As usual, Beth has nailed the issue perfectly. I do not own anything that I would use lethal force to protect. I have insurance to replace anything stolen from me. I have too much stuff as it is. And I am on good terms with my local police department and I’m sure they would welcome a call from me. All of this saves me the time and expense of a grand jury trial. And if a firearm is truly a tool of last resort to be used only when there is an imminent threat of crippling injury or loss of life to you or someone else, are we ever justified in using it to defend property?
Strangely enough, in some states it IS lawful to use lethal force to defend property. So the real question becomes whether it is enough to just be legal. Or do we need to think beyond the law?
Texas is one of those states that allows the use of deadly force to protect property. It even allows “fresh pursuit” – chasing a perp immediately after the offense. So if the scenario given to Beth occurred in Texas, I would be LEGALLY justified to pursue the perp to recover whatever he stole from me. But is it enough to just be legal?
I’m legally required as a Texas LTC instructor to cover Texas law. So I teach the law, but then pause to help students process exactly this kind of scenario in my class. Here is specifically what the Texas law says (and my summary follows):
Penal Code §9.41‐§9.44 Protection of One’s Own Property
- You can use force to the degree that is reasonably necessary to:
- –prevent or terminate trespass on your property
- –recover stolen property, if you use the force immediately or in fresh pursuit after the dispossession of the property
- The party against whom force is used must have no reasonable or lawful claim to the property.
(FORCE is different from deadly force in Texas law. Force might be knocking the person to the ground or punching him to recover your equipment. But it is NOT deadly force (which can cripple, maim, or kill a person).
•About pursuit
- Police officers have the authority to pursue criminals.
- Except for “fresh pursuit” immediately following a robbery, private citizens are NOT authorized to pursue criminals. Call 9-1-1.
•Use of deadly force to protect one’s property (§9.42)
•A person can use deadly force when and to the degree it is reasonably 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
•Use of deadly force to protect property (continued)
–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 bodily injury.
Use of force to protect another’s property (§9.43)
•A person is justified in using force or deadly force to protect another person’s property IF:
–(1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible movable property; or
•(2) the actor reasonably believes that:
–(A) the third person has requested his protection of the land or property;
–(B) he has a legal duty to protect the third person’s land or property; or
–(C ) the third person whose property he is protecting the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.
I am not sure what the laws in other states are. But Texas does allow someone to engage in fresh pursuit to recover their property. But you have to remember that it is not really what the law permits that counts when you are in front of a grand jury. It is still going to be that “reasonable person” test.
Would a reasonable person have pursued someone stealing a $700 phone to risk engaging that thief in a physical contact, and possibly risk in ambush that could threaten the phone owner’s life? If in the conflict, the victim had to draw his firearm to defend himself and in so doing cripples or kills either the thief or an innocent bystander, was it still a good decision to pursue the thief when it could end up costing you $1 million to have a lawyer point out that you were technically correct under Texas law? Not on your life! (In this case, section 9.43 becomes a “defense to prosecution” meaning that the law gives you a point in your favor, but the jury could still find a way to send you to jail if they were convinced that you were really stupid when you decided to risk life and limb to recover your cell phone.
What about your car? Now if I STILL had my 1969 Mach 1 Mustang with the 351 Cleveland engine, the Hearst transmission, the Cragar mag wheels, the overhead 3/4 cam, and the Holley four barrel carburetor – painted candy apple red with a black scoop on the hood, I might seriously have to rethink this issue. Just joking. All of my cars are luxury cars. My definition of electric car is one on which there are no payments. And I really do love My 2000 Subaru Outback. I paid $3000 for it and it is one of the best cars I have ever owned. But even if I had a brand-new Ferrari, it would not be worth the hassle to pursue and perhaps use deadly force to retain my possession of the vehicle. However, if I were getting gas at the gas station and someone jumped me and stole my car with one of my grandchildren in the child seat, I would have a new reason to use lethal force – because it is no longer the car, but my grandchild that I would be defending.
[DETOUR: While re-certifying as Texas LTC instructor, one of my classmates noticed me getting into my well-used Toyota Prius. He pointed at the car, laughing, and said “Really Robert? You drive a Prius?” Most LTC instructors in Texas drive pickup trucks with 2nd amendment bumper stickers all over the back. I replied, “The money that you spend for gas, I spend for ammo.” He never made fun of my car again… We will now return to our previous program.]
If you learn to live in condition YELLOW most of the time, the perp at the gas station never should have been able to jump you anyway. But NONE of use can be 100% aware all the time – unlike the person in the first weird reply that Beth read.
It is true that when you first start carrying a concealed firearm that you probably tend to walk a little differently. You probably are “strutting your stuff.” You know that somehow you are imbued with a new power. However, a little more maturity and a longer time of carrying concealed, and you realize that you really are carrying not only a firearm, but a new responsibility.
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When someone cuts you off in traffic, you can’t lay on your horn and gesture at the person because you know it might spark a road rage incident which might necessitate using deadly force in self-defense.
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You politely ask people trespassing on your property to leave rather than waving a firearm at them.
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When someone argues with you, you follow the biblical maxim “a soft answer turns away wrath,” instead of adding fuel to the fire. You would rather lose an argument than to have someone lose their life.
In other words, Jeff Cooper was right when he said that an armed society should also be a polite society.
Dave Ramsey says, “When you do stupid, you reap desperate.” Let other people do the stupid things and eventually it will catch up with them. But as a responsibly armed individual, you cannot afford STUPID because the DESPERATE comes at you with lawyers, grand jury, handcuffs, nightmares, social disapproval, and sleepless nights. So to my fellow armed Texans, I asked this question: Do you simply want to be legal by following the strict letter of Texas law that would permit you to engage in fresh pursuit? Or do you also want to be smart, wise, and free of potential legal entanglements?
As for me and my house, we’ll let the DVD player or the cell phone or the computer go and just get a new one later. Just don’t mess with my family!
So now let’s propose a new scenario.
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A person breaks into you house while you are home. He appears to be unarmed.
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He quickly grabs your notebook computer sitting on the table (full of business data) with the clear intent to steal it.
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You don’t know whether he’s about to turn to leave or whether he is going to grab something else.
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But so far, this home invader doesn’t show signs of coming there to harm any of the people in the house.
What do you do if this happens in the daytime?
And what do you do if this happens at night?
Here’s why I ask this question. The Texas law specifically mentions the use of deadly force is permitted “to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property.” Do you want to guess why the Texas law specifically mentions the “nighttime?” It is actually based on Old Testament law.
In the Old Testament:
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Lethal force was permitted for self-defense or defense of another.
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Lethal force was NOT permitted for burglary or robbery. The penalty for burglary or robbery was that the arrested perpetrator had to return a MINIMUM of 4 times the amount that was stolen. So if you neighbor stole a sheep, the authorities could require him to pay back 4 or more sheep. (Pretty good idea! Get a good lawyer, and you might get a whole new flock!)
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However, the Old Testament law specifically permitted deadly / lethal force in the event that someone entered your home at night. Why? Because in the Ancient Near East, it would have been nearly impossible to determine the intentions of a person entering your home at night without the benefit of electric lights, etc. So if they broke into you home late at night, you were justified in using lethal force because you would probably conclude that they were there to do you harm.
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However, if they entered your house during the day and the intent was just to take something from you, lethal force was not justified, unless their intent to kill or injure members of the household was clear.
This Biblical principle shows up in a small way in Texas law by its reference to the night time. However, Texas law EXCEEDS the bounds of biblical law in this matter.
And Texas law also exceeds the bounds of the nearly universal concept that lethal force is justified ONLY when you or another person are in IMMINENT danger of being maimed, crippled, having a lifelong disability, or killed.
So, what would I do if someone broke into my house during the daytime? I would greatly encourage them to leave with the greatest of haste, and preferably to leave my stuff inside the walls of my home. But if they managed to grab a notebook computer and get out of the house, I’m not chasing them down, even though Texas law would permit me to do so. Why not?
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All my data is backed up to the cloud and I have a different password for every account.
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My hard drive is encrypted, so there will be little use of the data on the computer.
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I’ll call my insurance agent, get a new notebook, and spend several hours restoring data. It will take less time than meeeting with attorneys and enduring grand jury proceedings.
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Only if they threaten the safety of my family members or me with imminent bodily harm will they find themselves on the business end of my .45. Because in that case, the consequences were worth it to protect my family.
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But if and intruder breaks in at night, I will likely assume they are there with the worst of intentions and I will use whatever amount of force is necessary and appropriate to stop the threat to my family.
Now play that same scenario again, but this time the guy has a baseball bat in his hand. He comes in at daytime and doesn’t advance on you or a family member, but does do a “snatch and grab” on your computer. What do you do now? Does the bat make a difference?
Are you waiting for the answer? The answer is that you must decide for yourself what you will do in each of these scenarios. I can’t answer it for you. I do know what I would do in that situation. May God forbid that we ever have to use our firearms in self-defense. But you still need to play out the scenarios in your mind to mentally prepare for the “dynamic critical incident.” Why spend time thinking about something that may never happen? Because when it does happen, you probably won’t have time to think. So it helps for you to have already done the mental preparation before the situation occurs.
Ultimately, we must all live with the decisions that we make and accept the consequences of those decisions. (Geting a USCCA membership is a good start toward being prepared to deal with some of the aftermath of the dynamic critical incident as well as the best educational resource you will have as a responsibly armed individual.)