Castle doctrine come home to roost
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You may have heard, you may not have. A Texas grand jury has decided to “no-bill” Joe Horn (no, not that Joe Horn). Prosecutors sought to indict Horn after Horn killed two men who were fleeing after committing a burglary.
Except it was not his own house. Wouldn’t you know it, such a thing is permitted in Texas. The relevant statutes are here. I’ll pare it down for you:
A person can use deadly force (as in this case) if he believes it is immediately necessary to terminate the trespass/burglary/robbery AND the property being taken cannot be recovered by any other means AND he has a reasonable belief that the third person asked him to protect the property. Actually, upon further reading of the statute, it seems that this last one is not a requirement. So, in Texas, you can kill someone you believe is robbing your neighbor without having the neighbor’s permission to protect his house. Don’t we all feel like men now?
Bennett thinks Horn [update: perhaps] met the requirements of the statute; I disagree. I’ll tell you why.
Let’s take the “immediately necessary” portion of the statute. Here’s why this was not immediately necessary: He was on the phone with police who were on their way to the scene.
“I’ve got a shotgun; you want me to stop him?” Horn asked the dispatcher.
“Nope. Don’t do that,” the dispatcher replied. “Ain’t no property worth shooting somebody over, OK?”
Horn was clearly upset by the dispatcher’s response.
“I’m not gonna let them get away with it,” he said. “I can’t take a chance getting killed over this, OK.”
Despite the dispatcher’s protects, Horn said “I’m gonna shoot! I’m gonna shoot!”
The 911 dispatcher warned Horn to stay inside at least a dozen separate times, telling him, “An officer is coming out there. I don’t want you to go outside that house.”
He did not heed that request. He went outside and shot the two men in the back - firing three shots. Police arrived seconds later.
They weren’t on his property, they weren’t coming to his property. He was in no imminent danger.
Let’s look at the other element of the statute, that he reasonably believe that the neighbors asked him to watch over their property. The statute reads “has requested”, not “would have requested”.
“I really don’t know these neighbors,” Horn said. “I know the neighbors on the other side really well … I can assure you if it had been their house, I’d already have done something.”
Sure, today the neighbors may be glad (or perhaps not), but the question is did they give him permission at the time? Seems not to be so.
Then there’s the unfortunate matter of race. Both victims were illegal aliens of the hispanic persuasion. Horn is white. Harris County is predominantly white. I wonder what the makeup of the grand jury was?
[As an aside - where are you, victims' advocates? Every news story is parading the fact that one of the victims here was a criminal. So if they're criminals their lives aren't worth the same as others'? That's what really, really annoys me about this...]
Others may disagree - and it may seem incongruous coming from a defense attorney - but I don’t care. I don’t like the castle doctrine and I’m even more leery of using deadly force to protect property. I’ve always had trouble with this legal quirk and I always will.
As the police dispatcher said, no property is worth taking someone’s life and certainly not in cold-blood like Horn did.
I wrote and rewrote this last sentence several times as I tried to sympathize with Mr. Horn, just as I do with a majority of my clients. Don’t get me wrong, I would defend him to the best of my ability, but I’m not going to like him or feel bad for him.
Perhaps I’m just blinded by my hatred for this doctrine, but I can’t find it within myself to see his point of view. Maybe some other day, but right now I can’t. If that makes me a bad person or bad lawyer, so be it. What a slap in the face to the justice system and our notions of due process.
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Gideon, I haven’t yet addressed the merits, but I think you’ve misread the law.
Why do you describe Mr. Horn’s actions as in cold-blood? Especially after clearly describing him as being upset?
Having lived in both the South and the North, I believe there’s a huge culture difference, and I’m not surprised a TX jury would find him not guilty.
If someone wanted to come into my house (and not some drunk who was going to the wrong house), and I was able to (a) flee with complete safety or (b) kill him, I would choose to kill him. It’s not just about “property”; it’s about dignity. When someone violates you (or your neighbor), they are taking your dignity as a human being, and I am willing to defend that dignity with deadly force. If you don’t want to be killed in Texas, don’t break into houses.
So, you think that I ought to abandon my own house? And that equates me to someone who kills their own daughter for being raped?
To be clear, I doubt I would have done what Horn did. I think though, Horn had every right to confront them, and they should have frozen. If they didn’t, then TFB. I don’t feel sorry for them.
Off-topic, what’s your take on this:
http://www.nytimes.com/2008/07/02/washington/02scotus.html?ref=us
First, I didn’t say Horn was right or wrong, although I do think that citizens have the right to detain criminals.
Second, my hypo was someone coming into my house. My house. That’s not a perceived slight; that’s an out and out affront. And I don’t have to take it.
Third, fundamentally, I don’t think society has the right to ask anyone to submit to the unlawful force of another. Obviously, from a practical standpoint, you have to limit deadly force, but that limitation is practical, not moral. If someone snatches a woman’s purse and starts running away, in my view, and she plugs the guy, I really don’t think that’s wrong. It’s her property, and she has an absolute right to it. Now, of course, it’s hard to have a society like that, but the idea that the government gets to tell you that you have to suffer a property loss is distasteful to me.
I don’t know whether Horn was right or wrong. I would give him the benefit of the doubt. I doubt that I would have shot the guys, though.
I reject out of hand your comparison of human life to material possessions. If someone wants to take my stuff, I am not going to let them. If that means the person dies in the process, too bad. I would kill someone before handing him over $5 if I were being mugged. And I’d sleep well too.
In any event, there was a case in Oregon recently, where a guy went into an unlocked house and passed out on the couch (likely he was drunk). Woman finds him there, and exits house with her child and calls her husband and the cops. Husband gets there first and blows the guy away. That, Gideon, is murder, at least in my book.
Fortunately, Gideon, you don’t have this problem in CT or MA. CGS 53a-21 seems to limit the use of force to defend property to “physical” force; one can only use deadly force in defense of persons. Mass caselaw says that one can only use nondeadly force in defense of property. Com. v. Haddock, 46 Mass. App. Ct. 246, 248-49, 704 N.E.2d 537 (1999) (nondeadly force only).
You can find my thoughts on self-defense law in a Champion article from 3/07. (It is public, so search the Chamption at NACDL.org for “defending the self-defense case”.)
As defense attorneys, oughtn’t we be skeptical about how a case is reported in the papers and whether 911 tapes tell the whole story? How often has the media gotten one of your cases right? How often have tapes proved to be misleading because they don’t tell what the people involved saw when they acted?
Shot in the back doesn’t necessarily mean Horn didn’t legitimately perceive a threat. Google terms like “reaction gap” and “OODA” loop — someone can genuinely see an aggressor moving towards them, begin to shoot, and have the shot end up in the side or back because the aggressor turned in those tenths of seconds that it takes to fire a handgun. Horn may have challenged the theives, had them turn towards him, began to fire, and had them turn away before the shot hit.
Check out: Tobin & Fackler, Officer Reaction - Response Times in Firing a Handgun, 3:1 Wound Ballistics Rev. 6, 9 (1997). See also Bates, Do Shots in the Back Imply Excessive Force, 14:3 Women & Guns 53 (2004) for a summary of research with useful graphics; Lewinski, Why is the Suspect Shot in the Back?, 27:6 Police Marksman 20 (Nov. Dec. 2000); Remsberg, Telling the Truth about Police Shootings, 29:6 Police Marksman 18, 19 (Nov./Dec. 2004) (turn from frontal stance to running, back to officer in .14 seconds). For a video which includes this a live-fire demonstration of this problem using paintball ammunition see ALI-ABA, The Use of Lethal Force: What Prosecutors, Defenders and Policy Makers Should Know (2001). See Fuentes v. Thomas, 107 F.Supp.2d 1288 (D.Kan. 2000) for an example of this situation and expert testimony used to explain the reasonableness of the police officer’s actions.
In general, I’m for the castle doctrine — someone’s inside a house to commit a crime, the homeowner shouldn’t have go from a place of known safety (the home) outside where they are away from the phone, their family, and may be more vulnerable if the burglars have buddies. The castle doctrine is about protecting the homeowner and his family. I don’t necessarily agree with Horn’s actions, but I accept that the grand jury had more info than is likely in the papers and based on that declined to prosecute.
Apparently, based on recent reports, even Horn thinks Horn was wrong. It seems he now regrets his actions. Shooting two unarmed men in the back isn’t exactly “True Grit”.
As someone who was mugged a few months ago, I wish I’d had someone like Joe Horn for my neighbor. I also guarantee that if I’d been able to, if I’d been armed, I would have killed the guy who robbed me. I applaud Mr. Horn for his actions in this matter.
It was asked earlier in this discussion whether a criminal’s life is worth less than than of a law-abiding citizen. As far as I’m concerned, the answer is an unqualified yes, it is worth less. That’s just my opinion, though.
As for Mr. Horn regretting the incident, I can understand that. It can’t be easy for him to know he ended two lives, and everything he’s gone through since then could make anyone question if they did the right thing. I don’t know how I’d have handled things, how I’d feel about those events, if I’d killed the guy who mugged me. I only know I would have if I could have.
As far as I’m concerned, the only people who were in the wrong in the Horn Case were the burglars.
lets start with a very basic fact that you have wrong - they WERE on his property.
Does that change things for you? (fwiw, I think he should be indicted).
He went out (not expecting to see them) saw them at the tree in his front yard, and from the tape, damn near similtaneously told them to freeze and then shot them as they reacted to a guy with a gun by turning to run.
I also don’t believe you are right about this being allowed in defense of a neighbor’s house - not only are you incorrect in your reading (it clearly states the 3rd party owner must have requested the help, but it also clearly states that first the requirements of the previous two subsections be met (defending one’s own person, and one’s own property), and those require this to be a “night time” crime given the other circumstances in the Horn shooting.