Home invasion question

[Ruark]

I know that in some states, you're not required to retreat from a home invasion, but there still has to be a threat before you can use deadly force. If somebody crashes through your front door, but just stands there and doesn't brandish a weapon or threaten you, you are NOT justified in pulling out your gun and killing him.

A similar situation would be when an individual, either welcome or unwelcome, is in your home and doesn't threaten you or your property, but refuses to leave. You can't just pull out your Model 29 and blow his head off. I think this is in Iowa, but I may be wrong.

Can somebody clarify the law in Texas in this regard?

[speedsix]

...we're in Texas, Son...I say TEXAS...where the law says (in PC9.31(b)(1)(A)...and that's a lot different from what you say...

[VMI77]

I know that in some states, you're not required to retreat from a home invasion, but there still has to be a threat before you can use deadly force. If somebody crashes through your front door, but just stands there and doesn't brandish a weapon or threaten you, you are NOT justified in pulling out your gun and killing him.

A similar situation would be when an individual, either welcome or unwelcome, is in your home and doesn't threaten you or your property, but refuses to leave. You can't just pull out your Model 29 and blow his head off. I think this is in Iowa, but I may be wrong.

Can somebody clarify the law in Texas in this regard?

A home invasion is a threat. Someone breaking down your door --using force to enter your house-- gives you the legal right to use deadly force. Whether he brandishes a weapon or not, how do you know he isn't armed, or doesn't have accomplices about to enter behind him, or accomplices about to enter through another part of your house? Someone 20 feet away can rush at you and pull and knife and stab you before you can draw your gun and fire. Or maybe he's just 6'4", 250 lbs, and can beat you to death with his fists. He, or they, didn't break down your door to sell you encyclopedias. Now, maybe under some particular set of circumstances there is a reason not to use deadly force in such a case, but you're not required, nor should you be required, to divine the intent of someone who has just crashed through the door of your home.

In the case where you have invited someone into your home and they refuse to leave, that's an entirely different matter. In that case I suggest you call the police. But I believe once you tell them to leave and they refuse they are trespassing, and you may use force to remove them, but not deadly force.

This is my understanding of the law, I'm not a lawyer, and it is not legal advice.

BTW, the passage cited by speedsix says force is justified is the actor "knew or had reason to believe that the person against whom the force was used: (a) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment....and PC 9.32 says, a person is justified in using deadly force...if the actor is justified in using force under 9.31, and(a)(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary.....followed by.... (b) The actor's belief under subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor: (1) knew or had reason to believe that the person against whom the deadly force was used: (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle , or place of business or employment

[Heartland Patriot]

I refer you to Texas Penal Code, Chapter 9, Section 9.41, Subchapter D. This defines state law in regards to the use of force and deadly force in protection of property. Every situation is unique. I am not a law enforcement officer nor a lawyer. For specific legal questions, I urge you to contact a lawyer. (BTW, the word "brandish" has no meaning in Texas Penal Code.)

(Edited to add final sentence.)

[wgoforth]

I know that in some states, you're not required to retreat from a home invasion, but there still has to be a threat before you can use deadly force. If somebody crashes through your front door, but just stands there and doesn't brandish a weapon or threaten you, you are NOT justified in pulling out your gun and killing him.

A similar situation would be when an individual, either welcome or unwelcome, is in your home and doesn't threaten you or your property, but refuses to leave. You can't just pull out your Model 29 and blow his head off. I think this is in Iowa, but I may be wrong.

Can somebody clarify the law in Texas in this regard?

So someone crashes through your door, has a mask on.... how LONG are you going to wait to SEE if he is going to "threaten you" or pull a weapon. I say his crashing through my door WAS threatening my family and I am not going to wait. I could honestly say I felt in danger of my life. I have to assume that anyone who breaks into my house, knowing I am there, are there to do me and mine harm. I will act quickly and not wait to see or it may be too late. BTW, my wife and I both carry while at home to be able to act quickly for situations of this kind.

[speedsix]

...

I refer you to Texas Penal Code, Chapter 9, Section 9.41, Subchapter D. This defines state law in regards to the use of force and deadly force in protection of property. Every situation is unique. I am not a law enforcement officer nor a lawyer. For specific legal questions, I urge you to contact a lawyer. (BTW, the word "brandish" has no meaning in Texas Penal Code.)

(Edited to add final sentence.)

...9.41 is to use of force...9.42 is to use of DEADLY force, and one must meet the requirements of 9.41 for use of force before even considering deadly force(just like you must meet 9.31 before considering deadly force (9.32)...we're on real shaky ground to use force to remove someone from our home, though our home is technically on our land, when it's someone who's been invited in...unless they're involved in something in 9.42...not saying I wouldn't do it...I'd just try to accomplish their removal without using force if possible...9.41(a) would be what you had to apply...and then 9.42...IF it applied...

...wgoforth...you and the law are in agreement...

[RoyGBiv]

I am not a lawyer... this is OPINION, NOT legal advice...

After you ask them to leave and they do not... They are trespassing...

http://www.txdps.state.tx.us/InternetFo ... CHL-16.pdf" onclick="window.open(this.href);return false;

PC §30.05. CRIMINAL TRESPASS. (a) A person commits an offense
if the person enters or remains on or in property of another, including
residential land, agricultural land, a recreational vehicle park, a
building, or an aircraft or other vehicle, without effective consent and
the person:
(1) had notice that the entry was forbidden; or
(2) received notice to depart but failed to do so.
......... incomplete citation ..........

Once Criminal Trespass is established, you might be justified in using force, but not deadly force.

PC §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.

Deadly force MAY be justified under the following code...

PC §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
(2) when and to the degree he reasonably believes the deadly
force is immediately necessary:
(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
(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
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by
any other means; or
(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.

[speedsix]

...the words "...by any other means..." would likely chomp you in the butt...

[wgoforth]

PC §9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or tangible,
movable property:
(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

Home invasion sounds like "imminent commission" to me!

[VMI77]

I refer you to Texas Penal Code, Chapter 9, Section 9.41, Subchapter D. This defines state law in regards to the use of force and deadly force in protection of property. Every situation is unique. I am not a law enforcement officer nor a lawyer. For specific legal questions, I urge you to contact a lawyer. (BTW, the word "brandish" has no meaning in Texas Penal Code.)

(Edited to add final sentence.)

I believe 9.31 and 9.32 apply in the case of home invasion ....and 9.41 in the case of the unwelcome guest (trespassing).

[stroguy]

Door jam law. Individual passes the door jam is a trespasser and will receive maximum threat control. I'm not waiting to see if they have a weapon in their belt.

[speedsix]

...the law doesn't say a word about the door jamb...it even says "...or was attempting to enter unlawfully and with force..." so someone just opening the door and walking in would not be automatically covered under 9.31, and someone who had not yet gotten in could very well be...and LEGALLY, the person who just walks through the door into your home isn't guilty of criminal trespass until he fits 30.05(a) (1) or (2), either had notice not to enter or failed to leave after receiving notice to do so...so jumping right to the "maximum" when he had used no force in order to enter could land you in the hotseat...it's really important for us to know the details of the laws...the LS16 booklet can save us a lotta grief...I've got 'em scattered in the house...make good throneroom reading..."if", "and", "or" and like words can keep us outa the pokey!!!

[VMI77]

...the law doesn't say a word about the door jamb...it even says "...or was attempting to enter unlawfully and with force..." so someone just opening the door and walking in would not be automatically covered under 9.31, and someone who had not yet gotten in could very well be...

That's not my understanding of how the law is applied. From what my son was told in the police academy, they don't have to break a lock or window or kick in a door, just turning the knob on a closed door --when that person is uninvited and has no right to enter the property-- is considered "force."

[Ruark]

It looks like 9.42 would rule out using DEADLY force if someone was trespassing on your land and simply refused to leave and is not committing or imminently committing arson, burglary, robbery, etc.

PC §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
(2) when and to the degree he reasonably believes the deadly
force is immediately necessary:
(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
(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
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by
any other means; or
(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.

[speedsix]

...the law doesn't say a word about the door jamb...it even says "...or was attempting to enter unlawfully and with force..." so someone just opening the door and walking in would not be automatically covered under 9.31, and someone who had not yet gotten in could very well be...

That's not my understanding of how the law is applied. From what my son was told in the police academy, they don't have to break a lock or window or kick in a door, just turning the knob on a closed door --when that person is uninvited and has no right to enter the property-- is considered "force."

...it makes sense that if they came in a window or pried a door...it'd be unlawfully...and with force...but I don't know if the effort to come in a door in a normal manner (turning the knob) is considered "force" in the law...effort is expended, yes...but that's a physics lesson...not law...I'd say it's really important for us to know the correct answer...and the law or court precedent to back it up...would your son be able/willing to dig out his notes for all our benefit??? I've dug around the net and looked in the PC definition list...haven't found it explained...
...if it couldn't be done unlawfully WITHOUT force, the law wouldn't read "...unlawfully and with force..."...needs some clarifying...maybe a Texas LEO can chime in and help us...