Man fires gun into ground to scare burgler........gets arrested (regular, elect)

[california-jewel]

Originally Posted by KUchief25

No it appears self defense is against the law. Protecting your property is against the law. You pesky citizens don't need to do that just call 9-11 and hope the bad guy doesn't kill you before the po po arrive it appears.

I hear u loud and clear! and what happens when 9-11 screws up, because lately they have been known to do this.

How many times does someone call 9-11 and the life of someone is in the balance of the operator, and often, the operator, does not think a very serious situtation, is serious.
Something wrong when we cannot defend ourselvesd from a burgular.

[eric3781]

Originally Posted by txgolfer130

If Mr. Flemming didn't meet the parameters of 9.41, he wouldn't have met the parameters in 9.42 or .43. Thus he would have been charged as well in Texas.

Pathetic selective editing of the law, and then clamiing that I don't know how to read the law.

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in
lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.
(b) A person unlawfully dispossessed of land or tangible,
movable property by another is justified in using force against the
other when and to the degree the actor reasonably believes the force
is immediately necessary to reenter the land or recover the
property if the actor uses the force immediately or in fresh pursuit
after the dispossession and:
(1) the actor reasonably believes the other had no
claim of right when he dispossessed the actor; or

(2) the other accomplished the dispossession by using
force, threat, or fraud against the actor.

I'd argue that Fleming was in fresh pursuit, shortly after witnessing the criminal emerge from his neighbor's home.

and then:

§ 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or
tangible, movable property:
(1) if he would be justified in using force against the
other under Section 9.41; and
(2) when and to the degree he reasonably believes the
deadly force is immediately 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
(3) 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 serious bodily injury.

and then:

§ 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A person
is justified in using force or deadly force against another to
protect land or tangible, movable property of a third person if,
under the circumstances as he reasonably believes them to be, the
actor would be justified under Section 9.41 or 9.42 in using force
or deadly force to protect his own land or property and:
(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 land or property he
uses force or deadly force to protect is the actor's spouse, parent,
or child, resides with the actor, or is under the actor's care.

See how I included the whole statute and highlighted the "ORs".

Am I still incapable of reading and interpreting the law as it is written? Are you going to continue to selectively edit the statute as written, stomp your feet like a petulant toddler, and accuse me of not being able to read, in your snotty sock-sniffing tone?

[eric3781]

Originally Posted by snofarmer

Your the one who I have taking yet another swing at it.

I think you are full of yourself.

You can try to stand behind this old law that does not justify deadly force in the case that you are spouting off about.

Uh. What?

I cite current penal code statute and I am "trying to stand behind old law"? Incoherent blather.

You lose. Scurry along now.

[snofarmer]

now for the
Texas Castle Doctrine or Texas Castle Bill or Texas Castle Law

http://www.rc123.com/texas_castle_doctrine.html
[CENTER]AN ACT[/CENTER]
relating to the use of force or deadly force in defense of a person.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Section 9.01, Penal Code, is amended by adding Subdivisions (4) and (5) to read as follows:
(4) “Habitation” has the meaning assigned by Section 30.01.
(5) “Vehicle” has the meaning assigned by Section 30.01.
SECTION 2. Section 9.31, Penal Code, is amended by amending Subsection (a) and adding Subsections (e) and (f) to read as follows:
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor [he] reasonably believes the force is immediately necessary to protect the actor [himself] against the other’s use or attempted use of unlawful force. The actor’s belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
SECTION 3. Section 9.32, Penal Code, is amended to read as follows:
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor [he] would be justified in using force against the other under Section 9.31; and
(2) [if a reasonable person in the actor's situation would not have retreated; and
[(3)] when and to the degree the actor [he] reasonably believes the deadly force is immediately necessary:
(A) to protect the actor [himself] against the other’s use or attempted use of unlawful deadly force; or
(B) to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor’s belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor’s occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor’s habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used [requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor].
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
SECTION 4. Section 83.001, Civil Practice and Remedies Code, is amended to read as follows:
Sec. 83.001. CIVIL IMMUNITY [AFFIRMATIVE DEFENSE]. A [It is an affirmative defense to a civil action for damages for personal injury or death that the] defendant who uses force or[, at the time the cause of action arose, was justified in using] deadly force that is justified under Chapter 9 [Section 9.32], Penal Code, is immune from civil liability for personal injury or death that results from the defendant’s [against a person who at the time of the] use of force or deadly force, as applicable [was committing an offense of unlawful entry in the habitation of the defendant].
SECTION 5. (a) Sections 9.31 and 9.32, Penal Code, as amended by this Act, apply only to an offense committed on or after the effective date of this Act. An offense committed before the effective date of this Act is covered by the law in effect when the offense was committed, and the former law is continued in effect for this purpose. For the purposes of this subsection, an offense is committed before the effective date of this Act if any element of the offense occurs before the effective date.
(b) Section 83.001, Civil Practice and Remedies Code, as amended by this Act, applies only to a cause of action that accrues on or after the effective date of this Act. An action that accrued before the effective date of this Act is governed by the law in effect at the time the action accrued, and that law is continued in effect for that purpose.
SECTION 6. This Act takes effect September 1, 2007.


§ 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if: (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. (b) The requirement imposed by Subsection (a)(2) does not apply to an actor who uses force against a person who is at the time of the use of force committing an offense of unlawful entry in the habitation of the actor.


He was wrong to use the gun.

[eric3781]

Originally Posted by snofarmer

<snip>

He was wrong to use the gun.

Good copy-paste skills.

You just cited "Castle Doctrine", or sections 9.32-9.33, which applies to self defense and defense of others with deadly force.

Defense of property, and third party property, is handled under 9.41-9.43. "Castle Doctrine", strictly speaking, does not apply here. But 9.41-9.43 do.

Keep trying.

[txgolfer130]

Originally Posted by eric3781

Did you notice the "ORs" in the law? Repost the law again, but this time highlight the "ORs", with a little less sanctimony this time.

Ask and you shall receive:

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property. (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and: (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

Your "OR's" change NOTHING within the law that Mr. Flemming would have met. And here's why:

§ 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

The use of force against another is not justified: (1) in response to verbal provocation alone;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless: (A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and (B) the other nevertheless continues or attempts to use unlawful force against the actor;

Furthermore:

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary: (A) to protect himself against the other's use or attempted use of unlawful deadly force; or (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

Mr. Flemming was not in fear of his life, was not threatened by the perp; and was not confronted IN HIS HOME, therefore his use or application of deadly force is moot.

also...just for kicks and giggles...

Art. 14.051
ARREST BY PEACE OFFICER FROM OTHER JURISDICTION. (a) A peace officer commissioned and authorized by another state to make arrests for felonies who is in fresh pursuit of a person for the purpose of arresting that person for a felony may continue the pursuit into this state and arrest the person.
(b) In this article, "fresh pursuit" means a pursuit without unreasonable delay by a peace officer of a person the officer reasonably suspects has committed a felony.

Without delay...means not stopping, not going to get gun.

How's that for sanctimonious. Oh, and I would get another word from the dictionary because:


You keep using that word. - YouTube

[eric3781]

Originally Posted by txgolfer130

Your "OR's" change NOTHING within the law that Mr. Flemming would have met. And here's why:

Furthermore:

Mr. Flemming was not in fear of his life, was not threatened by the perp; and was not confronted IN HIS HOME, therefore his use or application of deadly force is moot.

There is no requirement under 9.41-9.43 to refer to 9.32-9.33.

Fail.

also...just for kicks and giggles...

Without delay...means not stopping, not going to get gun.

Where in 9.41-9.43 does it define, or refer to a definition in another section, for "fresh pursuit"?

(b) In this article, "fresh pursuit" means a pursuit without unreasonable delay by a peace officer of a person the officer reasonably suspects has committed a felony.

See the bit about "in this article". And retrieving a firearm is not an "unreasonable delay", at least to a grand jury in Texas.

Try again.

How's that for sanctimonious. Oh, and I would get another word from the dictionary because:

sanc·ti·mo·ni·ous/ˌsaNG(k)təˈmōnēəs/


Adjective:derogatory. Making a show of being morally superior to other people.

[SamTM]

Originally Posted by KUchief25

And has all his weapons seized by the police. I guess he should have just handed the burgler his gun so as not to upset him. Can't have any bullying at robbery scenes anymore as somebody might get upset. What kind of complete insanity has taken over this country???

"Dennis Fleming, 61, of Farmington, was arrested for reckless conduct after the Saturday incident at his 19th century farmhouse. The single grandfather had returned home to find that his home had been burglarized and spotted Joseph Hebert, 27, climbing out of a window at a neighbor's home. Fleming said he yelled "Freeze!" before firing his gun into the ground, then held Hebert at gunpoint until police arrived.

"I didn't think I could handle this guy physically, so I fired into the ground," Fleming told FoxNews.com. "He stopped. He knew I was serious. I was angry … and I was worried that this guy was going to come after me."
No one was injured in the incident, but when the police arrived, they made two arrests. Hebert was charged with two counts of burglary and drug possession. He faces up to seven years in prison if convicted. Fleming, meanwhile, is scheduled to be arraigned March 20 on a charge of reckless conduct, which could potentially land him a sentence similar to the one Hebert faces."

Read more: New Hampshire Man Arrested For Firing Gun Into Ground While Catching Suspected Burglar | Fox News

Under no circumstances do you ever fire a "warning shot". Have you ever heard the old saying..."the next time I see your ugly mug, I'm gonna put a bullet in it?" If you fire that weapon, it better be in full justification for fear of your life. Meaning shoot to kill. No "warning shots".

[Kirdik]

Originally Posted by Neuling

Why is there so much crime in the US in the first place?
Maybe it also has to do with people having their own homes. There is only one door and no other way anyone could enter my apartment, so making that one door safe is enough to protect myself. And there is the heavy door at the entrance of the building. With stand-alone houses there are numerous entry ways such as doors and windows which makes defense much more difficult.

I find it really disturbing to think one needs a gun to defend oneself in one's own home. I am in my 40s and have never even seen a gun or a bullet in real life, I only know them from American movies and TV programs. And I hope it stays that way, I like the absence of violent crime.

Then why is the crime rate much higher in urban areas where people live in apartments for the most part?
Is the crime rate that much lower in Germany?

[txgolfer130]

Originally Posted by eric3781

Pathetic selective editing of the law, and then clamiing that I don't know how to read the law.

I'd argue that Fleming was in fresh pursuit, shortly after witnessing the criminal emerge from his neighbor's home.

and then:

and then:

See how I included the whole statute and highlighted the "ORs".

Am I still incapable of reading and interpreting the law as it is written? Are you going to continue to selectively edit the statute as written, stomp your feet like a petulant toddler, and accuse me of not being able to read, in your snotty sock-sniffing tone?

Selective editing, I posted THE ENTIRE SECTION OF THE LAW! ROTFLAMAO, you can't have it one way AND the other in your selective reading of the law. Your arguments are false and not anywhere within the letter OR intent of the law.

Fresh pursuit huh? He got in his truck, drove within his neighborhood BEFORE witnessing the criminal, who he didn't have definitive knowledge if he was even the same person, and then took action. There is no way shape or form that constitutes "fresh pursuit". Your twisting and turning in the wind is pitiful and pathetic.

The OR's within the statue as I pointed out don't change anything within the law. You can attempt to portray everyone else as a petulant toddler, but it's clear to all that your feeble attempts and name calling easily encompasses your behavior and your overall personality. Now, behave before the adults put you in time out.

And did you find a new word yet? Or are you going to keep going to the well of name calling and straw men, because we can play that game all day. Your tantrum enraged name calling explosion of emotion is eagerly anticipated.