IANAL: Burglars, Cops, and Questionable Decisions

A 41-year-old Texas criminal found himself on the wrong end of a defensive gun use incident recently, and actually called 9-1-1 to ask the cops to rescue him from the gun-toting homeowners. The Dallas Morning News reports:

The incident happened around 12:30 a.m. when the homeowner and his wife woke up to find an intruder in the bedroom of their home in the 100 block of Lelon Lane.

The suspect, identified as 41-year-old Christopher Lance Moore of Bedford, left the home and sat in his GMC pickup, parked in the family’s driveway. The homeowner followed him with a pistol, took the suspect’s keys and blocked his getaway with his own vehicle, while his stepson trained a shotgun on Moore, Fox 4 News reports.

“If he gets out of the truck, shoot him in the legs,” James Gerow told his son. “You ain’t gotta kill him; just shoot him in the legs. … If he’d got out, I’d have expected him to shoot him.”

When deputies arrived, both men were on the phone with 911. Deputies asked Moore why he had broken into the home, to which he merely said he had “bad intentions.”

Fortunately, this defensive gun use incident resolved without shots being fired. The would-be burglar, who has a criminal record including theft and drug charges, was arrested and is being held on $35,000 bond. This is, by all accounts, a good outcome, but I wanted to discuss the incident to talk about a few practical and legal realities for armed citizens in similar situations.

First, a disclaimer: I am not a lawyer, and this is not legal advice. The laws of each state are different, and you really should consult with a licensed attorney in your jurisdiction.

Had this homeowner had to actually fire his weapon, there’s a fair chance he’d have landed himself in legal hot water. Had the burglar produced a weapon once he was back in his truck, and had the homeowner then shot and killed him, he could well have faced a murder charge. This is because (as Massad Ayoob wrote in his book In the Gravest Extreme, “the privilege of using lethal force to stop a felony, if that privilege exists at all, ends after the fact of the felony.”

In other words, once the robber has exited your house and begun to flee the area, the conflict ended. If you, the armed homeowner, give chase to him and corner him in his truck at gunpoint (as happened here), a new conflict has begun, one in which a court could credibly find that you are the aggressor. And if you are the aggressor, the affirmative defense of self-defense isn’t available to you…but it might become available to the previously-bad-guy-and-now-victim if he defends himself against you.

Deadly force is justified, as a general rule, to stop an imminent and otherwise unavoidable threat of death or serious injury. Once the bad guy is in his truck trying to flee, the threat is neither imminent nor otherwise unavoidable, and you’re very likely on shaky legal ground if you employ deadly force. Remember, our job as armed citizens isn’t to apprehend the bad guy. We’re not cops. Our job is simply to stop the threat and get to a place of safety. Once the bad guy’s fled, our job is done, and with it our justification to use our weapons ends.

Another issue with the way this incident went down was the citizen’s highly legally questionable advice to his son. John Farnam had a great explanation of why shooting to wound is a bad idea, so I won’t repeat it here. Suffice it to say that deploying a firearm is always considered deadly force, and if you “shoot to wound” in circumstances where the elements of ability, opportunity and jeopardy are not present, you can realistically expect to face an assault with a deadly weapon charge.

Confronting the suspect in his vehicle was dangerous for a different reason, too. What if the criminal had had a firearm in his truck? By the time the homeowner was close enough to “take the suspects keys” and hold him at gunpoint, the bad guy could have retrieved his weapon and started shooting. Leaving a place of safety to engage with a possibly armed criminal is dangerous business.

The final “mistake” I think the homeowner made was that, based on the news report, he let the criminal be the first one to call 9-1-1. In this case, no harm seems to have come from that error, but remember that – in the minds of the responding officers – the first person to call 9-1-1 usually gets to be “the victim/complainant” and the other party is assumed to be “the assailant”. You can, of course, overcome this assumption, but why stack the deck against yourself?

Once the bad guy makes the decision to leave, the threat is over. At that point, your mission should be to call police, give as much information as you can about the suspect and his vehicle, and get yourself and your family to a place of safety. The police are responsible for apprehending bad guys; that isn’t, and shouldn’t be, your mission.

Photo credit: stock.xchng (by blary54)

Comments

  1. Great post as always! And so very true.

    The “shoot to wound” is much the same as the “warning shot” and is seriously discouraged by every instructor I know.

    This is from my book, “I Am NOT A Victim.”

    PLEASE NOTE: Warning shot – A shot not aimed at the attacker, used to frighten or dissuade them. This is seriously discouraged and will often be illegal. It places bystanders at increased risk from a stray bullet, and places YOU at much greater risk because it will give the attacker more time and greater opportunity to harm you. If your life is in immediate danger, you must shoot to stop the attack. If you have time and opportunity for a “warning shot,” you probably do not have solid justification to shoot at all.]

Trackbacks

  1. […] topic has been on my mind because of some discussion on my Facebook page about the man and his son who held a burglar at gunpoint waiting for the cops. Several of the commenters pointed out actions that legally could […]

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: