Gideon makes his objections to the Texas defense of property law on which Joe Horn based his defense known here.
He pares down Texas’s defense-of-property-of-others law:
A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property.
I think he’s got it wrong. He got it wrong at first. In Texas, you can use deadly force to protect the movable property of a third party (that is, not you and not the guy you’re using the force against) when (among other situations inapplicable here):
- You reasonably believe that the force is immediately necessary to prevent or terminate your target’s unlawful interference with the property;
- You reasonably believe that the deadly force is immediately necessary to prevent your target who is fleeing immediately after committing burglary from escaping with the property;
- You reasonably believe that the property cannot be recovered by any other means; or that the use of force other than deadly force to recover the property would expose the you or another person to a substantial risk of death or serious bodily injury; and
- You reasonably believe that your target’s unlawful interference with the property of the third party constitutes attempted or consummated theft of the tangible, movable property.
(That’s a mashup of Sections 9.41-9.43 of the Texas Penal Code, which deal with the use of force and deadly force in defense of your own property and the property of others.)
Gideon’s real objection to Texas’s law on the defense of property of others, I suspect, is that property isn’t worth killing someone. I’m with him there. But was Joe Horn right under the law? I don’t know. He apparently didn’t know that the cops were right there, and so he might reasonably have believed that the only way to protect his neighbor’s property without exposing himself to a substantial risk of death or serious bodily injury was to use deadly force. Even if he was wrong, though, there’s enough there for a grand jury to hang its hat on that it could justify a no-bill based on its answer to The Real Harris County Self-Defense Special Issues:
Did the complainant need killing?
Was the defendant the right guy to do it?
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This entry was posted by Mark Bennett
on Tuesday, July 1st, 2008 at 9:06 pm and is filed under defense of property, murder.
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About The Author
Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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Can’t disagree with you here.
Btw, talk about three really, really dense subsections. They really could have written those statutes better.
[...] thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you [...]
I obviously don’t know what the grand jury heard, but I have a feeling they didn’t require much evidence in the way of (3). If I recall correctly (and correct me if I don’t), the Hispanic men were unarmed. I see no reason to read that provision liberally, and I would actually be skeptical that there was any affirmative evidence presented as to the reasonableness of his belief. I hate to say it, but I think the fact that the men were Hispanic was probably sufficient to make the situation “dangerous” to Horn in the minds of the grand jurors.
Which I guess brings me right back around to your Real Harris County Self-Defense Special Issues. I have no doubt of their descriptive accuracy.