Updated November 29, 2022
You wake up in the middle of the night and hear something outside. You walk out of your front door and see someone stealing your child’s bicycle from your driveway.
Your firearm is in your hand, and your heart is pounding. Can you use deadly force to protect property?
PROTECTING TANGIBLE MOVABLE PROPERTY UNDER TEXAS LAW
Texas Law on Using Deadly Force to Defend Property
We must look at the law to answer the question, “can I use deadly force to protect property?”. Texas Penal Code Section 9.421 states a person can use deadly force to protect tangible, movable property from another’s imminent commission of theft during the nighttime or to prevent another who is fleeing immediately after committing theft during the nighttime and is escaping with property if the person reasonably believes the land or property cannot be protected or recovered by any other means; or that a use of force other than deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury.
How does Texas Law define deadly force?
Chapter 9 of Texas Penal Code Chapter 9 Deadly Force. “Deadly force” means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury2.
The Texas Deadly Force Standard is simple, right?
The plain reading of the law makes it seem like you could shoot someone if you walk outside in the middle of the night and catch them stealing or even fleeing with stolen property.
Deadly Force To Defend Property in Practice
However, we haven’t seen this defense used effectively in my practice. Because that determination will come down to a jury of twelve people, and it is very fact-dependant. In most situations, a jury will feel that a person’s life is more valuable than property. The law states there must not be any other means to recover your property, and the theft must occur at nighttime.
The State may argue you could have called the police and allowed them to recover the bike. Additionally, if you were to walk out and see the bike thief in the middle of the day versus at night, there would be no defense to using deadly force against the perpetrator to protect your property.
Using Force To Protect Property in Texas
So, what can you do if you can’t shoot the thief? Under Texas law, you can use force, but not deadly force, to protect your property3.
The Texas Penal Code does not define force. Still, it generally means any action that is capable of causing bodily injury (i.e., physical pain, illness, or impairment) but not so much force that it would cause serious bodily injury (i.e., substantial risk of death, serious permanent disfigurement, or protracted loss or impairment of any bodily member or organ).
Protecting a vehicle
What About the “Castle Doctrine”?
How does the Castle Doctrine apply in this scenario? When it comes to protecting a personal vehicle, I frequently hear, “doesn’t the ‘Castle Doctrine’ allow me to protect my car?” The Castle Doctrine gives you a legal presumption the force you used to protect your occupied vehicle or home was reasonable.
However, there are limitations to the Castle Doctrine. The Castle Doctrine only applies to your OCCUPIED home or vehicle. The Castle Doctrine will apply if someone tries to break into your car while you are in it. However, if your car was not occupied when a thief broke in, the Castle Doctrine would not apply.
What About Burglary?
What if you see a perpetrator in the middle of a burglary? Can you use deadly force to prevent the imminent commission of a burglary?
Doesn’t a car burglary count as burglary? Texas Penal Code Section 9.42 uses the word burglary in the most general sense. The statute gives no qualifiers or limitations on what type of burglary a person would be justified in using deadly force to thwart.
Unfortunately, the courts do not provide clear guidance. For example, does burglary include burglary of a vehicle? Your guess is as good as ours.
Until the courts resolve this issue, use extreme caution.
What if the Thief Threatens Me?
What if you walk outside and yell at the thief to stop, and he turns with a gun pointed at you? This is a completely different situation. If you were to use deadly force, you would be defending yourself, not your property. The law in Texas is clear: you can use deadly force to protect yourself against imminent death or serious bodily injury.
Using deadly force is a serious decision, and using or threatening to use a gun may be considered a use of deadly force. Therefore, you should only use or threaten to use your gun as a last resort. Remember, you can be arrested any time you draw your gun. An arrest means likely having to go to court and argue self-defense to a judge or jury.
Have you been charged with a crime? Get Help!
The attorneys at Walker & Taylor will provide experienced legal representation for using deadly force to defend property. We are here to help. Contact the firm for a free case evaluation by calling (281) 668-9957 today!
Author: Leslie Rebescher