Houston Taqueria Shooting: Legally Justified Killing or Simply an Execution?

Houston Taqueria Shooting: Legally Justified Killing or Simply an Execution?

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.

Last Thursday, on January 5, 2023, 30-year-old career violent criminal Eric Eugene Washington made the unwise decision to commit a late-night armed robbery of a Houston taqueria, threatening customers and workers with an apparent pistol (later discovered to be a fake gun).

Washington would not survive the experience. One of the taqueria’s customers was in possession of an actual pistol and would use that weapon to fire nine rounds at Washington, with fatal results.

Although the shooter initially fled the scene, along with all the other customers, he has now reportedly retained legal counsel and is cooperating with the authorities investigating this event. It is reported that the case will be presented to a grand jury for consideration. The shooter has not been arrested, and as a result the authorities are allowing him to remain anonymous.

The question now, of course, is whether the shooter’s use of deadly defensive force to stop Washington’s armed robbery was justified on the legal merits.

The answer? Yes, maybe, and almost certainly not.

Confused yet? Let’s clarify.

Basics of Legal Justification for Use of Deadly Force Under Texas Law

Shooting someone dead is, of course, normally a crime. Under Texas law, and the law of every other state, however, the use of deadly force upon another might be legally justified, and not a crime, if it meets the conditions for deadly force defense of persons—meaning either defense of self or defense of others.

Additionally, and unique to the Lone Star state, the use of deadly force upon another might be legally justified even in defense of mere personal property—again, if the required legal conditions have been met.

Importantly, the legal conditions for justification must be met for each individual use of deadly force in the encounter—meaning, in this case, for each round fired by the shooter–and that’s where we arrive at the “yes, maybe, and almost certainly not” nature of whether this shooting is lawful.

The bottom line, of the nine rounds fired by the shooter at Washington, the first four were almost certainly legally justified, the second four may be legally justified, and the ninth and final shot almost certainly was not justified, based upon the only evidence currently available to us, which is the surveillance video of the encounter.

Video of the Shooting

And having referenced that video, here it is:

For purposes of this commentary and legal analysis, I’ll be addressing the shooter’s use of force as three distinct use of force events, each needing their own legal justification in order to be lawful.

Use-of-Force #1: The first four shots fired, roughly from the start of the video to 0:10 seconds.

Use-of-Force #2: The second four shots fired, roughly from 0:10 to 0:14 seconds in the video.

Use-of-Force #3: The ninth and final shot fired at about 0:16 seconds in the video.

A Legal, Not An Emotional, Analysis

Given much of the commentary I’ve seen on social media around this event, I feel obliged to point out that this is a legal analysis of the event, not an emotional analysis.

I’ve frequently covered use-of-force cases that might be described as “bad outcome” cases—sometimes referred to “awful but lawful” uses of force.  Recent examples include Officer Amber Guyger’s shooting of Botham Jean in Dallas in 2018, Officer Aaron Dean’s shooting of Atatiana Jefferson in Ft. Worth in 2019, and Officer Kim Potter’s shooting of Duante Wright in Minnesota in 2021.

For a variety of reasons, all three of those defendants was found guilty by a jury after trial, despite their use of force almost certainly having been justified on the legal merits. I expect that one of the reasons for these unjust convictions is the “bad outcome” nature of these cases.

That is, in each of these cases the victims were either incorrectly perceived by the shooter as a deadly threat or the shooter’s use of deadly force was unintentional. In other words, the death of the victim was either not a desirable or desired outcome.

When a “bad outcome” killing occurs, it’s natural for normal people (e.g., non-lawyers) to want there to be legal consequences for the person who caused the death—and that sentiment exists regardless of whether the use of force involved was technically legally justified.

Our legal process is ideally supposed to prevent such emotionally driven justice, and mandate that verdicts be arrived at in an impartial and unbiased manner, and solely by applying the correct and applicable law to the evidence presented in court.  Being a process managed by fallible and imperfect humans, however, the process itself fallible and imperfect.  The unjust convictions noted above are one consequence of when this legal process fails.

The reverse of this technical failure of the legal process can also occur, of course, in what might be referred to as “good outcome” cases.  This taqueria shooting would be an example of such a case.

Here we have a career criminal Washington committing an armed robbery of the patrons and workers in a simple taqueria, threatening each and every one of them with death. Indeed, Washington had previously been convicted in an armed robbery that resulted in the death of the victim (62-year-old husband and father Hamid Waraich, a cell phone store owner).

Although in the taqueria robbery Washington’s “pistol” would later be found to be fake, it was being credibly presented by Washington as an imminent deadly force threat and was reasonably perceived by the victims as such.  The law does not require that a deadly force threat defended against be actual, it is merely required that it be reasonably perceived as actual.  Washington’s “pistol” certainly qualifies. That Washington’s “pistol” was fake is therefore irrelevant to this legal analysis.

So, Washington was a long-standing bad actor who was killed while actively threatening innocent people with death. Accordingly, it’s not surprising that many find it difficult to shed a tear that it was Washington alone who suffered as a result of his unwise decision to commit an armed robbery.  Indeed, many find the outcome of Washington’s death to be emotionally satisfying—a “good outcome” case.  And as with “bad outcome” cases, this sentiment exists regardless of whether the use of force involved was technically legally justified.

Your own emotional sentiments about Washington’s death in this shooting are your own business.

They also have nothing whatever to do with the technical legal justification for the shooter’s three use-of-force events in this case, however—and that technical legal justification is the sole focus of this commentary and analysis. Anyone unable to distinguish the emotion from the legal merits of this case might better spend their time elsewhere—no offense.

Defense of Persons Under Texas Law

Like all states, Texas law has provision allowing for the use of deadly force in defense of persons—meaning self-defense and defense of others.  There’s nothing particularly unusual about Texas defense of persons law compared to other states—in general, defense of persons law is pretty consistent across the nation, largely a reflection of how old and well-established a body of law this is—but small variances can have large effects on legal outcomes, so it’s worth examining the Texas law in detail.

Before we do that, however, it’s worth refreshing our recollection on what might be referred to as the “standard model” of self-defense law.  That is, while every state has its own use-of-force statutes, case law (court decisions), and jury instructions, close examination of these reveals that they all share the same key essential elements—what I’ve distilled into the “five elements of self-defense law” (you can download my free infographic on these elements here).

These five elements are:

Innocence: The person claiming self-defense must not have been the initial unlawful aggressor in the confrontation, nor have intentionally provoked the other party into being the initial aggressor.

Imminence: The threat being defended against must have been either actually in progress, or immediately about to occur. It cannot be a past threat that’s concluded nor a speculative future threat that might never occur.

Proportionality: Generally speaking, deadly defensive force may be used only to stop a deadly force threat.  If one is facing a mere non-deadly threat, only non-deadly defensive force may be used.

Avoidance:  This element has to do with whether there’s a legal duty to retreat, if safely possible. Where such a duty to exists, the defender must take advantage of that safe avenue of retreat before they can lawfully use deadly force.

Reasonableness:  This element has both a subjective and objective facet. First, the defender must have had a genuine, good faith, subjective belief in the need to use the force as he did.  Second, it is necessary that a hypothetical reasonable and prudent person, applying their powers of reason to the actual evidence available, would have objectively shared that subjective belief. A merely speculative or imaginary belief or suspicion is not enough to be reasonable—a reasonable belief must be based on actual observed evidence from which a reasonable inference can be made.

Importantly, these elements are cumulative, meaning each and every element is required.  If any required element is missing, the use of force cannot qualify as lawful self-defense as a strictly technical matter of law.

That said, not all five elements are always required—one or more of these elements might be legally waived, depending on the jurisdiction or circumstances.

For example, the most commonly waived of these elements is avoidance—roughly 40 states do not impose a legal duty to retreat, and so the element of avoidance would not apply in those states in cases of otherwise lawful self-defense.  This would naturally mean that defense of persons would require only the four remaining elements, rather than all five.

Texas, where this taqueria shooting occurred, is among that majority of stand-your-ground states.  Indeed, Texas qualifies as one of the relatively few “hard” stand-your-ground states, in which the jury is explicitly forbidden from even considering the possibility of retreat in evaluating the merits of a use of force in claimed defense of persons. As a result, under Texas law the element of Avoidance is entirely off the table in an otherwise lawful case of self-defense.

So, for purposes of this legal analysis we need consider only the merits of the elements of Innocence, Imminence, Proportionality, and Reasonableness.

Burdens of Proof: Burden of Production and Burden of Persuasion

There is no absolute right to argue defense of persons as a legal defense in a court of law. One must qualify to argue defense of persons.  If one fails to qualify, a judge may properly deny a jury instruction on self-defense, or even prohibit the jury ever hearing the phrase “self-defense” or “defense of others” mentioned in court.

To avoid this fate it is necessary for a defendant to meet what’s called their burden of production on the legal defense.  That is, there must exist at least some evidence in support of the required elements of defense of persons in order to be permitted to argue the legal defense in court. This only makes sense, really, because if there’s literally zero evidence in support of a required element of defense of persons, then defense of persons simply cannot exist as strictly technical matter of law.

Fortunately, the amount of evidence required for this purpose is, indeed, very minimal—it’s basically a “more than zero evidence” standard. It also doesn’t matter if the evidence produced is not very credible or is strongly contested.  Once there’s more than zero evidence to consider, it’s really the role of the jury to decide how much credibility and weight to give that evidence.

This evidence also needn’t necessarily be literally produced by the defense—it need merely be in the record, somewhere. In many cases the evidence required to meet this burden of production might be found in witness statements, or forensics evidence, or—as in the case of this shooting—surveillance video.

For purposes of this analysis, I’ll assume that the defendant will have no difficulty in meeting his burden of production on defense of persons for this shooting.

Once a defendant has met his burden of production on a legal defense, that legal defense may now be argued in the courtroom.

In the context of defense of persons law, this also means that the second half of the burden of proof, called the burden of persuasion, now shifts to the state.  That is, the state now assumes the burden of persuading the jury that they have disproven defense of persons beyond a reasonable doubt.

Importantly, this doesn’t mean that the state has to disprove defense of persons in its entirety. Recall that defense of others consists of cumulative required elements, and the absence of any one required element means the legal defense collapses entirely.

As a result, rather than have to disprove defense of persons in its entirety, the prosecution need merely disprove any single one of the required elements of defense of persons, beyond a reasonable doubt.

Another way of putting this is that each of the required elements of defense of persons becomes a potential target of attack by the prosecution—disproving any one beyond a reasonable doubt destroys the legal defense entirely.   In this case, of course that means the prosecution would have the burden of disproving beyond a reasonable doubt the element of either Innocence or Imminence or Proportionality or Reasonableness.

The legal question, then, becomes whether it seems likely that the prosecution in this case would be able to disprove beyond a reasonable doubt any one of those four elements for any of the three distinct uses of force in this shooting.  If they can, that particular use of force is not legally justified.

Texas Law on Defense of Persons

With that general framework of self-defense law covered, let’s now take a deeper dive into the specific statutory provisions of Texas law for defense of persons.

There are three Texas statutes relevant in this context. I’ll cite from these only the language relevant to this discussion, but you can read the entirety of each by clicking the links below:

9.31. SELF-DEFENSE.

9.32. DEADLY FORCE IN DEFENSE OF PERSON.

9.33. DEFENSE OF THIRD PERSON.

In overview, §9.31 sets out the conditions that must be met before any degree of force can be legally justified in self-defense, §9.32 sets out additional conditions that must be met before deadly force can be legally justified in self-defense, and §9.33 simply applies this same framework to the defense of other innocent persons.

For our purposes here, §9.31 reads in relevant part:

[A] person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force.

It is not difficult to spot the presence of the “elements of self-defense” already discussed in this statutory language.

Innocence: That one is defending against an apparent unlawful force.

Imminence: That the defense force is immediately necessary.

Reasonableness:  That the defender reasonably believes the defensive force is necessary.

The fourth element relevant here, proportionality, doesn’t really arise until we consider the use of deadly force in self-defense.  That is found in the next statute, §9.32, which sets out the additional conditions required for the justified use of deadly defensive force.  That language from §9.32 reads in relevant part:

(a)  A person is justified in using deadly force against another:

(1)  if the actor would be justified in using force against the other under Section 9.31; and

(2)   when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A)  to protect the actor against the other’s use or attempted use of unlawful deadly force; or

(B)  to prevent the other’s imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

So, in order for deadly defensive force to be justified a defender must first meet the requirements of §9.31—in effect, the elements of Innocence, Imminence, and Reasonableness, as already discussed—and also meet the additional element of Proportionality.

Proportionality:  The deadly force was used to defend against either a deadly force threat or one of several enumerated felonies that inherently involve a threat of deadly force.

I’ll note in passing that both §9.31 and §9.32 also include a legal presumption that the elements of defense of person have been satisfied under certain circumstances.  For purposes of this analysis, we can go ahead and apply these legal presumptions to the facts of this case.

Giving this shooter the benefit of these legal presumptions doesn’t really change anything on the legal merits, however, for two reasons. First, as are all criminal defendants, the shooter is already presumed to be innocent until proven guilty beyond a reasonable doubt.  Second, these legal presumptions are revocable, meaning that they are subject to disproof by the prosecution—in exactly the same manner that the prosecution would already have to disprove defense of persons beyond a reasonable doubt, anyway.

That brings us to §9.33, which simply applies the same conditions of self-defense in the context of defense of others.  Simply put, a person would be justified in using force in defense of another person to the same extent they’d be privileged to defend themselves if they were in that other person’s circumstances.  So, the same four element analysis—Innocence, Imminence, Proportionality, and Reasonableness—apply here, but simply applied to the circumstances of the person being defended.

Defense of Property:  Non-Deadly & Deadly Force Justification

In addition to the use of force in defense of persons, force can also potentially be lawfully used upon another in defense of personal property (distinguished from highly-defensible property, such as a home) .  In every state, mere non-deadly force can be used in defense of mere personal property—and that, of course, includes Texas.  In every state except Texas, however, deadly force can never be used for the sole purpose of defense of personal property—life, even the life of a bad actor, is deemed more valuable than a piece of personal property, however valuable.

Texas uniquely allows for the use of deadly force in defense of personal property—but only if the required conditions have been met.  The relevant statute here is:

9.42. DEADLY FORCE TO PROTECT PROPERTY.

This legal provision is relevant in this case, of course, because the only force used by the shooter here was deadly force. So, if the shooter seeks to justify his use of deadly force on the grounds of defense of property, it would be necessary that he meets the specific conditions of §9.42.  As with the legal defense of defense of persons, the burden would be on the prosecution to disprove one of the required conditions beyond a reasonable doubt.

Note that the conditions for defense of property are different than for defense of persons—the same “five elements of self-defense” does not apply in the context of defense of property.

Also, pragmatically speaking, defense of property would really only be the go-to legal justification for a use of deadly force if there was no viable defense of persons argument to make.  If a defense of persons argument is viable, it will always be far more compelling than arguing a human death was justified in defense of property.

As a result, in this analysis we’ll only dwell on defense of property as a legal justification for this shooter’s use of deadly force where it seems like a defense of persons argument would not be viable. Accordingly, I won’t step through the distinct conditions of deadly force in defense of property until we reach that point in this analysis.

With the legal framework now discussed, let’s dive into each of the three distinct Uses of Force relevant to this analysis.

Use of Force #1: The first four shots

The first use-of-force event in this case consists of the first four shots fired (from the start of the video to about 0:10 seconds).

First, we consider whether defense of persons appears to be a viable legal justification for this use-of-force.  If so, we can deem the use-of-force justified on that basis (and we need not also consider the defense of property justification).

So, the question is do any of the four required elements of defense of others relevant here—Innocence, Imminence, Proportionality, or Reasonableness–appear subject to disproof beyond a reasonable doubt. If not, we can conclude the use-of-force to be legally justified. (These same elements would apply in the context of both self-defense and defense of others, as already discussed.)

Innocence:  Was the shooter defending against an unlawful force?  In other words, was it the other party who was the unlawful initial aggressor, unprovoked by the shooter?

The evidence clearly supports this element of Innocence.  The robber was the unlawful aggressor in the context of use-of-force #1.

Imminence: Was the defensive force immediately necessary? In other words, was the unlawful force being threatened either actually in progress or immediately about to occur?

Again, the evidence clearly supports this element of Imminence. The robber was actively threatening everyone with an apparent firearm.

I have seen some concern that the shooter fired these four rounds “into the back” of the robber. There seems to be an emotional sense that shooting someone in the back can never be legally justified.  In fact, the “shooting in the back” issue is irrelevant to the justification analysis. It is not a condition of lawful defense of persons that the unlawful aggressor be “shot in the front.”  The legal question is whether the elements already discussed are vulnerable to disproof.

On the facts of this case, the robber was aggressively waving the muzzle of an apparent pistol all over the room and at all the occupants of that space.  That the muzzle was transiently pointed away from the shooter in the moment the shooter fires does not make the threat of the robber’s “pistol” non-imminent—in another instant the muzzle could be directed back at the shooter, so it remains an imminent threat.

Further, even when the muzzle is not pointed at the shooter, it remains apparently pointed at other innocent persons—particularly the customer sitting in the back corner booth, to the left of the doorway. So even if there were doubt that the “pistol” was an imminent threat to the shooter in the context of self-defense—and there isn’t—it would nevertheless still be an imminent threat to that other customer in the context of defense of others.

Proportionality:  Was the shooters deadly force used to defend against a deadly force threat or one of the enumerated felonies in §9.42?

Once again, the element of Proportionality is clearly supported by the evidence. First, the robber was literally engaged in robbery, which is one of enumerated felonies in §9.42. Second, the robber was threatening everyone with an apparent pistol, and a firearm is deadly force as a matter of law.

Reasonableness:  Did the defender have a subjective, genuine, good faith belief in the need to use defensive force, and was that belief objectively reasonable?

And finally, the element of Reasonableness is also supported by the evidence.  We cannot, of course, literally read the mind of the shooter—that’s never possible. So we can only infer whether a person in the shooter’s circumstances would have had such a subjective belief—and the surveillance video is more than sufficient to arrive at this conclusion.  Second, although the robber’s “pistol” turned out to be fake, it was sufficiently realistic appearing that a reasonable person could conclude it was a genuine firearm—certainly every victim on the scene believed this to be the case, as they complied with the robbery demands.

Conclusion: None of the required elements of self-defense or defense of others appears likely to be disproven beyond a reasonable doubt, in the context of use-of-force #1, the first four shots fired. We can therefore conclude to a reasonable degree of legal certainty that those first four shots were legally justified as defense of persons under Texas law. (And we therefore need not also consider defense of property as a justification here—one justification is all that’s needed—but I’ll consider the defense of property justification separately below.)

Use of Force #2: The second four shots

Most of the element analysis is largely unchanged here from that of Use-of-force #1, so I’ll focus my comments here on where there are variances between that and Use-of-Force #2 (from about 0:10 to 0:14 seconds).

The second four shots were fired under circumstances that differed in several important ways from those of the first four shots, and therefore require a distinct legal analysis of the elements of justification.

First, the second four shots were fired after the robber had fallen to the floor by the door.

Second, the second four shots were fired after the robber had lost possession of his “pistol,” the only weapon he was known to possess.

With respect to the robber being on the floor, that physical position by itself isn’t particularly relevant to this legal analysis—a person on the floor can, after all, continue to be a deadly force theat.  (This would be particularly true had the robber maintained possession of his “pistol.”) There is also continued movement by the robber, suggesting he was potentially capable of renewed hostile action.  Finally, the second series of shots follows closely on the first, such that there wasn’t a lengthy pause in which the shooter might have had the luxury of making a careful assessment of whether the robber had ceased to be a deadly force threat.

The matter of the robber losing possession of his “pistol” is more troublesome, however. Importantly, we need to consider this in two contexts.

First, did the shooter know, or should the shooter have reasonably known, that the robber had lost possession of his “pistol.”

Second, did the shooter reasonably, if mistakenly, believe that the robber was still in possession of his “pistol.” In other words, the shooter under the stress of the circumstances reasonably didn’t observe the robber losing possession of his “pistol” and still believed the robber to be armed.

In that second case, reasonably if mistakenly believing the robber to still be armed would leave us with an elements analysis essentially unchanged from use-of-force #1, meaning that once again none of the required elements would seem likely to be disproven beyond a reasonable doubt, and this second use of force would also be legally justified as defense of persons.

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.

It’s important in this context to recognize that the conditions that justify the use of force, and especially deadly force, or dynamic and often transitory.  Someone may start off as not an imminent unlawful threat, then become an imminent unlawful threat, then cease being an imminent unlawful threat. It’s analogous to a window that’s shut, then open, then shut again.

The privilege to use defensive force exists only when that “window” is open.  Prior to the window opening, no defensive force is justified. Similarly, after the window is closed, no defensive force is justified. The privilege to use defensive force ends when the threat is no longer imminent.

Of course, one would expect that the shooter would be unlikely to volunteer that he was fully aware that the robber had lost possession of his “pistol,” assuming he has retained competent legal counsel. So, if we were to conclude that he knew or should have known the robber had lost his “pistol” we’d need to make that inference by applying our powers of reason to the evidence before us. And, importantly, we’d have to conclude that the shooter being aware that the robber had lost his “pistol” had been proven by the prosecution beyond a reasonable doubt.

All this really just means that this second use of force, this second set of four shots, is arguably more ambiguous on the legal merits than is the first set of four shots.  Ambiguity, however, is not the same as disproof beyond a reasonable doubt.  Reasonably people might conclude that it was more likely than not that the shooter knew the robber had lost possession of his “pistol”—and that would still not be enough to disprove the defense of persons justification for this second use-of-force.

Accordingly, this second use of force would also be justified as defense of person on that basis (and, again, no additional defense of property justification would be necessary—one justification is all that’s needed—but I’ll consider the defense of property justification separately below).

But the Robber Could Have Had Another Weapon!

I do want to address a line of comment I’ve seen frequently on social media with respect to the robber’s loss of his “pistol.”  Essentially, people are arguing that even if the shooter knew that the robber had lost his “pistol,” it’s still possible that the robber possessed some other weapon, a second gun perhaps.

And this is true.

It is also, however, entirely speculative.

Decisions made in defense of persons must be reasonable decisions. That means they must be the result of the application of our powers of reason to actual evidence which we observe, such that we are making reasonable inferences from actual evidence.

What that might look like here? If the robber were to reach to his waistband, in a manner consistent with retrieving a second gun, and that were observed by the shooter, that might well allow a reasonable inference that the robber was still a deadly force threat.

But there must be some actual evidence from which such an inference can be made.  The prospective ongoing threat cannot be merely speculative, hypothetical, or imaginative—if so, it is by definition not based on reason, therefore not reasonable, and not a basis for a justified use of force.  And I don’t see any such evidence in this video.

Use-of-Force #3: The Ninth Shot

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.   As a result, the only remaining theoretical justification would be under the Texas provision for the use of deadly force in defense of property, and I’ll address that now.

Deadly Force In Defense of Property

Because of Texas’ unique status as the only state that has any legal provision for the use of deadly force in defense of property, under §9.42. DEADLY FORCE TO PROTECT PROPERTY, it is theoretically possible that this legal privilege might justify this shooter’s use of deadly force in any of the three use-of-force events we’re evaluating here.

I’d like to first make clear that deadly force in defense of property is a real thing under Texas law—I’ve seen the authorities decline to charge in killings in defense of personal property specifically on the grounds that the killing was justified under §9.42.

That said, I would urge tremendous caution in relying on this legal privilege, remembering that if you’ve killed someone over personal property, this defense is the only thing standing between you and a 99-year prison sentence—and I’d suggest that’s not all that much.

First of all, §9.42 references the term “reasonableness” twice—and it also incorporates by reference §9.41. PROTECTION OF ONE’S OWN PROPERTY, which itself references “reasonableness” three more times. That’s five total references to “reasonableness,” and every such reference should be perceived as a profound vulnerability in this claim of justification.

It’s important to remember that what controls your legal destiny under this justification is not your sense of what was reasonable. Rather it is the sense of reasonableness of other people that control your fate—that of the police, the prosecutor, the judge, the jury.  If you believe you acted reasonably, but they believe you acted unreasonably, it’s their determination that sends you to prison regardless of what you believed.

With that caution, let’s look in more detail of the conditions for deadly force in defense of personal property under §9.42.

First, before you’re privileged to use deadly force in defense of personal property under §9.42, you must first meet all the conditions for the use even non-deadly force in defense of property under §9.41:

9.42. DEADLY FORCE TO PROTECT PROPERTY.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1)  if he would be justified in using force against the other under Section 9.41;  and …

The language in §9.41 is pretty standard, providing essentially that you’re privileged to use non-deadly force to prevent someone from unlawfully interfering (e.g., stealing or damaging) your personal property.

Importantly, however, note that this applies only to your own property.  It does not apply to the property of others, unless you meet the additional criteria of §9.43, PROTECTION OF A THIRD PERSON’S PROPERTY.  The relevant portion of §9.43 that sets out these additional conditions reads:

(2)  the actor reasonably believes that:

(A)  the third person has requested his protection of the land or property;

(B)  he has a legal duty to protect the third person’s land or property;  or

(C)  the third person whose land or property he uses force or deadly force to protect is the actor’s spouse, parent, or child, resides with the actor, or is under the actor’s care.

In this case, there is no evidence that the shooter was requested by any other victim of the robber to protect their property, nor that the shooter had a legal duty to protect their property, nor that the other victims were the spouse, parent, or child of the shooter, or resided with the shooter, or were under the shooter’s care.  Accordingly, there would appear to be no legal justification here for the shooter to have used any degree of force, much less deadly force, to protect any personal property other than his own.

Returning to the shooter’s possible justification in the use of deadly force in defense of his own property, however, brings us to two additional conditions under §9.42 that must be met—although these conditions are in the alternative, so meeting either one alone would be sufficient.

The first of these alternative conditions reads:

(2)  when and to the degree he reasonably believes the deadly force is immediately necessary:

(A)  to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime;  or

The key phrase here is “imminent commission” of one of the enumerated felonies. So the question for our analysis becomes does it appear likely that the prosecution could disprove beyond a reasonable doubt that the shooter in this case reasonably believed the use of deadly force was immediately necessary to prevent the robber’s imminent commission of aggravated robbery?

I would suggest that for Use-of-Force #1, the first four shots fired, the shooter has a very robust deadly force in defense of personal property justification, under this provision of §9.42, and one that is not readily vulnerable to disproof beyond a reasonable doubt.

With respect to Use-of-Force #2, the analysis is much the same as with the defense of persons scenario—the facts are substantially more ambiguous, but perhaps sufficient to prevent a deadly force in defense of property from being disproven beyond a reasonable doubt.

With respect to Use-of-Force #3, however, the ninth and final shot, when the robber is apparently unconscious on the floor and the shooter has retrieved the “pistol,” leaving the robber apparently unarmed, it is not credible to argue that the robber was still engaged in the imminent commission of aggravated robbery—and therefore, with respect to Use-of-Force #3 this provision of §9.42 would not appear to provide a viable justification for that ninth shot, one that could not be readily disproven beyond a reasonable doubt by the prosecution.

There is also, however, the second alternative condition of §9.42, which if satisfied would provide a deadly force in defense of personal property justification to the shooter. It reads in relevant part:

(2)  when and to the degree he reasonably believes the deadly force is immediately necessary:

(B)  to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property;  and

The key phrase here is “fleeing immediately.” So, the question for our analysis becomes does it appear likely that the prosecution could disprove beyond a reasonable doubt that the shooter in this case reasonably believed the use of deadly force was immediately necessary to prevent the robber “fleeing immediately” from the aggravated robbery?

With respect to Use-of-Force #1, the first set of four shots, we already have a viable deadly force in defense of personal property justification, as described above.

With respect to Use-of-Force #2, the second set of four shots, however, it would seem a hard sell that the robber who has been shot to the ground and is making no apparent effort to rise is “fleeing immediately” so as to justify shooting the robber four more times.

This is even more of a problem with respect to Use-of-Force #3, the ninth and final shot, apparently to the head of the disarmed, apparently unconscious robber.  There is no apparent “fleeing immediately” being attempted by the robber that one could argue was being prevented by that final shot.

So, for both Use-of-Force #2 and especially for Use-of-Force #3, the ninth shot, there would appear to be no viable deadly force in defense of personal property justification that would not be readily disproven beyond a reasonable doubt by the prosecution.

The bottom line with respect to deadly force in defense of property—it would certainly be a viable justification for Use-of-Force #1, and more ambiguously but still arguably a justification for Use-of-Force #2—but it would appear completely unviable as a justification for Use-of-Force #3, the ninth and final shot.

But What if the Robber Was Already Dead?

Also much discussed in social media comments on this shooting is the prospect that the first eight shots fired at the robber might have already killed him, such that the ninth and final shot was not, in fact, a killing shot.

First, we should recognize that this possibility does nothing to change the justification legal analysis.  If the question is whether the final shot was justified under either defense of persons or defense of property, the answer seems a resounding no.

Second, if the justification analysis does not change, the potential criminal liability of the shooter certainly does.

If the ninth bullet contributed to the robber’s death, meaning that the robber was still alive when that shot was fired, it would be a killing shot, and basis for a killing charge such as murder or manslaughter. If convicted of murder, the shooter could be looking at up to 99 years in prison.

If the robber can be determined to have already died prior to the ninth shot, however, and presuming the killing shots themselves could be legally justified, then the ninth shot would not have contributed to the death of the already dead robber, and there would be no basis for a killing charge.

The shooter would still, of course, be subject to a criminal charge, under Texas §42.08. Abuse of Corpse, which reads in relevant part:

42.08. Abuse of Corpse.

(a) A person commits an offense if the person, without legal authority, knowingly:

(1) disinters, disturbs, damages, dissects, in whole or in part, carries away, or treats in an offensive manner a human corpse;

This is still a felony-level charge, reportedly good for up to two years in prison and a $10,000 fine–but that’s a far cry from 99 years for a murder conviction.

The difficulty with this argument here is, of course, two-fold. First, the shooter himself had no way to know if the robber was already deceased at the time he fired the ninth shot—indeed, it would be reasonable to infer that the shooter believed the robber to still be alive, otherwise why bother with that last shot?

Second, whatever the shooter might have believed, he has no way to know how the medical examiner will ultimately testify at trial a year or two down the road, should the matter go to trial. As just as in the context of reasonableness it’s not the shooter’s view but the jury’s that controls his legal outcome, it’s not the shooter’s view but that of the medical examiner that controls the legal conclusion on the matter of the robber’s death.

Indeed, I’ve seen many cases where the medical examiner appears to have changed their finding on the manner of death due to political pressure. A good illustrative example is the death of Freddie Gray, for which Baltimore State’s Attorney Marilyn Mosby brought charges as serious as murder against six Baltimore police officers.

Freddie Gray had been arrested as part of a sweep of an open air drug market (a sweep requested, ironically enough, by Marilyn Mosby herself), and placed in the prisoner compartment of a police van, with his hands and feet cuffed (he’d kicked in resistance to his arrest).  When the van arrived at its destination, Gray had a broken neck, and he would die while undergoing surgery for the injury some days later.

There was zero evidence that any of the officers charged had used any force whatever upon Gray’s neck, nor was there any evidence whatever that the vehicle in which he’d been transported had been used to give him an abusive “rough ride.”

Indeed, the medical examiner in that case originally classified Gray’s death as an accident of the “shallow diving” variety. Her thinking was that Gray must have attempted to stand up in the moving van while cuffed hands and feet, had toppled forward when the van braked under normal operation, and slammed his head into the forward bulkhead of the prisoner compartment, causing his own neck injury.

After a hurried consultation with Marilyn Mosby’s office, however, the medical examiner would change her declared manner of death from “accident” to “homicide”—a change that was absolutely necessary if Mosby was going to be able to pursue her unfounded charges of murder and other offenses against the officers.

(Ultimately all the officers were either acquitted or had all charges dismissed, and none was found to have violated even departmental policy, much less committed crimes.)

So, with all that uncertainty, relying on the argument that the robber here was already dead when the ninth shot was fired is not the ground on which I’d like to be fighting in court.

But What if the Ninth Shot Was Unintentional?

Another interesting argument that could be made with respect to the otherwise unjustifiable ninth shot to the robber’s head is that it was not an intentional act—perhaps while arising from having picked up the robber’s “pistol” the shooter tightened his grip on his own gun and unintentionally depressed the trigger, unintentionally firing that ninth round into the robber’s skull.

Normally, unintentionally shooting someone in such a manner would qualify as a reckless killing. Recklessness occurs when someone knows or should know that they are creating an unjustified risk of death to another and then ignores that risk with the result that they kill someone. The killing is not intentional, so not murder, but reckless, and so still criminal. The knowing creation of the unjustified risk is what differentiates recklessness, carrying criminal penalties, from mere negligence, carrying only civil liability.

A classic example of a reckless killing would be a drunk driver who runs someone over causing their death. The drunk driver never intended to kill anyone, they simply wanted to find their way home from the bar, but they knew that driving a vehicle while drunk created an unjustified risk of death to another, they ignored that risk, and they killed someone. Classic reckless killing.

Another example would be the Alec Baldwin shooting death of Halyna Hutchins.  Pointing a real gun at another person without ensuring it’s not loaded, and without any legal justification for creating such a deadly risk, and then killing that person as a result, is another classic example of a reckless killing.

An argument can be made here, however, that this ninth shot is different than the drunk driving example or even the Alec Baldwin example, the key issue being whether the risk inarguably created was in this instance unjustified.

In the Baldwin shooting of Hutchins, there is no justification apparent that would offset the risk of death to Hutchins.

In this case, however, one could argue that the shooter would be justified in keeping his muzzle on the robber, given the just occurring armed robbery.  In that case the pointing of the muzzle was the creation of a risk of death, but arguably not an unjustified risk of death. And if the risk of death is not unjustified, it’s not reckless, and does not carry criminal liability.

It might, of course, still qualify as negligence and carry civil liability. Indeed, an argument could be made that under the circumstances it was simply a pure accident, carrying zero legal liability whatever.

Were I legal counsel to this shooter, I’d be inclined to rely on defense of persons and defense of property to justify Use-of-Force #1, the first set of four shots, the same, somewhat more ambiguously but still credibly, for Use-of-Force #2, the second set of four shots, and if consistent with my client’s own recounting of the event argue unintentional shooting of an accidental, or at worst negligent, manner to avoid criminal liability and perhaps even civil liability for Use-of-Force #3, the ninth and final shot.

Does That Mean Shooter Will Be Indicted, Prosecuted, Convicted?

So, given the apparent lack of legal justification for that ninth and final shot, potentially an unjustified unlawful killing, does that mean the shooter in this case will be indicted, prosecuted, and convicted?

The answer is: Who knows?

What I’ve shared above is a legal analysis of this shooting, and it’s one I have great confidence in the legal merit of that analysis.

Questions about indictment, prosecution, and conviction, however, have considerations beyond legal merit.

A prosecutor’s office will typically be asking two distinct questions in evaluating how to handle such a case.

First:  What can we do, based on legal merit.

Second: What do we want to do, based on political considerations.

It’s not at all uncommon for prosecutors to use their discretion to give a break to an otherwise law-abiding armed citizen who may have been a bit sloppy in their use-of-force from a technical legal perspective.

The danger, of course, is the use of that discretion is far outside the defender’s own control–he’s now put his fate, potentially the rest of his life, in the hands of other people.

Perhaps they’ll use their discretion in a way favorable to the defender … but perhaps they won’t.

I always urge members of the Law of Self Defense community to not take the risk of relying on what others might do if they are feeling favorably disposed towards you, and want to give you a break, but rather be prepared for what those others can do if they are not feeling favorably disposed, and want to throw the book at you.

In the context of indictment, as I’ve already noted it’s being reported that this shooting will be presented to a grand jury.  There the prosecution has the discretion to present either only one side of the evidence, the side consistent with a narrative of guilt, in which case an indictment is almost assured–this is the normal practice, and why grand jury’s are largely a rubber stamp of the prosecutor’s office. If you only hear one side of an argument, it generally sounds compelling.

Alternatively, the prosecution could present a more balanced view of the shooting, one more favorable to a narrative of innocence, in which case the grand jury might decline to indict–this is what happened in the Michael Brown shooting case. That approach is not the norm, however, and indeed in the case of Michael Brown it cost that particular prosecutor his career, because after decades as the local prosecutor he was replaced by a George Soros-funded candidate in the next election.

In the context of prosecution, if the State decides to take someone to trial, they’re in it to win it. Folks will wonder about the prospects for jury nullification, but honestly that’s a fools’ wish.  If the State wants to go hard on that final shot, and especially if this case becomes racially and politically energized in the year or two between today and when the trial starts, a conviction on the legal merits (and even absent legal merit) would seem not unlikely.

But I’m just a small-town criminal defense attorney who focuses on the legal merits of use-of-force cases–I’ll leave discussion of the political dynamics to others.

And that, folks, is all I have for you on this particular event for today.

Remember

You carry a gun so you’re hard to kill.

Know the law so you’re hard to convict.

Stay safe!

–Andrew

Attorney Andrew F. Branca
Law of Self Defense LLC

Nothing in this content constitutes legal advice. Nothing in this content establishes an attorney-client relationship, nor confidentiality. If you are in immediate need of legal advice, retain a licensed, competent attorney in the relevant jurisdiction.

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