What do you think about the Joe Horn case?

[no634]

Grand Jury Clears Texan in the Killing of 2 Burglars
 
HOUSTON — A grand jury on Monday refused to indict a 62-year-old man who fatally shot two burglars last November as they fled his neighbor’s house.

http://www.nytimes.com/2008/07/01/us/01texas.html

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What do you think about the Joe Horn case? I guess neighborhood watch might become interesting...

[no634]

Well, it's not even self defense,

The Texas Penal Code allows the use of deadly force if the “actor reasonably believes the deadly force is immediately necessary.” Deadly force can also be used to protect property when “the other is fleeing immediately after committing burglary.”

So you can kill someone to defend your property from theft... so in theory a store clerk can shoot fleeing robbers in the back, or anyone, can shoot anyone else to protect any property, regardless if it's yours.

[no634]

Well, it's not even self defense,

The Texas Penal Code allows the use of deadly force if the “actor reasonably believes the deadly force is immediately necessary.” Deadly force can also be used to protect property when “the other is fleeing immediately after committing burglary.”

So you can kill someone to defend your property from theft... so in theory a store clerk can shoot fleeing robbers in the back, or anyone, can shoot anyone else to protect any property, regardless if it's yours.

My question is how does this not become a case of citizens dealing out (basically) a death penalty to all thieves? It seems extreme.


Oh wow. I forgot.. what I was referring to is the norm, I believe, in most states. I guess the jurors were fair.. it's actually enshrined in Texas law! Wow.

[jeffislouie]

What do I think?
I think the court did the right thing.  These morons were robbing his neighbors house and he actually did something about it.  I have zero sympathy for law breakers who get killed while in the commission of their crime.  Tough break kids.  You could have avoided the whole 'death' thing by making better decisions.
The guy who shot is okay in my book.  I'd prefer him as a neighbor to the neighbors who refuse to help the police, call those who do snitches, and think it's just not their problem.

[PSUDSL08]

Well, it's not even self defense,

The Texas Penal Code allows the use of deadly force if the “actor reasonably believes the deadly force is immediately necessary.” Deadly force can also be used to protect property when “the other is fleeing immediately after committing burglary.”

So you can kill someone to defend your property from theft... so in theory a store clerk can shoot fleeing robbers in the back, or anyone, can shoot anyone else to protect any property, regardless if it's yours.

Just to clarify, the two guys broke into his neighbor's house (when the neighbors weren't home) and briefly ran across Horn's lawn. I'm not sure what the Texas burglary statute is, but I'm assuming that their actions didn't rise to the level of burglary (i.e that the two men had an "intent to commit a felony" at the time they entered Horn's property). So the grand jury believed that Horn "reasonably believed that deadly force was necessary" to ward off one guy carrying a tire iron and the other carrying a pillowcase filled with jewelry as they briefly entered his property and began to flee afterwards. Texas law obviously doesn't require that a victim retreat prior to using deadly force.

If you listen to the 911 tape this guy was literally itching for them to come onto his property and was warned a half-dozen times by the operator to go inside and put his gun away. This is something that the Texas legislature should address, and likely wont. This sets a very dangerous precedent for the future. Suppose some dumb 17 year old kids decide to break into someones home and steal a bunch of stuff. The next door neighbor could sit on his stoop with a rifle, and wait for the burglars to run across his lawn in the direction of the house...shoot them both in the head and then claim that he "had no other choice."

This guy is the South's version of Bernie Goetz, except that his actions were far more egregious.

[NoUsername]

Looks like there are two less felons who will be breaking into people's homes.  If I ever get the chance, I'll buy him a beer.


Forcing your way into the home of another is one of the most dangerous and invasive things you can do.  I bet there would be a lot less burglary if every state had Texas' law.  Sacrificing the safety and livelihood of the law abiding in order to protect predators doesn't make much sense to me.

[TimMitchell]

This is a tough one for the law, but an easy one for common sense. If two men are burglarizing someone and/or breaking into someone's home than deadly force is acceptable. This is why you don't rob people in Texas.

[008]

This should be a slam dunk for the prosecution, the only reason he took it to a grand jury is to he could wash his hands of it when they didnt indict him.  You'll know this is true when he doesn't bring the charges before another grand jury and wash their hands of the whole mess.

There is no colorable argument for self defense because the men were shot in the back. Unless they have eyes in the backs of their heads and were about use deadly force against him or another person, there is simply no argument for the use of the shotgun.  If you want to argue that, then fine, but it is a loser every single time on any bar exam you may happen to take.

Here's the law on the Multistate Bar Exam - The use of deadly force is NEVER allowed to protect property and may only be used if to PREVENT the commission of a VIOLENT FELONY, such as burglary. 

Under the MBE, this is a classic case of murder reduced to manslaughter by reason of exciting event with insufficient time to cool off.  Horn used deadly force AFTER the crime had been committed so the prevention element is missing.  Also, it wasn't a violent felony because burglary is the unlawful entry of a dwelling with the intent to commit a felony AT NIGHT.  This happened in broad daylight.  http://www.telegraph.co.uk/news/worldnews/1571085/Texan-%27hero%27-shoots-and-kills-burglars.html  ("Mr Horn saw Miguel Antontio DeJesus and Diego Ortiz getting into a neighbour’s house at around 2pm on November 14."). There is no question that he would be guilty of manslaughter only whether he could be convicted of murder as well.

Under Texas law, one may use deadly force "when and to the degree he reasonably believes the
deadly force is immediately necessary" to prevent the commission of an act of criminal mischief (including burglary) during the nighttime AND he reasonably believes either the property cannot be protected or recovered by any other means OR using anything less than deadly force would expose him to the use of substantial bodily injury.  Texas Penal Code Ann. § 9.42 (2008). 

Horn is wrong on all elements.  Here, the degree of force is unreasonable because Horn could have given a warning shot, or shot the men in the legs to prevent their escape.  Perhaps fatal to Horn's argument is that this happened in broad daylight.  Horn would not even be entitled to get a defense of property jury instruction.  Grey v. State, 2004 Tex. App. LEXIS 6678 (unpublished opinion)(defense of property specifically requires the theft to be at night, thus no error in refusing to instruct the jury on the use of deadly force to protect property).

What this amounts to is a political decision to protect a popular old man from going to prison.  I am willing to bet they don't try another grand jury even though they have more than probable cause to arrest Horn right now. 

As food for thought, compare this case with Tennessee v. Garner, 471 U.S. 1 (1985).  In Garner, an unarmed fleeing burglar did not halt at the command of an officer and with his back toward the officer, began to climb a fence.  Id. at 3-4.  The officer, believing the burglar will elude capture, kills him with one shot to the back of the head. Id. at 4. Eventhough a Tennessee statute authorized "all the necessary means to effect the arrest," of a fleeing felon, the Supreme Court in a 6-3 decision found this to be an unreasonable seizure and the statute to be unconstitutional as applied. Id. at 11. "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion....A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."  Id. at 10-11. 

This isn't the end of Horn's tribulations.  He will be sued for a bunch of torts and should lose on summary judgment because, through Horn's own admissions, there is no issue of fact for the jury.

[008]

This should be a slam dunk for the prosecution, the only reason he took it to a grand jury is to he could wash his hands of it when they didnt indict him.  You'll know this is true when he doesn't bring the charges before another grand jury and wash their hands of the whole mess.

There is no colorable argument for self defense because the men were shot in the back. Unless they have eyes in the backs of their heads and were about use deadly force against him or another person, there is simply no argument for the use of the shotgun.  If you want to argue that, then fine, but it is a loser every single time on any bar exam you may happen to take.

Here's the law on the Multistate Bar Exam - The use of deadly force is NEVER allowed to protect property and may only be used if to PREVENT the commission of a VIOLENT FELONY, such as burglary. 

Under the MBE, this is a classic case of murder reduced to manslaughter by reason of exciting event with insufficient time to cool off.  Horn used deadly force AFTER the crime had been committed so the prevention element is missing.  Also, it wasn't a violent felony because burglary is the unlawful entry of a dwelling with the intent to commit a felony AT NIGHT.  This happened in broad daylight.  http://www.telegraph.co.uk/news/worldnews/1571085/Texan-%27hero%27-shoots-and-kills-burglars.html  ("Mr Horn saw Miguel Antontio DeJesus and Diego Ortiz getting into a neighbour’s house at around 2pm on November 14."). There is no question that he would be guilty of manslaughter only whether he could be convicted of murder as well.

Under Texas law, one may use deadly force "when and to the degree he reasonably believes the
deadly force is immediately necessary" to prevent the commission of an act of criminal mischief (including burglary) during the nighttime AND he reasonably believes either the property cannot be protected or recovered by any other means OR using anything less than deadly force would expose him to the use of substantial bodily injury.  Texas Penal Code Ann. § 9.42 (2008). 

Horn is wrong on all elements.  Here, the degree of force is unreasonable because Horn could have given a warning shot, or shot the men in the legs to prevent their escape.  Perhaps fatal to Horn's argument is that this happened in broad daylight.  Horn would not even be entitled to get a defense of property jury instruction.  Grey v. State, 2004 Tex. App. LEXIS 6678 (unpublished opinion)(defense of property specifically requires the theft to be at night, thus no error in refusing to instruct the jury on the use of deadly force to protect property).

What this amounts to is a political decision to protect a popular old man from going to prison.  I am willing to bet they don't try another grand jury even though they have more than probable cause to arrest Horn right now. 

As food for thought, compare this case with Tennessee v. Garner, 471 U.S. 1 (1985).  In Garner, an unarmed fleeing burglar did not halt at the command of an officer and with his back toward the officer, began to climb a fence.  Id. at 3-4.  The officer, believing the burglar will elude capture, kills him with one shot to the back of the head. Id. at 4. Eventhough a Tennessee statute authorized "all the necessary means to effect the arrest," of a fleeing felon, the Supreme Court in a 6-3 decision found this to be an unreasonable seizure and the statute to be unconstitutional as applied. Id. at 11. "The use of deadly force is a self-defeating way of apprehending a suspect and so setting the criminal justice mechanism in motion. If successful, it guarantees that that mechanism will not be set in motion....A police officer may not seize an unarmed, nondangerous suspect by shooting him dead."  Id. at 10-11. 

This isn't the end of Horn's tribulations.  He will be sued for a bunch of torts and should lose on summary judgment because, through Horn's own admissions, there is no issue of fact for the jury.

[NoUsername]

It is a very sad state of affairs in this country when your government won't lift a finger to stop a plague of violent illegal aliens, when the police will not respond promptly to the commission of an inherently dangerous felony, and when half the country votes for a political party that has done everything possible to take away citizens' best means of defense.

In Texas, what he did is legal.  I don't know if I personally could do it, but I am glad that two dangerous illegal alien recidivist felons are not out breaking into others' homes.