Use of force protecting property

[KHickam]

Yesterday morning - I found my beautiful little palomino filly (14 months old) dead in her pen - we checked her out and found she had a small gunshot wound (17 or 22 cal) above her left eye - we have a rough idea when it happened

Around 9:30 pm our kennel dogs started raising hell (we can hear them from the house) but we thought it was the guy that rents the small house next to our kennel coming home - my wife said she heard gunshots (small caliber)

The scene shows that someone pulled in close to the pen - grass was laid down and this would be the perfect place to fire the shot - our filly was friendly and often would stand in that corner of the horse pen and hang her head over it - we believe that someone probably jack lighted her to make the shot.

Had I seen this I could have blocked the way out (only one road behind the pen) and had I done so - calling the police while I blocked the road - would this be okay - keeping my pistol out and hidden by the door frame in case he tried to ram my vehicle or otherwise tried to escape - on the right of the road is the horse pen on the left is a deep tank - hence why they had to turn around in the 20 or so feet from the road to the fence in the horse corral.

We waited to see for a hour or so in case they came back tonight - I have 3 other horses in the corral. In order to get to where we believe the shot was fired they have to come down a gravel road about 300 ft or so - so this is impossible for it to be an "accidental" shooting trying to poach a deer or something

[jmra]

IANAL, but I know that if I had caught someone in the act there would only be two means of exit for the scum bags...

[Keith B]

Sorry for the loss of your horse. These types of acts are senseless and the individual(s) responsible need to be beaten senseless.

As for the law, it would fall under Penal Code 9.41 http://codes.lp.findlaw.com/txstatutes/PE/2/9/D/9.41" onclick="window.open(this.href);return false; for protection of property. Livestock is property, and while there would be Disorderly Conduct charges under Penal Code 42.09 http://codes.lp.findlaw.com/txstatutes/PE/9/42/42.09" onclick="window.open(this.href);return false;, unless the person had been convicted twice before of animal cruelty this would only be a Class A misdemeanor and would not constitute use of deadly force to stop them from fleeing.

[jmra]

Sorry for the loss of your horse. These types of acts are senseless and the individual(s) responsible need to be beaten senseless.

As for the law, it would fall under Penal Code 9.41 http://codes.lp.findlaw.com/txstatutes/PE/2/9/D/9.41" onclick="window.open(this.href);return false; for protection of property. Livestock is property, and while there would be Disorderly Conduct charges under Penal Code 42.09 http://codes.lp.findlaw.com/txstatutes/PE/9/42/42.09" onclick="window.open(this.href);return false;, unless the person had been convicted twice before of animal cruelty this would only be a Class A misdemeanor and would not constitute use of deadly force to stop them from fleeing.

Keith,
Would he be within his legal rights to use force (present his firearm) in order to detain armed trespassers on his property who had just shot and killed his livestock long enough for police to arrive?

[KHickam]

So, it is okay to use force on property to prevent a burglary but not for shooting and killing a horse? That is very disturbing

[ralewis]

Sorry for the loss of your horse. These types of acts are senseless and the individual(s) responsible need to be beaten senseless.

As for the law, it would fall under Penal Code 9.41 http://codes.lp.findlaw.com/txstatutes/PE/2/9/D/9.41" onclick="window.open(this.href);return false; for protection of property. Livestock is property, and while there would be Disorderly Conduct charges under Penal Code 42.09 http://codes.lp.findlaw.com/txstatutes/PE/9/42/42.09" onclick="window.open(this.href);return false;, unless the person had been convicted twice before of animal cruelty this would only be a Class A misdemeanor and would not constitute use of deadly force to stop them from fleeing.

Keith,
Would he be within his legal rights to use force (present his firearm) in order to detain armed trespassers on his property who had just shot and killed his livestock long enough for police to arrive?

The penalty for the act is different than the legal justification to stop the act right? You don't get the death penalty for armed robbery, but you can use deadly force to prevent it if I understand the penal code dealing with use of deadly force.

In my first CHL class about 12 years ago, somebody in the class asked a question about protecting a dog who was being attacked by a person. This was asked asked as a clarifying question when we talked about deadly force to protect property. The instructor said a dog was 'property not replaceable by other means" (like insurance -- can't get the exact dog via an insurance claim). So, yes you could use deadly force if somebody was trying to kill your dog -- according to the instructor. If a horse is livestock vs. a domesticated animal, I suppose that may be a distinction. However, seems anyone shooting into my property (especially at night) seems like it would at least be criminal mischief at night right?

[jmra]

So, it is okay to use force on property to prevent a burglary but not for shooting and killing a horse? That is very disturbing

I'll have to wait for Keith's response to my question, but I believe he is saying you couldn't use deadly force solely because someone shot your horse. I would believe that using force to confront armed trespassers would be justified. Deadly force could become justified depending on the armed trespassers response when confronted.

[JALLEN]

If you can shoot an armed person stealing from a 7-11, why can't you shoot an armed person trespassing on your property shooting at night? Who's to say it was shooting a horse? If you were around to see it, maybe he was shooting at you, or your dog, or had other violent activities in mind, maybe attempted burglary thwarted.

[jmra]

If you can shoot an armed person stealing from a 7-11, why can't you shoot an armed person trespassing on your property shooting at night? Who's to say it was shooting a horse? If you were around to see it, maybe he was shooting at you, or your dog, or had other violent activities in mind, maybe attempted burglary thwarted.

I think there are many more things that would come into play in confronting these individuals on your property than just the fact that a horse has been killed.

[JALLEN]

Isn't the general rule, and underlying philosophy, that one cannot shoot another because they are angry, or upset with them, but only if they are threatening them, or theirs, or someone else?

If someone comes on your property and comports himself in a belligerent or threatening manner, you need not wait until he fires the first shot.

OTOH, you can't shoot him because he shot your animal(s).

[Keith B]

Isn't the general rule, and underlying philosophy, that one cannot shoot another because they are angry, or upset with them, but only if they are threatening them, or theirs, or someone else?

If someone comes on your property and comports himself in a belligerent or threatening manner, you need not wait until he fires the first shot.

OTOH, you can't shoot him because he shot your animal(s).

You would have to follow the laws for protecting property. And you cannot use deadly force to stop the trespassing only. In this case, the law is not on the side of the horse owner, as it is not written only deals with the fact that livestock is only considered property. Same with domesticated animals. While there may be heavy emotional attachment by the owner, if someone shoots your dog it would be a disorderly conduct charge.

[JALLEN]

Isn't the general rule, and underlying philosophy, that one cannot shoot another because they are angry, or upset with them, but only if they are threatening them, or theirs, or someone else?

If someone comes on your property and comports himself in a belligerent or threatening manner, you need not wait until he fires the first shot.

OTOH, you can't shoot him because he shot your animal(s).

You would have to follow the laws for protecting property. And you cannot use deadly force to stop the trespassing only. In this case, the law is not on the side of the horse owner, as it is not written only deals with the fact that livestock is only considered property. Same with domesticated animals. While there may be heavy emotional attachment by the owner, if someone shoots your dog it would be a disorderly conduct charge.

OTOH, if someone comes on your property acting in a threatening or belligerent manner, how are you supposed to know if it is a mere trespass or something far worse? I don't think you have to wait until he fires the first shot but the threatening conduct needs to be such as to stand "the reasonable man" test, or something like that. This can be pretty dicey, but like former Tennessee Congressman David Crockett taught, " Be sure you're right, then go ahead!"

[ELB]

First off, I am very sorry to hear about your horse. What happened breaks my heart and enrages me.

As to deadly force -- with the exception of the "in the night" defense of property, they way I read the law, all justifications for the use deadly force revolve around the possibility of deadly force being unlawfully used against a human. In the case of the 7-11 example above, it is legally justified to shoot an armed robber not because he is trying to steal something, but because by using a weapon he is threatening the lives of others to force them to give him money. Likewise in the castle doctrine, you are not justified to shoot someone because they broke your window or forced your door, but because there is such a strong likelihood you can be harmed in your own home and there's not time to sort it out when he comes crashing through the door.

So (as much as I hate it), I don't think you would be legally justified using deadly force (which could include your vehicle) to prevent a trespasser from leaving your property, even if he committed a misdemeanor disorderly conduct crime. But, if he made any attempt to threaten you with deadly force, like raising his rifle towards you, then the legal situation has changed and it's no longer about trespassing, it's about imminent threat of death or serious injury.


And I would be thinking real hard to remember if there is anyone who has a grudge against you or your family for any reason whatsoever, and pass that to the police.




I am not a lawyer and all that, just how I see it.

[rbwhatever1]

Its very easy to apply the Law to a defined incident after the facts are known. At night during the armed attack nothing was known. One has no duty to retreat or do nothing.

I think this would at minimum fall under the "criminal mischief at night" category if not outright self defense if one responded immediately to the armed attack. Call it what you like but if someone is firing into my property at night on purpose I will consider that an attack and will be responding...

Sorry about your horse. Humans in the area might be next...

[2farnorth]

Postby KHickam » Sun Jun 21, 2015 5:53 am

Around 9:30 pm our kennel dogs started raising heck (we can hear them from the house) but we thought it was the guy that rents the small house next to our kennel coming home - my wife said she heard gunshots (small caliber)

Not clearly knowing your situation there, the above had me wondering why you didn't have LE response that night. If I hear nearby gunshots after dark I would want it investigated.