Once Again, Killing Thieves has Consequences
- Thread starter biku324
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He’s innocent until proven guilty in this country last time I checked, and it’s my hope we still believe that. Most don’t unfortunately, including several who have posted here. Every once in a while I used to get into lively discussions with various attorneys about facts akin to those in this discussion. Their inevitable response to me: “Call your first witness . . . “
TexasArmed
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I like our Texas statutes regarding use of deadly force during the night time. I always think about the famous Joe Horn case
in Texas some years back when Joe Horn killed three illegals who had so many ID cards they did not know who they were and had broken into his neighbors home. Probably a good idea
for those wanting to break into property to find another State
to do their crimes in. Most Texans I know will protect their
stuff in rural areas.
kbm6893
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Two years ago, I would have said the clerk was stupid for going after the guy and I would have meant it. Now I will say it because he probably just ruined his life, but I almost can’t blame the guy.
We’ve had over a year of rioting and looting while cops watched. People’s home and businesses burned and the few people who are arrested have charges dropped. We have videos of shoplifters stealing in full few of staff and customers and calmly leaving the scene, stopped by nobody.
I think if things don’t change, more people are gonna start taking the law into their own hands. People have had enough. Did I shoplift a few times when I was young and dumb? Sure. A candy bar or a sandwich shoved up my sleeve. If I got caught I wouldn’t have run. 4 cases of beer and not even trying to hide it. It might be illegal to do what the clerk did but no loss for humanity.
We’ve had over a year of rioting and looting while cops watched. People’s home and businesses burned and the few people who are arrested have charges dropped. We have videos of shoplifters stealing in full few of staff and customers and calmly leaving the scene, stopped by nobody.
I think if things don’t change, more people are gonna start taking the law into their own hands. People have had enough. Did I shoplift a few times when I was young and dumb? Sure. A candy bar or a sandwich shoved up my sleeve. If I got caught I wouldn’t have run. 4 cases of beer and not even trying to hide it. It might be illegal to do what the clerk did but no loss for humanity.
Oldsalt66
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You appear to not understand the concept of legal “presumption” under which we in Florida may use deadly force when there is a legal presumption that we are being threatened with deadly force according to our statutes, and accordingly, your assertion is incorrect.
For example, in the event that a stranger breaks into your home here, you may respond with deadly force whether or not he overtly threatens deadly force, nor do you even need to confirm that he is armed, since the legal presumption is that he is in fact, armed, and intends to do you great bodily harm.
The same legal presumption allowing the use of deadly force holds sway in the event an individual tries to enter an occupied vehicle, or if he tries to smash your vehicle’s window, whether or not he openly displays a weapon or threatens you verbally with deadly force.
Then there are disparity of force issues, where a clear cut threat of deadly force has not been established, and the assailant may not even be aware that he is applying deadly force against a victim who has a serious infirmity that’s unknown to the attacker, but under which deadly force can be used in self defense here in Florida.
Additionally, deadly force can be employed to stop what one believes to be the imminent commission of a “forcible felony”against one’s own self, or others.
776.08 Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.
History.—s. 13, ch. 74-383; s. 4, ch. 75-298; s. 289, ch. 79-400; s. 5, ch. 93-212; s. 10, ch. 95-195.
“Simply put, you cannot use deadly force unless you are threatened with deadly force.
Everything else is commentary”. ~ your assertion
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mscampbell2734
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I have, both 9.31 and 9.32. THey are broadly similar. Both clearly state deadly force can be used to stop or prevent a ROBBERY or AGGRAVATED ROBBERY.
Nothing to do with theft.
The only possible defense the clerk has is to claim Estes Robbery. This comes from a 1983 California case where a person shoplifted a coat from a store. A security guard followed the shoplifter outside and confronted him. The Suspect pulled a knife and swung it at the guard. The courts ruled that the theft and assault were linked, raising the theft to ROBBERY.
In this case the clerk could claim when he demanded the beer back the suspects attacked/threatened him, raising the shoplift to a ROBBERY.
Please go back and read 9.42
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.
mscampbell2734
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So go back to 9.41
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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Yes, theft during nightime is listed. BUT the term "reasonably believes is immediately necessary" is key here. As others have mentioned the courts will frequently add to penal law. Since this law was written I'm sure it's gone to trial more then once, and possibly gone to the Texas Supreme Court.
The Courts will define what "reasonably believes is immediately necessary" and trust me when judges define something it does not always make sense to common lay people.
Also 9.42 3b clearly states:
"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."
In other words the person using force had no other means to recover the property except to use deadly force.
And by the way you never brought up 9.41 or 9.42 before.
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.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.
Yes, theft during nightime is listed. BUT the term "reasonably believes is immediately necessary" is key here. As others have mentioned the courts will frequently add to penal law. Since this law was written I'm sure it's gone to trial more then once, and possibly gone to the Texas Supreme Court.
The Courts will define what "reasonably believes is immediately necessary" and trust me when judges define something it does not always make sense to common lay people.
Also 9.42 3b clearly states:
"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."
In other words the person using force had no other means to recover the property except to use deadly force.
And by the way you never brought up 9.41 or 9.42 before.
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OP
In any event, he's still in jail and still charged with murder.
Because you can't get a gun into the airport.
First of all, you said, and I quote...
"...you can shoot robbers but not thieves."
"According to the section your quoting no, you can NOT. You can shoot ROBBERS, not thieves."
And yes, I did cite 9.42
Sec. 9.41. PROTECTION OF ONE'S OWN PROPERTY.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY.
PENAL CODE CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY.
Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY.
PENAL CODE CHAPTER 9. JUSTIFICATION EXCLUDING CRIMINAL RESPONSIBILITY.
mscampbell2734
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Dude lets not get pissy over little stuff.
Bottom line is shooting someone over property is almost never a good thing. Even if this guy gets off in the end he's got a long, painful and expensive road to go before he's free.
Bottom line is shooting someone over property is almost never a good thing. Even if this guy gets off in the end he's got a long, painful and expensive road to go before he's free.
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I certainly was not getting pissy.
I agree that the use of lethal force in such a situation is a bad decision. But as it relates tot he law, lethal force is allowed to stop theft.
OP
Then why did the DA agree to the murder charge?
My assertion is completely correct. Somewhere above I said that in order to use deadly force (not force, DEADLY force) you had to believe that you (or a third party) are under a threat of deadly force. The presumption is the same in most Free States. Everything oldsalt cites from the statute PRESUMES that the actor, that's the person using deadly force, not the criminal, is under threat of deadly force.
You can't just make this stuff up or decide for yourself what you think it means - these laws and the cases under them are ancient except for the newer modifications we are happily enjoying in the Free States. If someone breaks into your home, pulls open your car door, etc., there is a presumption that deadly force is being threatened and it is reasonable to expect the residents or driver to use deadly force. The same is true for every case listed under "776.08 Forcible felony".
The same holds true if the victim has an infirmity - in the negligence world the old phrase is "you take your victim as you find him" so slapping a 6 foot 6 inch 265 pound man would seem to be a negligible act of violence not requiring much in terms of defense but slapping the same man who happens to be a hemophiliac could kill him so he is entitled to use deadly force to prevent the slap.
My assertion remains 100% correct.
Except for treason - I am uncertain how treason falls under the definition of a forcible felony but I guess if you catch a Congressman passing along secrets to his Chinese lover it's justifiable to shoot him, but I digress.....
Oldsalt66
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My assertion is completely correct. Somewhere above I said that in order to use deadly force (not force, DEADLY force) you had to believe that you (or a third party) are under a threat of deadly force. The presumption is the same in most Free States. Everything oldsalt cites from the statute PRESUMES that the actor, that's the person using deadly force, not the criminal, is under threat of deadly force.
You can't just make this stuff up or decide for yourself what you think it means - these laws and the cases under them are ancient except for the newer modifications we are happily enjoying in the Free States. If someone breaks into your home, pulls open your car door, etc., there is a presumption that deadly force is being threatened and it is reasonable to expect the residents or driver to use deadly force. The same is true for every case listed under "776.08 Forcible felony".
The same holds true if the victim has an infirmity - in the negligence world the old phrase is "you take your victim as you find him" so slapping a 6 foot 6 inch 265 pound man would seem to be a negligible act of violence not requiring much in terms of defense but slapping the same man who happens to be a hemophiliac could kill him so he is entitled to use deadly force to prevent the slap.
My assertion remains 100% correct.
Except for treason - I am uncertain how treason falls under the definition of a forcible felony but I guess if you catch a Congressman passing along secrets to his Chinese lover it's justifiable to shoot him, but I digress.....
Yeah, whatever you say.
I’m surprised no one has mentioned Tennessee v. Conner, the SCOTUS decision that prohibits LE from shooting fleeing felons without extenuating circumstances. The reasoning behind their decision was in English Common Law, virtually all felonies were punishable by death while in the latter part of the Twentieth Century almost no felonies are punishable by death.
As irritating as these thefts are, they’re not worth losing your freedom and/or everything you ever worked for.
As irritating as these thefts are, they’re not worth losing your freedom and/or everything you ever worked for.
