What to do about scumbags checking car doors at night?

[oldag]

**sigh** If you are not prepared to deal with that then don't go confront the guy(s). Pretty simple concept. My response is for those who think deadly force or nothing are the only things that can be done about an auto burglary, and they don't want to do nothing so they think they should just shoot someone.



No disagreement from me!

Sigh....

Some folks think they are prepared but then find out at a particularly bad time that they are not. Soldiers have been know to hesitate the first time in battle situations.

Not so simple as some folks like to make out.

 

[txinvestigator]

Lots of hypotheticals here, so I decided to go back to the OPs original questions.



I’m going to frame these differently:

Q1. What can be done to deter thieves without incurring a criminal charge or civil case?

Q2. Is someone criminally or civilly liable if they create a trap and an unknowing party is injured by that trap?

The key to avoiding civil or criminal liability probably lies with good legal advice from current practicing attorney’s that specialize in those areas.

Q1- We all know crime prevention techniques.

Q2- Absolute possibility

 

[txinvestigator]

Sigh....

Some folks think they are prepared but then find out at a particularly bad time that they are not. Soldiers have been know to hesitate the first time in battle situations.

Not so simple as some folks like to make out.

No disagreement from me either. How does that fact change the fact that there are other options besides "kill em or do nothing"?

 

[oldag]

To this point, if a person had a deadly weapon such as a baseball bat and were too far away to hit you with it, but began to approach you with it and verbally threatened to rip your head off, would you not draw BEFORE they could administer deadly force against you, or would you wait until they were close enough so you HAD to shoot?

I would not brandish in the hope they might start playing nice.

 

[Mowingmaniac 24/7]

There is no gun 'brandishing' law in Texas.

 

[oldag]

No disagreement from me either. How does that fact change the fact that there are other options besides "kill em or do nothing"?

Somehow we are not connecting on the same level. I was addressing only the proposed solution of "flash the gat and intimidate them".

Don't think saying more will be productive at this point.

 

[oldag]

There is no gun 'brandishing' law in Texas.

Didn't say there was, did I? I used a descriptive term.

 

[txinvestigator]

I would not brandish in the hope they might start playing nice.

Let me get this straight; a guy with a baseball who has verbally threatened to rip your head off with it while 40 feet away begins to close distance with you, and you would WAIT until you HAVE to shoot him rather than to draw and prevent from having to shoot him while he is 30 feet away? Is that right?

Isn't that the antithesis who what you clam to espouse?

 

[txinvestigator]

Just to play devil's advocate - where's the line between this and "brandishing" (which, if I'm not mistaken, is an offense under the TX penal code, §22.05)?

While Texas does not have a brandishing law per se, 22.05 reads

Texas Penal Code

Sec. 22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.

(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1) one or more individuals; or

(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.

(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.

Couple of things there; the culpability required is "reckless", defined as " A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."

In a self-defense case reckless does not really apply. And there are a couple of statutes in Chapter 9 that cover self-defense for drawing down

Texas Penal Code
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Sec. 9.22. NECESSITY. Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.


Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

 

[Mowingmaniac 24/7]

oldag,

My previous post wasn't directed at you.

Just a general information post.

 

[deemus]

Mr. Kotter, I'm so confused!

anymore, left out "anymore."

 

[BRD@66]

anymore, left out "anymore."

I forgot.

 

[CyberWolf]

...the culpability required is "reckless", defined as " A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint."....

Thanks for the clarification, that was very helpful; based on those conditions (back on the topic of auto theft/burglary), where the perp is trying to get away with the goods and not trying to escalate a confrontation (e.g. SD code non-applicable), those definitions around recklessness/risk seem mighty subjective.

Short of some other circumstances (e.g. child in car being stolen, vehicle coming at you, etc.), not sure if I'd want to play those odds in today's political climate...

 

[oldag]

Let me get this straight; a guy with a baseball who has verbally threatened to rip your head off with it while 40 feet away begins to close distance with you, and you would WAIT until you HAVE to shoot him rather than to draw and prevent from having to shoot him while he is 30 feet away? Is that right?

Isn't that the antithesis who what you clam to espouse?

First, I try not to place myself in such situations.

I will wait until I have to shoot him rather than take a chance that the brandishing does not work out well. He made a bad choice when he threatened my life or that of those with me.

But if he starts at 40' away, odds are I will have other options - like removing myself from the situation.

Please stop reading more into what I said than was typed. I did not espouse anything. I just warned that brandishing can lead to its own problems. Perps don't always turn into jelly at the sight of a gun in spite of the tv shows.

 

[txinvestigator]

First, I try not to place myself in such situations.

Agreed!

I will wait until I have to shoot him rather than take a chance that the brandishing does not work out well. He made a bad choice when he threatened my life or that of those with me.

I have to believe you are being disingenuous so as to defend your position- and being inconsistent while doing it. How could drawing your firearm work out worse that shooting him?

Please stop reading more into what I said than was typed. I did not espouse anything. I just warned that brandishing can lead to its own problems. Perps don't always turn into jelly at the sight of a gun in spite of the tv shows.

I don't believe I am reading in, what I am doing is presenting realism. I am aware of what "perps" do at the site of a gun, having personally pointed mine at many.

 

[Mowingmaniac 24/7]

Hhhmmm, we may have to have an election to see who's the most argumentative.....TXI, me, YG, M44, etc.......so, I'm gonna git mah arguin license renewed....

 

[txinvestigator]

Hhhmmm, we may have to have an election to see who's the most argumentative.....TXI, me, YG, M44, etc.......so, I'm gonna git mah arguin license renewed....

lol

 

[Sublime]

We all just have to be true to ourselves. I get it if you don't want to use deadly force for "stuff." BMW use to be a felony but the legislature in their infinite wisdom changed it to a misdemeanor. I'm just saying it IS legal to use deadly force to stop a theft or criminal mischief at night in TX and there is a thin line between a thief and a burglar and a robber and the situation is pretty dynamic and well most criminals have buddies with them just like what was initially described in the thread and well folks are tired of their crap being taken. IF you drew a gun to stop them and that did not faze them and they approached you well they probably need shooting. Now if they run off, sure let them go, maybe.

 

[txinvestigator]

I'm just saying it IS legal to use deadly force to stop a theft or criminal mischief at night in TX and there is a thin line between a thief and a burglar and a robber and the situation is pretty dynamic and well most criminals have buddies with them just like what was initially described in the thread and well folks are tired of their crap being taken. IF you drew a gun to stop them and that did not faze them and they approached you well they probably need shooting. Now if they run off, sure let them go, maybe.

To be clear, shooting someone is a crime. There are situations that will be decided by a judge or jury that can make the crime justified.

It is like a person who claims not guilty by reason of insanity when he shoots someone and is charged with aggravated assault. He is not claiming he didn't commit the aggravated assault, he is claiming he should not be found guilty because he was not mentally capable at the time.

If you shoot someone that survives it is aggravated assault at minimum. Read the Agg assault statute, there is no exception for someone breaking into your car. You would assert that you were justified in committing the offense by the statutes in chapter 9 of the penal code. The burden to show that you met the requirement of chapter 9 are on the defendant. All the prosecution has to prove is that you committed the agg assault to obtain a conviction. To be found not guilty or get a no-bill, you need to show that the elements of chapter 9 were met.

Here is the law regarding use of deadly force to protect property

Texas Penal Code

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."

(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.

(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.

(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.

(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.


Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.

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 distinction between an act being legal vs being a defense to prosecution is important.

Also note that "burglary of a vehicle" is not included in the offenses that one can use deadly force to prevent. It list burglary, which is a separate and distinct offense from BoV.

 

[oldag]

I don't believe I am reading in, what I am doing is presenting realism. I am aware of what "perps" do at the site of a gun, having personally pointed mine at many.

Then you should be aware that the perps reaction cannot be predicted.