Castle doctrine come home to roost

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.

41 thoughts on “Castle doctrine come home to roost

  1. Gerard

    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.

    Reply
    1. Gideon Post author

      Because one can be upset and yet take a deliberate action. He clearly knew what he was doing – one might describe it as “itching” to pull the trigger.

      Did I engage in some hyperbole? Perhaps :)

      Reply
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  3. SPO

    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.

    Reply
  4. SPO

    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

    Reply
    1. Gideon Post author

      It’s not only for being raped. It’s for doing anything “immoral”. That offends their “dignity”, this offends yours. Both are taking the law into their own hands over perceived slights.

      Listen to the 911 tape. Horn says “don’t move or I’ll shoot” and a second or two later three shots are fired. He didn’t even give them the chance to stop.

      Also, let’s remember that they were not on his property, he wasn’t in any danger and there wasn’t anyone home next door. No one – no one – was in any physical danger.

      Reply
    2. Gideon Post author

      As to the NYT article – I don’t think it’s a big deal at all in terms of the outcome of the case. So 7 jurisdictions instead of 6.

      Re: the oversight by all parties and the Court, it’s pretty amusing.

      Reply
  5. SPO

    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.

    Reply
    1. Gideon Post author

      Sure that’s your hypo, but those weren’t the facts here. Commit, then. Was Horn right or wrong? Is the value of human life not greater than your material possessions?

      Reply
  6. SPO

    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.

    Reply
    1. Mark Bennett

      I would kill someone before handing him over $5 if I were being mugged. And I’d sleep well too.

      I’m just guessing : never actually taken a human being’s life, have you?

      Reply
      1. SPO

        Nope. But as certain as one can be, if I had a choice between submitting to a robber and killing him, I would kill. No ifs, ands or buts. And I would sleep with the knowledge that I made the world a better place by removing a violent criminal from it. That may sound harsh and mean–I don’t care. Robbery is an awful crime. And those who commit it need to go away for a long time.

        I almost got someone killed when I was in the service. I think about that often.

        Reply
      1. SPO

        No shame. Why in the world should I “up” $5 to a criminal? Why is that a bad thing? Of course, the hypo isn’t realistic. If someone does try to rob me, I would simply assume that he might kill me even if I comply. So he better be able to take me down because, rest assured, I will act on the assumption. I would have no mercy. None.

        Reply
      2. Kevin

        It’s not about the $5, its about the affront to your personal liberty and dignity that a violent criminal presents.

        I would encourage you to read the essay “A Nation of Cowards” from which the following is proffered:

        “It is impossible to address the problem of rampant crime without talking about the moral responsibility of the intended victim. Crime is rampant because the law-abiding, each of us, condone it, excuse it, permit it, submit to it. We permit and encourage it because we do not fight back, immediately, then and there, where it happens. Crime is not rampant because we do not have enough prisons, because judges and prosecutors are too soft, because the police are hamstrung with absurd technicalities. The defect is there, in our character. We are a nation of cowards and shirkers.”

        Reply
  7. LJS

    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.

    Reply
    1. Gideon

      LJS,

      Fortunately we don’t have to deal with that here.

      I also understand that the grand jury probably heard more than what the press is reporting – but such are the limitations of blogging from afar.

      I could – perhaps – tolerate defense of one’s own property with force (and even deadly force is you are facing imminent threat of deadly force yourself), but nothing that has come to light about Mr. Horn’s case leads me to believe that his shooting these two men was remotely justified.

      I’ll look up what you asked me to, but my preliminary thoughts are: As the 911 tape reveals, there is almost no gap between him telling the men to stop and the shots being fired. They were both shot in the back. Three shots in quick succession, both men shot in the back leads to the reasonable conclusion that they were facing away from him at the time of the shots.

      Is it likely that in a span of a few seconds, two men (one of whose hands were full) started to turn toward him, brandished a weapon, Horn fired, they turned around and ended up being shot in the back? Both of them? Seems like an awful lot to happen in the span of a few seconds…

      Reply
      1. LJS

        Take a look at the studies. You’d be amazed what happens in tenths of seconds.

        Rember that Horn’s actions only have to be reasonable — let’s assume that:

        Horn sees the theives leaving with something in their hands. (Is it clear he knows what they’ve got?)
        Horn challenges the theives.
        They turn to see what’s going on.
        Horn sees something in their hands that he reasonbly perceives given the lighting and distance to be a weapon.
        Horn starts to shoot.
        The theives, having seen Horn’s handgun start to turn away to flee at the same time.
        Horn’s bullets hit both theives in the back.

        Assuming Horn says he saw something he thought was a weapon, or thought they were starting to come towards him, I’d be willing to take that case to a jury.

        Add to your Google a search on the “Tueller Drill”. There are numerous studies that a person can cover 21′ in the time and stab/punch/tackle an officer it takes a trained police officer to drawn and fire a handgun from an open holster. (I’ve done some of these drills and run others for self-defense classes — if an overweight middle-aged lawyer can do it, pretty much anyone can.)

        I didn’t see any discussion of the distance between Horn and the theives, but if they were within 20, he didn’t have much time to figure out their intentions. If he hestiated, and they were going to attack him, they’d have been on top of him (and at 2 to 1) before he could fire. Again, this factors into whether his actions were reasonable in the view of the grand jury.

        Reply
        1. Gideon Post author

          The problem with this case (and I keep coming back to the facts of this case) is that he knew exactly what they were doing. He even said they’re getting away with the stuff. He was watching them the whole time. He had to have known they had no weapon in their hands.

          I’ll look at the rest. You seem more knowledgeable about this stuff. Have you written about it? I’ll be happy to post something you have.

          Reply
        2. LJS

          You can find a link to the public Champion article on their site:

          http://www.nacdl.org/public.nsf/698c98dd101a846085256eb400500c01/f587d7d10c34fff2852572b90069bc3c?OpenDocument&Highlight=0,steele

          For the hypothetical, I was assuming the client said that the theives turned towards him and he wasn’t sure if they had weapons, or were going to try to charge him, when he fired — moving the case from defense of property and shooting someone who is retreating to an arguable case of self-defense of the person. If you change those facts and this is genuinely a case of a retreating theif shot in the back, under CT or MA law, he’s got major problems, even if the retreat rule doesn’t apply due to a stand-your-ground or castle law.

          As to guilty feelings — normal but doesn’t tell us much. The police authored research on officer-involved shootings say it is normal for most people to feel intense guilt over even a clearly legally justified shooting and to have lots of second thoughts. For a normal person, one has broken one of the biggest taboos — taken a human life — which is likely to cause all sorts of psychological and moral issues. Sleep distrurbance, eating troubles, nightmares, sexual disfunction — all normal after-affects of a self-defense incident.

          Reply
        3. Mark Bennett

          LJS, that bit about guilty feelings can’t be right because it’d mean that SPO is either a sociopath or talking out of his ass when he says he’d kill a mugger over $5 and sleep well.

          Reply
        4. SPO

          So why should I feel guilty? Don’t I have the right to fight to keep my money? And if you are going to fight a criminal, you have to assume he is going to try to kill you before he loses. Accepting that reality does not make me a sociopath, it makes me a realist. No one has a right to threaten me with violence or attack me in order to get what I have worked hard for. And I am not going to lose sleep over fighting to defend myself–even if the guy winds up dead.

          People who use violence to take other people’s money are absolutely disgusting human beings. And, to be honest, I don’t really care what happens to them when they work their evil trade. As a society, we need to make sure that these predators are stopped.

          Reply
        5. Mark Bennett

          I’m just saying that if you have never killed anyone you have no idea how you would react, so your big tough talk about “sleeping well” shows either ignorance or mental illness.

          It’s not that you should feel guilty, but that, if you’re a mentally-healthy human being, all of the evidence suggests that you would.

          If you were the kind of person who would kill someone over $5 and sleep soundly afterwards, you’d probably belong (and eventually wind up in) either in prison or under heavy psychotropic meds.

          Otherwise, I’m with you: Stop those who would use the threat of violence to take our hard-earned money. All of them. Including the government.

          Reply
        6. SPO

          I am not mentally ill, and you never can say until you’re in a situation, but I think I’d probably feel like I did the world a favor.

          Reply
  8. A Voice of Sanity

    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”.

    Reply
    1. Mark Bennett

      Great discussion. Don’t lose track of the fact that the criminal justice system, a human creation, isn’t about moral right and wrong. Horn could quite reasonably conclude that he was in the wrong morally without negating the grand jury’s decision.

      Reply
  9. FlameStrike

    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.

    Reply
  10. bruceb

    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.

    Reply
    1. Mark Bennett

      Bruceb, you’ve got the law wrong. I know it’s hard to read — it’s written by the Texas Legislature.

      In order to understand Texas statutes you have to think like a Texas Legislator, which for most of us requires either a prefrontal lobotomy or heavy drugs.

      9.43(1) and 9.43(2) are disjunctive. In order to use deadly force in protection of someone else’s property (in addition to the requirements of 9.41 and 9.42; it doesn’t have to be a night time crime because a burglary can be committed during the day in Texas) you must reasonably believe that the unlawful interference constitutes attempted or consummated theft . . . to the tangible, movable property; or (2) that: (A) the third person has requested his protection of the land or property etc. etc. etc.

      Reply
  11. imapd

    i was deep in VA this weekend, drove by a little church on a small back road. sign outside read:

    WHAT MAKES AMERICA GREAT
    GUNS. GOD. GUTS.

    *eh-hem*

    yeah!

    Reply
  12. SPO

    You know, it’s easy to laugh at that, but there are a lot of kids that were raised on that philosophy who have kept us free. I have a lot more respect for people like that than twerpy ivy leaguers who bash America. I read something in college that I have never forgotten. A Harvard guy was subject to the draft, so he had starved himself to come in below weight. And he talked about his twinge of shame as his inferiors (i.e., Irish kids from Southie) were led off to the Army. That a worm like that could talk about “inferiors” disgusted me. I have two sons, I would be bitterly disappointed if one of my boys ever did something like that.

    This is the greatest nation that has ever been–by far. We are lucky that the “Guns, Guts and God” crowd is, fundamentally, on our side.

    Reply
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