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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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Comments

I guess my question is whether you can hold an untrained, non-combat veteran civilian to a standard of behavior after having a gun in his face and then choosing to fight back? Isn’t that surge in adrenaline going to overpower what possible concealed carry classroom training he underwent, and isn’t that justifiable? The perp probably didn’t die from the last shot. The criminal was threatening many people, which should be justification enough.

But if that city is run by Democrats and has a Democrat D.A., there’s a high probability of prosecution. Malicious prosecution, a Democrat specialty.

    Jury nullification!

      Decades ago in California, I served on a jury in which the judge instructed us that, if we believed the prosecution had proved its case beyond a reasonable doubt, we may but need not return a verdict of guilty. I thought that was interesting, because it is exactly how “jury nullification” is argued to work.

      It was a DUI case, though, and none of us were in a mood to nullify that law.

      Nah, ever mind: hang the guy who protected everyone in the restaurant because he couldn’t comport himself PERFECTLY enough to satisfy people who probably think the career criminal threatening everyone with a gun was really a “good boy”.

      People who depend on jury nullification are called “inmates.”

    TheOldZombie in reply to Tom Morrow. | January 10, 2023 at 6:56 pm

    Yes. You can hold them to the same standard as the police. That’s why gun owners need training from good competent people such as Mr. Branca.

    Every gun owner should of course get his book, know the law in their state, but also sit and gameplan situations so when something does happen, you’re ready for it. That’s why I watch things like ASP on YouTube. What would I do in such a situation and so on.

    The laws of deadly force are the same for police and civilians. Police have some leeway due to the nature of their job but it’s all the same. You stop shooting when there is no longer a threat.

    And your statement about Democrats is true but I suspect the shooter here would also have a hard time in red areas. That ninth shot is just brutal from an optics perspective. I’m surprised that groups like BLM have kicked up a fuss over an “execution” of a black man. That might come later if he’s charged.

      maxmillion in reply to TheOldZombie. | January 10, 2023 at 8:55 pm

      Me, I’m thinking that the reasons for James Madison, Thomas Jefferson, et. al,, making certain that the Constitution explicitly state that the right to have and bear arms SHALL NOT BE INFRINGED was not to trick citizens into believing they had a civil right using them, only so that zealous anti-gun prosecutors could undertake this kind of a microsecond by microsecond by analysis of each shot to find fault in what is clearly a clean case of defense of others, You’d need a tachometer on their corpses to measure the spinning at what Branca has done here.

        inspectorudy in reply to maxmillion. | January 11, 2023 at 12:03 pm

        Man have you gone off course. When the bill of rights was written, every gun owner used and knew how to use their gun almost daily. The modern gun owner buys it and never shoots it or takes it apart. Knows nothing about it or what his/her state laws are concerning carrying it or using it. Buying a car, although not the same thing, requires you to learn the rules and know how to operate it. And even if the law does not require you to learn or take courses it is still YOUR responsibility to know the laws and as Andrew says, it is for your own protection. You are correct that the 2nd A does protect your right to OWN a gun but how you USE it is not protected.

          When the Bill of Rights was written, the state laws boiled down to “don’t start none, won’t be none.”

          Sadly this is no longer the case, and the result is that you have NO effective right of self-defense.

          Which is why I laugh at idiots who wonder why men don’t “step up” to defend other people, or even their friends and family. You are exactly why this is so.

      diver64 in reply to TheOldZombie. | January 11, 2023 at 4:05 am

      What you “gameplan” or “see on YouTube” goes right out the window when the adrenalin starts flowing unless you have been under extreme pressure involving firearms or life and death before. That is why you need constant, real practice such as shooting houses if you are going to be of that mindset.

      paracelsus in reply to TheOldZombie. | January 14, 2023 at 6:14 pm

      The civilian gun owners I know go to the range once a week and practice punching holes in paper targets; close on none of them have combat experience vs. police officers. all of whom I sincerely hope get combat range experience at least once a month.
      As has been pointed, there is a huge difference between hitting the X-ring and firing at a target which may or may not be sufficiently incapacitated and/or have a second weapon. – I don’t know about Texas, but on the streets of NYC, I wouldn’t like to take that chance.
      On a jury I would vote Not Guilty and ask as well, having killed once, why the perp was on the street.

    gonzotx in reply to Tom Morrow. | January 10, 2023 at 7:33 pm

    Oh Houston most certainly is a crooked Democratic city , but with 8 murders a week and this scum already murdered someone else and should be in prison

    I say let’s have a parade in his honor

    I think he probably has worked for the cartel at some time, they always put one in the head after.

    I.don’t.care.

    One last scum gone

    We need real men in this world.
    Put 100 bullets in the scum, hang him outs as a warning to others

    I.do t.care….

      TheOldZombie in reply to gonzotx. | January 10, 2023 at 7:37 pm

      Easy to say you don’t care when you’re not the one who may be facing a jury and a possible life sentence.

        gonzotx in reply to TheOldZombie. | January 10, 2023 at 8:05 pm

        I do t care about the person who got 9 bullets

        Put a hundred in him

        A thousand

        I support the hombre who shot him 1,000,000 percent.

        mbecker908 in reply to TheOldZombie. | January 11, 2023 at 11:40 am

        With reference to the “judged by 12” argument, keep in mind that that judgment will cost you about $800,000 in attorney’s fees for a private attorney, will consume two-plus years of your life before and during trial, and you are at risk of a life sentence in prison.

        All to be judged by 12 people who don’t know you, likely have nothing in common with you, and are making that judgment in a calm quiet court room.

      Colonel Travis in reply to gonzotx. | January 10, 2023 at 8:17 pm

      The DA tells a jury you are a cold-blooded killer who doesn’t care about the law.
      Your defense is: damn straight!

    MosesZD in reply to Tom Morrow. | January 10, 2023 at 9:03 pm

    You carry the gun, you better know the law because, by God, you are responsible to know use-of-force and when it is authorized and when you must stop. He executed the guy. He needs to be in prison.

      AF_Chief_Master_Sgt in reply to MosesZD. | January 10, 2023 at 9:53 pm

      You say that as a Monday morning quarterback who has the privilege of watching the replay in slow motion, with unlimited use of rewind, stop, and slow speed.

      I hope you are never in a position where someone waves a pistol indiscriminately at you, your family, and those around you.

      I also hope that if the day comes, you have no defense, and then you shit your pants.

      This man did what the legal system failed to do. Take a career criminal and known killer off the street, never to harm someone again.

      If I were in that jury, there should be no conviction because I would NEVER side with the likes of you.

      I, for one, am glad that the robber is dead. I won’t give him the benefit of using his name.

      Sorry, not sorry.

        It was not his privilege to take a career criminal off the street. He was allowed to defend his life and the lives of the others in that restaurant.. He’s allowed to neutralize the threat and if the threat dies, that’s a lick on him but you don’t get to keep going and kill someone who is no longer an imminent threat just because they’re a dirt bag. There’s a pharmacist from Oklahoma City serving a life sentence because he thought he had the right to keep shooting when the robber was no longer a threat.

          Nemo1 in reply to Sanddog. | January 10, 2023 at 11:07 pm

          I agree. Sadly, I see what I call “the Rambo Effect” in play here. The “Legal System” has allowed too many guilty individuals to go free, so this sort of “overkill” is the result. The “wild, wild west” is coming around again. “There”s nothing new under the sun”. . Society is breaking down. 😪 That 9th shot smacked of “execution” (IMHO). Emotions run high in such a situation, still no justification for “overkill”.

          amwick in reply to Sanddog. | January 11, 2023 at 6:59 am

          In a life of death situation, there is an anger that is involved. It is visceral, it is the biggest anger you could ever know. Unless you have faced the muzzle of a pistol, it is hard to imagine, let alone understand. Obviously, that is not a defense, as Mr. Branco has thoroughly explained. We are not allowed to consider emotions. Ok.

          I have to ask, how do you switch that off in 4 seconds? It takes a long time to bottle up that monster.

        TheOldZombie in reply to AF_Chief_Master_Sgt. | January 11, 2023 at 2:19 pm

        ‘You say that as a Monday morning quarterback who has the privilege of watching the replay in slow motion, with unlimited use of rewind, stop, and slow speed.”

        What do you think a jury is?

          “the jury” is only allowed to know what a prosecutor wants it to know. So TRUE JUSTICE served is often the victim of a yet-to-be-perfected system. Some prosecutors seek justice, some others seek higher political aspirations (i. e. wins in court cases, notches on their gun”). So “juries” are puppets. TRUTH – “it is what it is”, like it of not.

      diver64 in reply to MosesZD. | January 11, 2023 at 4:07 am

      Agree with your first sentence but not the last two.

      Virginia42 in reply to MosesZD. | January 11, 2023 at 8:31 am

      Rubbish.

    jlunder in reply to Tom Morrow. | January 11, 2023 at 9:44 am

    There’s probably a movie seen I’ve seen at one time or another where a petty criminal decides to hold up a bar that just happens to be a popular hang-out for the mob.

    The shooter and his associate are too relaxed; his associate in the black shirt casually turns around to watch the second round of four shots and the last one.

    Different people react in different ways to extreme stress so they may have been traumatized and just didn’t show it.

    Since the shooter picked up the gun, he may have left his fingerprints behind, if not on the gun on the table where he was eating.

    Regardless, even if the shooter turns out to be an unsavory character, he still have a right to self defense.

    mbecker908 in reply to Tom Morrow. | January 11, 2023 at 10:12 am

    The court – legal system – will, and absolutely should, hold anyone responsible for their behavior and especially when that behavior is with a deadly weapon and leads to a death. If you carry a gun it is your absolute responsibility to know the law and train. Anyone unwilling to do those things should carry pepper spray, not a deadly weapon. FWIW, I’ve carried a concealed weapon for 35 years.

    When you use a firearm, you are putting yourself in the hands of the state. Some places that can be friendly, some, and I suspect most urban jurisdictions, the process can be the punishment.

      I agree. And yet , flaws in the (imperfect) system means think carefully before you decide to carry, you may have more to lose than is worth it. “Rambo want-to-bes”, are you listening?

    artichoke in reply to Tom Morrow. | January 11, 2023 at 6:21 pm

    I don’t see the end result to be a bad outcome. So I hope the jury will use its discretion.

    By the way, my faith that “beyond reasonable doubt” means that in practice has been nearly destroyed. In the jury I was on, one other juror and me had to remind the rest that you can’t split the difference if you’re unsure and convict on lesser included charges “to be fair”, if they aren’t proven. And now we see judges saying that criminal verdicts are “exercise in accountability” (Arbery judge, before the jury retired to consider its verdict on guilt) and and that jury instructions and closing arguments for the guilt phase of a trial can include phrases like “send a message” that such crimes won’t be tolerated — when of course the question before the jury is not that, but whether the defendant before them did it.

    Why do we let prosecutors encourage jurors to “send a message” in their verdicts about guilt? Jurors of lower intellectual or moral caliber (a lot of them) will take the opportunity and not care enough whether the life of an innocent defendant is made collateral damage.

Thanks for the excellent legal analysis. It will be very interesting to see what happens as the case unfolds.

Didn’t see you pose the question I would have- did the perp have a backup weapon? My automatic presumption would be anyone initiating such a crime will have one. So losing the first one is immaterial. If he’s moving, he’s a threat. And there’s no need in such a situation for a civilian to ask for surrender. Different for law enforcement.

    Colonel Travis in reply to gospace. | January 10, 2023 at 6:43 pm

    He addressed this under the caps and bold subhead:

    BUT THE ROBBER COULD HAVE HAD ANOTHER WEAPON!

    TheOldZombie in reply to gospace. | January 10, 2023 at 7:02 pm

    Not only did he write about a backup weapon, but he pointed out it’s speculative. You can’t just keep shooting someone and then say, “My automatic presumption would be anyone initiating such a crime will have a backup weapon” and expect that to fly in a courtroom.

    Plus, most criminals don’t have a backup weapon. The DA could bury you under cases where the perp has only one weapon on him to prove you wrong.

    “And there’s no need in such a situation for a civilian to ask for surrender. ”

    Once the threat is done you stop. It’s always good to ask for a surrender. Your job when using force, including deadly force, is to stop the threat. Not kill. Asking for surrender always looks good to witnesses and to juries.

      mbecker908 in reply to TheOldZombie. | January 11, 2023 at 10:14 am

      Using deadly force because of speculation is sure ticket to life in prison.

      If you have to use deadly force, you use it to STOP THE THREAT. Period. And you stop.

      I would say that you should verbalize a “request for surrender”…
      1) if you are able, meaning you don’t have to put yourself (or others) back in harm’s way to do so (such as allowing him to grab a hostage, etc., that we’ve seen in the police shows)
      2) because it lines you up with maintaining “innocence” and demonstrating further “imminence” if you then have to fire again. (It shows that you still perceive a threat, until they comply with your actions.)

      artichoke in reply to TheOldZombie. | January 11, 2023 at 6:24 pm

      But it’s reasonable doubt. Let’s say “beyond reasonable doubt” is 90% certainty. Don’t more than 10% of criminals have backup weapons?

    Nemo1 in reply to gospace. | January 14, 2023 at 6:01 pm

    if he”s moving, he’s a threat? I totally disagree with that rationale. It’s short-sighted.

Once again you have been very precise in your analysis with those of us who are not attorneys. Two questions that come to my mind concerning the “ninth shot”. Could be argued with credibility by counsel of the shooter that the shooter just zoned out and was so distraught of his actions that during this incident he was mentally not aware of when to stop? My second question is whether it could be argued successfully that the “ninth shot” occurred because the weapon discharged on its own and as a result their client did not pull the trigger?

    irv in reply to natdj. | January 10, 2023 at 7:59 pm

    The Alec Baldwin defense? The gun fired itself!

    I don’t think so.

      gonzotx in reply to irv. | January 10, 2023 at 8:06 pm

      It seems
      To
      Be working for that scumbag

      No, the Alec defense is “The gun shot itself.” On this, if the shooter had not been so calm about it, the “Scared out of my wits” defense might have been an option. With a barely sublethal dose of adrenaline pouring through your bloodstream, even otherwise calm individuals can find themselves with a gun in hand making repeated clicking noises as reflexes keep pulling the trigger even after all the bullets are gone. It can also be called “Buck fever” when hunting, but that’s a bad phrase to use in court when defending a good shooter who got carried away.

        artichoke in reply to georgfelis. | January 11, 2023 at 6:28 pm

        I would not hold the shooter’s ability to shoot straight with other people around against him and say he was too calm to be given the benefit of that doubt. And he was visibly momentarily confused once had completed all the steps in his “program” as he had probably been trained, and had a gun in both hands, one of them the criminal’s. THEN the adrenaline was ratcheting down and he went this way and that unintentionally waving them around a bit, before putting the criminal’s gun down on his table.

      Come to think of it: maybe Alex Baldwin DID shoot this guy! (Can Baldwin account for his whereabouts that day?)

    Sanddog in reply to natdj. | January 10, 2023 at 10:38 pm

    It seemed a very deliberate shot. He felt comfortable enough to be in close proximity and lean down to pick up the firearm, straighten up, pause and shoot him in the head.

      There’s the possibility that he twitched or otherwise gave reason for shot 9 to be let off. Easy to explain with adrenaline dump.

      Joseph K in reply to Sanddog. | January 11, 2023 at 4:20 pm

      I disagree. He was not over the sights when the gun went off. I would want to watch the video frame by frame; but there are aspects of that last shot that look like a sympathetic squeeze of the trigger when he was rising back up from stooping over to pick up the other pistol. This is the reason to practice absolute trigger control so you are not riding the trigger unless you are firing. I think he had the dude muzzled but may have not intended that shot. Very plausible.

      Try defending youself against an armed robber pointing guns at people’s heads as he robs them, and see how high your adreneline spikes.

      artichoke in reply to Sanddog. | January 11, 2023 at 6:30 pm

      Thank God for people who can be deliberate in battle situations. He could be scared to death and still know or believe he had to make this guy unable to try anything.

      henrybowman in reply to Sanddog. | January 12, 2023 at 1:15 am

      I will say that the first video I saw of this encounter (I think it was here at LI, or to a tweet linked to from here) was clear and perfectly registered. The video Andrew used in his two-hour YouTube presentation was way our of sync, and this one is about halfway between the two. The first video showed the “straighten up and pause” behavior very clearly, while the others are much more ambiguous.

      Nemo1 in reply to Sanddog. | January 14, 2023 at 6:04 pm

      I agree with you. Good sound reasoning.👍 IMHO – that 9th shot was “execution” in nature, and not to disarm a threat.

    MattMusson in reply to natdj. | January 11, 2023 at 8:34 am

    What if the man was already dead before the ninth shot?

      mbecker908 in reply to MattMusson. | January 11, 2023 at 10:17 am

      Probably doesn’t matter. The issue is what the prosecutor wants to do. This prosecutor is calling a grand jury and the shooter will be called to testify before the grand jury. He won’t have his lawyer, and there won’t be cross-examination. Only the prosecutor gets to make the case to the grand jury.

      I would not be at all surprised if they return an indictment for a felony something.

        A grand jury is required in this instance under Texas law, it is not a situation that the prosecutor called for it.

        I’ve seen the video multiple times at normal speed and slow motion. The patron only got 14 seconds to make all those decisions after being threatened with his life.

        Ironman in reply to mbecker908. | January 11, 2023 at 3:18 pm

        “This prosecutor is calling a grand jury and the shooter will be called to testify before the grand jury.”

        Incorrect, that is a 5th Amendment violation. The shooter cannot be called to testify before the Grand Jury.

          mbecker908 in reply to Ironman. | January 11, 2023 at 5:55 pm

          OK, even worse. The prosecutor gets to paint the picture. There’s a reason why they have that saying about a prosecutor being able to get an indictment on a ham sandwich.

        artichoke in reply to mbecker908. | January 11, 2023 at 6:32 pm

        From what pool is that grand jury drawn? From what we see in DC for the past couple of years with the J6 defendants, that makes all the difference in the world. You can indict a ham sandwich, but do you want to?

Your extensive piece and after reading your book lead me to the conclusion that the shooter will be indicted. Whether or not he is convicted in TX is another matter. I simply cannot fathom shooting anyone 9 times unless, like Michael Brown, they were coming toward me. No matter, the video is a damning thing that will be seen many times by a jury and the outcome may not end well for the shooter. Some have called the shooter a hero but after finding out the gun was fake, that becomes absurd since he could not have killed anyone. To me, the last shot was unnecessary and the action of an unfeeling person. Thanks for the legal analysis and warning about the nuance of the law.

    As a Texan, my hunch is that had he stopped after the first 8 shots he wouldn’t even be indicted in Texas. But that coup de grace shot was beyond the pale… he’s going to face trial for that.

    You make a good point about the jury seeing the video multiple times. The first time I watched it, I did not notice the robber dropping the gun, but now when I watch it, I can’t NOT see it.

    Obviously, this doesn’t change the legal merits, but it’s not clear to me that the shooter did notice the robber dropping his fake gun before the second four shots. If I didn’t notice while sitting snugly in the safety of my home . . . . Anyway, he clearly knew the robber had dropped it on the 9th shot since he was holding it himself at that point.

    I just feel for this guy. These 16 seconds of his life are going to determine the rest of his life. But that’s emotion, not law, and I can see this going either way depending on all the people at play.

      alaskabob in reply to Fuzzy Slippers. | January 10, 2023 at 9:29 pm

      There is the story of the Blonde and the Brunette watching the TV. A jumper on a bridge is about to step off the ledge. The brunette says, I think he will jump.” The Blonde says. “I don’t think he will.” He jumps. The Brunette smiles. The Blonde says “he did it again!” The Brunette says, “so this was a rerun?” The Blonde says “yes, but I thought he might have changed his mind in the meantime”.

      We can rewind, slo-mo, zoom and enhance … all after the fact. There is no way to step out of one’s body, stop time and reevaluate.

      There are two parts to my argument again…. 1) Was the perp mortally wounded before the last shot. One can’t murder an already dying person. As for the corpse…. there has got to be anger and spit for being menaced and seeing him threaten other people. The recent shooting at a convenience store that continued outside is different because of time and distance… the perp stumbled out and wasn’t a threat.

      The guy is being indicted for being white, male, victorious… and racist. His actions of returning the money to those who were robbed shows his concern for his fellow victims… some POC I bet.

      Final true story out of Texas, A judge was addressing the jury prior to the start of the trial. He said, “your responsibility in this trial is to determine whether that SOB deserved to be killed”.

        Heh, love those stories!

          OwenKellogg-Engineer in reply to Fuzzy Slippers. | January 10, 2023 at 10:45 pm

          Another oft told story, one I find apropos to the anticipated future outcome of shot #9:

          “A Civil War story is told of a woman who sought the favor of Abraham Lincoln on behalf of her soldier son who, apparently, committed an act of treason. A war court found her son guilty and sentenced him to hanging. The mother, undaunted by the news, scraped and clawed all the way to the top to gain the ear of the President. Lincoln was taken with the woman’s tenacity, as well as devotion to her family. After reviewing the soldier-son’s case, Lincoln gave him a pardon. Nevertheless, he hesitated to rejoice with the mother, saying, “Your son may be free, but I still wish we could give him a little bit of hanging.”

          inspectorudy in reply to Fuzzy Slippers. | January 15, 2023 at 12:11 pm

          Are you blonde or brunette?

        inspectorudy in reply to alaskabob. | January 11, 2023 at 12:17 pm

        You are saying that if confronted with a robber who is armed, it is the armed citizen’s responsibility to make sure the perp is killed or dead before stopping the shooting? The shooter’s job was to make everyone get up and run out and then call the cops, not pump five more bullets into the prone robber. At the point of the robber falling to the floor and losing his gun, the threat was over even though this nonsense about a second gun keeps coming up. The shooter is not a cop nor is he expected to do the
        same things a trained cop would do. His job was done when the robber fell. When he shot him in the head, I’m afraid that is going to be a second-degree murder charge.

        Nemo1 in reply to alaskabob. | January 14, 2023 at 6:13 pm

        Shot #9 – intent to murder? Just asking.

    artichoke in reply to inspectorudy. | January 11, 2023 at 6:35 pm

    How could it make a difference that the gun was fake? Is he supposed to analyze whether the thing that looks like a gun pointed at him and others is authentic, in the moment? Was the criminal letting him know it was fake or doing something harmless like shooting in the air?

    What kind of logic do you use? I hope you’re wrong about the indictment too.

    henrybowman in reply to inspectorudy. | January 12, 2023 at 1:19 am

    “Some have called the shooter a hero but after finding out the gun was fake, that becomes absurd”
    As long as the fake was credible, it absolutely doesn’t matter at all that it was fake. It’s a credible threat of deadly force, period.

      inspectorudy in reply to henrybowman. | January 15, 2023 at 12:17 pm

      I know at the moment a fake gun must be considered real, but AFTER the threat is over the shooter cannot be called a hero because he, in reality, did not save anyone because the gun could not have harmed anyone period.

        henrybowman in reply to inspectorudy. | January 15, 2023 at 1:02 pm

        You have an overly consequential view of heroism. If two firefighters enter a burning building to save two children, and it is determined on the sidewalk that one is still alive and the other isn’t, is only one firefighter a hero?

        The moment you threaten to kill someone in a criminal way you have forfeited all your rights to the judgement of that person. The person protecting his life and the lives of others is the only person who gets to decide when the threat is over.

        If someone were to threaten to kill me, I would consider the threat to be over only when one of us stops breathing.

What’s the good samaritan supposed to do, wait for the gunman to regroup and shoot at him?

Jury nullification!

    TheOldZombie in reply to TheFineReport.com. | January 10, 2023 at 7:11 pm

    Regroup? Really? The perp is on the floor after being shot. You keep an eye on him and give verbal commands to cease his actions. Then you wait for police.

    If he complies, you’re fine. He acts out and you shoot him again.

    You don’t walk up to him, pick up his gun, and cap him in the head with one last round.

      Quite a few people here have zero experience in law enforcement (and I mean street law enforcement). I do.

      This gunman was so crazy to do what he was doing, I’d bet Biden’s life that the guy was high as a kite. That said, it sometimes takes a SQUAD of cops to subdue a criminal on drugs, and these kinds of criminals often get a second wind, despite being shot.

      Everyone’s got a lesson for the guy protecting the restaurant, but no lesson for the armed robber, which is: don’t rob people at gunpoint and an honest citizen won’t have to pump you full of lead to make sure you’re not going to shoot him back.

      artichoke in reply to TheOldZombie. | January 11, 2023 at 6:37 pm

      As I recall his hand was pretty close to his gun lying next to him on the floor. Is the good-guy supposed to maintain so much awareness for however long the cops take, and after when the cops get there? Having cops come is not magic.

        henrybowman in reply to artichoke. | January 12, 2023 at 1:21 am

        Watch it again. The gun goes flying under the booth. The shooter may or may not have seen it, but the fact that he retrieves it from under the booth without a lot of hunting indicates that he did.

    Nah man. Once the victim fired eight rounds into the criminal robber and had control of the criminal robbers weapon that encounter was over. Personally I would say the first four were enough but that’s a nitpick with hindsight and without being caught up in it.

    Hard to describe to people who haven’t been in combat or a civilian shooting the ‘high’ of the situation. Good training overcomes the adrenaline and allows one to act. I would be more than willing to cut the guy some slack on the second four rounds. He was riding a natural high and got caught up in the moment.

    The problem is the 9th round. The criminal robber is now shot 8 times and disarmed laying prone. If he delivered a ‘coup de gras’ with that round I would be hard pressed to avoid a vote to convict if I were on the jury. Sucks but that was one too many to let slide on any sort of ‘he had it coming or got what he deserved’ argument.

      Who said he had control?? There are COUNTLESS incidents of criminals pumped full of lead that continue to fight. I sympathize with the patron, who was probably scared sh-tless the armed robber was going to roll over and shoot him once he stopped firing.

        Compare how long it would take the robber to grab another gun, roll over, and start shooting vs. how long it would take the customer to shoot if he already was aiming his gun at the robber from close range.

          inspectorudy in reply to pst314. | January 15, 2023 at 12:22 pm

          Compare the record of people who have been shot eight times rolling or doing anything with your stupid theory. Eight times at less than four feet, all above the waist and you think he is going to roll over?

    Regroup??
    Your comment suggests that you had not yet read Andrew Branca’s analysis:
    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.

      “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—”

      I disagree. What indication was there that the robber was NOT an imminent threat – to an ordinary person who has not had law enforcement training??

        Two indications: The robber was lying motionless. The robber had dropped his firearm which had flown at least a yard away from his head.
        The robber would have had to move his arms to retrieve a hypothetical second firearm and would have had to at least partially roll over to aim it at the shooter.
        So the robber was still a potential threat but no longer an imminent threat.

    If you’re hoping for jury nullification, you’d better have about $800,000 laying around for attorney’s fees for the trial. Oh, and what if they don’t nullify? Because they almost NEVER do that. Anywhere.

Yeah, the last shot looks REALLY sus to me. Particularly with the pause and grabbing the gun.

Know a couple buddies in law enforcement and they say this is why so many cops just empty their clips without stopping – because even a TINY pause in firing can turn a good shoot into a bad shoot.

    TheOldZombie in reply to Olinser. | January 10, 2023 at 7:04 pm

    Agreed. I personally think he’d have no problem if he had just unloaded everything immediately into the perpetrator. The pause between the sets of four shots is not too bad but that pause before the ninth shot is just a killer to any arguments of justification. I think that shot is going to get him charged.

      Olinser in reply to TheOldZombie. | January 10, 2023 at 8:00 pm

      Well, if he’s smart, and he reads this blog, then he’ll claim that the final shot was an accident (and there’s reasonable cause to think it might have been accidental as it was kind of an awkward position for the shot).

      I don’t believe the police have actually located the individual in question, so I think its likely that he’ll have a lawyer before he ever talks to the police who will tell him exactly what to say.

      I don’t think he’s likely to get charged in this case.

Great article and hopefully those from previous articles read and learn it. Way too many people running on emotion saying everything was justified when clearly it is not.

The shooter here may not get charged. Personally, I don’t have a problem with that, but I think that ninth shot is what tips the grand jury into charging him.

“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).”

More proof our justice system is not a justice system but a legal system and a bad one at that.

A real justice system would have the perp in prison for life for the death of Waraich and he would never have been in the restaurant that day.

Andrew Branca: Welcome back-it’s been a while

    You know, that’s not necessarily a bad thing.
    (Enjoy reading his analysis, but if there weren’t any shootings for him to dissect, that wouldn’t be bad, I don’t think.)

Andrew, I think you are plain WRONG. The problem with your analysis in my view is your initial move–dividing the hero’s actions defending everyone from the threatening-deadly-force criminal into 3 different use of force events.

All 9 of the hero’s shots occurred within a period of 9 seconds. They were all of one piece. The hero was acting to assuredly put an end to the threat posed by the criminal. The hero acted until he did. There was no break in the hero’s actions. The hero did not pause shooting check that no innocent folks were injured, and then returned to shoot an immobile criminal, All the hero’s shooting was of one continuous motion while he moved toward the criminal.

Not 3 use of force events. Just one.

    Ira in reply to Ira. | January 10, 2023 at 7:27 pm

    P.S. Thank you, Andrew, for the complete analysis.

    TheOldZombie in reply to Ira. | January 10, 2023 at 7:44 pm

    He didn’t divide it into there separate use of force incidents. It’s all one incident. But what happened during that incident is three separate issues that the shooter could be facing in front of a jury.

    The shooter did pause. He paused after the first four. He also paused after the second four where he took the time to pick up the peeps gun and than shoot the perp in the head.

      Neither Andrew nor I used the word “incident.”
      Per Andrew Branca himself, “. . . I’ll be addressing the shooter’s use of force as three distinct use of force events . . . .”

        TheOldZombie in reply to Ira. | January 10, 2023 at 8:33 pm

        3 different use of force events OR three separate use of force incidents

        Pretty much the same thing but just worded differently.

        events = incidents

        Everything else you said is also wrong. The shooter did pause. He most assuredly paused when he took the time to pick up the perp gun and then shoot the perp in the head. A pause doesn’t have to me a minute. It could be just a fraction of a second or it could be a second right before he shot the final shot.

        It’s an invalid argument to say the shooter did not pause in his shooting. The video shows that he did pause.

        mbecker908 in reply to Ira. | January 11, 2023 at 10:20 am

        And there were three distinct use of force events. Clearlly.

    If the shooter is brought up on charges, the prosecutor is more likely to divide the incident into multiple parts to maximize the chance of a conviction. A competent lawyer would have to assess the case on that basis.

    Plan for what your opposition will do, not what you wish would happen.

      TheOldZombie in reply to McGehee. | January 10, 2023 at 7:52 pm

      I could easily see the prosecutor make an argument that the first shots are justified but the shooters following shots weren’t justified and constitute excessive force. A good prosecutor will also hammer home that ninth shot was an execution shot.

    John S. in reply to Ira. | January 10, 2023 at 7:49 pm

    Ira, you are factually incorrect. There was a definite pause in the shooting, when the shooter picked up the robber’s gun. AFTER he did that, he fired another round. Take a look at the video again.

    In shootings EACH SHOT fired must be justified as if it stood alone.

    In this case, the robber was no longer a threat of any kind. He had stopped moving and his gun was no longer in his control. That shot wasn’t fired in self-defense or in defense of others.

    It’s doubtful that he’d be convicted though, even if he gets indicted by the GJ. This is Texas, after all

      TheOldZombie in reply to John S.. | January 10, 2023 at 8:25 pm

      Remember though this took place in Houston. A blue part of the state. Blue enough that he might not get that famed “Texas jury” a lot of people keep talking about.

    Sanddog in reply to Ira. | January 10, 2023 at 10:46 pm

    Of course there was a break. He made the first 4 shots. He paused before the next 4. He leaned over to pick up the gun, aimed his and fired the last shot. In defensive shooting, you’re supposed to pause to evaluate if you need to continue. This gentleman seemed to have some level of training. His mistake was in either not knowing or forgetting the incident was being recorded. And 9 seconds can be a very long time in a situation like this.

      artichoke in reply to Sanddog. | January 11, 2023 at 6:46 pm

      Yes, with all the recordings, nobody’s going to be willing to defend the public with use of force. Not civilians, not police. Nobody. And the decisions in the heat of battle will be dissected with no leeway given to the guy who did not start it.

      Every event will be like Uvalde from now on. Uvalde didn’t come from nowhere. It came from Chauvin, Potter and the Arbery defendants.

    inspectorudy in reply to Ira. | January 11, 2023 at 12:28 pm

    Suppose you ran into a building and “Rescued” ten people whom you thought would die in the fire that you thought was real and it turned out that it wasn’t real but a HiDef TV in the window. Even if the ten thought it was a fire too, would you be a hero? As it turned out, the robber had a fake gun, and under the law that is not material, but in reality, it means that the patrons were not in danger and he didn’t actually save them so how is he a hero?

      artichoke in reply to inspectorudy. | January 11, 2023 at 6:48 pm

      They were going to be robbed, held as hostages, or whatever sick idea the criminal had in mind, just as if the gun were real. The hero stopped that. If the criminal didn’t intend some very abusive action, he wouldn’t have done such a good job pretending to have a working gun.

        inspectorudy in reply to artichoke. | January 15, 2023 at 12:29 pm

        What if a patron had stood up and said No to the perp? The perp could not have harmed him or certainly not shot him so how could that patron be a hero? At the moment he is a hero but after the threat was found out to be fake he really didn’t save anyone. I know it’s difficult for Rambo types to understand but that’s life.

    Joseph K in reply to Ira. | January 11, 2023 at 4:24 pm

    You may want to research that assertion. You must be justified for every round. People have been jammed up over a pause then firing more when it did not look necessary. Andrew is certainly correct in how the law sees it.

What I found interesting was the companion at the table, he didn’t blink, he knew what was coming

    Paul in reply to gonzotx. | January 10, 2023 at 8:06 pm

    I noticed that too, and also that the shooter himself seemed very ready… itching to get on with the shooting almost. My impression from watching the video is that this was not the first time the shooter has shot someone or been involved in a gunfight. Perhaps ex-military? Or experienced gang-banger?

      It’s weird how different people see the same situation differently. I saw his “itching to get on with shooting” as caution that the robber, whom the shooter believed to be lethally armed and was swiveling around frantically while waving his weapon, not see him reach for/pull his weapon. He clearly was going to intervene, but it seemed (to me, anyway) that he didn’t want to be the one shot.

      I don’t think it’s fair to suggest that this guy was a gang-banger because of his apparent ease and comfort shooting. We didn’t suggest that of Kyle Rittenhouse, whose shooting was far better and more controlled than this guy’s. Anyway, we’ll know soon enough if he’s a current or former gang member. He may well be/have been, who knows?

        henrybowman in reply to Fuzzy Slippers. | January 10, 2023 at 8:25 pm

        No, it’s just a combination of subconscious cues. The hardass expression, the truck, the limp, the fact that neither he nor his dinner companion showed any “shit, that’s loud!” reaction. And the whole “make damn sure the other guy’s dead” dedication… very street.

          You don’t know many rednecks, do you? 😛

          henrybowman in reply to henrybowman. | January 10, 2023 at 9:25 pm

          You really need to visit me sometime. “Winter Roping Capital of the World.” “Wenches With Wrenches.” Largest tack & feed store in the state of Arizona. Cowboy justice for truck thieves. You can’t miss us — we have two shooting ranges on site, we’re sandwiched between two of the three RV parks in town, and right across the street from the third.

        Rittenhouse looked to me like a doe-eyed kid. He still does. Yeah, he handled the weapon very well under trying circumstances, but you could smell his fear just watching the video.

        But this guy looked to me like he was itching to get it on; zero fear. And I’m not sure you can say Rittenhouse’s shooting was better… this guy put 9 of 9 shots into the victim with a handgun.

        But I definitely agree with your first sentence! 🙂

      gonzotx in reply to Paul. | January 10, 2023 at 11:50 pm

      Agreed, the coolness of his dinner companion said it all to me immediately the first night I saw this video.
      He’s definitely done “a lot” with a handgun before”I don’t know that he was “itching”, but he and his companion sure as hell knew what was coming next

      artichoke in reply to Paul. | January 11, 2023 at 6:50 pm

      Maybe ex-military and trained for situations where you kill that enemy then look around for other enemies. This criminal didn’t have accomplices in the store, but (as in urban warfare) maybe there were even others outside or in the back. It was war, the enemy has guns, you remove the threats.

    inspectorudy in reply to gonzotx. | January 11, 2023 at 12:31 pm

    That is a dead giveaway that they both had been in similar situations before. Do any of you know how loud a 9 mm is standing in front of it? It is enough to make you flinch and grab your ears in pain. There is also a concussion that makes your eyes slam shut. This guy didn’t move.

“I would be hard pressed to avoid a vote to convict if I were on the jury. Sucks but that was one too many to let slide on any sort of ‘he had it coming or got what he deserved’ argument.”

Maybe this info from Not The Bee will change your mind about what this guy “deserved.” (For sure no juror is ever going to get to learn about it.)

He was out on bond when he committed this crime.

Records show that in 2015, [Eric Eugene] Washington was convicted on a lesser charge of aggravated robbery with a deadly weapon and sentenced to 15 years in prison in connection to the shooting death of 62-year-old Hamid Waraich, a cell phone store owner. Houston police also charged two other men…

According to records, Washington was released on parole in 2021 and charged with assaulting his girlfriend in December 2022…

“If the guy who stopped Eric was around 10 years ago, maybe I’d still have my dad,” Aman Waraich, the son of the store clerk that was killed, said.

Spent only six years of a 15-year sentence for murder, then went right back to his aggressive ways. Pretty sure we’re teaching thugs the wrong lessons these days.

Wonder if Baldy knew who this guy was and decided to take out the trash.

    AF_Chief_Master_Sgt in reply to henrybowman. | January 10, 2023 at 10:12 pm

    I commend him for his actions. I would never vote for a guilty verdict, even under threat.

      I agree with the Chief here. Our legal system has become a joke. I will no longer serve on a jury in the pursuit of some Soros prosecutor’s idea of “justice”. I will SAY so in voir dire, but then I will disregard both the facts and the law so as to administer punishment to enemies who merit it, and free my allies who might be technically guilty but deserve freedom.

      In the days of our remote ancestors, this Washington character would have been hung long before things reached this stage, and if he had somehow escaped the noose, he would have been outlawed as a “wolf’s head” whom any man could kill on sight with no repercussions. I am beginning to think that we should return to those policies, and junk the Enlightenment altogether. Our legal system is our enemy now. It is not working for the average decent citizen any longer, and those are the only people I now care about.

      our Anonymous Defender made a mistake, but it didn’t alter the outcome or do anything but improve the city of Houston.
      He shouldn’t have done that, but it’s forgivable.

    CommoChief in reply to henrybowman. | January 10, 2023 at 11:06 pm

    Henry,

    No juror will learn about the prior criminal conduct of the criminal robber because it’s irrelevant to a use of force incident; unless the victim who shot the criminal robber was already acquainted with him and had personal knowledge of this guy’s criminal past actions which would be another reason for the shooter to have a credible fear.

    The 9th shot is gonna be tough to ascribe to heat of the moment or one continuous flowing event. He had already put 8 into the criminal robber then paused to disarm the guy. Only then did he put a 9th into him, supposedly into his head.

    I have zero sympathy for the criminal robber getting shot or the fact he got four upright and another four prone. The last one though is gonna be tough. The shooter took time to pause and disarm the guy. The threat was gone at that point. Then he fired a 9th round into him. Glad I am not on a jury for this case.

      artichoke in reply to CommoChief. | January 11, 2023 at 6:54 pm

      I wish I were on the jury, but I’m not a possible juror. If I were a juror, he would not be convicted if it requires a unanimous jury.

    Yet the shooter almost assuredly didn’t know the guys record so it’s rally kinda irrelevant.

    mbecker908 in reply to henrybowman. | January 11, 2023 at 10:25 am

    If he “knew who this guy was as decided to take out the trash” that is first-degree murder.

    inspectorudy in reply to henrybowman. | January 11, 2023 at 12:38 pm

    I don’t think we are “Teaching” anything to criminals. It doesn’t appear that they ever learn. There was a break-in recently where the lady shot and killed a man who had just gotten out of prison, (20 years for robbery), for breaking into her home. It is obvious that this guy would have done something similar in 15 years or 6, it really doesn’t make any difference. We see this daily but prior crimes cannot be used in a court I don’t believe.

      TheOldZombie in reply to inspectorudy. | January 11, 2023 at 1:00 pm

      There is no rehabilitation in prison/jails. It’s all a lie.

      You may have an individual here and there that changes but that’s because they wanted to change and we’re willing to make the changes to their life. The rest are just bidding time until they get back to the streets.

      That’s why we should be extra harsh on people who get out of prison and go right back to committing crimes. “Oh you just got out of prison and you did a home invasion? That’s life in prison. Good day sir.” (I would say execution but society is too squeamish)

        CommoChief in reply to TheOldZombie. | January 11, 2023 at 1:24 pm

        Yep. Society should offer redemption to all but only those who repent can be redeemed. For some that redemption should be a period of supervised parole for others who committed serious crimes that should mean dying in prison but under less harsh conditions.

        IMO we should save the ones we can and keep the remainder, those who reject redemption, locked up. There would be a deterrent effect for some but more importantly those locked up apart from society wouldn’t be personally able to harm the rest of society.

          NotSoFriendlyGrizzly in reply to CommoChief. | January 11, 2023 at 5:21 pm

          Better idea: Do away with exercise yards, gyms, weight benches, etc. Instead, give them barcaloungers, bon bons, and all the junk food they can eat. By the time they get out of prison, they’ll be 500lbs and the only danger they’ll be to anyone is if they sit on someone.

      artichoke in reply to inspectorudy. | January 11, 2023 at 6:57 pm

      That’s how he made a living. Once out of prison, he went back to his old line of work. Fortunately it seems he didn’t spend the time with free room and board effectively studying how to do it better, because his first day back on the job was such a failure.

“30-year-old career violent criminal”

Enough said…especially when criminals are paroled after serving half their sentence, yet the individuals on the parole board, operating with impunity, are never held responsible when they let violent criminals back out in the street only to murder or rob the next day.

I know the law enjoys splitting hairs to the micron level, but this guy is a hero, ask the other patrons. Besides, most people have no clue how they’d react in the same situation, empty the clip until the threat is neutralized. Leave him be.

    AF_Chief_Master_Sgt in reply to Camperfixer. | January 10, 2023 at 10:18 pm

    While I am happy to let the lawyers argue the issue and the merits in a court of law, I am also happy that non-lawyer people who don’t split hairs are on the jury.

    My first thought would be “what if that were me, and I was having a meal with my daughter, and this clown came in indiscriminately waiving a weapon and pointing it at people, would I be upset if someone unalived this clown?”

    I would not be upset in the least.

      I would like to think I would have the presence of mind to rush the robber as he walked in, getting him off his plan and disallowing him to gain full control of the room. OODA Loop in action. But one never knows how they would react, plus this requires serious situational awareness in all “outings”, especially in city establishments.

      That said, I do not begrudge someone’s motivations and or actions when an unexpected real threat is in THEIR face…the language/action parsing is for lawyers and DA’s who like to rub their hands together to create a criminal out of the good guy when it suits their political agenda. Happens all the time.

      Ultimately I don’t give a rip he plugged the guy at the very end, adrenaline would have been running at redline at that point, and NO ONE wants to be a shooter…in the immortal words of Jesse Stone, “It’s not like the movies, it stays with you forever.” Justified shooting or not, this guy has to live with an action that 99% of those seeing this would never want on their conscience, even if it’s another unrepentant criminal removed from the gene pool, let God judge him now. Play dangerous games and you might just get the ultimate result. Any DA who tries to bring this guy up on charges is a bum looking to make some score.

      Man are you out of touch with modern juries. Remember OJ? This is Houston TX. Do you know who runs Houston and what the population is? I would take a plea before I would allow a jury from Houston to judge me.

        TheOldZombie in reply to inspectorudy. | January 11, 2023 at 1:05 pm

        Too many people are stuck on the whole “TEXAS” myth thing and they don’t realize that Texas is like any other state. It’s not special at all.

        Houston is blue and getting more blue. The people there elected a prosecutor that Soros bankrolled. Those people are going to be on the grand jury and than the jury if this man is charged.

      I hope the jury doesn’t split hairs. Seems judges and prosecutors were pretty successful in getting the jurors for Chauvin, Potter and the Arbery defendants to split hairs, to the extent of convicting a guy of murder for taking cellphone video. Because that conviction was a “good outcome”, an “exercise in accountability” in the words of the judge of the Arbery trial.

good points, in my ccw class we were taught to shoot till the threat is over, but empty the gun as we also must justify fear of life, shooting in the head is not that class, but it is possible that the robber moved in death throes and thus could be perceived as still a threat

    Sanddog in reply to Rob Barlow. | January 10, 2023 at 10:57 pm

    You don’t need to do a magazine dump to justify fear for your life. I certainly don’t teach that and I think it’s reckless and stupid. I don’t teach head shots as an initial reaction but I do teach either a head or pelvic shot if the first few don’t stop the threat. A robber on the ground who no longer has possession of a weapon and who is twitching isn’t necessarily a threat. If he’s trying to reach for a firearm or if he’s trying to get up, that’s a different story but I must stress the goal is not to kill the guy, it’s to make sure he can’t immediately kill you and just because he’s still breathing doesn’t mean he’s still a deadly threat.

I think the video could support an argument that the ninth shot was unintended. The shooter straightened abruptly after that shot was fired; A competent lawyer should be able to argue that was a reaction of surprise.

    henrybowman in reply to McGehee. | January 10, 2023 at 8:30 pm

    Even so, the only prize for that is negligent homicide / manslaughter, not any sort of Lovely Parting Gift.

      artichoke in reply to henrybowman. | January 11, 2023 at 7:04 pm

      Is it still negligence if the whole situation, the whole elevated adrenaline, flashbacks, whatever “complicating factors” are likely, was the cause of the one you’re trying to be sure is no longer a threat?

      Just “negligent” for making a mistake there, no pressure at all in that situation, it’s all on him? Maybe this can fit in the legal definition of negligence, I’d have to know more, but it’s not the common English usage of the word.

    alaskabob in reply to McGehee. | January 10, 2023 at 9:35 pm

    Good point….adrenalin dump…. well..at least a good one to toss at the wall and see if sticks;.

    mbecker908 in reply to McGehee. | January 11, 2023 at 10:28 am

    The issue is never what a competent lawyer can possibly argue, because a competent prosecutor can argue the opposite. And the argument takes place in a quiet court room, in slow motion.

    The issue is what will the jury do? This guy bet his life on them ignoring the last shot. Not a bet I would ever make.

      artichoke in reply to mbecker908. | January 11, 2023 at 7:05 pm

      And you wouldn’t make that bet in the quiet room you’re in right now. Too bad this guy didn’t have such a quiet moment to decide on that gamble. And as a juror I would see a big difference there.

      henrybowman in reply to mbecker908. | January 12, 2023 at 1:29 am

      I suspect Baldy never considered the video cam.

    inspectorudy in reply to McGehee. | January 11, 2023 at 12:43 pm

    Not while the shooter is holding the perp’s gun and then bends down for the shot. That does not show fear or adrenaline. That shows intent.

      artichoke in reply to inspectorudy. | January 11, 2023 at 7:08 pm

      So the guy was always looking to shoot this other guy, just happened to luck out he came into the restaurant where he was eating so it was convenient to pump him full of lead. Is that what it was like? That’s what I’d call intent.

      Decisions a few moments after a gun (real or close enough to be believable) was pointed at you and the other innocent people there — much different. I would give far more leeway.

If I were sitting on the jury, I’d likely say that Mr. Hothead went too far.

I watched the video before watching Andrew’s presentation on Sunday. I watched Andrew’s Sunday presentation with the replays of the different segments of the shooting. In every instance, my conclusions were the same. The Shooting, insofar as the first four shots was totally justified and within legal bounds. And even the second volley of four shots, though, IMHO, excessive, would not have posed for me (were I juror. IANAL) any particular problem.

But that Coup de grace ninth and final shot was just flat out MURDER, assuming the robber was still even alive at that moment. If the Harris County Medical Examiner determines that that 9th round was the fatal round, then this fellow is in some seriously deep do do.

    artichoke in reply to Romeg. | January 11, 2023 at 7:11 pm

    Hard to see how such could be determined, not just as the most likely diagnosis, but beyond reasonable doubt. As a juror, do I know the medical examiner is applying that standard?

    Guilt has to be beyond a reasonable doubt. The juror has to be damned sure, not just pretty sure. It has to be obvious. Why are the plain words not believed in their full English usage? Judges might like to do so, but they cannot tell the jury those words don’t mean what they mean.

I’m reminded of lawyer Donovan’s (Tom Hanks’s) argument representing an insurance company (Bridge of Spies (2015)) that an auto wreck resulting in hitting five guys was a single event, not multiple events, for purposes of the limit of coverage. If not, no insurance is possible as a business.

Likewise this is a single act of self-defense, not multiple acts. The jury will go that way.

He should be charged with littering for leaving that disgusting piece of garbage near the door of the tacqeria. Someone has to clean up in there. He could at least have kicked it out into the street.

I can accept the argument that the ninth shot was not justified, if intentional, but I find myself wondering if that will ultimately matter. Too many high profile shootings seem to now be decided on the perceived awfulness as opposed to the law.

The analysis is appreciated, but it just feels academic these days.

Also the guy was dead after a few shots. Prove he was alive.

    henrybowman in reply to rhhardin. | January 10, 2023 at 8:32 pm

    The medical examiner may well be able to prove this, especially if only one shot hit the head.

      TheOldZombie in reply to henrybowman. | January 10, 2023 at 8:35 pm

      I hope the medical examiner testifies that the guy was dead before that head shot but no one should be relying on the medical examiner. We’ve seen enough of them to know that they will say anything.

      Medical examiners are on the states side.

      My issue is does the perp have to actually be dead for the ninth shot “not to count”? What if he was not dead, but the 8 shots gave him wounds he could not survive..

        henrybowman in reply to jb4. | January 11, 2023 at 12:52 am

        The law isn’t friendly about this.
        John Hinckley shot Ronald Reagan and James Brady in 1981.
        He was judged not guilty (insanity) and institutionalized for 34 years, 1982 to 2016.
        James Brady lived for 32 years after the shooting, and died in 2014.
        His death was ruled a homicide at the hands of John Hinckley… 32 years later
        I believe Hinckley was lucky — if he hadn’t already been judged not guilty (insanity), I believe this could have changed his status again.

          I remember that conclusion, and I found it absurd: Common Law limits “death by homicide” to a year and a day, and I think that’s a very good standard.

          Otherwise, an individual can have the potential death of a former victim held over him for the rest of his life!

      artichoke in reply to henrybowman. | January 11, 2023 at 7:21 pm

      How sure will the medical examiner be? An autopsy is based on a “most likely” standard, otherwise lots of them would come back indeterminate. Is the medical examiner subject to adequate oversight, like a defense doctor watching while he does the examination? Can there be a defense autopsy too? They’re just expert witnesses and the defense can have one too, I hope.

      Under “reasonable doubt” standard, there are so many things to “tidy up” to be sure that the ninth shot killed him and was intentional and in the right frame of mind to justify conviction, I don’t see how all the doubts can be combined into less than reasonable doubt.

“…Washington had previously been convicted in an armed robbery that resulted in the death of the victim…”

In other words, the anonymous good guy with a gun simply finished the job the state refused to do.

We The People are fed up!

Steven Brizel | January 10, 2023 at 9:02 pm

Thanks for an excellent analysis of the various Texas statutes.

Subotai Bahadur | January 10, 2023 at 9:06 pm

The analysis was a painstakingly detailed explanation of the law, and if we were a country where the rule of law prevailed would be pretty much everything those of us not involved would need. However, even as Mr. Branca noted in the Freddie Gray case, politics is the ultimate determiner of prosecution and conviction.

Key points in this case are that the robber was a young protected class with an extensive criminal record that includes armed robbery and killing the store owner. Further, he was, I understand, on probation for yet another felony. In other words, a “misunderstood yout’ who was turning his life around”. Not that the taqueria customer knew this in any way, but the DA does. Where is that DA? Houston Texas, one of the two primary Leftist strongholds in the state. It is reported that the DA is one of the ones financed by George Soros, and therefore like them it can be assumed that his goals include protecting minority criminals at all costs.

For some reason I have not been able to get the video to play here at home, so I cannot be sure of the ethnicity of the shooter, but in the bulletins immediately thereafter before he went to the police, he was described as “Hispanic or white”. If he is Hispanic, it can be assumed that he is here legally, as an illegal invader would have beaten feet out of here rather than go to the police. Or he could be white.

Politics rules. a young, black, male, multiply convicted criminal even though dead scores higher on the Leftist Protected Class scale than a legally present Hispanic. And a white male does not have the protection of the law as far as the Left is concerned.

A DA can convince a grand jury to indict a ham sandwich. Regardless of the statutes correctly cited by Mr. Branca; the shooter is going to be indicted on multiple charges.

Keep in mind this is Leftist Houston. What does the jury pool look like? I would suspect that there will be multiple convictions. It is possible that there will be jury nullification, but that cannot be depended upon. It is possible that after a series of time and money consuming appeals, he will be freed. But given the way the country is going, I would not even depend on that. Think J6.

Subotai Bahadur

    12 on a jury, and the prosecutor will be thinking “can I get a unanimous verdict to convict?” I don’t think this one will be good for any prosecutor’s statistics.

      artichoke in reply to gnome. | January 11, 2023 at 7:23 pm

      The prosecutor didn’t have to go to the grand jury. He chose to do so. He just HATES the idea that the public can choose to protect itself like this.

        TheOldZombie in reply to artichoke. | January 11, 2023 at 10:16 pm

        In Texas all killings of another person, justified or not, go automatically to a Grand Jury. Prosecutor has no choice in this in this matter. That is Texas law.

    However, even as Mr. Branca noted in the Freddie Gray case, politics is the ultimate determiner of prosecution and conviction.

    Huh? In the Freddie Gray cases, plural, all the cops were acquitted.

      mbecker908 in reply to Milhouse. | January 11, 2023 at 10:34 am

      They were charged. They should not have been, that was a complete outrage. The medical examiner changed the autopsy report because of politics. They were acquitted because, after the first hung jury, they requested a bench trial and the facts were clear.

      In this case, the facts are NOT clear. The shooting certainly is, but the facts remain to be defined by the prosecution.

        Russ from Winterset in reply to mbecker908. | January 11, 2023 at 3:23 pm

        RE the Freddy Gray case, “the process is the punishment”.

        Milhouse in reply to mbecker908. | January 11, 2023 at 7:25 pm

        Nonresponsive. The statement is “However, even as Mr. Branca noted in the Freddie Gray case, politics is the ultimate determiner of prosecution and conviction.” That statement contradicts the facts.

Mr. Branca:

I posted this over at “BattleswarmBlog” and thought I’d copy it over to here. Although much more simplistic and less legalistic it appear to be in line with your analysis of the shooting:

“I’ve taken multiple training sessions on self-defense, and all of them have the following 4 “easily popped balloons” that are required at every moment to make a successful self-defense claim. In (extremely) abbreviated form they are:
– Reluctant participant
– Immediate danger of death/grievous bodily injury
– No lesser force will stop the attack
– No practical retreat

Using these legal criteria as a basis for judging each shot, it is seen that the first 4 shots are completely justified. The second set of 4 might be somewhat more difficult to justify, but given that the robber was still moving and in possession of his weapon would probably be given a pass.

It’s that 9th and final shot that cannot be justified as self-defense. The shooter has paused in his shooting, the robber is down on the ground and is incapacitated, the shooter has actually picked up the robber’s firearm (fake or not is totally irrelevant), and then with time to think about his action, has fired the final shot into the robber’s head in an execution. Not a SINGLE ONE of the required criteria is met at that time to justify the homicide.

No wonder the local cops are “looking to interview him…no criminal charges are pending” (yet). He’ll be charged with some sort of homicide, depending on the state laws, as soon as he’s found. Given that they have video of him and his truck, I’m surprised he hasn’t been arrested already. I feel bad for him, since (as H. Beam Piper once noted), “Not shooting a thief is the same as encouraging him”, but that’s not the law in the US.

I’ve been carrying a firearm every day for the past 18 years and have never had to draw it from my holster except to fire it at the range or to clean it, and I pray that I never have to. But if I do, I don’t want the example of this person to be used against me for a justifiable shooting.”

Thank you for this comprehensive legal analysis.

Well, I can honestly say I would never fire 9 rounds into a single perp. Unless I reloaded. 😉
(I carry a 1911.)

Now off to read the rest of Mr Branca’s cogent analysis.

have to commend the shooter–cool and poised in the moment–regardless how it “looks” the shooter neutralized the threat and no one was injured–good job, sir

the perp gave up his “rights” when he walked in and threatened the lives of everyone in the place

if am on the jury(should it come to court), the shooter walks

I’m a fairly experienced shooter. No LE or Mil background tho. It sounds like nearly everyone agrees – the first four shots were unambiguously justified. The next four are more ambiguous. The 9th shot is … not justified. It could be justified that he kept the muzzle on the attacker and shot inadvertently (negligent discharge).

With that said…

Were I on the jury, my thought process would be when the law applies to the big people we should apply it to the little people. As long as cabinet members, senators and presidents can break laws with impunity I am really not interested in the words of the law. For me – I don’t care what the law says. A bad guy threatened others with a gun. He gave up all rights at that time. Do what you want with him. I recognize that way lies anarchy – but until we see justice applied equally to powerful politicians I will vote for what is right, not what is legal.

All this talk of ‘its murder because of the kill shot at the end’ – but the perp had already been shot 8 times at that point and was probably already dead.

Its not murder to shoot someone when they’re already dead.

    TheOldZombie in reply to Aarradin. | January 10, 2023 at 10:24 pm

    It might not be murder to shoot someone whose already dead but are you really going to gamble that the medical examiner who works for the state is going to get up on the stand and say the ninth shot didn’t matter because he was already dead?

    That’s not a bet you should be taking.

    An actual law school question that I believe (not being a lawyer) is answered: Kinda-sorta. If you shoot Bob and you know Bob is dead, that’s abuse of a corpse or the like. If you shoot dead Bob and you *don’t* know Bob is already dead, I think (but will be corrected, I presume) that’s just attempted murder.

    (I’m probably in the “Too scared to shoot” category which is why I don’t normally carry)

    pst314 in reply to Aarradin. | January 11, 2023 at 5:48 am

    It is murder if they’re not yet dead and you shoot them one more time to make sure they are dead. And if you walk around with a “always make sure they’re dead” attitude rather than just “end the threat”, well, you are setting yourself up for a charge of murder. And if you have made that attitude a matter of public record, it might be murder one.

Is there grounds for prosecution for putting a few extra rounds into a dead body?

1st round: Headshot- cranium on wall. then 9 to the knees?

OwenKellogg-Engineer | January 10, 2023 at 10:48 pm

Thank you Mr. Branca for your thorough observation and evaluation of this incident. It is, as always, well reasoned, straight forward, and extremely defensible.

I cannot dispute Branca’s analysis but it all happens so fast that it is hard to mentally separate any one shot from the others. The 9th shot may cost this man his freedom but the incident just looks like “this guy robbed us at gunpoint so I just reacted by shooting him a bunch of times until I was sure he could not threaten us again.” It really will be up to the sentiment and political motivations of those in the system.

    Unfortunately you can’t put the genie of being able to analyze an incident second by second back into the bottle. It exists. It will be done.

Notice after the 9th shoot he slowly removed the gun. I would say he was still in fear of his life and felt threaten. Since there was not place to retreat, he was left to defend himself.

    TheOldZombie in reply to MarkSmith. | January 11, 2023 at 3:10 am

    This is inaccurate. He picked up the gun in his left hand and than fired the shot. A gun that was to side and no longer being held by the bad guy. It’s right there on video.

    diver64 in reply to MarkSmith. | January 11, 2023 at 4:01 am

    Watch again.

      MarkSmith in reply to diver64. | January 11, 2023 at 2:39 pm

      Yea, I watched it. Yea, he move the gun before he shot, but I think if I was in that situation I would have taken that 9th shot. Having a gun pointed at your head and your friends (if it was a relative even more so), you would be in fear. You are talking seconds (10 if even that).

      Kinda easy to arm chair quarterback it. If he gets convicted, I probably would too.

Most if not all of the “reasonableness” qualifiers especially for deadly force to prevent theft at night were inserted into Texas law after an Appeals Court ruling in the 70s or 80s.

The facts of that case were innocent citizen had a nice and very desirable automobile that he kept parked in his apartment’s general parking lot. He parked this car where he could visually see it from his bedroom window. He apparently had some reason (I don’t remember what) to believe his car would likely be a theft target. He apparently kept watch on his car from the safety of his apartment window while keeping his scoped hunting rifle at the ready. Sure enough one evening some would be crook came along and started to break into the car to steal it. Our innocent citizen then calmly took aim with his scoped hunting rifle from the safety of his bedroom window and shot and killed the would be thief.

Innocent citizen was found guilty at trial, but the appeals court said no the law means what it says, and at that time there was no reasonableness requirement. The law at that time said deadly force is allowed to prevent theft at night, and it meant what it said and said what it meant. Conviction overturned.

After that, the Texas state legislature added in some or all of these “reasonableness” requirements.

As for this case with the crazy left wingers in charge in Harris County, hard to say what will happen. It will depend on what the politicians, er I mean, district “attorneys”, present to the grand jury. The shooter in this case could end up facing a manslaughter charge or be forced to agree to some kind of misdemeanor plea to avoid a manslaughter charge. Or he could get lucky and not get charged at all.

My personal opinion is this guy should have stopped after the first 4 shots, and not fired again unless the perp started to turn to face him or appeared to be able complete an escape by exiting through the facility’s door.

You referred to the armed lethal threat merely “losing control” of his current weapon. Shouldn’t that be loses control and cannot quickly or covertly recover the weapon? If the pistol had stopped just under the table of that booth a short lunge would let the threat fire on the victim(s) before the defender could end the threat (unless he was extremely lucky.)

“Speculative” or not how is presuming a second weapon unreasonable? That’s the intelligent thing to do. I guess I am presuming that intelligence is reasonable and that saving the victim(s) is pre-eminent…

“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.”

What did all three of the victims have in common? What did all three of the officers have in common?

This is, as usual, a great and easy to understand breakdown of the legal questions and analysis that I have come to expect from Branca. His conclusions mirror what the overwhelming opinion is of the firearms forums I have been reading from members, CCW holders, Certified Trainers and Former/current law enforcement. First 4 without doubt justified, 2cd for maybe but in Texas probably but that last shot is going to be a problem from a legal standpoint. Most everyone was of the “play stupid games” mindset but cannot justify that last one except heat of the moment, maybe saw the guy move or something like that.

Richard Aubrey | January 11, 2023 at 7:29 am

The robber had a fake pistol, so, of course, he couldn’t shoot anybody. While it’s not relevant to the case, I wonder if he’d have shot anybody if he’d managed to acquire the real shooting iron.
I’m 6’2″. Sitting in a booth in public feels like being in a strait jacket. That might affect my decisions in a case like this.

    mbecker908 in reply to Richard Aubrey. | January 11, 2023 at 11:06 am

    I’m a concealed carrier, never leave home without it. In public places I always sit on the outside of a booth, facing the door, as far from the door as possible.

Great, understandable analysis, as always.

It is now clear to me that the customer is “guilty”, according to everything that you have laid out. However, as a normal person, I want justice.

There are ways my justice could happen, in spite of the law. The DA (super, duper nope), the grand jury (nope), the trial (magical maybe).

The fat lady hasn’t sung yet.

Thanks Mr. Branca. I may not like what you have to say, but I certainly respect it.. 100%

What if the decedent was already dead when the defender fired the ninth shot? Would the prosecutor be required to prove beyond a reasonable doubt that the decedent was still alive when the defender fired the ninth shot?

    They can try “abusing a corpse.”

    Sternverbs in reply to Guahan. | January 11, 2023 at 8:31 am

    I think that is a great question because, if the corrupt, democrat law-slingers in Houston are going to use “he only had a fake gun” as anything except an example of how STUPID the perp is, than “he may have already been dead” is workable as well…

    mbecker908 in reply to Guahan. | January 11, 2023 at 11:08 am

    The prosecutor can make the argument that the shooter did not know the robber was dead and that it was an intentional kill shot. That’s not a hard argument to make, and make convincingly, in a quiet court room with the video playing in slow motion.

Why is a thirty year old “career criminal,” who has already been involved in murder, on the street to begin with?

Know “juror/jury nullification.” There are multiple Web sites explaining how it works and how to best approach its use if you are ever empaneled as a juror.

There are great juror/jury nullification information Web sites and then good ones than a few so-so sites and the always present lame or lousy Web sites as is true for every Web site seeking to inform that unwashed teeming masses of common folks about every conceivable topic.

I omit listing the sites I think are superior for several reasons. Those who truly care about informing themselves will peer at sites they find and determine for their selves which ones are worthy of their using as an informative site.

Hopefully if that hero removing societal filth from our presence goes to trial one or more patriot jurors will vote “not guilty” and stick to that vote until either all the jurors vote “not guilty” or a mistrial is declared by the judge and hopefully the traitor prosecutor decides not to retry the patriot or, if traitor prosecutor starts a new trial that patriot jurors use nullification at the second trial.

The ninth shot only becomes an issue if it can be shown that none of the previous eight were the cause of death…

Using the Joe Horn precedent from 2007, this guy is good to go

I might offer this in way of aexpelnation of the video.

https://www.youtube.com/watch?v=psD-uLciLJ0

Russ from Winterset | January 11, 2023 at 8:50 am

I agree with everything you said here, Andrew. Excellent analysis as usual.

Watching the video, I feel bad for the shooter because he started out with a very justifiable shooting and with that last shot he opened himself up to a murder charge. Without that last shot, I think he had an excellent chance to avoid prosecution, even in Blue Houston.

Was he amped up after being forced to confront an armed scumbag? Did the scumbag’s prior crimes justify removing him from the gene pool? Did “finishing the job” with shot #9 limit his civil liability by taking the possibility of a disabled “victim” swaying the jury “off the table”?

Probably. But in our world with an imperfect legal system, shot #9 served to hand the State a reason to focus it’s energy on the shooter. So much better if he had pulled up short after #8.

    SeiteiSouther in reply to Russ from Winterset. | January 11, 2023 at 10:58 am

    Agreed.

    When the first volley went out, I was thinking self-defense.

    The approach and second volley, I was thinking, uh-the dude’s immobile… Don’t think that’s necessary.

    The gun pickup and then the final shot to the head, I was thinking, WTF did I just watch? Dude, you’ve just landed yourself a manslaughter charge, at least.

wonder how many folks here (or that might perhaps sit on a jury in this “case”)have ever had to interdict an armed robbery?–at the risk of their own life and of the innocents around them?–the result of this man’s actions are that he survived uninjured as did all the other innocents present–that is a clean result–period

as a prospective juror(if this ever comes to court), am not going to punish a man who, at the risk of his own life, saved himself and the others present from potential serious injury/death–am not going to require him to know chapter and verse any applicable “laws”–am rather going to back him up by sending the message to would-be criminals that when you threaten innocent victims with lethal force, you’re taking your own life in your hands rather than the “progressive” message that when you act to defend yourself/the lives of others you’re risking prison yourself

    Any prospective juror who has “interdicted an armed robbery” will be eliminated from the jury pool. That’s what happened when I was being interviewed during the selection process.

    The case was similar to this one in that the accused robbery suspect used a cigarette lighter that looked like a gun, to threaten and control four victims that he and a partner were robbing.

    Subotai Bahadur in reply to texansamurai. | January 11, 2023 at 6:02 pm

    However, in order to get on the jury at all, you will have to lie about your intentions and viewpoints. Otherwise you will be barred from the jury.

    Subotai Bahadur

      henrybowman in reply to Subotai Bahadur. | January 12, 2023 at 1:39 am

      I once declined that choice, but America has changed.
      Most judges will ask you, “can you apply the law as I give it to you?”
      Sure, I can. Ain’t saying I will.

    henrybowman in reply to texansamurai. | January 12, 2023 at 1:37 am

    Let’s not conflate “what I would do as a juror” with “what I would teach as an instructor.” In this particular case, they quite probably would not resemble one another.

I’m going to put out here, that barring an aggressively antigun prosecutor (something you can’t rule out in Houston) the defender’s main exposure is on that last shot, and provided the perp was already unrecoverably fatally injured before the final shot (a likelihood), is not anything approaching a manslaughter charge, but could still be a 2-3 year class felony.

I’m sure the fact that police have gotten away with doing worse won’t be a factor even though it should be. This man defended himself and in the heat of the moment, made a mistake.

HATZENBELLER59 | January 11, 2023 at 9:40 am

I was a law enforcement officer for 23+ years. From a legal standpoint, to stand over someone who has collapsed to the ground after being shot multiple times, with the perp’s firearm clearly sliding across the floor, the proper thing to do would be cover him with your firearm, secure the perp’s firearm lying on the ground, and wait for the authorities to arrive.

That last shot appeared very “execution-like” . . . but I’m going to add this. Adrenaline is a very difficult hormone to control. You spend hours and hours as a police officer learning to control it and to master the “adrenaline dump” whereas the average individual who ends up in a situation like this one would have a difficult time in many cases from stopping themselves from pulling the trigger.

Hopefully that’s taken into consideration if / when this guy is charged.

On the bright side, he did society a good measure by ridding us of yet one more criminal who will never contribute a damn thing . . . but will go on preying on others, and possibly end up taking a life or two along the way.

    mbecker908 in reply to HATZENBELLER59. | January 11, 2023 at 11:13 am

    Good analysis, but as a law enforcement officer you know that there is no bright side to being arrested for homicide. Even a not-guilty verdict will cost years of your life and a decent-sized fortune in attorney’s fees.

      artichoke in reply to mbecker908. | January 11, 2023 at 7:26 pm

      Yes and in light of recent jury verdicts against law enforcement officers in cases that were, putting the prosecution in the best possible light, close calls — we’re all in Uvalde now.

E Howard Hunt | January 11, 2023 at 9:47 am

First, the laws need to be changed to facilitate the killing of gun wielding scum balls.

Second, partitioning the shooting into three events is useful, but to the shooter it was one emotionally charged, almost unreal event, and he may very well not have been in his right mind and was under an uncontrollable compulsion to empty his chamber.

Third, his defense counsel could give a sympathetic jury reason to let him walk by presenting expert medical testimony that the scum ball has deceased after the fourth or before the ninth shot. He could be fined for abuse of a corpse.

    alien in reply to gonzotx. | January 11, 2023 at 12:15 pm

    You really don’t have to read that story to tell that it’s advocative journalism — the title gives it away. “Summit News” might want to reconsider its name.

      artichoke in reply to alien. | January 11, 2023 at 7:28 pm

      If it had been from the establishment press and called the now-dead perp a young man with a lot of potential, and his shooter a white supremacist who probably has a bunch of nooses at home — you would call that good solid journalism.

        alien in reply to artichoke. | January 11, 2023 at 8:24 pm

        “Hero customer”

        “the career criminal he put down”

        “our hero”

        “The thug he shot”

        “Our hero never would have even been put in this position if Kim Ogg actually locked criminals up rather than kneel before them.”

        “This is a clear-cut case of self-defense”

        The website does not have an about page nor disclosure of ownership.

        If it had been from the establishment press and called the now-dead perp a …

        No, I wouldn’t call that “good journalism.” I called it what it is — “advocative journalism.”

      henrybowman in reply to alien. | January 12, 2023 at 1:41 am

      Tough. We need more journalism that advocates for traditional American values, not less.

Capitalist-Dad | January 11, 2023 at 9:59 am

This legal analysis is outstanding. Of course, unlike the actual incident, we have the luxury of slow motion/stop action replay where there is plenty of time to see every nuance and line it up with the relevant legality. It also simplifies things when the law ignores future threats—because live career thugs never go after their accusers (sarc). It’s like the police shooting incident in Chicago where the perp dropped his gun. But you couldn’t tell that in real time, so the left media showed it frame by frame allowing the viewer to kinda, sorta, maybe discern a silver streak in the streetlight as the gun dropped. The cop was pilloried and this incident ultimately resulted in hyper-regulation of (a de facto ban on) police foot chases. All gleefully celebrated by the pro-criminal cretins who run this Democrat cesspool—apparently with the idea that keeping criminals off the streets is racist. I hope the shooter in Houston has a fantastic attorney because he will need one in our twisted times.

My question – perhaps the author Andrew Branca could reply or, ideally, post a followup article – is, would it matter when, exactly, the thief died? For example, if a medical expert testifies that the thief was certainly dead by the fourth, legal, shot, what is the “crime” for subsequent shots? Mutilating a corpse? Even if the thief were still alive, but with no chance of survival, could the defense argue that the follow-up shots “put the thief out of his misery” and prevent needless additional suffering?

    Milhouse in reply to gschwim. | January 11, 2023 at 7:46 pm

    “Putting someone out of his misery” is called murder.

      alaskabob in reply to Milhouse. | January 14, 2023 at 12:39 pm

      Happening to thousands…. assisted suicide. The correct wording should be “putting someone out of our misery.” While the intent may well be “execution”, we will have to wait and see if the other shots constituted a lethal injury. If survivable, then the last shot is critical.

      As for a Biblical point of view…. what would be the circumstances. Yes, we aren’t in ancient Israel… although that has a certain appeal.

    TheOldZombie in reply to gschwim. | January 12, 2023 at 11:55 am

    Even if the thief were still alive, but with no chance of survival, could the defense argue that the follow-up shots “put the thief out of his misery”

    Any lawyer dumb enough to make this argument should be sent to the gallows as if he was the one who committed the crime. Even if his client only gets life in prison.

    That’s how dumb the “put the thief out of his misery” argument would be.

There is the real possibility in an armed robbery situation that the robber shoots one or more of the robbery victims on the way out the door who appear (in their criminal mind) to recognize the robber. You’d look pretty stupid if you were in possession of an equalizer and you let that happen.

The customer sitting beyond the line of fire next to what looks like a juke box (Please Mister, please. Don’t play B-17) is lucky not to have been collateral damage.
Also, I’ve seen a version of the robbery video showing the robber pointing the firearm at the customer who will soon render him DRT. The video version shown in this article doesn’t?

    Philip in reply to Philip. | January 11, 2023 at 1:23 pm

    Nueve Balas: 9 Bullets (9 Balas) es una película protagonziada por Lena Headey (una de las muchas malas de Game of Thrones) y Sam Worthington (Avatar).
    9 Bullets: Directed by Gigi Gaston. With Lena Headey, Sam Worthington, Dean Scott Vazquez, Martin Sensmeier. A burlesque dancer must go on the run to save a …

    MajorWood in reply to Philip. | January 15, 2023 at 5:51 pm

    The angle of the shots would have put any misses about 4 ft, if not higher, above the guy sitting in the corner.

Is the customer a medical doctor (or of equivalent training to be able to determine whether the robber lying on the floor is dead)?
The nation’s latest addition to the SCOTUS, under oath, told us that she couldn’t define what a ‘woman’ is.
Go Dawgs!

Capitalist-Dad | January 11, 2023 at 12:12 pm

Legal and right are sometimes two different things. But one thing is becoming crystal clear: too many cameras impede justice. Way before cell phones and body cams, my friend and his brother were awakened by a crook trying to crawl through their apartment window. They clobbered him with a baseball bat, causing him to fall into the alley below. Two Chicago PD tactical officers quickly responded and stood over the inert perp.

Officer 1 (to his partner), “Too bad he fell into the alley. If we found him in the apartment, the case would be open and shut.”

Officer 2 (to my friend), “We have a priority call elsewhere, but we’ll be back.”

My friend and his brother dragged the perp up to their apartment. When he started to come to, they clocked him with the bat again. The police officers were back in two minutes, slapped on the cuffs, revived the perp, and carted him off to jail. Thus making sure every technical factor proving guilt was covered, and guaranteeing a victory for true justice.

    If I were a defendant in a use-of-force case, I’d rather be legal than right.

      Capitalist-Dad in reply to alien. | January 11, 2023 at 1:49 pm

      You probably need a hard hat when the point flies that close while zooming over your head.

        too many cameras impede justice.

        My friend and his brother dragged the perp up to their apartment. When he started to come to, they clocked him with the bat again.,/blockquote>

        I’m the one that needs a hard hat?

The lesson? Learn where the heart and lungs are and concentrate on that area. Make your first shot fatal. Then when a thug puts a gun in your face, it only takes a couple to save the taxpayers the expense of a trial for him.

    MarkSmith in reply to Ironclaw. | January 11, 2023 at 3:02 pm

    Have you fired a gun before? Have you fired a gun when your life is threatened? Not like the movies to where you actually are going to hit.

      alaskabob in reply to MarkSmith. | January 14, 2023 at 12:47 pm

      Yep…ALL perspective changes, it includes tachypsychia… vision changes, decreased hearing. Everything focuses down… the periphery goes away. That is why immediately after an engagement, one must”snap out of it” reassess surroundings. I was taught to pull handgun back into optimized weapons retention position and check all the space around you right then. swivel head but look not glance.

Second: What do we want to do, based on political considerations.
Third: What do we need to do, based on monetary considerations.
The idea of dropping charges because the last shot was accidental, I think, leaves them open to a lawsuit – because someone absolutely will sue the shooter for that last shot, and they will scream bloody murder about the DA’s office not prosecuting and undermining their payday.

I will say, Mr Branca, that if I were the defense attorney here I might go the route of trying to NOT make those three distinct actions, but all of a single flow. From the moment he pulled his weapon, adrenaline and the natural (reasonable) fear that flowed made it impossible to distinguish a small motion of a dying man from a potentially deadly motion of a deadly threat.

Obviously, that has associated dangers. But is it any more risky than a defense of “accidental” on the last trigger pull?

    MarkSmith in reply to GWB. | January 11, 2023 at 2:59 pm

    What is missing from the posted clip is what happened after. He throws the fake gun against the wall. It shows that he was under the assumption that he still felt threatened. The dying man created the environment.

I registered here just to say:

I realize I would never get past voir dire, but mine would be a vote for not guilty.

The perp got what it deserved. Maybe if the criminal justice system were doing its job, I’d feel differently. But way too many repeat offenders are not being sufficiently punished and are robbing, severely injuring or killing innocents.

Cops get trained to empty their magazines and dozens can open fire in unison, creating hundreds of justified rounds being fired into a suspect.

Citizens get individual bullets singled out to talk about which bullet was justified and which wasn’t.

Step back and an armed citizen shot an armed robber. Justified.

    creating hundreds of justified rounds being fired into a suspect
    Can you cite a case, please?
    Because what I’ve seen is normally hundreds of rounds flung all about the scene with only a small handful (if any) going into the intended target. (Cops tend to be lousy shots.)

    TheOldZombie in reply to Dejectedhead. | January 12, 2023 at 11:59 am

    Cops are also judged on individual bullets.

    If the shooter in this incident was a cop he’d already be under arrest for that ninth final shot.

Maybe he was snoring when the last shot was fired.

Fuck around and find out.

Too many people are stuck on the whole “TEXAS” myth thing and they don’t realize that Texas is like any other state. It’s not special at all.

Houston is blue and getting more blue. The people there elected a prosecutor that Soros bankrolled. Those people are going to be on the grand jury and than the jury if this man is charged.

Has Ben Crump been retained?

The defendant fired 9 times. Did he empty his magazine? If not, it’s going to be hard to justify that 9th shot as “emptying the mag due to an adrenaline rush.”

    CaptTee in reply to alien. | January 11, 2023 at 8:15 pm

    Stopping at 9, instead of emptying the magazine could also be viewed as proof of restraint.

      alien in reply to CaptTee. | January 11, 2023 at 8:31 pm

      Possibly. But stopping at 8 would have been better.

      A commenter on another board said that it appears the slide locked back after the 9th shot.

It seems strange that an event that lasts about 16 seconds would be divided into three different phases. If there was a much longer time between each of the phases that would make sense. I don’t see how it would be possible to say the person being robbed should have changed their mindset three times in that short of time.

As far as losing the ability to claim self defense if the prosecution can remove reasonable doubt on any one of the imminence/innocent/… elements, is that a matter of law or would the jury decide that? And ultimately, if the jury is convinced the shooter is justified or not, do any of these points really matter? Maybe on appeal if he was convicted?

Andrew, as a fellow attorney I greatly appreciate your work and commentary, as a gun owner even more so.

I want to put something out there I havent heard discussed yet, I think that the reasonableness (reasonable person standard) here must account for the state of Houston in early 2023.

From my understanding bail reform has resulted in similar conditions there as in my home and place of practice, NYC; many more criminals are on the streets, overall crime and violent crime, specifically, are increasing. People are much more in fear than they have been in decades. I have heard calls that Houston is the most dangerous city in the Country, the DA herself has blamed the increase in crime on it all while being a “progressive” bail reform, Soros backed, advocate who embraces many of these policies.

Soros backed DAs have adopted policies that have caused great concern in their jurisdictions and a certain sector of the media has given this much coverage. Many people across the country are aware of the names Gascon, Foxx, Krasner and Bragg and, even if sensationalized, the results of the policies their respective offices have adopted.

Residents, reasonable people, of their respective cities live in much greater fear than they did a few years ago; their fear is reasonable and their reaction to that fear may also be reasonable. They are buying guns and carrying guns at greatly increasing rates. A people living in fear, reacting to that fear MUST be measured differently than those not. The shooters actions may have been a result of this fear.

If I were defending this person and had to, I would explore this concept, all you need is 1 of 12 on the jury. None the less, Im not a criminal defense attorney, Im just a civil litigator paid to think outside of the box.

Thanks again for all the good work.

We need a special law for cases where someone who is legitimately defending themselves could be considered to have continued to use lethal force after the threat was no longer ongoing. Fight or flight is a basic biological survival switch that can’t just be reversed in an instant.

It is the perpetrator who is responsible for his victim’s switch having been flipped to “fight” against him and hence is responsible for the consequences. If anyone murdered this perp it was himself, an understanding that is the basis of “felony murder” laws.

That doesn’t mean the defender did not to any wrong, but only of a separate and lesser crime, not murder or manslaughter.

Putting a final bullet in the perp’s head after the perp, already shot 8 times, was lying motionless and the defender had already taken his gun, is not entirely unreasonable.

The perp could have been playing dead and he could have had a second gun on him, so a final shot to the head, to make sure the threat was fully eliminated, could be seen as necessary as a matter of self-defense, especially if there could be other threats that need to be turned to. Did the robber have an unseen accomplice?

It is never safe after a shooting to give all of your attention to the perp who was just shot. Yet it is easy for prosecutors, coolly observing on video, to think that the last shot was not justified by the threat posed by the robber at that moment, and they can, and often will, charge the defender with murder or manslaughter, which is a travesty.

Once someone is engaged in lawful use of lethal force in self-defense, all judgement calls about whether he stopped using lethal force soon enough as he succeeded in diminishing the threat against him should be charged as a separate crime that might be titled: “over-extended self-defense.”

This should normally (including in the present case) be charged as a misdemeanor. That extra shot should be charged as a speeding ticket, with substantial speeding, maybe 30 mph over the limit, or a DUI.

If 80 mph over, the charge could be a felony, but the charge would still be under this separate title. It should never be charged as murder or manslaughter.

That charge belongs to the person who is guilty of felony murder, the perp whose violent felony justified lethal self-defense. Over-extended self-defense is an altogether lesser crime.

    Sanddog in reply to AlecRawls. | January 11, 2023 at 7:31 pm

    “The perp could have been playing dead and he could have had a second gun on him, so a final shot to the head, to make sure the threat was fully eliminated, could be seen as necessary as a matter of self-defense, especially if there could be other threats that need to be turned to. Did the robber have an unseen accomplice?”

    “could have” is irrelevant. “”Could have” is justification to kill someone who looks at you sideways because they might decide to harm you. “Could have” may well land you in jail. If you tell the DA you killed someone because you thought it might be necessary for your safety, even though they’re on the ground, disarmed and not moving, it’s not going to end well for you.

    TheOldZombie in reply to AlecRawls. | January 11, 2023 at 10:20 pm

    “Putting a final bullet in the perp’s head after the perp, already shot 8 times, was lying motionless and the defender had already taken his gun, is not entirely unreasonable.”

    Wow.

    I hope you’re never in a deadly force situation and the DA finds this post. You’ll be toast.

      AlecRawls in reply to TheOldZombie. | January 12, 2023 at 12:19 am

      “Could have” is justification to kill someone who looks at you sideways because they might decide to harm you.

      Sanddog is failing to account the difference between taking a cautionary shot after already engaged in justified use of lethal force and taking a cautionary shot when a justified use of lethal force is already ongoing. My whole point is that current law also fails to properly make this distinction and that it needs to start making it.

      AlecRawls in reply to TheOldZombie. | January 12, 2023 at 12:48 am

      To OldZombie: why should I worry about making a perfectly correct statement? There are reasons, once lethal force is justified, to make sure a perp poses no continuing threat, which is the basis of reasonableness.

      If I were ever in a defensive shooting and had to turn from one threat to another I might well try to make extra sure that the first threat was ended. Zombie thinks that being able to explain that to a prosecutor is a bad thing?

      Neither is there anything wrong with advocating for making a clear distinction in the law between continuing to shoot once a justified shooting has been initiated and initiating a justifiable shooting.

      I strive to obey our laws whether I think they are right or wrong. Everybody who listens to Andrew’s legal analyses is doing so in order to know how to stay legally safe under current law as written.

      For a person to not say how he thinks the law SHOULD be written, out of fear that a prosecutor might one day use his words to suggest that he does not care to follow the law as it is written, would be cowardice.

In this discussion, if anyone doesn’t completely agree with me, I’m going to get Rep. Mike Rogers liquored-up and sic him on you just like he did Matt Gaetz.

    In this discussion, it has become clear to me that a lot of the commentators in this thread have NEVER even bothered to read Andrew Branca’s post on the issue. This happens too much on this blog. People just pontificate without even reading the article.

      artichoke in reply to JR. | January 11, 2023 at 7:43 pm

      Some of us read it but disagree with some points or raise other points. Mr. Branca is interesting, but he’s been wrong before.

    TheOldZombie in reply to TheFineReport.com. | January 11, 2023 at 10:22 pm

    Not particularly worried since he was never able to lay a hand on Gaetz AND he lost a spot on the Steering Committee for his troubles.

I believe the rule s that you can keep shooting until you believe the threat no longer exists. A judgement call.

    Milhouse in reply to kjon. | January 11, 2023 at 7:54 pm

    Until you reasonably believe the threat is over. Or rather, you may continue to shoot if you reasonably believe the threat continues; this fellow did not reasonably believe that.

      CaptTee in reply to Milhouse. | January 11, 2023 at 8:08 pm

      My reasoning is that someone like this perpetrator is always a threat as long as he his making carbon dioxide.

        TheOldZombie in reply to CaptTee. | January 11, 2023 at 10:24 pm

        And that’s why you too will go to prison if you’re ever in a deadly force situation that is a 50-50 where you may or may not get charged.

        Lot’s of you think the DA can’t find stuff like this you post across the internet and use it against you in a court case? Hilarious.

The 9th shot was desecration of a corpse, at worst. The three in the back and one in the head pretty much activated the off-switch here, scientifically speaking. All movement after that was momentum and gravity induced.

Subotai Bahadur | January 11, 2023 at 7:01 pm

Allow me to toss this in, noting that I also still stand by what I said earlier in the thread.

I retired quite some time ago after serving 28 years as a Commissioned Peace Officer in the state of Colorado. The following event took place early in my career. It was far enough back where we all carried revolvers and at the time policy said they had to be .38 Special. No semi-autos. That was a long time ago. While I have had to draw my weapon a number of times in my career, this is the closest I came to actually firing on someone.

I was on the grounds of a hospital, and I heard shots. The hospital was not in the best neighborhood, and it was at night. It turned out that a 14 year old black male was chasing a 12 year old black male across the hospital grounds shooting at him with a pistol. It was a 9 shot Harrington and Richardson .22 cal. revolver. By chance, as they went past me, I was not seen because of a parked car. I was about at the 4:00 position from the shooter as they ran by. I drew, and commenced foot pursuit and was about 10 yards behind him, sights set on the middle of his back when the kid being chased jumped behind some bushes around an outbuilding to hide. The shooter slowed down looking for him. I yelled “freeze”. I am told that my voice has the volume and timbre to be highly believable. He stopped and raised his hands. I disarmed and cuffed him. My partner caught the younger kid, who was unarmed.

The key point is that as I yelled, the hammer was coming back, double action. I managed to stop when his hands came up, just before it released. That was one of the hardest things I’ve had to do, because yes there was a lot of adrenaline flowing in the 20-30 seconds this transpired. It took all my training and control NOT to fire at the shooter.

Assuming that the Houston shooter did not have the training and experience, I can see the adrenaline taking over. It may not be statutorily legal, but it is reality and understandable. Further, the Houston shooting took place in 30 or so seconds from start to finish, as indicated by the video. Time subjectively moves at differing speeds under stress.

Mind you, the Houston shooter is going to be hung out to dry. The purpose of the law is not to protect the law abiding from criminals, but to protect those accused of being criminals from the wrath of the law abiding. As criminals have gained the upper hand in our society, protected by the political Left, the law abiding are coming to realize that they have no protection and that is why you hear more about people taking their defense into their own hands. The goal of the prosecution of the Houston shooter will not be to protect Eric Washington [because he is dead, although Houston politicians would vastly prefer that he had succeeded in his robbery]; but rather to intimidate law abiding citizens from defending themselves from other criminals.

Subotai Bahadur

Excellent analysis – which is exactly the reason that vermin will continue to attack innocents without fear and citizens will refrain from protecting those innocents.

You are clearly an expert on aspects of the law on firearms and self defense – how about stepping back and opining on how the current policy contributes to a civil and rational civilization?

As a retired lawyer, and a fan, I’d appreciate your views on current Second Amendment Law (I believe the language of the Constitution is clear), and its impact on a civilized society.

Thanks for thinking about a reply.

    henrybowman in reply to Vladtheimp. | January 12, 2023 at 1:59 am

    One can make the same argument we make with constitutional rights, to wit:
    You don’t get to just “ignore” the Second Amendment — if you don’t like it, you can always try to repeal it. In the meantime, we have it.
    Similarly, if you don’t like the current laws on self-defense, you get to try to get them changed. You’re going to run up against the same immobility, however, because this particular law is the same in all 50 states, and most of the western world besides.

    mbecker908 in reply to Vladtheimp. | January 13, 2023 at 11:51 am

    Vlad, you’re not paying attention to anything Andrew wrote.

    You’re concerned about people protecting the innocent, Andrew clearly noted there was no problem from a self-defense perspective for the first four shots. And the robber was down after those four shots. The next four shots are a little problematic, it’s arguable about whether the threat was still imminent. The problem is the last shot. That shot was not necessary and can arguably be a murder charge.

    I don’t speak for Andrew, but I am a member of his Law of Self-Defense community and am very familiar with his work and what he writes. He, like me, has carried a gun for decades. He is as close to a Second Amendment absolutist as you’ll find, as am I.

    And, I have no issue with the first four shots. The next four, I don’t think were necessary. The last one, I’d probably vote to convict on a homicide count.

      RandomCrank in reply to mbecker908. | January 17, 2023 at 11:52 pm

      I agree, but I’d vote to acquit. In my case, it’d be jury nullification, unapologetically so. Juries don’t have to convict, no matter what the letter of the law says.

What this analysis is really saying is: “The 9th shot was unjustified.”

Reality says: “The only thing you can charge him with is “abusing a dead body” with the 9th shot.”

You would need a real cherry picked jury to get a conviction on that!

    Subotai Bahadur in reply to CaptTee. | January 12, 2023 at 12:13 am

    Voir dire is nothing BUT a cherry picking contest. This is Houston. There are plenty to Leftists to cherry pick from.

    Subotai Bahadur

    mbecker908 in reply to CaptTee. | January 13, 2023 at 11:39 am

    You would need a real cherry picked jury to get a conviction on that!

    Depends on the charge. Also depends on the quality of the defense counsel and the prosecutor.

    The issue is that the shooter could not know whether the robber was dead. “Abusing a dead body” is probably off the table. More likely a homicide charge. Again, he couldn’t know if the robber was dead. What he absolutely did know was that the robber was no longer a threat. He was down with probably eight rounds in him and the shooter had the robber’s gun in his hand. And he shot the robber in the head.

    I’m not a lawyer but I could use that video and make a very convincing case for a homicide charge that I think a jury could buy. The defense attorney is going to have a potentially really tough sell on that shot.

    A lot of what will happen depends on the news media and how they frame the stories in the coming weeks. Houston is BLUE city, the DA is Soros transplant. I can easily see this guy being charged with a homicide and once that happens the process can be more than enough punishment even if he isn’t convicted.

There was a case in Kansas City KS. Liquor store owner was attacked. Emptied two guns into the armed robber. The second gun when he was lying face down in the parking lot outside. Prosecuted. At trial his psychologist testified that he was so traumatized by the attack that he did not realize the attacker was no longer a threat lying face down outside. Acquitted. Would have been cheaper to let the thief have the run of the store. All kinds of defenses. Some have a slim chance.

Assuming that the Houston shooter did not have the training and experience, I can see the adrenaline taking over. It may not be statutorily legal, but it is reality and understandable. Further, the Houston shooting took place in 30 or so seconds from start to finish, as indicated by the video. Time subjectively moves at differing speeds under stress.
_________________________________________________________

exactly–used to call it “slow time”–and each person typically reacts to it / in it based on their own unique psychological / physiological wiring

Char Char Binks | January 12, 2023 at 10:41 pm

Based on the facts as I understand them, I’d say he’s guilty of murder, but after Slager, Scarsella, Chauvin, the McMichaels and Bryan, Potter, and Dean, after “Bronx juries” (see Flaherty), I’d vote “not guilty”. Furthermore, I’d vote “defund the police”, “eff the law”, and “bring on the boogaloo”. I’m thoroughly black pilled

w/o even dealing with the legality the OPTICS are an issue here.

As a retired federal agent (DEA), my training was that shots were justified to the point that the deadly threat was removed. That said, I defend the first 4 shots. As to the second four, if the suspect were still moving and in a position to retrieve the weapon, one could justify the second 4. The 9th? That’s a big problem. But as someone else commented, was that the fatal shot?

It’s a mess.

am wondering if the venue were different what the general direction of the comments would be–what if these exact events had occurred, for example, in a middle-school cafeteria?–where the majority of the occupants were children?–at the mercy of an intruder with a deadly weapon?–believe could understand any “over-reaction” in those circumstances and would readily dismiss them as “heat of the moment” –talk about dialed up responses–just as we all have unique “triggers” so do we also have unique “brakes” in response to visceral threat(s)

am reminded of a case in so. tx years ago where a father walked-in on a farm worker sexually assaulting the father’s four-year-old daughter–the father beat the perp to death, then afterward dialled 911 and waited for the responders–in other words, the dad was unable to restrain himself from beating the perp to death–“heat of the moment”–believe the father was “no billed” by the local grand jury

believe the shooter in the taqueria may have been in slow time himself–he’s not superman–he’s flesh and blood like the rest of us

    mbecker908 in reply to texansamurai. | January 16, 2023 at 5:37 pm

    Legally, there is no justification for the ninth shot, to the head, with the perp down and immobile. The four just before that one are arguable. I don’t care where you are.

    He may not get indicted, although I think he probably will, and if it comes to a trial, he may not get convicted, although I suspect he will, of something, probably not murder. But that’s more of a political issue than a legal, self-defense issue.

Great Crminal Law final exam fact pattern and questions!

Suburban Farm Guy | January 17, 2023 at 9:02 am

The actual problem is how criminals are almost never — can’t be, in fact — punished for their crimes and are not separated from decent society. The robber was on parole and on bond — my first thought on watching the video was “a hundred bucks says he was out on bail” — ka-ching!

A nearly infinite amount of trouble could be avoided by 3 simple words: “Shoot to Kill.” Like this guy did. See the US border with Mexico for a larger lesson.

Bunch of squishes will wail about how “that’s not who we are…” I DON’T CARE!”

Not Guilty.

    RandomCrank in reply to Suburban Farm Guy. | January 17, 2023 at 4:18 pm

    Legally speaking, the rule is “shoot to stop.” Thus, that last shot really wasn’t self defense, at least not from my perspective. In reality, a defensive shooter will often empty the magazine, so I’d have any problem only with the final shot. I’d still vote to acquit, or if on a grand jury, vote to “no bill” it. But quite frankly, it’d be jury nullification. I’d have NO problem with it in this case, but still: The law as I think I know it would be against the customer’s final shot.

    If a defender kills an attacker, then it’s probably going to boil down to whether or not the conditions of “ability, opportunity, jeopardy” were fulfilled, with the prototypical “reasonable man” standard applied by the jury. Lots of wiggle room there, but speaking purely in legal terms as I understand them, that final shot was an illegal execution, however well deserved.

Concealed carrier here, but not a lawyer. I think the 9th shot was an execution, probably in anger. The video is an example of what not to do, at least at the end. That said, if I were on the grand jury I would vote to no-bill it, for the same reason that the customer made the 9th shot. My vote would be emotional.

Not sure if it’s legal but I’d have the son of the first victim testify to the grand jury to the callous way the deceased criminal murdered his father.