How guns save lives

Washington Times ^ | 1/26/03

[WL-law]

...if he would be justified in using force against the other under Section 9.41

...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.

Well, let's parse this further. What does section 9.41 say? And since ALL these elements are necessary to perfect the right, the last part of the statute seems to say that there is an strong aspect of self-defense involved -- so this is NOT clearly a right to use deadly force to defend property per se.

In other words, the classic case is someone who loads a spring-loaded gun in an abandoned house he owns, triggered and aimed at the door. Door opens, gun goes off.

These cases come up from time to time. This statute certainly does not permit that.

[WL-law]

You mean these guys were in the burglar's house?!

Again you just don't get it. Who's house it is is immaterial. Self-defense is not the same as setting a trap and then killing someone. The prosecution faied to prove that at trial (which was, hopefully, a just outcome) but the facts certainly suggested the possibility, and a grand jury obviously agreed.

[Ches]

"someone who loads a spring-loaded gun in an abandoned house he owns, triggered and aimed at the door. Door opens, gun goes off."

A booby trapped gun can not differentiate between a six year old kid with a peanut butter sandwich in his hand and a thug wielding a gun or sledgehammer and maybe you would have trouble differentiating. I, for one, would have no problem.

[FreedomPoster]

I'm half watching this game, half reading this thread. Are you trying to say that rigging a gun behind a door set to go off automatically is the same as being prepared to protect yourself from scum if they appear at your buisiness and attempt to steal your livelihood and potentially your life?

On the issue of "a grand jury obviously agreed" - you darn sure know as well as I that grand juries are routinely led where prosecutors wish to take them. The fact that a grand jury "agreed" doesn't make the prosecutors actions any less reprehensible. These men are justified in defending their livelihood from predators, without becoming an election vehicle for an ambitious D.A.

[beavus]

A fact of which I was not privy. Still, he may have dropped the sledgehammer and yelled "Please don't shoot!". A reasonable thing for even a bludgeon-armed criminal to do when faced with two people armed with guns.

[FreedomPoster]

>>This statute certainly does not permit that.

Go read some Texas case law. It, or something else, often does, from what I can tell. There are cases that seem to depend on this that pop up fairly routinely in Texas.

Maybe there is more common sense and less liberal jurisprudence protecting criminals in Texas.

You practice in Northern Virginia?

[Double Tap]

§ 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, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

In other words, the classic case is someone who loads a spring-loaded gun in an abandoned house he owns, triggered and aimed at the door. Door opens, gun goes off.

WTF??? How did a spring-gun get into this conversation? They didn't set a trap for Hammer-boy, they were working in their shop.

The laws that have been posted most surely do make it legal to use deadly force in defense of property, whether it is at your home of not. Granted, this is Texas law, but it makes the point that not all states look unfairly on someone who stops a thief with a bullet.

[FreedomPoster]

>>WTF??? How did a spring-gun get into this conversation?

I see I'm not the only one trying to figure that out (see my #64).

[maica]

You are right in your scenario that he might have dropped the hammer and yelled "Don't shoot!" Only those three will ever know.
What is fact is that the workshop had been burgled on a regular basis; the police are impotent to stop these bottom-feeders from appropriating anything that they can sell for a few bucks; and in the dusk of a nine pm summer evening, a hammer could have looked like a very large gun.
I guess the judge gave the benefit of the doubt to the workmen. The furniture that they refinished was commercial in nature, so they worked during the hours that businesses such as bars and restaurants were closed - restoring and refinishing bar counters, etc.

Anyone working those hours in that part of the city, was living in dread of invaders at all times. Inner city Baltimore is not a healthy environment.

[Double Tap]

I had to go back and re-read the article just to make sure I didn't miss something.

[beavus]

Good points all.

[FreedomPoster]

>>Inner city Baltimore is not a healthy environment.

No wonder, with prosecutors like the one in the story, and lawyers like the one on this thread.

[Shooter 2.5]

Seconds after the defense attorney finished, the judge declared the two men not guilty. This happened in an anti-gun State.

From what I can see from the article,

The men were not laying in wait. They heard a commotion and investigated.

The deceased threatened the two men.

The men were in their place of business and not on a neutral ground.

The men were under no obligation to retreat.

The man was armed.

The two men reported the burglary.

There is no evidence the men falsified evidence from the article.

There is no report from the article the two men's story didn't support each other's.

[Shooter 2.5]

3. he reasonably believes that:

A. the land or property cannot be protected or recovered by any other means; or

[WL-law]

WTF??? How did a spring-gun get into this conversation?

A spring gun is the classic case of "defending PROPERTY" as opposed to self-defense -- because using the spring gun means you're not even at the scene, so clearly no self-defense attaches.

I raised the hypo because the writers on this thread are SAYING that its OK to use lethal force to defend PROPERTY, and then the illustrations offered are NOT clearly defense of property, but variations of self-defense.

So I want to put the question clearly on the table -- is it OK to use a spring gun as I hypothesized? If you say NO, then you are agreeing that defense of PROPERTY does not warrant lethal force.

Even the statutes are muddy -- in the Texas statute, for example, "robbery" requires that a PERSON is robbed -- it's an element of the crime. And I suspect that a careful reading of the statute points to self-defense, not defense of property, although the title states otherwise.

I've had the experience of defending in a murder trial where self-defense was asserted by my client -- dso I speak from some experience here.

[WL-law]

3. he reasonably believes that:

A. the land or property cannot be protected or recovered by any other means; or

you cite this part of the statute, but the other parts are connected by "ANDS", not "ORS", so this is not a stand-alone basis to assert lethal force -- every part of the statute must be satisfied for the right to attach. I suggest you re-read with that in mind.

[Lurker]

Your client needed a better lawyer.

L

[Shooter 2.5]

Texas Penal Code 9.42 - Deadly Force to Protect Property

A person is justified in using deadly force against another to protect land or tangible, movable property:

3. he reasonably believes that:

A. the land or property cannot be protected or recovered by any other means; or

[Shooter 2.5]

SUBCHAPTER D. PROTECTION OF PROPERTY[It was the two guys property]

§ 9.41. Protection of One's Own Property[It was their 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.[The dead guy was trespassing]

(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:
[Burglar stealing moveable property]
(1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
[The dead guy had no right to be there and there's that pesky "OR" again
(2) the other accomplished the dispossession by using force, threat, or fraud against the actor.
[He was using a hammer]
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

§ 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
[See the other section]
(2) when and to the degree he reasonably believes the deadly force is immediately necessary:
[The guy was approaching with a hammer]
(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
[It was a burglary and a theft at night]
(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
[Buglary and theft at night]
(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or
[They were threatened with a hammer and there's that pesky "OR' you're ignoring]
(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.
[Serious bodily injury from the hammer]
Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

[FreedomPoster]

In the first place, you quoted a statement I didn't make, though I did ask the same question in a different way, and I did quote that same statement.

In the second, your assertion:

>>If you say NO, then you are agreeing that defense of PROPERTY does not warrant lethal force.

is false. I do not think booby traps are appropriate, but I do think defense of property can warrant use of lethal force. Just because someone is coming to your property uninvited, doesn't mean they are there to steal your property. A fireman could arrive in response to a neighbor's report of a fire at your property, and be killed, in the case of a booby-trap gun setup. Your construct fails.

You're going to have to do better around here.

Now how about addressing my rebuttal of your "a grand jury agreed" nonsense?