On the Texas Law Shield Facebook page April 24, the group’s lawyers shared a story about an individual with a License to Carry who chased after a group of thieves that had just taken large quantities of merchandise from a store in The Woodlands. The individual ended up opening fire on the thieves’ stolen van in the mall parking lot. Click here to see the KPRC-TV report on the events. By Gordon Cooper, Attorney, Walker & Byington With these facts, Texas Law Shield asked its members: “Do you think giving chase and engaging the fleeing thieves was a good idea by the LTC holder, or a misfire?” More than 350 comments later, gun owners offered a passionate range of opinions, some of which are excerpted below: Brian V, with 113 Likes from other commenters, said: “It’s just stuff from the mall…is that store going to pay all his legal bills now? Shoulda stayed out of it.” Robert P, with 73 Likes, said: “Deadly Conduct under Texas Penal Code 22.05. In fact, shooting at the vehicle was a felony. The shooter isn’t a cop. The shooter wasn’t protecting his life or anyone else’s life. Using deadly force to stop a misdemeanor shoplifting crime isn’t justified even if a cop had been doing the shooting. If the theft was a felony, citizens still can’t shoot. This shooter needs an attorney and better pray the local DA is understanding because the shooter is in more trouble than the shoplifters.” Ron I, with 2 Likes, said: “I would have made chase but not pulled my handgun unless they fired at me first. The reason to make chase is to get a license number or other identifiers for law enforcement.”
Surveying the comments, Walker & Byington lawyers saw that almost everyone understood the legal basis for giving chase and shooting was shaky, at best. Emily Taylor, an attorney at the law firm of Walker & Byington and a Texas Law Shield Independent Program Attorney, offered further details on how the law plays out in a situation like this: Whenever someone uses deadly force, for it to be legal, there has to be some manner of justification. Usually, this comes in the form of a reasonable belief there is an immediate danger of death or serious bodily injury. In this instance, however, there was no evidence in the article to indicate the man was in fear for his own life! This means we will have to look elsewhere for justification; the only justification that is remotely close to fitting in these circumstances involves the defense of property of a third person. So, for this man’s actions to be legal, it boils down to whether or not he was legal in defending the property of another. In order to use deadly force to protect someone else’s property, there are some specific elements that have to be met, and these elements change depending on the property crime. The first order of business, then, is to figure out what kind of property crime was occurring.
What crime exactly were the bad guys committing? Theft vs. Robbery vs. Burglary
Texas law distinguishes between theft, robbery, and burglary, which can sometimes be tricky to differentiate in application, since they can all look the same! Here are the main differences between these property crimes:
- Theft is the unlawful stealing or taking without consent of the owner some property with the intent to deprive the owner of that property. Texas Penal Code 31.03.
- Robbery is theft plus the intentional, knowing, or reckless causing of bodily injury to another or the intentional or knowing threatening of placing another in fear of imminent bodily injury or death. Texas Penal Code 29.02.
- Burglary is the unlawful entering of a habitation or building not open to the public with the intent to commit a felony, theft, or assault inside. Texas Penal Code 30.02.
To our knowledge, the bad guys could not have been causing bodily injury or threatening another with imminent bodily injury, as they simply took merchandise and escaped. This means the crime wasn’t robbery. It also wasn’t burglary because the thieves entered a store which was open to the public and wasn’t a habitation.
So what crime were the bad guys committing? Most likely theft, because they were unlawfully taking away property of the store, and it’s probably safe to guess that they intended to deprive the store owner of that property permanently! Now let’s examine when a person is allowed to defend property, specifically, defending against a theft.
When can a person use deadly force to defend another person’s property?
In order to protect another person’s property, the same circumstances for defending one’s own property with deadly force must be present. When it comes to defending one’s own property with deadly force against a thief, a person must either be preventing the imminent commission of a theft in the nighttime or preventing the bad guy from fleeing immediately after committing the theft in the nighttime. Texas Penal Code 9.42. To make matters more complicated, when defending a third person’s property, the property defender must have a reasonable belief that the third person requested protection of the property. Texas Penal Code 9.43.
So were these elements met in this case?
The very first requirement is that the man must be defending against a theft during the nighttime. Under Texas law, nighttime is 30 minutes after sunset, and 30 minutes before sunrise. This justification is not applicable here as the theft occurred during the day. This means that he has already lost his justification right out of the gate. While he could have used force to defend against the daytime thieves, his use of deadly force was not legally justified.
Click here to read the rest of the discussion on the Texas Law Shield blog.