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Homeowners armed with right to shoot

03:19 PM CST on Saturday, January 19, 2008

By MICHAEL E. YOUNG / The Dallas Morning News

The shootings came fast, a bang-bang-bang cluster of cases starting in early autumn that quickly had police, prosecutors and the media wondering about the sudden impact of Texas' new castle law.

A business owner who lives at his West Dallas welding shop killed two men in three weeks as they tried to break in.

A 79-year-old homeowner in east Oak Cliff, awakened by his dog, struggled with an intruder before grabbing a shotgun and wounding the man.

A retired Army warrant officer managed to kill a gun-wielding robber at a Far East Dallas dry cleaners after his wife surprised the intruder and handed her husband their own 9 mm handgun.

Texas has long had a reputation as a shoot-first-ask-questions-later place, dating back to its frontier days.

But the spate of shootings begs the question: Did the castle law – which gives people the right to use whatever means necessary to protect themselves and their property without fear of civil liability – unleash a flurry of gunfire?

Perhaps just as important, has the law changed people's perceptions about fighting back? Are they more likely to shoot first even when safe retreat may be an option?

"I think the castle law has more citizens thinking about fighting back, knowing they're protected from being sued later," said Dallas homeowner Dennis Baker.

He shot and killed a burglar in October after seeing the man enter the garage where he stored thousands of dollars worth of tools.

But Dr. Gary Kleck, a professor of criminology at Florida State University, doesn't think the castle law governs someone's thinking when they hear a window softly opening late at night, or the crash of a door coming down in a home invasion.

"In situations in which people would be making a decision to use defensive violence, it's very unlikely they'd be thinking about laws and penalties," he said. "That would be the furthest thing from their mind."

Certainly the castle law has become a high-profile addition to the Texas statutes since it took effect Sept. 1, but police and the district attorneys association argue that it brought little substantial change.

While it appeared to apply to each of these cases, so did a batch of other laws, along with the tradition of Texas juries giving people every benefit of the doubt when protecting themselves, their families and their property.

None of these property owners was charged. Police referred a few cases to the Dallas County grand jury, which declined to indict. In others, police determined that the shootings were justified.

Police's take
And they see the rash of shootings as part of a normal cycle, not a trend.

Dallas police homicide investigators said they've yet to encounter a self-defense situation since the castle law took effect that would have been barred under previous laws.

"There may come a time when that's not the case," said Lt. Craig Miller. "But I would have to look at each of those under its own merits."

Shannon Edmonds, director of governmental relations for the Texas District and County Attorneys Association, said he didn't know of a single Texas case in which the castle law would have made a difference.

"The reality is Texas grand juries routinely no-billed deadly force cases under the old law, which was very lenient," he said. "Many of the cases that you read about center on defense of property laws, which were always very, very lenient in the use of deadly force.

"That's just how Texas is."

Dr. Kleck said some states, including Texas, have legal systems with broad definitions of self-defense.

"There was a study of homicides in Houston sometime back," he said, "and a huge percentage of those cases were defined as justifiable.

"But in the Northeast, another study showed that almost none of the cases there were justifiable under the law."

Neighbor fights back
One Texas case in particular has attracted national attention, in part because of the circumstances: It was a neighbor, not the homeowner, confronting and killing a pair of burglars Nov. 14.

And the neighbor mentioned in a 911 call that a new law gave him the right to protect himself if he confronted the burglars.

The 61-year-old Pasadena man, Joe Horn, told the police operator: "The laws have been changed in this country since September the first, and you know it."

"You're going to get yourself shot," the operator warned.

"You want to make a bet?" Mr. Horn said. "I'll kill them. They're getting away!"

"That's OK. Property's not worth killing someone over, OK?" the operator said. "Don't go out of the house. Don't be shooting nobody."

The burglars emerged from the house, carrying "a bag of loot," Mr. Horn said.

"Which way are they going?" the operator asked.

"I can't ... I'm going outside, then I'll find out," Mr. Horn said.

"No, I don't want you going outside," the operator said.

"Well, here it goes, buddy," Mr. Horn replied.

Seconds later, Mr. Horn can be heard saying, "Move, you're dead," followed by two shots and then a third.

"I had no choice," Mr. Horn said in a second 911 call. "They came in the front yard with me, man."

Was the castle law designed to cover those circumstances?

No, said the law's author, state Sen. Jeff Wentworth, R-San Antonio.

"You're supposed to be able to defend your own home, your own family, in your house, your place of business or your motor vehicle," he said – but not your neighbor's.

But Mr. Edmonds said other property laws could provide a defense for Mr. Horn, whose case is under investigation.

"The laws governing the use of force to defend property instead of a person are very broad and very favorable to someone who wants to use that force," Mr. Edmonds said.

Chapter 9 of the Texas Penal Code describes deadly force as justified to prevent arson, robbery, theft or criminal mischief at night, or to prevent a suspect from fleeing if the property owner "reasonably believes the land or property cannot be protected or recovered by any other means; or 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."

"You hear someone stealing something off your front porch. You come out there with a gun, and they're running off. It's nighttime. The law in Texas allows you to shoot them," said former Dallas County prosecutor Toby Shook.

Juries' leniency
Texas grand juries have traditionally given people carte blanche to take whatever steps they need to keep their property, Mr. Edmonds said. "In the Pasadena case, as egregious as the facts may be," he said, "the law may still excuse that person's conduct."

He pointed to a case near Waco in the 1990s when the owner of a car saw a group of teenagers stealing his hubcaps late one night.

"He shot at them from his apartment and killed one of them" Mr. Edmonds said. "The grand jury no-billed it."

Jim Cornehls, an attorney and professor of urban and public affairs at the University of Texas at Arlington, said he defended a man a few years ago in similar circumstances.

The man lived in an apartment complex where kids left their bikes in a central courtyard.

"There had been a rash of bike thefts," Dr. Cornehls said, "and when this man got home from work late one night, he saw a guy out there purloining a bike.

"He whipped out his .22 and shot him. He didn't kill him, but he wounded him, and the prosecutors let that one slide. In his case, it wasn't even his property. It was a random bike."

Law necessary?
But if Texas law already allowed people to defend themselves, their families and their properties against a whole array of crimes, did the state really need the castle law?

Absolutely, Mr. Wentworth said.

"I read in the newspaper a couple of years ago that Jeb Bush, the governor of Florida, was signing the castle doctrine there to allow residents to defend themselves in their own homes," the senator said. "And I thought, 'Isn't that silly? We in Texas have always had that right.'

"But when I checked, I discovered that through legislative and judicial action in the 1970s, we'd changed the law. Before that, there was no fear of indictment or civil suits if you defended yourself in your home. But we lost that in 1974."Rather than using whatever means necessary to protect yourself and your family, he said, Texans "didn't have a right to stand and defend themselves, but an obligation to retreat."

And if that was impossible, he said, the resident had the obligation to ascertain whether the intruder was armed – and with what – and respond only with the appropriate level of force to match the threat.

"I believe you have the right to defend yourself with any means necessary without fear of being indicted or sued by the intruder or his or her survivors," Mr. Wentworth said.

Tried every measure
Mr. Baker believes that, too.

He had lived in his modest neighborhood just north of Dallas Love Field for 15 years without a problem when burglars began stealing his equipment – five times in two months.

He stored his tools in his garage, protected behind a locked six-foot gate and next to a back yard bathed by a light so bright that a friend said it looked like the Texas Rangers' ballpark.

It wasn't enough to deter the thieves.

On an early October morning, Mr. Baker heard a noise – his Mexican red-headed parrot, Salvador, had squawked an emphatic "Hello," something he does whenever someone passes by. Mr. Baker flipped on a closed-circuit monitor and saw a man walk into his garage.

Mr. Baker said he had seen the man before, on tapes of the earlier burglaries.

"If he needed a fast fix, he'd go into my garage and grab something and take it to his drug connection," Mr. Baker said earlier this month.

That night, he decided to confront the intruder, identified as John Woodson, 46, of Dallas, who had a criminal record for various offenses, including burglary.

"I went out the front door and came through the gate, and when he started walking from the back of the garage toward me, that's when I shot him," Mr. Baker said.

When police arrived, a homicide detective watched the video and told Mr. Baker, "This is by the book."

The case received international attention, largely because of Salvador, the parrot. But Dallas grand jurors treated it as Texas juries usually do: They declined to indict.

That's one of the reasons county prosecutors argued against the castle law in committee hearings before it was approved. It really wasn't necessary, they said, because more than a half-dozen self-defense provisions already existed in Texas law. And Texas juries almost always sided with the person protecting his own.

"In 25 years, I've never known a Harris County court to prosecute a homeowner or businessman for killing a burglar or robber," Harris County Assistant District Attorney Bill Delmore told legislators. "We don't do that."

Jana McCown, an assistant district attorney for Williamson County, echoed that in her remarks.

"I can assure you that we don't try to arrest homeowners or crime victims for protecting themselves against crime," she said.

But the Legislature overwhelmingly supported Mr. Wentworth's bill, and it was quickly signed into law.

In the courtroom
Now judges and prosecutors need to figure out how to deal with it in the courtroom.

"Prosecutors who were concerned about the law were concerned about how it will operate in court, not in the street," said Mr. Edmonds of the district and county attorneys association.

The castle law says the use of force or deadly force is presumed to be reasonable if someone unlawfully and with force enters an occupied home, business or car. Further, if the force used against the intruder was reasonable according to the statute, the occupant is immune from civil liability for injuries or death.

For Mr. Baker and many in Texas, the right to defend family, home and property only makes sense.

But others, including Marsha McCartney of Dallas, a member of the Brady Campaign to Prevent Gun Violence, say the law becomes a death sentence for criminals who would never face that in court.

In practical terms, Ms. McCartney said, there doesn't even need to be an explicit threat of attack to justify a shooting over property. In several local cases, she said, property owners didn't appear to be in any danger, yet shot and killed unarmed intruders.

"I find that shocking – killing people over things," she said. "The question you have to ask is: Does the punishment fit the crime?

"People don't get the death penalty for breaking and entering. Defending your family, defending yourself against someone who is armed is one thing. But now it's like we don't need to call the police anymore."

Steven Jansen of the American Prosecutors Research Institute in Alexandria, Va., said the so-called "no-retreat" castle laws largely take away discretion from local district attorneys, even in cases with questionable circumstances.

"The law always was that you had a right to defend your home and your person, and the prosecutor had discretion at that point to look at the facts and decide what a prudent person would do," said Mr. Jansen, a former prosecutor in Detroit.

"But the castle doctrine laws extend that right to self-defense to places outside the home – almost anywhere a person has a legal right to be – and providing for criminal and civil immunity for the person using the lethal force.

"That isn't even extended to police officers who use their guns in the line of duty."

Emotional backlash
Still, there can be a price to pay for taking the life of another.

Dr. Heidi Vermette, medical director for mental health at the Veterans Administration in Dallas and an assistant professor of psychiatry at UT Southwestern Medical Center, said a person who shoots another human could suffer from acute stress disorder, or even post-traumatic stress disorder.

"Acute stress disorder lasts for a few days to four weeks or so," she said, "and people with it tell you they feel numb as they recall the event. They say things like, 'I was in a daze,' or 'It was as if time was standing still.'

"And afterward they might not be able to remember the event. Or they re-experience the event. Nightmares are common and feeling distressed."

Mr. Baker said a friend, a child psychologist, called him after the shooting at his house.

"She talked with me for hours, and she said, 'When this is over, when the attention is gone, this will work on you mentally,' " he said.

"But then another friend of mine told me that every occupation has an occupational hazard. A fireman can die in a fire. A coal miner can die in a mining accident. And a burglar can die in someone's garage in the dark of night.

"I guess I was his occupational hazard."

But a few minutes later, he sat quietly in an office chair, looking down.

"It's hard to look at some things because he was a human being," Mr. Baker said. "But he had a drug problem.

"The people closest to him should have gotten him some help."


Staff writer Steve Thompson contributed to this report.

RIGHTS UNDER NEW LAW
Major provisions of Texas' Castle Law:

• Presumes you are reasonable in using force if someone – illegally and with force – enters or is attempting to enter your occupied home, car or workplace. You are not given this presumption if you provoked the person or are engaged in a crime.

• Removes your obligation to retreat if possible before using deadly force if you are anywhere you have a right to be. The previous law obliged you to retreat if a "reasonable person" would have, except in a situation where someone unlawfully entered your home.

• Gives you added protection from lawsuits by injured attackers or their families. Previous law granted this protection if someone illegally entered your home, but not in other situations.

SOURCE: Dallas Morning News research

Quoted: NEWS LINK But others, including Marsha McCartney of Dallas, a member of the Brady Campaign to Prevent Gun Violence, say the law becomes a death sentence for criminals who would never face that in court. In practical terms, Ms. McCartney said, there doesn't even need to be an explicit threat of attack to justify a shooting over property. In several local cases, she said, property owners didn't appear to be in any danger, yet shot and killed unarmed intruders. "I find that shocking – killing people over things," she said. "The question you have to ask is: Does the punishment fit the crime? "People don't get the death penalty for breaking and entering. Defending your family, defending yourself against someone who is armed is one thing. But now it's like we don't need to call the police anymore." SOURCE: Dallas Morning News research

Fine - then people like McCartney, and only those, can foot the bill for prisons, judges, juries and all the ancillary whatnot necessary for locking up burglars and thieves with a special tax, while those of us who believe it's right to defend our property don't.  She can believe what she wants, but don't socialize the costs of those beliefs (of course, this leads into a whole other discussion about what we should pay for, and even I have some things that I feel are worthy of "socializing" the costs, but the above is not one of them). I work hard and save to be able to be able to buy the things I want - I have no sympathy for those that feel it's okay to just take what you want. I hope I am never in a situation where I have to end someone's life (for any reason), as I like my rather sedate life, but I don't think I will hesitate to defend myself or my property from the leeches of society.

Based on the law of "supply & demand", I suspect that we will eventually see a drop in home-invasions. Once enough have been killed off - there will be fewer scumbags to commit these acts. Thus the crime rate is reduced.

Question for LIB McCartney: What would you do if faced with an intruder in your bedroom??? Offer him tea????

Maybe criminals should lobby to get someone to do a job hazard assessment for them. Don't do the crime it you ain't willing to pay the consequences.

Quoted: NEWS LINK But others, including Marsha McCartney of Dallas, a member of the Brady Campaign to Prevent Gun Violence, "People don't get the death penalty for breaking and entering. Defending your family, defending yourself against someone who is armed is one thing. But now it's like we don't need to call the police anymore." SOURCE: Dallas Morning News research

In the wee hours of the night how are you going to be able to tell if the intruder in armed or not?  I'm not committing  a crime when I carry a gun, and as I pass thousands of people a day, they have no clue I'm "armed" and this is in broad daylight.  How does she expect some to notice if one is armed or not in total darkness or low light?    

The insanity of our society is highlighted by her comments. She tolerates, no, accepts criminal behavior as OK to the point she actually wants to protect criminals during the commission of their crimes. Like they should have a OSHA benefits or something.

To hell with Marsha McCartney, member of the Brady Campaign.

This is good stuff for us:

RIGHTS UNDER NEW LAW
Major provisions of Texas' Castle Law:

• Presumes you are reasonable in using force if someone – illegally and with force – enters or is attempting to enter your occupied home, car or workplace. You are not given this presumption if you provoked the person or are engaged in a crime.

• Removes your obligation to retreat if possible before using deadly force if you are anywhere you have a right to be. The previous law obliged you to retreat if a "reasonable person" would have, except in a situation where someone unlawfully entered your home.

• Gives you added protection from lawsuits by injured attackers or their families. Previous law granted this protection if someone illegally entered your home, but not in other situations.

height=8

Quoted: <<From Dallas Morning News>> But the spate of shootings begs the question: Did the castle law – which gives people the right to use whatever means necessary to protect themselves and their property without fear of civil liability – unleash a flurry of gunfire? Perhaps just as important, has the law changed people's perceptions about fighting back? Are they more likely to shoot first even when safe retreat may be an option?

Lord I hope so.
If I am in my house - the only place I would "retreat" to is the gun safe for a heavier caliber.

F'k you Dallas Morning News.

"That's just how Texas is."

And that my friends, sums things up nicely.  


IMO the biggest thing that Castle Doctrine did for Texas was to protect US from chicken shit Civil Lawsuits.



CMOS

When someone has the balls to break into someones home...they KNOW that there may be a chance that someone may be there and that person just may have the balls to shoot there sorry ass...If the are willing to take that chance...well then...that is what they just might get and deserve it if they do.  

This does not supprise me.  Th eliberal meida and politicians have always put the rights of the poor misunderstood bad guy ahead of yours and mine.   I read an artical (pasted below) in the 1/18 issues of USCCA.  It is hard for me to understand how someone is more intrested in the life of a scum bad that is out to do me or mine harm.  I guess criminals and liberals are birds of a feather.

Burglars have rights too, says
[British] Attorney General
by By Melissa Kite and Andrew AldersonA fresh row broke out last night about the rights of householders to fight back against intruders after the Government's most senior lawyer defended the rights of burglars.

Lord Goldsmith, the attorney-general, flew in the face of the Prime Minister's pledge to look again at the law with a view to giving homeowners more rights when he said that existing legislation was adequate.

He said that criminals must also have the right to protection from violence, prompting David Davis, the shadow home secretary, to accuse the government of being dangerously split on the issue.

Lord Goldsmith's intervention came as Sir John Stevens, the Metropolitan Police Commissioner, dismissed fears that giving homeowners greater freedom when tackling burglars would lead to an "arms race" that would put them in greater danger.

He denied that a change in the law, which currently gives homeowners the right to use "reasonable force" when tackling intruders, would encourage burglars to become more aggressive.

In an interview with The Telegraph, Sir John - who last weekend came out in favour of the Right to Fight Back campaign, launched by this newspaper two months ago - said: "I am convinced that enabling householders to use whatever force is necessary will discourage burglars.

"The fact that a would-be intruder knows a householder can respond without the fear of being prosecuted will undoubtedly deter criminal acts." Sir John, who will step down next month after five years as commissioner, said fellow police officers were confident that it would act as a deterrent.

"We are on the ground," he said. "We smell it, we see it, we hear it. We know what we are talking about."

Last week, Tony Blair told the House of Commons that he would look at strengthening the law and a Tory MP has introduced a private member's bill to do so.

Lord Goldsmith, however, appeared to take issue with the Prime Minister's pledge to act. "We must protect victims and law abiding citizens," he said.

"But we have to recognize that others have some rights as well. They don't lose all rights because they're engaged in criminal conduct."

Mr Davis said: "They certainly do lose quite a lot of rights. The Government ought to make up its mind. The Prime Minister says one thing and the Attorney General says another.

"Of course all human beings have rights, but when somebody enters your home to commit a crime they give up a large portion of them."

Some critics of a change in the law have voiced concerns that burglars will feel they have to carry guns, knives and other weapons to protect themselves from householders.

Sir John, however, did not see this as a problem. "I have confidence in the good judgment and common sense of the public in knowing how far they should go."

He said that householders should be able to use whatever force is necessary even if - in exceptional circumstances - it involved killing the intruder.

He spoke of his regret about the repercussions over the verdict on Tony Martin, the farmer who shot dead one burglar and seriously injured another during a break-in at his farm in August 1999.

There was a public outcry when Martin was found guilty at Norwich Crown Court and sentenced to life in prison. The charge and sentence were later reduced to five years for manslaughter.

Sir John did not suggest that the jury had reached the wrong verdict, but added: "The Tony Martin case is unfortunate because it has skewed the debate [on the public's right to protect their home]. But it is a fact that burglars have acted with greater confidence since the Tony Martin verdict and that has to be a matter of regret."

Lord Goldsmith, however, warned of the dangers of using the Martin case to make bad law: "There are very few cases that have given rise to this problem. Besides Tony Martin, there's only one I know about.

"It's always possible to extrapolate from one case and think that something is happening across the country when it isn't."

Mr Blair's announcement of a review of the law came three days after the Conservative Party threw its weight behind a new parliamentary attempt to win more rights for householders to protect them from burglars.

The Telegraph revealed last weekend how Patrick Mercer, the Tory MP, would introduce a Private Member's Bill to change the law in favour of homeowners.

In an article in this newspaper today, Mr Mercer described Mr Blair's promise to consult before taking action as a "classic delaying tactic".

Michael Howard, the Tory leader, yesterday praised this newspaper's campaign. "I pay tribute to the highly effective campaign run over so many months by The Sunday Telegraph. It was the first newspaper to highlight this crucial issue and its persistence has been a key factor in winning this change to the law and in forcing Tony Blair's U-turn," he said. "We now need to ensure that Patrick Mercer's bill gets through parliament. The Sunday Telegraph's continued vigilance will be crucial in ensuring this."