Friday, January 13, 2023

A Legal Analysis of the Houston Shooting

Last week saw the news of the shooting at a taco restaurant in Houston, Texas, that saw an armed robber gunned down by a civilian defender. You can view a video clip of the shooting here (note that because Twitter thinks it is disturbing you will have to click an approval to watch the video before the video will actually pop up). In the video, you can see one of the patrons in the restaurant draw his gun and shoot the robber 9 times after the robber had turned his back on the patron. The first four shots led to the robber falling to the floor, there were four more shots after the robber was on the floor, a slight pause, and a final shot (apparently to the head) when the patron approached the robber.  

    Andrew Branca has written an excellent legal analysis of the shooting published at Legal Insurrection called "Houston Taqueria Shooting: Legally Justified Killing or Simply an Execution?" Branco gives a full background on the applicable Texas law on self-defense, defense of others and, because Texas law allows it, defense of property. He then moves on to the legal analysis.

    Like most other analyses of the shooting that I've read or seen, Branca believes the first four shots were justified under the circumstances. The next four shots, he indicates, are somewhat more problematic because the robber had fallen to the floor and lost possession of his pistol. While the first issue--falling to floor--is not a significant issue in Branca's opinion, the loss of possession of his pistol might be:

Things get more complicated, however, if the shooter knew, or reasonably should have known, that the robber had lost possession of his “pistol,” because in that case the robber would have arguably ceased being an imminent threat of deadly force harm to either the shooter or the others in the space.

    The real problem, though, is the final shot to head which by all appearances is a coup de grâce, although Greg Ellifritz points out that he "actually wouldn’t be surprised if his final head shot was a negligent discharge caused from the situation known as 'interlimb interaction.'" 

When his hand contracted grabbing the bad guy’s gun, it looks like he had a sympathetic hand clinch with his strong hand as well. His finger was on the trigger, so that clench triggered an additional surprise shot.

We can hope so because otherwise things may be grim for our patron. Branca explains:

    So, we’ve concluded that Use-of-Force #1, the first four shots, appears overwhelmingly justified, and that Use-of-Force #2 is arguably more ambiguous, but still not likely to see justification disproven beyond a reasonable doubt.

    Had the shooter stopped here, he’d be in a very solid legal position with respect to those first eight shots.

    Unfortunately, the shooter didn’t stop there.  Instead, he approached the robber, retrieved the robber’s dropped “pistol”—and then fired a ninth and final shot, apparently into the robber’s head.  This is Use-of-Force #3, from about 0:14 to 0:16 seconds in the video.

    Importantly, at the moment this ninth shot was fired, not only was the robber now disarmed of the only weapon he was known to possess—the “pistol” recovered by the shooter—but he appears completely inert and unmoving on the ground.

    At the moment that ninth shot was fired, there is no indication whatever that the robber was still an imminent unlawful threat of deadly force harm or robbery—such that essentially every required element for the justified use of deadly defensive force appears readily subject to disproof beyond a reasonable doubt.

    In other words, there appears to be no viable defense of persons justification for that ninth shot at all. ...

Of course, as Branca goes on to discuss, it is possible that the 9th shot didn't kill the robber because he was already dead due to the other 8 shots. In that case, while the patron could be charged with abuse of a corpse (which is still a felony) it isn't as bad as a murder charge. And if the final shot was unintentional, Branca makes a good case that it wasn't reckless to keep his firearm aimed at the robber.

    Be sure to read the whole thing, especially any of you that live in Texas as it covers Texas law.


  1. Greg Ellifritz postulated that the last shot might have been sympathetic contraction as the shooter grabbed the gun away from the perp. Sympathetic contraction can occur when one has one's finger on the trigger and jerks with the off hand causing a coincidental clinching of the gun hand causing the gun to discharge. ?? Who knows?

    1. I guess that will be an issue for the grand jury and, possibly, a jury to decide.


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