Deadly Force in Texas

[Ozark_Sophist]

“As a husband, father, and Missouri Senator I am thrilled to bring Missouri law in line with the expectations of most Missourians. Finally, law-abiding Missourians can rest assured of their right to defend themselves and their families against unlawful intruders without being legally required to run away or wait for an intruder to physically attack,” Sen. Jack Goodman said.

Sen. Goodman sponsored the senate bill. Had the provision permitting use of force (including deadly force) not remained in the statute, the victim would have had to "wait for an intruder to physically attack."

Source: Governor's press release dated July 3.

 

[CavemanLawyer]

So, when I talked to the sponsor of the bill, I shared your interpretation and it was suggested not to use you for legal advice.

Sen. Goodman sponsored the senate bill. Had the provision permitting use of force (including deadly force) not remained in the statute, the victim would have had to "wait for an intruder to physically attack."

That sure is interesting because the bill that was sponsored by Sen. Goodman only amended this language you are talking about to include, "or she" in addition to "he.". It did not remove the requirement to retreat under the defense of property because no requirement ever existed because there is NO right to use deadly force to defend property!

(L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1, 1979. Amended by L.2007, S.B. Nos. 62 & 41, § A.)

2007 Legislation

L.2007, S.B. Nos. 62 & 41, § A, in subsec. 1, in two places, inserted "or she" following "he".

To translate that above, this statute went into effect in 1979 and was amended once to make it apply to both genders, though obviously cases already interpreted it to apply to both men and women.

The bill Mr. Goodman sponsored dealt with completely different statutes that only apply to defense of self or others. The bill and his quotes you cite only deal with removing the requirement to retreat under these sections, because those are the only sections that allow deadly force. So did you really talk to Mr. Goodman about using deadly force to defend property, when his proposed bill didn't even address that section of the law? When he had nothing whatsoever to do with the wording of that statute?

I talked to the sponsor of the bill

Sure you did. Its nice and convenient too since there's no way to test that, well other than to question why you had a discussion with him about a law that he had no part in writing/amending. It reminds me of that lonely kid in high school who always seemed to have a girlfriend...but she lived out of state.

Nice try but you do realize that the drafters of a statute typically write a comment to the proposed legislation that gets incorporated into the statute itself? It is referred to as the official legislative intent. Luckily that exact thing was done with this statute. Here is the comment written by the actual drafters of this statute:

COMMENT TO 1973 PROPOSED CODE

1999 Main Volume

Based on New York Revised Penal Law § 35.25; Michigan Proposed Criminal Code § 625 (Final Draft 1967).
Much of the comment on § 563.036 applies to this section also. The scope of this section is limited to the use of physical force by a person to prevent stealing, property damage or tampering. Under subsection 1 he may use such force (but not deadly force) as he reasonably believes necessary to prevent a person from stealing his bicycle, or from damaging his automobile with an axe. Subsection 2 reiterates the common law principle that the amount of force used must bear a reasonable relation to the magnitude of the harm sought to be avoided. Thus, deadly force cannot justifiably be used merely to protect property. Of course, if while protecting one's property the circumstances are such that deadly force is justified under some other provision, then one can use deadly force.

Now like I said, your friend Mr. Goodman didn't have anything to do with the wording of this statute or with the writing of this comment. So did you by any chance have a conversation with the drafters of this law back in 1967? If so than I guess we'll just have to take your word for it that you were told something opposite from what the drafters of the law wrote and opposite from what the interpreting courts have written.

 

[Ozark_Sophist]

Nice try. Goodman's bill become the lead bill to which other items of legislation were attached, specifically SB 41. I don't know where you get the idea the bill was limited to changing "he or she." Even in it's original form, five sections of law were modified or repealed. You only discuss one section.

SB 41 (2007) was similar to SB1111 (2006), which was also sponsored by Jack. That bill did not advance out of the Senate Judicial and Civil Jurisprudence Committee (which was my favorite committee to cover--well, any committee that met in that room was nice because it was the only hearing room that had a designated desk/area for press. There is a press table on the floor of the Senate chamber, but I found it harder there to look interested when nothing exciting was happening on the floor. The press balcony on the House side was better because it was easier to share notes with other reporters).

 

[CdwJava]

Ozark, I think the issue is not whether lethal force can be used in defense of property in MO, but whether it can be used against the fleeing criminal. Nothing I have seen in the texts posted indicates that deadly force can be used against the fleeing suspects or after the crime - there are more elements that appear to be required before deadly force can be used.

I suspect that the MO law is not quite as deadly as the TX law ... which is something I would be thankful for.

This argument over which state has the more barbaric law to justify a slaying for a property crime is ... well ... morbid.

- Carl

 

[BoredAtty]

There is no reason for the statute on use of deadly force to protect property unless the legislature intended it to be used as an element of defense.

So CavemanLawyer and I both misinterpreted the law, the Missouri courts misinterpreted the law, and the authors of the law themselves misinterpreted the law. Gotcha.

Here's a question for ya. Since you claim that deadly force can be used merely for the protection of property, can you please provide an example of when a person may do so? Maybe that will clear all of our minds. Obviously, your example should not require us to refer back to the "Protection of Persons" section, since the principle behind that section is to protect people, and you are claiming that protecting people is not a requirement for the use of deadly force.

So give us your example and help us see the light of day...

 

[fairisfair]

So CavemanLawyer and I both misinterpreted the law, the Missouri courts misinterpreted the law, and the authors of the law themselves misinterpreted the law. Gotcha.

Here's a question for ya. Since you claim that deadly force can be used merely for the protection of property, can you please provide an example of when a person may do so? Maybe that will clear all of our minds. Obviously, your example should not require us to refer back to the "Protection of Persons" section, since the principle behind that section is to protect people, and you are claiming that protecting people is not a requirement for the use of deadly force.

So give us your example and help us see the light of day...

Just lay one finger on my twinkie and you will see when it is appropriate.

okay, now you and caveman and carl can go back to being all smart and everything. mwah!!

 

[CavemanLawyer]

Nice try. Goodman's bill become the lead bill to which other items of legislation were attached, specifically SB 41. I don't know where you get the idea the bill was limited to changing "he or she."

I'm going to try to make this as simple as possible. This bill(s) you are so fond of did indeed amend several sections of Missouri's Code and some of those changes did indeed broaden the use of deadly force in self defense. However, if you would just read these statutes instead of citing random press releases about them, you would see that this bill amended sections 563.031 among others. The title of this section is "use of force in defense." It deals exclusively with defending a person, not property.

We are talking exclusively about section 563.041 titled, "use of force in defense of property." It is the only section of Missouri's code that addresses this issue. I do not think you realize that this section is considered a separate statute from all others. I do not think you realize that when the good Jack Goodman passed his reforms, they didn't apply to this section. I don't think you realize that if you look up this statute, or any other for that matter, on any website and scroll to the bottom it lists its statutory history including when it was passed and what bills amended it. I already cited the statutory history for this statute. I'm citing it again below. It has only been amended once to correct what is really just a clerical error. So to answer your question, I got this "idea" from the statute itself. It seems you are basing all of your arguments on your knowledge of these bills that were passed. If you would just read the actual statute we are going back and forth on, you would see that those bills had NOTHING to do with that section of Missouri's law. Since you are more familiar with the bills than the statutes they affected, perhaps it would be easier for you to just look up the language of the bills themselves. We are dealing exclusively with section 563.041, so simply look through all these bills for what language it changed/added to this section. You'll see that there is only one change, and its not a substantive one. (ex: makes it gender neutral.)

Even in it's original form, five sections of law were modified or repealed. You only discuss one section.

I know the bill made changes elsewhere but we are only talking about one section, that's the whole point. There is only one law that addresses the use of deadly force in defense of property, and it is 563.041 and it expressly says that you flat out cannot do it. The drafters of the bill wrote a specific comment breaking it down into plain English.

Since nothing any of us say seems to sway you to actually look this statute up yourself, I'm going to go ahead and just post it here in its entirety and explain it.

.A.M.S. 563.041

Vernon's Annotated Missouri Statutes Currentness
Title XXXVIII. Crimes and Punishment; Peace Officers and Public Defenders
+ Chapter 563. Defense of Justification
>>563.041. Use of physical force in defense of property


1. A person may, subject to the limitations of subsection 2, use physical force upon another person when and to the extent that he or she reasonably believes it necessary to prevent what he or she reasonably believes to be the commission or attempted commission by such person of stealing, property damage or tampering in any degree.

You may use non-deadly force in defense of property provided you meet the requirements of subsection 1.


2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

You can only use deadly force to protect property when that deadly force is already authorized under a DIFFERENT section of Missouri's law. The intent of this subsection could not be clearer because the drafters state the intent in their comment below. They state that the intent is to completely remove defense of property alone as a justification for the use of deadly force. In order to use deadly force you've got to look at a DIFFERENT section of that chapter for justification, and all of the other sections that authorize deadly force do it to protect the person, not the property.

3. The justification afforded by this section extends to the use of physical restraint as protective force provided that the actor takes all reasonable measures to terminate the restraint as soon as it is reasonable to do so.


4. The defendant shall have the burden of injecting the issue of justification under this section.


HISTORICAL AND STATUTORY NOTES

(L.1977, S.B. No. 60, p. 662, § 1, eff. Jan. 1, 1979. Amended by L.2007, S.B. Nos. 62 & 41, § A, in subsec. 1, in two places, inserted "or she" following "he".

This means that the statute was created by senate bill #60 and passed in 1979. It was later amended by senate bills 62 and 41, thanks to Jack Goodman, and the amendment consisted of inserting, "or she." If you look up these bills you can confirm this. Yes these bills did a heck of a lot more than just this small change, but to other sections of Missouri's Code that have absolutely nothing to do with this discussion


COMMENT TO 1973 PROPOSED CODE

1999 Main Volume

Based on New York Revised Penal Law § 35.25; Michigan Proposed Criminal Code § 625 (Final Draft 1967).
Much of the comment on § 563.036 applies to this section also. The scope of this section is limited to the use of physical force by a person to prevent stealing, property damage or tampering. Under subsection 1 he may use such force (but not deadly force) as he reasonably believes necessary to prevent a person from stealing his bicycle, or from damaging his automobile with an axe. Subsection 2 reiterates the common law principle that the amount of force used must bear a reasonable relation to the magnitude of the harm sought to be avoided. Thus, deadly force cannot justifiably be used merely to protect property. Of course, if while protecting one's property the circumstances are such that deadly force is justified under some other provision, then one can use deadly force.

Section 563.041 has gone unchanged since its exception, except to make that small clerical correction noted above. This is the intent of the law as written by its drafters, and no drafter since has changed it through a subsequent amendment. It doesn't get any clearer than this. If you want to use deadly force as self defense in Missouri, you better find your justification under another section because you can't use 563.041.

You can use section 563.031 for justification to use deadly force, and after the bills passed this year you no longer have to retreat before doing so. All thanks to your buddy Jack Goodman. But this law has nothing to do with defending one's property. You are all gung ho about the wrong statute.

Now for the love of God, just.... don't.... reply, and we can all stop talking about Missouri law in a thread about TEXAS!

 

[Ozark_Sophist]

I not only had looked up the statute prior to responding in the first place, I looked at the summary notes for submitted bills, changes in the summary, and as passed. It is you and bored that failed to read the statute. I even posted the "truely agreed to and finally passed language," which evidently you didn't read. You both claimed Missouri law has no provision for the use of deadly force to protect property. You narrowed the discussion to one specific statute, 563.041, which if YOU HAD READ IT, clearly allows the use of deadly force to protect property. I repeatedly spelled it out for you. Here it is again:

2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

If you read the circumstances described in subsection 1, it does not say anything about defense of self. Other sections of the chapter which you refuse to read because you limited yourself to this one section, provide for the use of deadly force in the case of forcible felonies. The bill sponsored by Jack that passed this session changed the language so instead of listed specific felonies (rape, sodomy or kidnapping or serious physical injury through robbery, burglary, or arson), it simply says "forcible felonies." This change broadens the leeway to assert an affirmative defense of justification.

An example would be someone forcing a door to your property.

Also look at Section 563.074

 

[mike_lee]

CdwJava I would sure like to see you weigh in on this one https://forum.freeadvice.com/showthread.php?p=1780809#post1780809

This may be the most academic treatment of this topic anywhere on the internet.

 

[CavemanLawyer]

You narrowed the discussion to one specific statute, 563.041, which if YOU HAD READ IT, clearly allows the use of deadly force to protect property. I repeatedly spelled it out for you. Here it is again:

2. A person may use deadly force under circumstances described in subsection 1 only when such use of deadly force is authorized under other sections of this chapter.

If you read the circumstances described in subsection 1, it does not say anything about defense of self. Other sections of the chapter which you refuse to read because you limited yourself to this one section, provide for the use of deadly force in the case of forcible felonies. The bill sponsored by Jack that passed this session changed the language so instead of listed specific felonies (rape, sodomy or kidnapping or serious physical injury through robbery, burglary, or arson), it simply says "forcible felonies." This change broadens the leeway to assert an affirmative defense of justification.

An example would be someone forcing a door to your property.

Also look at Section 563.074

To steal a line from CdwJava, un-friggin-believable. Do you not realize that you just said what myself and Boredatty have been telling you this entire time? Yes the statute dealing with protection of property says you can only use deadly force when authorized under OTHER sections of that same chapter. YES this means that you've got to look to all the other sections of that chapter and see if your circumstances warrant the use of deadly force under one of those sections. (there's only three other sections that authorize deadly force; 563.031, 563.056 and 563.061 and they all expressly deal with protecting people) If you do fall into one of those circumstances which are authorized under a DIFFERENT section THEN you can use deadly force. And the reason you can now use deadly force is not because you are protecting your property, but because you are now authorized to use it under a DIFFERENT section, which is exactly what section 563.041 says and exactly what we've been telling you all along!!! For about the hundredth time now, protection of property alone cannot justify the use of deadly force, you've got to independently get justification for deadly force under a DIFFERENT section of chapter 563. And again, all of those other sections that authorize deadly force (ex: felonies, defense of self or others) authorize it only to protect a person, not to protect property. Nothing makes this more obvious than the fact that they are all contained under section 563.031 which is titled, "Defense of Persons."

This is literally the most ridiculous discussion that I've ever had, but I can thankfully now say that we are in complete agreement.

 

[CdwJava]

CdwJava I would sure like to see you weigh in on this one https://forum.freeadvice.com/showthread.php?p=1780809#post1780809

This may be the most academic treatment of this topic anywhere on the internet.

Caught it ...

- Carl

 

[BoredAtty]

If you read the circumstances described in subsection 1, it does not say anything about defense of self. Other sections of the chapter which you refuse to read because you limited yourself to this one section, provide for the use of deadly force in the case of forcible felonies.

You're right that 563.041 doesn't say anything about defense of persons (or self, as you put it). Instead, it says something about requiring justification for deadly force from other sections that allow it. What section allows it? The same section that mentions the "forcible felonies" that you are referring to: The section of law entitled "Use of force in defense of persons." Just in case you don't think that a "forcible felony" is primarily a crime against a person, look at 563.011, where it is defined as "any felony involving the use or threat of physical force or violence against any individual."

How can you not see that deadly force is only justified in defense of persons? Are you just being stubborn, or do you truly not understand?

 

[Ozark_Sophist]

You're right that 563.041 doesn't say anything about defense of persons (or self, as you put it). Instead, it says something about requiring justification for deadly force from other sections that allow it. What section allows it? The same section that mentions the "forcible felonies" that you are referring to: The section of law entitled "Use of force in defense of persons." Just in case you don't think that a "forcible felony" is primarily a crime against a person, look at 563.011, where it is defined as "any felony involving the use or threat of physical force or violence against any individual."

How can you not see that deadly force is only justified in defense of persons? Are you just being stubborn, or do you truly not understand?

Are you a rock? For you to be right, the statute would have to say deadly force is not authorized for the protection of property. The statute doesn't say that. It says deadly force can be used for protection of property--albeit with strings attached. This allows for an affirmative defense even if an actual physical assault has not yet occured.

I'm not stubborn. I'm right.

 

[Ozark_Sophist]

How can you not see that deadly force is only justified in defense of persons? Are you just being stubborn, or do you truly not understand?

Further proof you are wrong, from State of Missouri v. Walter R. Dulaney.

Both self-defense and defense of premises are defenses of justification. In Missouri, defense of premises is essentially accelerated self-defense because it authorizes "protective acts to be taken earlier than they otherwise would be authorized, that is, at the time when and place where the intruder is seeking to cross the protective barrier of the house." State v. Ivicsics, 604 S.W.2d 773, 777 (Mo. App. 1980) . Once an intruder has entered the dwelling without resistance, however, the principles of self-defense apply. State v. Lumpkin, 850 S.W.2d 388, 392 (Mo. App. 1993) .

If you note, I was asked earlier to provide an example. This is the example I provided:

An example would be someone forcing a door to your property.

 

[fairisfair]

I have a pretty good idea of who is right, ....

No offense Ozark, but can you please give me just one example of what piece of property you would be allowed to defend with deadly force?

I am not talking about circumstances, because I can guarantee those would involve persons or people, or something not relating to the property itself. Defense of premises doesn't count in my mind, as you are really defending yourself or the persons inside that premises, not the premises itself, otherwise you would be able to shoot the intruder in the back from across the street.

I just want to know what in my house I can actually kill someone to keep.