From: mnemonic@eff.org (Mike Godwin)
Subject: Re: Killing in defense of possessions?
Originator: mnemonic@eff.org
Organization: Electronic Frontier Foundation
Date: Tue, 1 Sep 1992 21:33:04 GMT

In article <24426@oasys.dt.navy.mil> bense@oasys.dt.navy.mil (Ronald Bense) writes:

>Thanks for posting the relevant sections. Let's put it in complete layman's
>terms, to show that it really is pretty cavalier....

I note that you seem to be taking the sections independently; in fact,
the statute requires that they be taken together.

>you must catch someone in the act or be chasing him from the scene of 
>the crime where a theft has occurred.

Remember that 9.41 addresses all use of force, not just the use of deadly
force. Sec. 9.42, which addresses the use of deadly force, incorporates
the requirements of 9.41 and adds some additional requirements.

>In other words, this must be a thief, not a banker reclaiming the car
>you've failed to pay on. It must be your property without question,
>with the person stealing it having no claims on it. (iow, it can't be
>your wife taking a car when she files for separation.)

It can't even be the repo man.

>In other words, a couple of creeps loitering around your car at night
>in an otherwise quiet neighborhood would fall into this category.

Not at all. You have to have a reasonable belief that they're perpetrators
of the specified crimes. "Loitering" is neither perpetrating nor fleeing.

>Also,
>this broadens the crime definition to include other crimes than theft
>or mere protection of your own property, in actuality spreading to all
>types of crimes (criminal mischief). 

"Criminal mischief" does not refer to "all types of crimes." It refers
to a specified set of particular crimes involving damage to property.
(See Texas Penal Code 28.03.) 

>Well, let's see, this paragraph relates to the person's beliefs about
>the criminal and the possibility of recovering property.

The paragraph you refer to requires not merely belief, but *reasonable*
belief. 

> All that's
>required is "all criminals are violent and carry guns. Just look at
>TV, the news, not the shows." and "If I shot him, my chances of recorvering
>my property are pretty much 100%. If I let him go, the possibility drops
>to nil." 

This hypothetical belief on the part of a hypothetical defendant would
not be taken as a "reasonable belief" in Texas courts. 

>That would seem a bit paranoid, don't you think? Anyway, there had to
>be some limitations, such as some proof of criminal intent or something,
>as if there wasn't, you could shoot anyone ffor any reason and claim
>that there was some criminal intent taking place.

Not in Texas, you can't. If the evidence doesn't support your claim of a
reasonable belief that a crime is taking place, you'll go to prison for
anything from assault to murder (depending on how much damage you do to
the person you use deadly force on).

> Shooting someone who
>is in the commission of a crime *is* perfectly legal, however.

Not unless the *other* requirements of deadly force statute are met.



--Mike




-- 
Mike Godwin,    |"The meeting of two personalities is like the contact 
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EFF, Cambridge  |                           --Carl Jung 
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