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Then your claim that provocation is necessary for self defense doesn't make sense either and does not preclude self defense. Do you have another law that backs that up?
I haven't argued that provocation is necessary for self defense. Can you copy/paste what you're talking about?
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Maybe there is no law that clearly covers what happened in this case.
But, its pretty clear to me that a reasonable person having a gun pointed at him(if it was pointed at him and if he saw it) has a reasonable claim to self defense.
Sometimes, rights collide.
If the gun was pointed at him due to his illegal threat of deadly force (which is the case with the cop in question), he can't then claim self defense as justification for shooting the woman.
Thanks. While I was not aware of the 6' tall gate to the backyard (I was referencing the decorative fence), that doesn't change the result here. The officers were responding to a welfare check call and were making their way around the property (for their safety and to check for the subject of the call).
Mea culpa to the fence gate for the backyard. Now that I see the fence/gate in question, yes, a normal person walking through that gate would be trespassing, as it is not reasonable for anyone to be going into someone's backyard to leave leaflets, etc. But that doesn't change the outcome here as the officers are covered under the defenses in the law (subsection (e)(3) of the law).
See above. But, again, it doesn't change the outcome due to defenses, which you are clearly wrong about.
Notice that the property isn't open is required by the law. And the law lists ways to determine whether notice existed. Subsection (b)(2)(C) defines "notice" in relevant part as:
Subsection (b)(2)(B) defines notice in relevant part as:
The lock applies here generally (not in this case) as it is reasonable to argue that an unlocked front gate is not a sign that an enclosure is "obviously designed to exclude intruders." Still, as I mentioned above, I was applying this to the front decorative fence. This would not apply to the higher backyard fence, but the officer doesn't need this to get out of trespass based on the defenses allowed. That's not making something up. That's analysis
The officer walked around the property searching for someone who was in the property. You may have preferred that the officer knock on the door or call out (I do, too), but the officer did try to make contact with the subject of the call (in addition to a safety sweep). He wasn't walking around the property for the fun of it.
There is NO trespass here, and you and a few others on Citi-Data are the only ones (certainly, no legal pundits are making such claim) making that claim. You're wrong.
The error you continue to make is that you conflate "criminal trespass" with ordinary trespass. The police and subsequently the courts respond to "criminal trespass."
However, an event failing the requirements for "criminal trespass" does not equate to "open to the public." You are wrong about that.
If a person has entered my backyard through the unlocked gate of my privacy fence, I can, indeed, direct him to leave, respond with "force" to remove him if he refuses to leave, and use "deadly force" if he escalates sufficiently against my use of "force."
That is not the case with a venue that is "open to the public."
I have longed argued that the evidence available so far makes the murder charge justified. That is not in contention here with me. But I come to this conclusion primarily because I don't believe that the officer saw Jefferson holding a gun (based on what he yelled), which could complicate things and certainly make a self defense claim more legally palatable. But who knows what future evidence releases will reveal.
You compared the situation of an armed robber not being able to make a self defense claim to the officer here not being able to make a self defense claim. But, while I agree so far that self defense isn't applicable here based on the released evidence, it is not some universal truth that this officer wouldn't be able to make such a claim (as the perpetrator of deadly force).
I would have had no problem with that statement. In this case, whether the officer broke the law (which I think he clearly did based on available evidence) would come down to whether he reasonably feared for his life IF he saw Jefferson with the gun. Note, even then, I don't think it should fly as there were some other issues with his shooting, but that is the only case where a self defense claim would reasonably be offered.
She was allowed to use the defense, which is the point. Whether any defense is accepted in court will ultimately be up to the trier of fact. But the fact that the Guyger was allowed to even use the defense proves you wrong. You unequivocally stated that such a defense is "not available" to the perpetrator of deadly force (since clarified to mean illegal use of self defense, but that's sort of misleading, still, as its often a defense that will make an otherwise unlawful action lawful). Defenses not available as a legal matter are not authorized to even be raised in court by the judge; the judge had to explicitly authorize Guyger's team to use that defense.
My turn for mea culpa. I again should have been more precise. I said "not available" when I should have said "not effective." I wasn't saying "not available" in the context of whether the argument would actually be allowed in court. I was simply meaning that it wouldn't work. I wasn't even aware that some arguments might not be allowed in court.
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Yep. Wrong on trespass. Wrong on defenses to trespass.
Sure, I got some of the facts wrong, but my ignorance of some of the facts doesn't change the outcome on trespass here.
It's pretty funny that you were completely wrong about the nature of the fence and gate, which rendered all of your arguments about the ability to legally pass through gates, and "open to the public" null and void. But you try to casually pass that off as actually irrelevant. I'd be willing to bet you're not a trial attorney. The judges wold have a whole lot of fun with you.
My turn for mea culpa. I again should have been more precise. I said "not available" when I should have said "not effective." I wasn't saying "not available" in the context of whether the argument would actually be allowed in court. I was simply meaning that it wouldn't work. I wasn't even aware that some arguments might not be allowed in court.
It's pretty funny that you were completely wrong about the nature of the fence and gate, which rendered all of your arguments about the ability to legally pass through gates, and "open to the public" null and void. But you try to casually pass that off as actually irrelevant. I'd be willing to bet you're not a trial attorney. The judges wold have a whole lot of fun with you.
Actually, at trial, I would have still gotten my defendant off because I was still right on the law. Not to mention I'd have the actual video from the start as part of discovery, and not having relied on an incomplete video to begin with, so there wouldn't be an issue with incomplete evidence. Because, ultimately, the defense still applies so there is no trespass. So, for the purpose of going tit for tat with you, it is a relevant error, but it doesn't change the fundamental point that I've been making: that is that there is no trespass here.
The error you continue to make is that you conflate "criminal trespass" with ordinary trespass. The police and subsequently the courts respond to "criminal trespass."
However, an event failing the requirements for "criminal trespass" does not equate to "open to the public." You are wrong about that.
If a person has entered my backyard through the unlocked gate of my privacy fence, I can, indeed, direct him to leave, respond with "force" to remove him if he refuses to leave, and use "deadly force" if he escalates sufficiently against my use of "force."
That is not the case with a venue that is "open to the public."
Trespass at common law was the unlawful entry onto land that caused some kind of loss or injury (to the property). I haven't checked to see to see if the common law applies to civil trespass under Texas law or whether Texas has basically adopted the same definition for both criminal and civil trespass.
But, even there, the entry onto the land would have to be unauthorized. Police officers are given great leeway to enter onto someone's property (not into someone's house) when responding to an official call and conducting official police business.
Upon further reading, it appears that I was wrong about which agencies were referenced in this section. But even if agencies includes police departments, it still isn't carte blanche to enter a fenced yard that isn't open to the public. The agency still needs effective consent in order for the entry into the property to be legal. This will be a question for the court to decide, but I believe it will be a very difficult case to make, arguing that the cop entered the fenced and gated, dark, not lit, backyard believing that that is where he would locate the subject(s) of the welfare check. Especially since he passed by open doors and lighted rooms, making no attempt to contact the residents.
Oh, I agree. But I argue that this was reasonable and lawful in this instance, especially given the call and showing up to find the front door open. That the officer could have exercised better judgment and called out to see if someone was home doesn't change this in my view. Also, the officer would likely be covered by qualified immunity in any event.
I can't answer that question. But I will ask one in return. Do police officers frequently get away with breaking the law, and face no prosecution?
It's a pretty weak argument, that "if the cops were trespassing, they would be charged." I would argue that even if it were perfectly established that a police officer in fact illegally trespassed, the chances of prosecution are incredibly small.
Sure..... I agree...…...EXCEPT in a case when there is a high profile case and the other officer is charged with murder and a whole town could go up in flames due to a cop shooting a lawful citizen minding their own business in their own home. Go on and believe what you want ROFL.
I haven't argued that provocation is necessary for self defense. Can you copy/paste what you're talking about?
If the gun was pointed at him due to his illegal threat of deadly force (which is the case with the cop in question), he can't then claim self defense as justification for shooting the woman.
Self defense is not a defense that is available to the perpetrator of a deadly force incident.
Above is your quote.
Also, what is your basis for your statement that his threat of deadly force was illegal?
Please note that I previously amended that sentence as shown above.
Now, either with or without the amendment, I’m not arguing that provocation is necessary for self defense.
TX penal code § 9.32:
The woman wasn’t attempting to use unlawful deadly force. The cop wasn’t justified in his use, or threat of use, of deadly force.
She didn't have to be using unlawful deadly force.
He can still claim self defense if he can make the case that he reasonably believed she was using unlawful deadly force.
To do that he would have to convince the jury he reasonably believed she was an armed burglar/home invader rather than the homeowner...…….at least that's the only scenario I can think of.
Or, maybe there's something we don't know that made him reasonably believe she knew he was LEO. That seems more unlikely based on what we do know.
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She was allowed to use the defense, which is the point. Whether any defense is accepted in court will ultimately be up to the trier of fact. But the fact that the Guyger was allowed to even use the defense proves you wrong. You unequivocally stated that such a defense is "not available" to the perpetrator of deadly force (since clarified to mean illegal use of self defense, but that's sort of misleading, still, as its often a defense that will make an otherwise unlawful action lawful). Defenses not available as a legal matter are not authorized to even be raised in court by the judge; the judge had to explicitly authorize Guyger's team to use that defense.
