Can Protecting Your Property with Deadly Force Land You in Jail?
You wake up in the middle of the night and hear something outside. You walk out of your front door and see someone is stealing your child's bicycle out of your driveway; can you shoot the thief?
PROTECTING TANGIBLE MOVABLE PROPERTY UNDER TEXAS LAW
Section 9.42 of the Texas Penal Code 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. The plain reading of the law makes it seem as though you could shoot someone if you walk outside in the middle of the night and catch them stealing or even fleeing with stolen property.
However, in my practice, we haven't seen this defense used effectively. It's going to come down to what a jury of 12 people thinks is reasonable given the facts. In most situations, a jury will feel as though 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 simply to protect your property.
So, if you can't shoot the thief, what can you do? Under Texas law, you can use force, but not deadly force, to protect your property. Force is not defined in the Texas Penal Code, but it generally means any action that is capable of cause 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"?
When it comes to protecting a personal vehicle, a question I frequently hear is, "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. But, the Castle Doctrine only applies to your OCCUPIED home or vehicle. If someone tries to break into your car while you are in it, then the Castle Doctrine would apply. If your car was not occupied at the time a thief broke in, the Castle Doctrine would not apply.
What About Burglary?
I am also asked about the use of deadly force to prevent the imminent commission of a burglary. Doesn't a car burglary count as burglary? Section 9.42 of the Texas Penal Code 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. It is unresolved as to whether burglary of a motor vehicle is included in the scope of the term burglary in the context. Until this issue has been resolved by the courts, 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. Now, if you were to use deadly force, you would be defending yourself and not your property. The law in Texas is clear: you can use deadly force to defend yourself against imminent death or serious bodily injury.
Pulling a gun on someone should always be a last line of defense. Any time you draw a gun on someone, there is a possibility that you will be arrested and forced to go to court to argue self-defense to a judge or jury.
Author: Leslie Rebescher
DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.