Homeowner Shoots Alleged Burglar, No Charges Filed

[GreenStormCloud]

Homeowner Shoots Alleged Burglar, No Charges Filed

http://www.myfoxhouston.com/dpp/news/local/091209-manvel-homeowner-shooting

Updated: Wednesday, 09 Dec 2009, 5:09 PM CST
Published : Wednesday, 09 Dec 2009, 3:04 PM CST

Prosecutors don't plan to press any charges against a Brazoria County homeowner who shot a man allegedly trying to burglarize his wife's car.

SNIP

The homeowner saw a knife-wielding man trying to break into his wife's car, which was parked inside their garage, according to the statement.

The homeowner stood in the kitchen and fired a shot the suspect, hitting him in the left calf, according to the statement.

SNIP

Hernandez also was charged with burglary of a habitation.

A grand jury will hear the case without charges pending against the homeowner, according to the statement.

Just another day in Houston. Only a few lines in the paper. And a burglar will get lots of time to consider his career choice. And a resident is spared the financial problems of his car being stolen.

[Liberal_in_LA]

1. Glad no one was killed

[Th1onein]

2. Me too.

I wonder if he called the cops before he shot the guy?

[rd_kent]

3. Should he have to?

[Fire_Medic_Dave]

18. Where have you been hiding?

Any success in stopping smoking? I hope so!

[Goldstein1984]

4. Then comes the lawsuit

The homeowner may still be subject civil action.

Nobody should ever shoot a person for any reason other than that they fear for their own life or the life of another person. Just shooting someone because they're trying to break into a car seems excessive. There is probably more to the situation. That said, when it does become necessary to use a firearm in self defense, it's always three shots, center mass--more effective as a defense against both bodily harm and lawsuits.

[Pavulon]

5. 21 feet and he is just fine.

A knife is immediately lethal in that distance. If he stopped him with his first shot, even if it was low, he was right NOT to continue to fire on a down target. In texas, his civil suit is probably not going very far.

[X_Digger]

6. Not in Texas..

No trial attorney is going to take the case on contingency- Texas penal code SECTION 4. Section 83.001 stipulates that "a defendant who uses force or deadly force that is justified under Chapter 9 (Section 9.32), Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s use of force or deadly force.."

[Goldstein1984]

7. So the lawsuit will center on the whether it was "justified"

I'm only saying, the first rule of self defense is shoot only when defending life (or property, in Alaska), and never use deadly force except to achieve a deadly result.

At 21 feet, either the homeowner was shooting at a moving target and only got the leg, or he is a lousy shot and hit the leg while aiming for the proper center-of-mass target, or he was doing the very stupid "only-wanted-to-wound-him" thing.

Like I wrote, there is certainly a lot more to the story, and it probably all makes sense.

A knife can be deadly at 21 feet, but few are capable of making that happen. I wouldn't take a chance, though.

When I walk my dog, I carry a concealed handgun. My dog is a 90-pound working-bred German shepherd that goes from cuddle to kill in half a second when he senses danger. If I felt my life were in danger, I would still use my handgun to defend myself, rather than risking letting Bruno be injured. In Alaska, whether Bruno is considered family or property, I would be justified.

Typically, when a person uses a handgun in self defense, they should expect initially to be treated as a criminal. They are typically cuffed and taken into custody pending an investigation. If the circumstances are extraordinarily clear, or if the local district attorney is a relative, this might not happen.

[Hangingon]

8. Guyy is in the garage with a knife? No civil case.

[Goldstein1984]

9. O.J. would have liked it that simple

It just isn't that simple. A jury has to be convinced, and reasonable doubt doesn't apply in civil law. A simple majority is the standard in most civil law.

I'm on the side of the guy who pulled the trigger, based on what been written here. But a civil jury is going to hear questions like, "Was there an alternative to pulling the trigger;"Was the guy aggressive, or was he shot while trying to leave after confronted." A former coworker and friend of mine has been teaching the standard concealed carry class for twenty years, and it just isn't that simple.

For years, a concealed carry permit was required in Alaska. A few years ago, the Alaska Supreme Court ruled that every person legally allowed to own a handgun had the right to carry a concealed handgun. My very first thought was of all the legal nuances involved in the decision to use deadly force. Now, thousand of people with no clear understanding of when it is and isn't okay to use deadly force are carrying concealed handguns. It's like letting people who may or may not know how to operate a motor vehicle, and may or may not know traffic laws, drive on public roads

If the guy was leaving, I would have let him run. If he was approaching me, I would have shot too, but I would have shot better and more often. My family and I would have been safer for my more aggressive use of force. And only one eyewitness to testify

O.J. had a sympathetic criminal jury, but an unsympathetic civil jury. He won in criminal court, and he lost in civil court.

[X_Digger]

11. No civil lawyer will take the case.

Having the DA refuse to even present the case to a grand jury would be presented as prima facie evidence of justifiable use of force under section 9.32. Civil immunity follows under Section 83.001.

[Hoopla Phil]

13. Sorry, Texas Castle Doctrine specifically protects the shooter. All it takes

is for the grand jury to not indict the shooter and he/she is immune from civil liability. It really is that simple.

[Hoopla Phil]

14. Oh, further fyi

Texas law also considered an attached garage as part of you home. While the story does not say that this garage was attached I concluded that it is because of this "Hernandez also was charged with burglary of a habitation."

Under Texas law the guy with a knife might just as well have been standing in the home owners' living room. Deadly force being used in this situation would seem to meet the legal standing of justifiable under Texas law.

[oneshooter]

19. A little more FYI

If he is indicted by a Grand Jury, goes to trial, and is found "innocent" or "not guilty" then the Castle Doctrine holds that the same. No civil trial. However the guilty party, the bad guy, goblin, shot guy, bullet catcher, whatever you want to call him, can be sued for any damages he caused to the home owners property. And that includes cleaning up the blood off of the floor!

Oneshooter
Livin in Texas

[Goldstein1984]

15. Alaska has similar laws and precedents

First, one of you has a higher opinion of tort attorneys than I do. I see them on television all the time trolling for cases. My environmental law professor, who does primarily corporate civil environmental work, now in Illinois, has a saying he says is fundamental to all civil law everywhere: "In civil cases, the law is whatever I can convince a jury the law should have been. All one needs is standing and the foot's in the door." He's extremely successful, and, fortunately, he's a Liberal and on our side.

Second, I'm not an attorney. My training is limited to regulatory compliance, and in this particular arena it's limited to practical concealed carry and deadly force training specific to Alaska. Texas may be very different. It certainly is where capital punishment is concerned. Our Conservatives tend toward the Libertarian, and consider capital punishment fundamentally flawed. (Different subject. Just thought I'd mention it because both Alaska and Texas have reputations as "redneck" states.)

Thanks for this conversation.

[GreenStormCloud]

17. Any healthy person can kill with a knife from 21 feet by rushing the victim.

They don't stay at 21 feet. They rush the target and stab while still holding the knife. A healthy person can rush 21 feet in under two seconds. If you gun is in a typical modern police holster, it is difficult to draw and fire in under two seconds. A person with a weapon who is 21 feet away is an immediate threat.

In Texas, deadly force can be used to protect property.

The article states that no charges are being filed. That means a civil suit is dead-on-arrival. Because of that, no contigency attorney will take the case.

I too would love to know why the burglar was shot in the leg. Definately a bad idea. Shoot at center-mass, aimed rapid fire, until the threat is no longer a threat.

[PavePusher]

10. I can't help feeling that more criminals shot while stealing...

would result in fewer attempts to steal.

When a criminal steal my belongings, s/he isn't taking just objects, they are stealing whatever part of my life was invested in obtaining and/or using those objects. If they steal my car, they are taking a substantial financial and temporal investment, as well as jepordising my continued employment and future quality of life for me and/or my family. They are also likely to be a danger to the public, as car theives have a disturbing trend of attempting to elude police when found with said vehicles, all to frequently resulting in damage and injury to others.

Similar arguments can be made for the theft of a wide variety of other objects. And the old saying of "things can always be replaced" is an flagrent falsehood.

If criminals don't want to be shot, I suggest you council them not to attempt to commit crimes.

[Goldstein1984]

16. No argument from me

I am fundamentally a pacifist, but my wife has joked that I react violently when my pacifism is interrupted.

Like many, many Alaskans, I'm generally carrying unless I'm at work or in one of several locations where it is prohibited.

That said, I still won't shoot someone unless I can look myself in the mirror afterward and believe myself when I say that a I or another person where in danger.

Defense is one thing, summary judgment and execution is beyond my scope.

I feel the same about war--defense is the only justification. None of this "vital national interest" nonsense we heard on 12/1/09.

[PavePusher]

20. I think we agree pretty well on this.

I most likely would not shoot someone stealing my car in public (provided no-one was inside it), unless I thought the criminal was posing or would pose a serious threat to others by that act. I have good insurance, and am financially able to accept that knock on the wallet (barely, insurance doesn't cover everything...). And since I live in Tucson, my backstop would likely be other cars, buildings, etc. I consider myself a fairly good shot, but it'd still be a significant risk. Everything is situational, however, there are very few absolutes except that I was born, and someday I will die. Everything in between is subject to karma, fate, Heisenbergs Principal, the whims of the dieties and the workings of a poorly designed organic computer working with incomplete and all to frequently inaccurate data.

I'm just here for the beer.:beer: :toast:

[GreenStormCloud]

22. Loss of a car to theft would be financially disastrous to me.

My finances are on the ragged edge. We just went through bankruptcy, then my wife lost her job. We would not be able to deal with the loss of a car. It could mean job loss for me with loss of health insurance for both of us. It could mean getting behind on house payments with possible foreclosure. I would have to shoot.

[PavePusher]

23. And you'd have my full support.

That action by a criminal is endangering your life, even if the consequences would not be immediate. It doesn't matter if his actions would kill you in 5 seconds, or 5 years, it's a real and verifiable threat. The only problem might be getting a jury to agree (depending on ones jurisdiction), but that's a risk we firearms owners/carriers often have to calculate in advance, sadly.

[Hoopla Phil]

12. Not any more. Thanks to the Castle Doctrine law.

[JonQ]

21. We've had a rash of car break ins here

I wish more ended in "burglar shot by car owner, no bystanders hurt, police do not plan on pressing charges".

Not necessarily killed in the process, but give him a good scar to remember, and a chance to think about changing his career.