Monday, September 13, 2021

Unjustified Shooting In Texas

    Several news outlets have reported this past weekend about a weekend shooting in Texas. (Newsweek, Yahoo, 10 11 Now, New York Daily News). The basic facts is that a woman was in her bedroom in her residence when she noticed a man standing outside her bedroom window. She claims that she was scared so she grabbed a rifle and shot through the wall "in self-defense" killing the peeping Tom. Or, as the Daily News put it:

    The homeowner, who told cops “she was in fear,” fired numerous shots through the wall, striking the suspect at least once in the torso area, a police spokesman told reporters. The man tried running from the property but did not get too far.

    He was found on the ground moments later and was pronounced dead at the scene, according to police.

The news reports also indicated that there was no known relationship between the man and the woman inside the house. According to the reports I read, the woman has not been charged with crime, but police were still investigating. None of the reports indicated that the dead man was armed and so I will assume for purposes of this post that he was not armed.

    This is where I will put in my standard disclaimer: I am not your attorney and this is not legal advice

    Understanding that, and bearing in mind the facts we have from the news reports, this appears to be a case of an unjustified shooting rather than a valid case of self-defense. The basic elements of self-defense varies between authorities and jurisdictions, but a standard recitation (based on Massachusetts law) is as follows:

The person claiming self-defense must:

1. Reasonably believe that he (she) was being attacked,

a. or was immediately about to be attacked, and

b. that his (her) personal safety was in immediate danger.

2. He (she) must have done everything that was reasonable in the circumstances to avoid physical combat before resorting to force.

3. He (she) must have used no more force than was reasonable and necessary in the circumstances to defend himself (herself). 

Another formulation (based on California jury instructions) is:

A defendant will be considered to have acted in self-defense, and therefore will not be guilty of a violent crime, if they can prove:

  1. They reasonably believed that they (or someone else) was in imminent danger of being harmed;
  2. They reasonably believed that the imminent use or force was necessary to defend against that danger; and
  3. They only used the amount of force that was reasonably necessary to defend against that danger.

 Another formulation goes:

Four elements are required for self-defense: (1) an unprovoked attack, (2) which threatens imminent injury or death, and (3) an objectively reasonable degree of force, used in response to (4) an objectively reasonable fear of injury or death.

 And finally, Massad Ayoob has described the requirements thusly: "Deadly force is justified only when undertaken to prevent imminent and otherwise unavoidable danger of death or grave bodily harm to the innocent." This has been broken down into three elements:

  1. Ability (i.e., did your attacker have the ability to cause death or grievous bodily harm?).
  2. Opportunity (i.e., was your attacker close enough to attack you?).
  3. Jeopardy (i.e., were you actually at risk of harm?).

    In examining the situation outlined in the news accounts, the homeowner was not justified to use lethal force under any of formulations listed above. 

    First, all of the articles describe the dead man as a "peeping tom." There is no mention of him having a firearm, attempting to break through the window, or anything else to indicate that he was in the process of attacking the homeowner, intended to attack the homeowner, or even had the ability to do so. In other words, there is no evidence that the dead man had the ability to harm the women or that she could have reasonably believed that she was immediately going to be attacked.

    Second, the dead man was standing outside of the residence and, as noted, no information indicated that he was attempting to enter the residence. This indicates that the dead man did not have the opportunity to harm the woman, nor that she faced an imminent risk of harm. Consequently, it was not objectively reasonable that she would need to use force, let alone lethal force, to protect herself from the "peeping tom". 

    Third, she used a rifle to fire through the wall at the man. Shooting through the wall is not only reckless, but it again emphasizes that there was no imminent risk of harm. It also violates the principle of proportionality of force: that is, a man was looking at her, invading her privacy, and she killed him for it when she could just as easily have closed her blinds or curtains or stepped outside his field of view.

    Now it is possible that additional facts may come out that may show that the homeowner was justified in shooting the man: that the man was armed with a firearm; that he had previously threatened her life or threatened to rape her; and so on. But given what we know from the news reports, I would be surprised if she is not charged with a homicide.


  1. Replies
    1. I had a reader email that if the peeping Tom was attempting to break into the house to rape or kidnap her, the Texas statute on self-defense would likely protect her.


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