shoot.

In any court of law is the penalty , if convicted, for stealing anything The Death Penalty??

Really?

Just what part of this story favored the criminals? Was it the part where one of them dies over beer? Perhaps it was the part where the store clerk felt justified to shoot into their car while outside of the store as they were driving away?

Here's a critical point: It's pretty obvious the police or DA believes the clerk committed a crime, hence the murder charges. He made the most basic error in judgement - simply having a gun does not mean you can (or should) use it at that moment and under those circumstances. Perhaps it's likely that the surviving thief will also get tagged with murder in the coming days as well for being an accomplice to a crime where someone dies. From what I see, they are all guilty of making bad decisions.

And before anyone gets too frothy, my comment is about the even application of the law and not about what happened. If the second thief also gets tagged for murder then I personally will consider the law to be evenly applied.

Bad decision for sure but...play stupid games, win stupid prizes. That’s one criminal who won’t be stealing anymore beer, good riddance.

jon651: "If the second thief also gets tagged for murder then I personally will consider the law to be evenly applied."

No stealing a six pack of beer is not worth the death penalty, however if that beer was some worthless swill like Bud or Miller lite then the thief deserves to die from the swill.

I don't know about the law in that state but I do know in some states if a person dies during the commission of a felony then all persons involved in the situation get charged with the murder be they an accomplice or the killer.

Good thing I'm not on the jury cause as I see it, the killer was wrong for chasing the thief out the door and then shooting him in the car. Standard ruling as as I know it, if the thief gets out the door, wether your home or any other location, they are on free ground and you are no longer defending your life.

As others have mentioned.....
why does the criminal element make criminals out of law abiding citizens?
It does seem the criminals have control of our lives....with little recourse for the law abiding. The legal system does little to protect us from the criminals. How many times do we read of the extensive criminal record ...that keep being left out to prey on the law abiding.
How many looters do we see on "peaceful protests".....how much looting would be prevented if .."looters will be shot on sight!"
how many burglary...would end if tresspassers were shot....when will law abiding citizens have more rights than criminals???

Absolutely, relying on the system doing the right thing is one heck of a gamble.

In the case you cite there was a clear and present threat. As you note, in many such cases that is not so. In most cases such an action would only be justified "in defense of others" but as self defense, very shaky.

There can be justification if one believes (can prove) that the person constitutes a clear threat if they are not stopped, but again, can be very questionable.

Politicians have made it illegal to shoot thieves. Probably protecting their own.

There have been many, many such cases.

In this one we have only very basic information so hard to make any call on it.

Good, bad or indifferent the Texas statutes do allow the use of deadly force to protect property.

After all, steeling some 12-packs is not the same as stealing (and thus depriving a person of the ability to make a living) a truck full of tools and equipment.

Any large store chain, banks, retail establishments in general advise their employees to not offer any resistance. Even the various versions of the Castle Doctrine suggest that if the intruder is not threatening your life you should not shoot them. The old saying was if you are going to use your gun make sure you kill the person because of the consequences if they survive. In the current environment even law enforcement is hesitant about using a firearm.

Deleted- duplicate post.

Not shooting people certainly is cheaper.

Dallas district attorney John Cruezot not prosecuting minor crimes | The Texas Tribune

Dallas County DA generally will not file charges for theft under 750 dollars.

It makes it very tough on store owners and honest citizens, not that “Let ‘em go Creuzot” cares about anyone other than the criminal class that elected him.

A crime was committed: Robbery/Burglary

Clerk was the lawful possessor of the stolen property

Clerk was in fresh pursuit

Thieves were going to leave with the property if he didn't act

Event occurred at night

Yes, it seems like this meets the law how it is written in Texas, but he better be telling his lawyer that the one that got away pointed a gun at him or they tried to run him over before he shot at them.

I wonder if there is video?

From a news article: "Johnson followed them into the parking lot to tell them to put down the beer, then fired five shots at their pickup as they drove off, police said."

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Glenn
FAS1 SAFE

I was in a convenience store recently, and I saw a bum stealing candy. I looked around to hail a clerk. No clerk was visible. He must have been in the back room. My options were: A) grab the bum and risk getting stabbed; or B) walk away.

I chose B. I walked away. It's not my candy, and the bum will get a "trespass" and maybe a ticket.



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So very Politically Incorrect

There was no robbery nor burglary. The crime was shoplifting, a form of larceny. I suspect 4 cases of beer to be of misdemeanor value. Burglary is unlawful entry to commit a theft or felony; robbery is theft by use or threatened use of force.

'Fresh pursuit' only applies to law enforcement.

Yes, it was successful shoplifting/larceny.

Time of day or night is irrelevant as the clerk clearly was not threatened nor (just as obviously) did he feel threatened as 1) he chased them, and 2) he had and used a gun.

There's no rational justification for this absent a credible, deadly threat to the clerk. That horse (use of deadly force to protect property) left the barn long before most of us were born.

I have never really seen any reason/explanation as to why night allows for lethal force for theft/criminal-mischief while daylight does not.

I don't know, this is how the Texas law is written.

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.

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Glenn
FAS1 SAFE

Perhaps because we weren't around 150 years ago when Texas created the law to understand the legislature's intent; apparently they haven't seen the need to change it. Not sure if there's more recent case law that addresses it. Personally I think all states should have similar language in their use of force laws. Our country certainly lacks the necessary deterrence to keep such meatheads in check.

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213th FBINA

Simply put, you cannot use deadly force unless you are threatened with deadly force.

Everything else is commentary.

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Come and take it!!