12/4/2007

191 Comments

1. DRJ, I can’t emphasis this enough. I am so disappointed in you:

   Horn and the dispatcher spoke for several minutes, during which Horn pleaded with the dispatcher to someone to catch the men and vowed not to let them escape. Over and over, the dispatcher told him to stay inside. Horn repeatedly said he couldn’t.

   When the men crawled back out the window carrying a bag, Horn began to sound increasingly frantic. “Well, here it goes, buddy,” Horn said as a shell clicked into the chamber. “You hear the shotgun clicking, and I’m going.”

   A few seconds passed.

   “Move,” Horn can be heard saying on the tape. “You’re dead.”

   You LEFT OUT what Jim Horn said at 6:06 on this tape before he left his house:

   “I’m gonna kill ‘em.”

   Did you not listen to the complete tape yourself or did you feel this wasn’t important enough to mention?

   [EDIT: Thanks for the comments, Christoph. I've updated the post to add your links. -- DRJ]

   Comment by Christoph — 12/4/2007 @ 1:26 am

2. The Houston Chronicle likewise reported on November 16th that Jim Horn, “…told the dispatcher he planned to ‘kill’ the suspects.”

   Now the thing which is becoming apparent to me is the CBS transcript conflicts sharply with the critical detail I heard with my own two ears and which Robert Crowe and Richard Stewart of the Chronicle reported. The LiveLeak version of the full tape was uploaded on November 15th, one day after the shooting and on the day the Chronicle on which the article would have had to have been written.

   Does anyone know whether CBS grossly misreported the transcript and left off this clear threat given seconds before the two suspects were killed… or whether CBS is correct and the LiveLeak tape (since reproduced on YouTube and…) listened to by many was altered?

   Because I think it’s kinda important.

   Comment by Christoph — 12/4/2007 @ 2:03 am

3. * on the day on which the Chronicle article would have had to have been written.

   Comment by Christoph — 12/4/2007 @ 2:05 am

4. I also listened to the recording to see if there was indeed something left out. And Christoph is right. “I’m gonna kill ‘em” is completely audible. I hope that guy is brought up on charges of murder, because he said they only had a crow bar and the man did not shoot out of self-defense. AND it was not even HIS home that they were stealing from. He had no reason to go out and shoot someone. AND he intended to kill them, he said so. All he had to do was either yell or fire a shot in the air, and he would have spooked them. He had no reason to shoot them. But leaving out the “I’m going to kill them” is like trying to say it was an accident. It was not. He shot them because he wanted to.

   Comment by Dwyn — 12/4/2007 @ 2:28 am

5. I also listened to the recording to see if there was indeed something left out. And Christoph is right. “I’m gonna kill ‘em” is completely audible.

   Dwyn, thank you and you’re half missing the point. I think certainly you’re right if the LiveLeak tape is authentic. Of course, now I’m curious if CBS is right and that portion of the tape we both listened to is a fraud. If CBS left it out, well, they are once again incompetent… at best. In my opinion, and you may or may not agree, whether I accept the CBS transcript or the LiveLeak tape, his actions were both morally wrong and illegal; he should be held accountable.

   All he had to do was either yell or fire a shot in the air, and he would have spooked them.

   Sorry, no. One, shooting in the air is dangerous. Bullets and shotgun pellets come down with great force. They kill and injure people. How would possibly hurting a neighbor, child, or himself? (For that matter, why might not one of the suspects just rush him while he fires the shotgun in the air and overwhelm him?) Two, well, he did shout. Whether he acted reasonable after shouting and felt threatened or whether he was providing cover for his decision to kill the men — or whether he simply didn’t allow any time for the men to respond to his commands — may well become a question of fact to be decided by a jury. Depending on what the grand jury chooses to do.

   In my opinion, they should indict. So I agree with you there.

   His only defense in my view is if he can convince a jury once he got outside everything changed and he was threatened, rushed, etc. and had to kill both men. The tape, particularly the LiveLeak version, but also the CBS transcript, make that a difficult sell. Maybe a Texas jury will simply nullify it (find him not guilty because they feel like it even though they believe he broke a law).

   Generally, jury nullification is the wrong thing to do. I can imagine an odd exception. This surely isn’t it, not for me. I think the man was angry and just decided to kill some thieves before he or his property was in grave personal jeopardy.

   Likewise, I believe the tape shows he had neither agreed to be responsible for this property nor did he owe a specific duty to the property to look after their property, as the Texas statute would require for him to use this defense:

        (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.

   Comment by Christoph — 12/4/2007 @ 2:55 am

6. * nor did he owe a specific duty to the property owner to look after their property

   Comment by Christoph — 12/4/2007 @ 2:57 am

7. He should go to jail for murder but I doubt he will be convicted of anything more than manslaughter.
   Had there been no tape of the call and his comment been inaudible he would have walked.

   Comment by voiceofreason — 12/4/2007 @ 4:39 am

8. should have read “had there been no tape or his comment been inaudible..”

   Comment by voiceofreason — 12/4/2007 @ 4:40 am

9. Section 9.43 is in the disjunctive.

   § 9.43. PROTECTION OF THIRD PERSON’S PROPERTY. A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
   (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or
   (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.

   Section 9.43(1) applies regardless of 9.43(2). Read together with 9.41 and 9.42, there is no basis even for bringing the case to the grand jury unless there is a question whether the two dead men were actually thieves or burglars.

   Comment by nk — 12/4/2007 @ 5:08 am

10. Any guesses, voiceofreason et al., why his “I’m gonna kill ‘em,” comment was left out of the CBS transcript? The early news report I saw seemed to indicate he had made this threat… yet CBS doesn’t report it as part of their transcript.

    Comment by Christoph — 12/4/2007 @ 5:10 am

11. § 9.41. PROTECTION OF ONE’S OWN PROPERTY.

         (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.
         (b) A person unlawfully dispossessed of land or tangible, movable property by another is justified in using force against the other when and to the degree the actor reasonably believes the force is immediately necessary to reenter the land or recover the property if the actor uses the force immediately or in fresh pursuit after the dispossession and:

    (1) the actor reasonably believes the other had no claim of right when he dispossessed the actor; or
    (2) the other accomplished the dispossession by using force, threat, or fraud against the actor.

    Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
     

    § 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
         (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
    (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

         (3) he reasonably believes that:

    (A) the land or property cannot be protected or recovered by any other means; or
    (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

    Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.
     

    § 9.43. PROTECTION OF THIRD PERSON’S PROPERTY.
    A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
         (1) the actor reasonably believes the unlawful
    interference constitutes attempted or consummated theft of or
    criminal mischief to the tangible, movable property; or
         (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.Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
    Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1, 1994.

    nk, alas, no. See § 9.42 (1).

    Comment by Christoph — 12/4/2007 @ 5:26 am

12. Is there anything in the news articles on the following:

    - where was Horn standing when he fired? (His property? His neighbor’s?)

    - where were the two deceased when they were shot? (On Horn’s property? Not on Horn’s property but close, perhaps close enough to support the lunge threat defense?)

    - were the wounds in front, side, or back?

    I must say, though, that 9.43.(1) seems pretty much a perfect fit. Thank you, nk.

    Comment by jim2 — 12/4/2007 @ 5:35 am

13. At the least, he should be found guilty of manslaughter. You can’t go looking for trouble and still claim self-defense.

    What an idiot. The man should take a plea and be grateful he’s still alive. If the two burglars had had guns, he would be dead now, and quite possibly so would an innocent child sleeping in one of the houses nearby, if a shoot-out had ensued. It’s not worth your life, or anybody else’s, to protect a few valuables. You can always buy another TV.

    I’m all for self-defense when the burglars come in your house, and I don’t support a “duty to flee” requirement. But likewise I don’t support self-defense for a guy who was perfectly safe in his house and then went out looking for danger, especially after being warned as this guy was by the police dispatcher.

    Comment by PatHMV — 12/4/2007 @ 5:36 am

14. I must say, though, that 9.43.(1) seems pretty much a perfect fit. Thank you, nk.

    Comment by jim2 — 12/4/2007 @ 5:35 am

    It is if you want it to be, provided you ignore § 9.42 (1). § 9.42 refers by reference to § 9.41 and extends it to using deadly force to protect your own property.

    Comment by Christoph — 12/4/2007 @ 5:51 am

15. I can’t believe the supporters of criminals here. I believe citizens DO have a duty to apprehend criminals in the act of a crime. If said criminals do not surrender, too bad for them, period.

    Comment by PCD — 12/4/2007 @ 5:51 am

16. These are the applicable sections in 9.42 (bolded):

    …. or
    (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

    (3) he reasonably believes that:

    (A) the land or property cannot be protected or recovered by any other means; or
    (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

    The State will have to prove that this was NOT the case beyond a reasonable doubt. I, on the other hand, am pretty certain that this was the situation.

    Comment by nk — 12/4/2007 @ 5:53 am

17. He didn’t look for trouble. Trouble came to his neighborhood in the form of two big black men, out to rob whitey.

    Notice how the entire neighborhood was white? I think not only were the robbers guilty of robbery, but also a hate crime, seeking out white people’s houses to rob. At least being shotgunned saved them the torture of court-ordered diversity/tolerance training.

    People are sick of crime, and sick of the coddling that the courts give them. If you liberals weren’t so quick to let minority and other criminals off so easy, people wouldn’t need to take the law into their own hands. You and your kind are responsible for the increased anarchy that we suffer from

    Comment by Mr.Obvious — 12/4/2007 @ 5:55 am

18. Pat, it IS worth your life to prevent society from going to hell, or to prevent professional criminals from profiting. But to say this guys was “lucky” is an assumption. Perhaps you assume that he is tactically incompetent, or that he doesn’t know how to wield his shotgun. We hear all the time from the left “but they may take the gun from you and use it!”. They assume that their cowardice and incompetence must be universal.

    Comment by Mr.Obvious — 12/4/2007 @ 5:58 am

19. Christoph -

    No lawyer moi. I had not seen your #11 when I posted #12. I will watch with interest as others debate the interpretations of the law.

    With that said, I interpret the above 9.41, 9.42, 9.43 as follows:

    - 9.41 - an owner can use force to protect land and other non-movable property (section a) and movable property (b)

    - 9.42 - the owner in 9.41 situations can even use deadly force when the owner “reasonably believes” it to be necessary

    - 9.43 - a third party can use force and deadly force under conditions which would justify the owner doing (”reasonably believes”) the same AND if either one of two tests are met:

    – (1) the words suggest to me “crime in progress”

    OR

    – (2) any one of three specific tests are met (the words suggest to me “defender”)

    The key words in all of the above seem to me to be

    - “reasonably believes”

    - “or” after 9.43(1)

    IMHO, no jury (especially in Texas) would conclude that two fit burglars exiting a neighbor’s house they broke into with visible loot and with no police yet on the scene will fail to meet the “reasonably believes” tests no matter what a distant 911 dispatcher is saying on tape.

    Comment by jim2 — 12/4/2007 @ 6:02 am

20. nk, this is the relevant part of § 9.41:

    § 9.41. PROTECTION OF ONE’S OWN PROPERTY.

         (a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

    § 9.42 refers by to the requirements of § 9.41 including that one (”ONE’S OWN PROPERTY”) and therefore is not relevant to Joe Horn’s actions. § 9.43 stands on its own and applies to protecting another’s property or land only under the more limited circumstances defined in § 9.43.

    Comment by Christoph — 12/4/2007 @ 6:04 am

21. Horn shot some burglars? His sentence should be a stern talking too.

    The good news: They won’t burgle again.

    Comment by Kevin — 12/4/2007 @ 6:04 am

22. No, Mr. Obvious, I don’t assume that he is tactically incompetent. Rather, I assume he had no idea whether the burglars were armed. He can control his own actions; he can’t control theirs.

    I’m against gun control, I’m for concealed carry, I’m for self defense. But I don’t want to live in a neighborhood near this idiot, who doesn’t have enough sense to stay in a nice, safe house and instead goes looking for an excuse to kill people, even burglars.

    Comment by PatHMV — 12/4/2007 @ 6:07 am

23. I’m wrong. nk is right. Here’s why:

    § 9.43. PROTECTION OF THIRD PERSON’S PROPERTY.
    A person is justified in using force or deadly force against another to protect land or tangible, movable property of a third person if, under the circumstances as he reasonably believes them to be, the actor would be justified under Section 9.41 or 9.42 in using force or deadly force to protect his own land or property and:
    

    (1) the actor reasonably believes the unlawful interference constitutes attempted or consummated theft of or criminal mischief to the tangible, movable property; or

    In other words, what nk said. You win. I lose.

    Please read my earlier comments, especially about CBS’s messed up transcript, but disregard any comments I made between #11 and this one.

    Comment by Christoph — 12/4/2007 @ 6:22 am

24. Christoph, the problem with your interpretation is that it would render 943 a dead letter. Under your interpretation in what circumstances would it ever apply?

    Comment by Skip — 12/4/2007 @ 6:22 am

25. Anyway, further clarification. DRJ relied on CBS’s transcript and:

    1. It is flawed and leaves out the, “I’m gonna kill ‘em,” comment, which is inexcusable since it’s clearly important from a news angle if nothing else. It may not matter legally, but the public would have a right to know Texas laws allow one to kill a fleeing suspect carrying a stranger’s stolen property. Shoplifters beware! Don’t steal, children. Yes, you may get a suspended sentence from a judge, but on the other hand, any member of the public can use you for target practice.

    or:

    2. The audio tens of thousands of citizens including some reporters have used to form their opinions since November 15th has been doctored.

    Either way, DRJ didn’t do anything wrong as such. Listening to the tape and not relying on CBS for a transcript would probably be a good habit to get into, however.

    Comment by Christoph — 12/4/2007 @ 6:36 am

26. People are still getting news from CBS ??

    If Horn can get himself declared an illegal alien, then he will get an apology for having his day so abruptly interrupted, and he will become immediately eligible for a free shotgun upgrade.

    Comment by xraynova — 12/4/2007 @ 6:40 am

27. He will still need a good lawyer. A good, not exceptional, prosecutor can use “reasonably believes” to shift the focus of the jury to the defendant’s state of mind and not to the objective circumstances of the case (see e.g. Ramos-Compean), in effect reversing the burden of proof. If I were representing him, I would constantly stress “let the State prove beyond a reasonable doubt that these were not burglars fleeing with the neighbors’ property and no police to be found yet, and then I will argue that even under those circumstances my client’s belief to the contrary was reasonable”.

    Comment by nk — 12/4/2007 @ 6:51 am

28. Hypothetically, if a person wanted to hang out at a place where kids were known to frequent and steal things, like at a mall or convenience store, what would prevent someone from waiting until a child stole something, shouting, “Hey, child, stop! Put back the chocolate bar you stole,” and giving chase to the child. When, because the child is faster and the armed citizen realizes he can’t reasonably stop the fleeing thief, saying, “I’m gonna kill him,” and blowing the child away?

    Legally, why couldn’t someone do that in Texas?

    Comment by Christoph — 12/4/2007 @ 6:58 am

29. Well, the statute is a little bit narrower than that. It only allows use of deadly force for “property” offenses such as burglary and theft in the nighttime which were capital offenses under the common law. Also, a fellow citizen (Texas allows concealed carry) or police officer seeing a man drawing down on a running child with a candy bar in his hand could “reasonably believe” that he should shoot that man to save the child. Which is not to say that Texas’s law is not a little bit “frontierish”. Which is also not to say that I do not approve of it.

    Comment by nk — 12/4/2007 @ 7:05 am

30. Okay, just saying. At the very least, these questions and these dramatic circumstances are newsworthy and it would have behooved CBS to report them accurately.

    Comment by Christoph — 12/4/2007 @ 7:07 am

31. Side note: I believe Texas to be the only state which permits deadly force in defense of property. (Other states have Make My Day laws which conclusively presume self-defense in one’s home against interlopers, but that’s not the same thing.)

    I’m not sure Texas’ anomolous rule on this is a good idea. I do think, though, that any duty to retreat in self-defense cases is badly misguided.

    I think Mr. Horn has a well-deserved problem here.

    –JRM

    Comment by JRM — 12/4/2007 @ 7:15 am

32. If I were representing him, I would constantly stress “let the State prove beyond a reasonable doubt that these were not burglars fleeing with the neighbors’ property and no police to be found yet, and then I will argue that even under those circumstances my client’s belief to the contrary was reasonable”.

    I would think it would be easy enough to show they were, in fact stealing…

    Did the have stuff from the home on/near their person when they took buckshot to the body?

    Comment by Scott Jacobs — 12/4/2007 @ 7:27 am

33. DRJ, can you update your post to indicate there is some question about the accuracy of CBS’s transcript and CBS may have left out a crucial threat Jim Horn made less than a minute before executing his threat? Can you tip Patterico about this? He (or you) might want to take on CBS. You know how he likes the media critic thing — to our everlasting amusement.

    Comment by Christoph — 12/4/2007 @ 7:36 am

34. I think Mr. Horn has a well-deserved problem here.

    My pro-defense bias notwithstanding, I would not have done what Mr. Horn did if I knew beyond a moral certainty that it was only my neighbor’s property that was in danger. But you never know with these creeps. In the next house they burgle they might find an eleven-year old and seventeen-year old girl whom they rape and then tie up and burn to death along with the house (actual case). It might not reflect Mr. Horn’s thinking but I think it reflected the Texas legislature’s thinking.

    Comment by nk — 12/4/2007 @ 7:36 am

35. Well said.

    Comment by Christoph — 12/4/2007 @ 7:38 am

36. The two burglars got what they deserved.

    Having said that, I’m certain I would have tried to get them down on the ground and held them at gunpoint until the police arrived. But I have zero sympathy for the thieves.

    Comment by Andy — 12/4/2007 @ 7:42 am

37. Which is why the smart thing to do when confronted by a shotgun-holding neighbor of the house you just burgled is to lay down and wait for the cops.

    Any other action gives possible grounds for getting shot, and frankly I’d rather do jail time than be shot.

    Comment by Scott Jacobs — 12/4/2007 @ 7:43 am

38. How long transpired between, “Move, you’re dead,” and shotgun blasts?

    Comment by Christoph — 12/4/2007 @ 7:49 am

39. Long enough for them to lunge, apparently…

    Comment by Scott Jacobs — 12/4/2007 @ 8:00 am

40. Yes, the timeline is very important here. Also, I hope he has sense enough to keep his mouth shut from here on. “They lunged” at me is irrelevant and will hurt him if his lawyer allows it to be shown as incredible.

    Comment by nk — 12/4/2007 @ 8:02 am

41. What’s your prediction on any indictment, nk? Do you think they’ll be one? If so, on what charges?

    Comment by Christoph — 12/4/2007 @ 8:11 am

42. Oddly enough, the post quoting the relevant statue above may have not bolded the most important part of it. I assume this happened at night? The CBS article implies it. That matters, because at one point Texas courts supposedly recognized the inherent right to use deadly force in the defense of property under the “theft by night” doctrine.

    I’m not a lawyer, but it’s something we laymen have heard about for years particularly in relation to a couple of relevant cases. The first involved a man who was exonerated for killing someone stealing a carburetor from his vehicle parked on the public street, effectively killing a man who was not even on his property. The second was a case where one wino (sorry, homeless person, it was a different time) was exonerated for killing another over a bottle of MD 20/20. Both events took place at night and the courts ruled the killings were legal.

    Don’t know if that’s the way the courts see things now or if the rule ever applied to a third party’s property, but at least according to what many of us have heard, there was a time when it would have made a difference to a case like this.

    Comment by Strick — 12/4/2007 @ 8:11 am

43. My personal prediction:

    In Texas? You think they’ll be able to indict in texas?

    Ok, maybe indict, but they would never be able to convict.

    Comment by Scott Jacobs — 12/4/2007 @ 8:14 am

44. Strick, it happened in broad daylight.

    Comment by Christoph — 12/4/2007 @ 8:16 am

45. If nk’s right about the statutes’ interpretation, I’m not sure Texas’ll be able to indict. I’m curious what he predicts.

    Comment by Christoph — 12/4/2007 @ 8:17 am

46. Thanks, Christoph, I appreciate the correction.

    It’ll be interesting to hear what the DA decides to do.

    Comment by Strick — 12/4/2007 @ 8:27 am

47. Here, I am at a loss. In Illinois we get a transcript of the Grand Jury proceedings attached to the indictment at arraignment and it is just the State’s minimal prima facie case. “The defendant shot two people”. I don’t know that the State has an obligation to argue possible affirmative defenses to the grand jury. I have never seen it. I do not believe that it does.

    It really depends on the prosecutor. As a general rule, he should not seek an indictment unless he believes that he can prove his case beyond a reasonable doubt. Should he test it by telling the jury the reasons he might not be able to convict?

    I really don’t know. I have never gone behind an indictment — only its sufficiency on its face. (It can be a dangerous thing to do. Do you want your trial jury to know that another jury composed by citizens like themselves thought your client guilty?)

    Comment by nk — 12/4/2007 @ 8:35 am

48. DRJ:

    … because Joe Horn is white and the two men he killed are black …

    Article:

    … the slain men, Miguel Antonio DeJesus, 38, and Diego Ortiz, 30 …

    Those don’t sound like African-American names to me, DRJ. They sound like Hispanic names.

    Were both these men black men who happened to have Hispanic names? Or were the victims not black, but Hispanic?

    In an ideal world, someone’s race shouldn’t make any difference. In the real world, though, it does, whether through real racism or through a victim mentality that perceives racism where it doesn’t exist. So it’s kind of important to get the facts right.

    Comment by Robin Munn — 12/4/2007 @ 8:38 am

49. I wonder how sympathetic the police are to Mr. Horn? Supporting a citizen “having” to go and defend another citizen’s home from criminals would be a tacit admission that the authorities are not “in control” when it comes to crime. Is this a facade that is important to the state?

    Trying to make this into some racial crusade is stupid. People are sympathetic when “rednecks” or “the man” are putting down whatever group they happen to hate lately, but at least nobody I know is going to have much sympathy for a couple of criminals.

    Comment by EdWood — 12/4/2007 @ 8:55 am

50. The linked articles indicate DeJesus and Ortiz were black.

    The incident happened around 2:00 PM.

    Comment by DRJ — 12/4/2007 @ 9:03 am

51. I’m with nk on the interpretation of the statutes. As for the straw-man of shooting down children shoplifters, please note the at the statutes in question are limited to felony offenses (burglary, robbery, aggravated burglary, etc.) - not to misdemeanor offenses such as shoplifting. Although, Christoph, you should be aware that shopowners are allowed to use reasonable force to effect the arrest of a child (or adult) shoplifter committing a crime in his/her presence. The use of deadly force to effect an arrest (a 4th Amendment “seizure”) is determined by the reasonableness of circumstances causing or triggering the use of deadly force. Thus, it is very important whether Mr. Horn shot in self-defense, or whether ballistics will show that he shot the criminals in the back.

    Federal prosecutors, as well as state prosecutors, may not have a high opinion of the scum-bags we prosecute, but that doesn’t mean that we ignore criminal-on-criminal killings. So, the prosecutors won’t ignore the presumably-good-guy on criminal killings, either. Just my 2 cents worth.

    Comment by 509th Bob — 12/4/2007 @ 9:13 am

52. I had missed the potential significance of the “during the nighttime” phrases in the deadly force provisions. That is, for situations involving only property, “force” appears to have no time restriction, while “deadly force” does.

    Comment by jim2 — 12/4/2007 @ 9:39 am

53. WTF?:
    

    Dispatcher: “Mister Horn, put that gun down before you shoot an officer of mine. I’ve got several officers out there without uniforms on.”

    The police department sends plainclothes officers on burglary calls? I don’t want to say that they ought to be shot for their stupidity, but in Texas it seems likely to happen!

    What I want to know is how many other burglaries there have been in the neighborhood, how many violent encounters with burglars or robbers there have been, and how long the police response to those calls was. If Mr. Horn was expecting the cops to show up ten, twenty , thirty minutes after the first call reporting the crime in progress, his actions (at least by me) could be considered much more reasonable.

    Comment by htom — 12/4/2007 @ 10:08 am

54. The statutes clearly distinguish between “arson, burglary, robbery, aggravated robbery” and “theft during the nighttime” and “criminal mischief during the nighttime.” Arson, burglary, robbery, and aggravated robbery need not occur at night to fall under the statutes as justifications.

    Comment by Tully — 12/4/2007 @ 10:19 am

55. Tully -

    I’m not sure what you meant.

    The difference is when “deadly force” is allowed versus just “force”.

    9.41 discusses when “force” is allowed and has no “nighttime” restriction.

    9.42 discusses when “deadly force” can be justified (beyond “force” in 9.41) and 9.42 has the “nighttime” restriction.

    Now, it would seem that if one were physically challenged by a lawbreaker or in fear of one’s life, that “deadly force” could still meet the “reasonably believes” parts. That was why the locations of the doers and their wounds might become important.

    Comment by jim2 — 12/4/2007 @ 10:28 am

56. jim2, IANAL but it looks to me that the “in the nighttime” clause is modifying “theft” and “criminal mischief”, not the use of force. Theft, or criminal mischief, during the nighttime may be treated as other, more severe crimes are, at any time.

    Comment by htom — 12/4/2007 @ 10:41 am

57. htom -

    Hmmm. There must be precedent.

    I was reading 9.42 as one can use “deadly force” under conditions where “force” could have been justified by 9.41 and where the next conditions were also met. I then read the next conditions as:

    “[several examples] during the nighttime.”

    You seem to be reading it as [example], [example], [example], or [theft during the nighttime].” — with “the nighttime” applying only to the last example and not to them all. Each item in my brackets then being a separate item independent of all the others

    I would not read it that way, but surely this construction has been settled somewhere similar many times before.

    Comment by jim2 — 12/4/2007 @ 11:02 am

58. Let’s say Mr. Horn remains inside as instructed. What happens?

    The police show up several minutes after the criminals leave.
    They investigate the crime scene and begin to search for the criminals.
    The criminals escape.
    The criminals may or may not be caught later.
    The property will not be recovered.
    If the thieves are caught, they skip bail and head to Mexico. If not they return to rob Mr. Horn or another of his neighbors next week.

    I’m sure if you examined Mr. DeJesus and Mr. Ortiz’s criminal record, you would find that they had not just decided, after a blameless life, to rob someone on a lark. My guess is that they had criminal records and had been convicted of similar offenses before. I’d also guess that they had been charged in less than 10% of the crime they had committed. If they had been caught, they would serve a short term for their crimes, unless some race baiting defense attorney had gotten them off because they were “oppressed”. They’d be back to stealing in short order.

    Mr Horn did us a favor. Criminals no longer fear the system. His actions probably prevented more crime than than those of any police officer in Pasadena.

    Comment by Ken Hahn — 12/4/2007 @ 11:11 am

59. JMHO, but as an average Joe who’s suffered through a couple of burglaries, if I were on the jury, “jury nullification” would be floating through my head the entire trial.

    The town I currently live in has not had a burglary in the last 3 years (pop:3,000).

    The last one resulted in some physical injuries to the perps. Word gets around fast.

    Rather than an indictment, an “Neighbor of the Year” nomination appears to be more appropriate.

    Comment by KobeClan — 12/4/2007 @ 11:15 am

60. I’m led to that understanding by the phrasing

    …(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
    (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 …

    To get your understanding, I’d have written
    … imminent commission during the nighttime of … and
    …after committing during the nighttime, burglary, …

    but the law’s meaning doesn’t always follow the rules I was taught in English and math classes.

    Comment by htom — 12/4/2007 @ 11:18 am

61. htom -

    You may be right. Without the “or” directly in front of the word “criminal”, I would debate it more. For Mr. Horn’s sake, I certainly hope you are correct, as it would definitely seem to simplify matters in his favor.

    Comment by jim2 — 12/4/2007 @ 11:36 am

62. And since they broke into the home, I think that’s burglary, not theft.

    I dunno. I still say this is all academic, since they likely won’t even bother to prosecute him owing to the fact that I really have a hard time believing they can find “beyond a reasonable doubt”.

    Comment by Scott Jacobs — 12/4/2007 @ 11:37 am

63. My guess is that Horn will not be indicted; if he’s indicted, he’ll be cleared. Regardless, he’ll have to go through his life with these killings on his conscience, and I’ve no reason to believe that they will lie lightly on it.

    I’ve had to take a gun out “for serious” on more than one occasion in self-defense; I’m very pleased that I’ve never had to put a finger on a trigger in self-defense, as I have friends who have, and wouldn’t wish that on myself or anybody I cared about.

    Comment by Joel Rosenberg — 12/4/2007 @ 11:43 am

64. I think that the prosecutor is going to the Grand Jury for cover; he’d be in trouble (with different noisy groups) if he charged and convicted, or charged and didn’t convict, or didn’t charge at all. He’s trying to change that lose-lose-lose into a win, and I’m not sure it’s going to work; he may end up with everyone mad at him, for differing reasons.

    Comment by htom — 12/4/2007 @ 11:44 am

65. All uses of force are judged by a standard of reasonableness, even deadly force.

    As for the crimes “by night,” those are historically based distinctions that draw upon the history of criminals to use the shield of darkness to hide their crimes. So, since it is more difficult to detect exactly what kind of criminality they are engaging in during the dark hours, the laws above (defining when and under what circumstances self-defense is lawfully authorized) took into account the crimes “by night” circumstance.

    Will Mr. Horn get indicted? My guess is yes. A grand jury only decides whether there is probable cause (i.e., more likely than not) to believe that a crime has been committed. The decision for ultimate guilt or innocence (or lack of proof of guilt beyond a reasonable doubt) is left to a jury.

    Comment by 509th Bob — 12/4/2007 @ 12:21 pm

66. I remember a case a few years ago where a Dallas (I think) shopkeeper shot a guy who grabbed a leather jacket in his store and ran out. Shot him in the back as he ran away. At the time, the newspaper articles indicated that the shopkeeper could legally use deadly force at night, but not during the day, and the time period (just after sunset) was going to be a big part of whether or not it turned out to be legal.

    I don’t remember how the case came out though.

    Comment by Skip — 12/4/2007 @ 1:14 pm

67. htom, that’s exactly how I read it, and what the construction says. The crimes of theft or criminal mischief during the nighttime are increased to “justifiable” level. During the daytime, theft and criminal mischief would not fall in the same category as arson, burglary, etc.

    “Nighttime” has specific meaning in the common law origins of the crime of burglary, and “by night” is an aggravating circumstance in several crimes.

    Comment by Tully — 12/4/2007 @ 1:16 pm

68. Breitbart’s has video of the confrontation between Horn supporters and Quanell X’s race-baiters New Black Panthers. Turn your sound down; those bikes were loud.

    Huge, huge plaudits to the crowd for not turning violent.

    The videographer also has the original video, video of a spokesman for the bikers, and much commentary on his own site, Blogs of War. However, he’s apparently getting more traffic for the video than he can handle, so watch it at Breitbart’s.

    Pasadena is part of the greater Houston urban sprawl where I live; this is local news for me.

    A couple of weeks ago I awakened to find that my house had been broken into while I was sleeping; the burglar apparently left when he found me. He could just as easily have killed me in my sleep, or if I had awakened and he decided to eliminate the witness.

    I understand that Horn may not have acted in the letter of the law. I also understand that his remorse is great.

    But my sympathies are one hundred percent with him. I want the word to go out that burglary is a very hazardous occupation.

    It is the burglar who sets the rules of engagement, not the homeowner. It is the burglar who decides that a camera or DVD player is worth a human life–it’s just that he doesn’t expect it to be his own.

    Comment by djmoore — 12/4/2007 @ 1:25 pm

69. Not sure whether anyone’s considered this: the burglars came into Horn’s front yard before he shot them. So, they had been on his neighbor’s property and then came at Horn.

    As far as I’m concerned, that’s a reasonable expectation of bodily harm. The only thing I’d convict Horn of is violating noise curfews.

    Comment by Steverino — 12/4/2007 @ 3:54 pm

70. Me, I’d get him for discharge of a firearm within city limits, court supervision, 50 dollar fine.

    Comment by Scott Jacobs — 12/4/2007 @ 4:56 pm

71. So no one gives a crap CBS reported a false transcript?

    Comment by Christoph — 12/4/2007 @ 5:11 pm

72. Christoph - It should outrage people, but it no longer does. The MSM has beaten people into submission. Just look at how CNN is getting a pass for manipulating a Republican primary debate. Right now, given SeeBS’ track record, the fact that they reported a false transcript is a “dog bites man” kind of story. Sadly, were they to get it right, it would be a “man bites dog” story.

    Comment by JD — 12/4/2007 @ 5:17 pm

73. If you were on a jury and agreed to find him guilty of disscharging in a city limit, you could end up with a POS liberal judge still finding a way to give him 10 hard years.

    Telling someone that in order to take advantage of your right to defend yourself, you still have to commit a misdemeanor is wrong. Defense trumps discharging ordinances, littering because you pumped the empties on the ground, etc.

    Comment by Mr Obvious — 12/4/2007 @ 5:22 pm

74. Listening to the tape, one can tell Mr. Horn is not the sharpest tool in the shed. He is fortunate he was not spraying buckshot as the police arrived. If he was, I suspect Mr. Horn would have stood a good chance of being cut down in a hail of police gunfire.

    Other than that, I have no problem with what Horn did. 2 less criminals in the world.

    Comment by Stan Switek — 12/4/2007 @ 6:12 pm

75. I believe Jim Horn would, in any state but Texas, be a criminal and deserve incarceration for the rest of his natural life. And this is the punishment I feel he deserves.

    Comment by Christoph — 12/4/2007 @ 6:17 pm

76. *Joe Horn

    Comment by Christoph — 12/4/2007 @ 6:17 pm

77. Your neighbors just upped their home security systems.

    I’d pay extra money to live next to a man like Joe.

    Comment by Scott Jacobs — 12/4/2007 @ 6:21 pm

78. I used to sell home security systems and, by hard facts, they improved safety and reduced break-ins. As does the responsible use of firearms and law enforcement.

    Joe Horn, on the other hand, wanted to go out and kill someone.

    Comment by Christoph — 12/4/2007 @ 6:23 pm

79. Christoph:
    

    I believe Jim Horn would, in any state but Texas, be a criminal and deserve incarceration for the rest of his natural life.

    Proving that people all over the world agree Texas is special.

    Comment by DRJ — 12/4/2007 @ 6:37 pm

80. I believe he’s morally wrong even in Texas. If the police had shown up and blew his ass all over the concrete, I wouldn’t have shed a tear.

    Comment by Christoph — 12/4/2007 @ 6:42 pm

81. Proving that people all over the world agree Texas is special.

    The family of James Byrd was not available for comment.

    If you liberals weren’t so quick to let minority and other criminals off so easy, people wouldn’t need to take the law into their own hands. You and your kind are responsible for the increased anarchy that we suffer from

    Comment by Mr.Obvious — 12/4/2007 @ 5:55 am

    More conservative tolerance. The black SOBs deserved it right?

    The only encouraging thing from this thread is that there are several people like Christopher who are concerned that this was the action of a murderer.

    Comment by voiceofreason — 12/4/2007 @ 6:49 pm

82. Amen, brother.

    Comment by Christoph — 12/4/2007 @ 6:55 pm

83. No, voiceofreason, the “black SOBs” did not deserve it. But the criminal SOBs might have.

    Comment by SPQR — 12/4/2007 @ 6:57 pm

84. Are we conflating black and Hispanic here, VOR? Nice of you to put words into people’s mouths. But, you never miss a chance to race bait.

    Comment by JD — 12/4/2007 @ 7:06 pm

85. SPQR,
    Mr. Obvious was the one that used minority as an adjective not me. If the shoe don’t fit don’t wear it.

    And hunting someone down is murder - Horn is no better than the criminals were, by his crime arguably worse.

    Even cops would not be able to shoot the burglars unless and until they demonstrated opportunity, intent and capability. A good standard to follow even for citizens.
    And does it ever make you stop and think that people that lose control like Horn make it tougher for responsible gun owners who exercise far more restraint? Just a thought…

    Comment by voiceofreason — 12/4/2007 @ 7:07 pm

86. Comment by JD — 12/4/2007 @ 7:06 pm

    Look my naive freshman friend. The two men were black not Hispanic. If you want to side with Mr. Obvious’ sentiments go right ahead.

    Comment by voiceofreason — 12/4/2007 @ 7:09 pm

87. voiceofreason, Mr. Obvious’ comment may or may not have been racist in nature, it was not really written articulately enough to tell. However, I find your desire to read it against him telling.

    Comment by SPQR — 12/4/2007 @ 7:11 pm

88. Fuck off, old-timer. I need your patronizing attitude like the Cubs need another losing season.

    Miguel Antonio DeJesus, 38, and Diego Ortiz, 30.

    I could care less if the were purple, pink, yellow and red striped, or blue with red polka dots. Their race and nationality has nothing to do with this. Nothing. But race bait away. It is your style.

    Comment by JD — 12/4/2007 @ 7:12 pm

89. VOR,

    I was teasing Christoph about his anti-Texas’ bias. I love Texas but I don’t think it’s any better or worse than the other 49.

    Comment by DRJ — 12/4/2007 @ 7:13 pm

90. Oh, and voiceofreason, by some definitions of “hispanic”, the criminals could be both black and hispanic.

    Once again, your knee jerk accusations of racism do not do you good service.

    Comment by SPQR — 12/4/2007 @ 7:14 pm

91. SPQR,

    Just for kicks and giggles let’s examine the first part of his post:

    “He didn’t look for trouble. Trouble came to his neighborhood in the form of two big black men, out to rob whitey.
    Notice how the entire neighborhood was white? I think not only were the robbers guilty of robbery, but also a hate crime, seeking out white people’s houses to rob. At least being shotgunned saved them the torture of court-ordered diversity/tolerance training.”

    Then let’s look at the comment from the article:

    “I just can’t believe that we’ve got a race riot going on in our neighborhood,” said Michelle Howell, who lives several doors down from Horn. “First of all, this is a quiet place, secondly we’ve got neighbors of all different races. This has nothing to do with race.”

    It would appear that Mr. Obvious didn’t read the entire post and that he made assumptions that were wildly off base. I called him on it but feel free to read into it what you will.

    Comment by voiceofreason — 12/4/2007 @ 7:16 pm

92. The family of James Byrd was not available for comment.

    Neither were the families of Channon Christian and Christopher Newsom.

    Comment by nk — 12/4/2007 @ 7:17 pm

93. JD,
    Tsk Tsk .. cursing is the tool of those who can’t articulate well.

    And JD as I have said over and over “If the shoe don’t fit then by all means put on another pair”

    Comment by voiceofreason — 12/4/2007 @ 7:18 pm

94. DRJ - I will say it for you. It is better than most, and exponentially better than many. What does Byrd have to do with this, other than your desire to stir up a racial argument where one does not exist?

    Comment by JD — 12/4/2007 @ 7:19 pm

95. The man does say “I’m gonna kill ‘em” but it’s right after the 911 operator tells him that he’ll get himself shot if he goes outside with a gun:

    You gonna get yourself shot if you go outside that house with a gun, I don’t care what you think.

    He replies:

    You wanna make a bet? I’m gonna kill ‘em.

    If I were his defense attorney I’d argue that he meant he would kill them before he allowed them to shoot him. And if I were on the jury I might buy that. You can’t ignore what he’s responding to.

    It looks like either lawful self-defense or voluntary manslaughter (under Califoria law) depending on whether he was reasonable to think he needed to defend himself when burglars came at him.

    Comment by Patterico — 12/4/2007 @ 7:20 pm

96. VOR - Fuck off. Your condescending attitude is appealing only to you. I could care less who, specifically, you were addressing your comments to. They came out as “conservative tolerance”, which is directed at the group as a whole. So, if you wish to direct your predictable and lame race baiting at someone in particular, feel free. Until then, VOR, you are a POS, and from my POV, you can FOAD.

    Comment by JD — 12/4/2007 @ 7:22 pm

97. VOR #81:
    

    The only encouraging thing from this thread is that there are several people like Christopher who are concerned that this was the action of a murderer.

    Horn may be a murderer or he may not, and I certainly don’t object to the fact you feel that way. However, your prejudgment of Horn’s guilt is not consistent with things you said on other threads, where you were often the main commenter who encouraged others to wait for all the facts.

    I’m curious: What makes you feel differently about this case?

    Comment by DRJ — 12/4/2007 @ 7:22 pm

98. “I was teasing Christoph about his anti-Texas’ bias.”

    I don’t have “anti-Texas’ bias.” There are many things I like about Texas including right to self-defense and the castle doctrine. How exactly does disagreeing with the very unique § 9.43 of the Texas Penal code, itself not the law of the land for the majority of Texas’ history, constitute “anti-Texas’ bias?”

    Comment by Christoph — 12/4/2007 @ 7:22 pm

99. Sorry, that was not called for. VOR is still a race baiter. But I should have stopped there.

    Comment by JD — 12/4/2007 @ 7:23 pm

100. DRJ - He feels different because he believes that race is a factor.

     Comment by JD — 12/4/2007 @ 7:24 pm

101. I’m curious: What makes you feel differently about this case?

     From what has been presented that is my opinion of what happened.

     However, your prejudgment of Horn’s guilt is not consistent with things you said on other threads, where you were often the main commenter who encouraged others to wait for all the facts.

     In my opinion the facts in some of the other threads were far less clear than the ones in this one.
     But I note that you don’t categorize the accolades that some commenters are expressing for Horn’s actions as prejudging.

     Comment by voiceofreason — 12/4/2007 @ 7:30 pm

102. At this point, voiceofreason, your comments appear to demonstrate an enthusiasm on your part to call others racist.

     If the shoe doesn’t fit …

     Comment by SPQR — 12/4/2007 @ 7:33 pm

103. SPQR,

     If you want to take comments directed at one person as a blanket statement on all commenters so be it.
     That’s not the case.

     Comment by voiceofreason — 12/4/2007 @ 7:36 pm

104. “It looks like either lawful self-defense or voluntary manslaughter (under Califoria law) depending on whether he was reasonable to think he needed to defend himself when burglars came at him.”

     Two burglars are making their escape with a bag of loot. Guy comes out with a shotgun pointed out them, shouts, “Move, you’re dead!” One second later both unarmed burglars come at the man, necessitating him to fire three times, rechambering a round each time? With a time period of 7 sec. between the second and third shots? That is your theory?

     Comment by Christoph — 12/4/2007 @ 7:38 pm

105. VOR:
     

     But I note that you don’t categorize the accolades that some commenters are expressing for Horn’s actions as prejudging.

     I’m fine with people expressing their opinions about this case, pro and con. Those who are convinced Horn is innocent are prejudging him, too, but they weren’t the ones who objected on other threads when commenters make those judgments.

     So … is the difference for you that there is audio and transcripts so we have more information about what happened?

     Comment by DRJ — 12/4/2007 @ 7:39 pm

106. Voice of “Reason”:

     More conservative tolerance. The black SOBs deserved it right?

     More liberal brilliance. Some asshole made a racist comment, therefore the asshole must be a conservative.

     JD:

     Fuck off, old-timer. I need your patronizing attitude like the Cubs need another losing season.

     Miguel Antonio DeJesus, 38, and Diego Ortiz, 30.

     Right, ‘cuz we all know that anyone with an Hispanic name can’t possibly be black.

     Comment by Xrlq — 12/4/2007 @ 7:43 pm

107. DRJ,

     Yes that is a fair description.

     Comment by voiceofreason — 12/4/2007 @ 7:50 pm

108. XRLQ,

     From his comments I think it is safe to deduce that he doesn’t identify himself as a liberal. Are we in agreement on that point?

     That leaves conservative, moderate, or libertarian. So yes I guess conservative. Perhaps Mr. Obvious can tell us which category he identifies with.

     Comment by voiceofreason — 12/4/2007 @ 7:52 pm

109. Shoe not pinching yet, eh VOR?

     Comment by SPQR — 12/4/2007 @ 7:54 pm

110. They did have a crowbar. So I back off from the “unarmed” claim. But it’s moot. With or without hand weapons, they could easily have overpowered the old man and harmed him.

     My point is few people advance in the face of a loaded and pointed shotgun and the odds of two people doing this necessitating three blasts spaced over nine seconds or so is not great. The fact Joe Horn said he was going to kill them before he left his house against the repeated recommendations of the 911 dispatcher who informed Horn cops were en route further reduces the odds of this being the case.

     Comment by Christoph — 12/4/2007 @ 7:58 pm

111. SPQR,

     Don’t you have anything to add to this thread? You and JD must be great buds or something because you never fail to jump to his defense.

     Comment by voiceofreason — 12/4/2007 @ 7:58 pm

112. More conservative tolerance. The black SOBs deserved it right?

     This is directed at one person? It sure sounds like it is directed at conservatives.

     And VOR never fails to call someone a racist.

     XRLQ - You are correct. I made an assumption, in error.

     Comment by JD — 12/4/2007 @ 8:07 pm

113. Does anyone know exactly where these CRIMINALS were when they were shot ?

     Comment by JD — 12/4/2007 @ 8:08 pm

114. And VOR never fails to call someone a racist.

     Time to put up or shut up little buddy. Name em, times, threads and exact quotes where I said “—is a racist”

     XRLQ - You are correct. I made an assumption, in error.

     And assumptions are formed from preconceived biases, no?

     Comment by voiceofreason — 12/4/2007 @ 8:10 pm

115. VOR - I was addressing XRLQ. Not you. Anything I type, you can assume that I could care less whether or not you read it, unless it is specifically referenced to you.

     Look back at any thread regarding race, the criminals of the Jena 6, this thread. You are cute though, as you never type the words “you are a racist”, but the implications are no less clear.

     I am not little, and I am not your buddy. Just so we are clear.

     Comment by JD — 12/4/2007 @ 8:21 pm

116. Yes, VOR. I have a preconceived bias about you. It is my impression that you intentionally race bait people. And so far, you continue to act in such a way that my perceptions are reinforced.

     Comment by JD — 12/4/2007 @ 8:22 pm

117. From his comments I think it is safe to deduce that [Mr. Obvious] doesn’t identify himself as a liberal. Are we in agreement on that point?

     Mostly. He routinely bashes liberals and The Left (TM), so obviously he doesn’t wish to be perceived as a liberal. Whether he perceives himself that way depends on whether he is sincere (maybe) or a troll (probably). If it turns out he’s a die-hard liberal attempting to discredit conservatives by acting like a racist prick while pretending to be one, it certainly wouldn’t be the first time this sort of thing has happened on the Internet.

     That said, my principal objection is the implication that this asshole’s rhetoric, even if sincere on his part, is somehow representative of conservatives. It’s not, any more than Al Sharpton or Jesse Jackson’s routine race-baiting is typical of liberals.

     Comment by Xrlq — 12/4/2007 @ 8:22 pm

118. I’d like to know what, if any, criminal records the deceased had. One thing for sure is they won’t be burgle any other homes. It was their choice to put themselves at risk. Call me heartless, but I wonder if what happened will give pause to any others aspiring to commit crime or harm other victims who fear prosecution. Could be the deaths stopped a crime wave and will save the state big bucks down the road.

     Comment by madmax333 — 12/4/2007 @ 8:26 pm

119. you never type the words “you are a racist”, “you are a racist”, but the implications are no less clear.

     So you must admit that the few dozen times you have said that I call people a racist has in fact been inaccurate, even untrue.

     but the implications are no less clear.

     Hmm sounds like you hear what you want to hear. Perception bias or some other Freudian like term.

     Comment by voiceofreason — 12/4/2007 @ 8:27 pm

120. voiceofreason, if “Don’t you have anything to add to this thread?” means am I going to call anyone racist, I think not. I don’t get the same enjoyment out of it that you do.

     As for JD, I’ve not noticed that JD requires any defense.

     In the meantime, we’ve noticed your schtick.

     Comment by SPQR — 12/4/2007 @ 8:31 pm

121. That said, my principal objection is the implication that this asshole’s rhetoric, even if sincere on his part, is somehow representative of conservatives. It’s not, any more than Al Sharpton or Jesse Jackson’s routine race-baiting is typical of liberals.

     Bingo. Then why does no one else seem to call out these types of comments?

     If they are not willing to in “their own house” so to speak, why should I be confident that it is taking place in real life?
     There is a reason for that 85% - 15% ratio in the GOP. And in my opinion the rank and file (read you and I) should be doing more.

     Comment by voiceofreason — 12/4/2007 @ 8:33 pm

122. Not in the least. You just do not say those words in that particular order. You speak around it. This thread is a perfect example. You did not call anyone a racist, but you conflated the words of one person with the entire category of conservatives, and implied that we needed to answer for the words of one person. If you have a problem with someone’s words, address your problems to them. Conservatives as a whole are not responsible for what one individual writes on a comment thread. IF that person was a conservative, and IF that person is racist, they have to answer for themselves. Not me. Not Patterico. Not SPQR. Not XRLQ. People answer for themselves. You routinely wish to lump people like some asshole white supremacy group that nobody but you has ever heard of in with conservatives. This makes you predictable, and reinforces my perceptions. I would be quiet pleased to say I was wrong about you, but at every turn, you prove me right.

     Comment by JD — 12/4/2007 @ 8:35 pm

123. So you must admit that the few dozen times you have said that I call people a racist has in fact been inaccurate, even untrue.

     I hear crickets among the cursing and wishes for me to die that you so eloquently post.

     Comment by voiceofreason — 12/4/2007 @ 8:38 pm

124. Christoph, #110…
     “…they could easily have overpowered the old man and harmed him.”

     And, doesn’t that reinforce a claim of self-defense?
     They were armed with a deadly weapon (ever been hit in the head by a crow-bar?);
     They were on his property;
     They advanced upon him - facing a shotgun!
     What part of self-defense doesn’t apply here?

     Oh, and by the way, a basic part of tactical use of firearms is to, if neccessary by the use of a non-auto loading firearm, to recharge the chamber immediately after each shot: Fire, re-load, re-assess. Repeat as neccessary.

     IMHO, the DA’s use of the Grand Jury is just backside protection for him.

     Comment by Another Drew — 12/4/2007 @ 8:39 pm

125. There is a reason for that 85% - 15% ratio in the GOP

     Do tell. Enlighten us. Explain to us how the party of Lincoln is racist. Explain to us how this 85-15 ratio (which you noticeably do not specify what it refers to) is a result of the Dems fighting against the Civil Rights Act, or lynching laws. Explain to us how the party that allows a former Grand Kleagle to be an elder party statesman has a better record on race issues. Explain to us how opposition to affirmative action is racist. Explain to us how opposition to social programming, or rather, opposition to the creation of a dependent culture, is racist. After literally billions of dollars spent over decades, the Dems have shown no positive results, yet we are racists. You will never convince me of that.

     Comment by JD — 12/4/2007 @ 8:41 pm

126. I apologized for that. Immediately. That you chose to ignore that is your issue.

     Comment by JD — 12/4/2007 @ 8:43 pm

127. “They advanced upon him — facing a shotgun!”

     Where did you get this fact from? Because without it, your whole position fails.

     “Oh, and by the way, a basic part of tactical use of firearms is to, if neccessary by the use of a non-auto loading firearm, to recharge the chamber immediately after each shot: Fire, re-load, re-assess. Repeat as neccessary.”

     Thanks, dude. I missed that whole “reload your weapon” part of my infantry training. Glad you could provide me this much-needed insight on this blog.

     Comment by Christoph — 12/4/2007 @ 8:44 pm

128. I have the impression that DeJesus and Ortiz may have been on Horn’s property when they were shot or that Horn will claim he felt threatened by them. I base that on statements made by Horn to the dispatcher (”They came in the front yard with me, man. I had no choice”), by Horn’s attorney (that DeJesus and Ortiz “made lunging movements,” and “Horn fired in self-defense”), and the suggestion that both were shot at a distance of about 15 feet.

     I’m curious how the change in Texas law may affect this case. I don’t think the new law does what some people think it does, e.g., it doesn’t say you can always use deadly force to defend another person’s property. However, it apparently does say that there is no longer a duty to retreat unless you provoke an attack. I think this case may focus, in part, on whether Horn provoked an attack by his actions in going outside.

     It may be true that in other states, people would feel Horn provoked an attack simply by going outside when the dispatcher told him not to. Maybe the Pasadena authorities and grand jury will feel that way, too, but I’m not convinced of that because the suspects were leaving and the police weren’t there yet. Horn can argue they were going to get away if he didn’t act, and I think Horn’s statements show that was his concern. Thus, he can argue he was not provoking an attack but attempting to stop a burglary and apprehend the suspects. I have no idea whether that is an argument the prosecutors and a jury would accept.

     Finally, regardless of what happens in state court, I suspect this will also be reviewed by the US Attorney’s office for federal/hate crime violations.

     Comment by DRJ — 12/4/2007 @ 8:45 pm

129. DRJ:
     Thank you for this post. You’ve brought out a lot of info that hasn’t been in the local media here in the “entertainment capital of the world”.
     …..
     From what I have absorbed so far, Mr. Horn is an asset to his neighborhood, and the cost of criminality has been shown to be severe in TX. If more criminals were gauranteed to pay for their crimes (not neccessarily with their lives, but if the shoe fits…), the world would be a nicer place to live in.

     And, why haven’t we learned the criminal background (if any) of the deceased? Or, did the copy machine run out of paper because their jackets are way too long?

     Comment by Another Drew — 12/4/2007 @ 8:48 pm

130. I have the impression that DeJesus and Ortiz may have been on Horn’s property when they were shot or that Horn will claim he felt threatened by them. I base that on statements made by Horn to the dispatcher (”They came in the front yard with me, man. I had no choice”), by Horn’s attorney (that DeJesus and Ortiz “made lunging movements,” and “Horn fired in self-defense”), and the suggestion that both were shot at a distance of about 15 feet.

     DRJ, I think the defense would be much better off if they followed nk’s advice and just used the plain language of the statute.

     Comment by Christoph — 12/4/2007 @ 8:51 pm

131. You apologized to the forum and went on to call me a race baiter. There is a difference between apologizing to the individual and to cya. You chose cya.

     Explain to us how the party of Lincoln is racist.

     See there you go again Jimmy C. I said nothing of the sort. you just can’t get it through your head. Your hypersensitive reaction to anything race related is akin to “I’m not a racist, who said I’m a racist. Sharpton, Tawana, Cosby said, Jackson, blah blah …blah”
     By now it should be apparent even to you, my best pal on the internet, that this reaction has not worked.
     The conservative message about why the GOP offers better policy affecting black voters has not been articulated well at all. It is as simple or as hard as that to understand.

     Quit looking to be offended and be comfortable in the knowledge that you, JD, are not a racist and have no reason to feel offended. No.reason.at.all.

     Comment by voiceofreason — 12/4/2007 @ 8:51 pm

132. Christoph

     “They advanced upon him — facing a shotgun!”

     Where did you get this fact from? Because without it, your whole position fails.

     It is my understanding that the criminals were shot in his yard. In order for the criminals to get to his yard, where he was positioned as well, they would need to walk, jog, run, crawl or otherwise advance themselves to his yard, in order to get there from the neighbor’s house.

     DRJ - Wouldn’t committing a felony by breaking into someone’s home and robbing them be considered provocation? What hate crime was committed?

     In handling civil rights types of claims involving police shootings, and specifically excessive force, in the testimony of the cops and experts we have used, they all indicate that if a criminal has a potentially deadly weapon, the zone of safety extends out to around 21 feet away from the person. Once inside there, the use of force may not be sufficient to stop an attack, given the time it takes to cover that distance.

     Comment by JD — 12/4/2007 @ 8:54 pm

133. I’m sure they will do all of the above, Christoph. I was addressing a possible self-defense argument but that doesn’t exclude other defenses as well.

     Comment by DRJ — 12/4/2007 @ 8:54 pm

134. Christoph…
     weapons…As I said, in the use of non-autoloading weapons. Were you in the infantry when they were still using bolt-acton rifles?

     “They advanced upon him…”

     Ugh, they came upon his property from his neighbors. That is an advance. According to “one” of the transcripts, he told them to halt or face the consequences (I think the old standby phrase is “Move, and Die”).

     Also, see DRJ’s #128.

     Comment by Another Drew — 12/4/2007 @ 8:54 pm

135. I apologize TO YOU, VOR,for cussing at you and using woefully inappropriate language. I was wrong.

     You are still a race baiter. That has not changed.

     I do not care if the position on race is one that does not resonate. I would rather be correct, than to offer platitudes, pander, and otherwise use an identity group as nothing other than a voting bloc to be courted come election time.

     Comment by JD — 12/4/2007 @ 8:58 pm

136. Thus, he can argue he was not provoking an attack but attempting to stop a burglary and apprehend the suspects.

     The suspects had already committed the crime and were leaving. What was he preventing at that point?

     And just out of curiousity, what legal authority if any does a 9-11 dispatcher have? In other words can they give a lawful order?
     I really don’t know the answer to those questions. It is a sincere question.

     Comment by voiceofreason — 12/4/2007 @ 9:00 pm

137. It seems to me that he has the right to try to stop them from burglarizing a neighbor’s home. And he has the right to defend himself. I feel certain he had a genuine belief in his need to defend himself. The issue will be whether it was a reasonable belief. That’s a factual question that probably can’t be answered by a gang of commenters and bloggers who lack access to the hard evidence.

     As I said, here in California it would either be justified (lawful self-defense) or voluntary manslaughter (a genuinely held but unreasonable belief in the need for self-defense).

     Comment by Patterico — 12/4/2007 @ 9:01 pm

138. The suspects had already committed the crime and were leaving. What was he preventing at that point?

     I won’t answer that. I will instead ask you to guess what my answer would be.

     Comment by Patterico — 12/4/2007 @ 9:01 pm

139. Christoph…
     weapons…As I said, in the use of non-autoloading weapons. Were you in the infantry when they were still using bolt-acton rifles?

     Yes, I was both trained on bolt action rifles as a cadet, still nominally part of our Department of National Defence, and our army uses bolt-action rifles in a sniper role to this day, albeit I wasn’t trained as one.

     Nonetheless, and at the risk of banning, your point is stupid. While I was trained in the C-7 rifle in addition to other infantry and some specialty weapons, reloading is done as a matter of course. Why would one empty a 30-round magazine and then not reload? I don’t disagree with the point you made above in your original comment, but it is so obvious it goes without saying. I get the feeling you were trying to make some kind of point with it. You failed.

     Comment by Christoph — 12/4/2007 @ 9:03 pm

140. I won’t answer that. I will instead ask you to guess what my answer would be.

     Who knows what you are thinking. Escape?

     Comment by voiceofreason — 12/4/2007 @ 9:07 pm

141. Patterico - My guess would be that your answer would be that he was preventing the potential for the criminals to invade his house, or another house nearby, or otherwise continue their afternoon of fun. But, I could be wrong.

     Comment by JD — 12/4/2007 @ 9:07 pm

142. … (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

     (3) he reasonably believes that:

     (A) the land or property cannot be protected or recovered by any other means; or
     (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

     Comment by nk — 12/4/2007 @ 9:15 pm

143. nk goes and gets all fact-y on us, and lays it out in quite simple terms.

     Comment by JD — 12/4/2007 @ 9:16 pm

144. Yep, I have to agree with nk. Although using deadly force to protect the property of even a stranger is a very ambitious law. It doesn’t preclude, that I’m aware of, shooting a fleeing child carrying a chocolate bar — at least if it happens at night.

     Comment by Christoph — 12/4/2007 @ 9:17 pm

145. Blame it on Mr. Perez, the best English teacher ever to teach unruly seventeen year olds how to read in the Chicago Public Schools.

     Comment by nk — 12/4/2007 @ 9:18 pm

146. And just out of curiousity, what legal authority if any does a 9-11 dispatcher have? In other words can they give a lawful order?

     Anyone have an answer for these?

     Comment by voiceofreason — 12/4/2007 @ 9:21 pm

147. A 9-11 dispatcher has no legal and binding authority in Indiana. I can speak to no other state’s laws. As such, they cannot give a lawful order.

     Comment by JD — 12/4/2007 @ 9:26 pm

148. Anyone can give a lawful order. The circumstances under which it becomes a crime to disobey a policeman’s orders are very narrowly circumscribed by the statutes which punish them. Broadly stated, they involve making the cop’s job harder. You don’t have to obey a policeman’s order to “take off your clothes, lie down, spread your legs, and do everything the nice officer says”.

     Comment by nk — 12/4/2007 @ 9:31 pm

149. I can’t find anything about a Texas dispatcher’s authority but that doesn’t mean there might not be something. In general, however, while Texas dispatchers can be trained and certified by the Texas Department of Public Safety, that doesn’t make them law enforcement officers so I don’t know if they can give lawful orders.

     Comment by DRJ — 12/4/2007 @ 9:33 pm

150. Reloading…
     Christoph, if you would read my initial point, I said “recharge the chamber”. I did not say to reload the rifle.
     Recharging the chamber: Lift bolt handle, pull to rear ejecting spent cartridge brass, push bolt forward stripping a fresh round from the magazine and recharging the chamber, lock bolt handle down. Your B-A rifle is now ready to fire again.

     BTW, I forgot you were a Canuck, and that they were still using Enfields during Korea after most of the world had progressed to semi-auto and/or selective fire weapon (snark very much implied).

     The basic poceedure is the same for the pump-action shotgun used by Mr. Horn: Fire, pump a new round into the chamber, re-assess. Repeat as neccessary.

     It is not obvious to those without weapons training. Proceedures such as these have to be taught, and practiced, until they are second nature to the user. This is why we underwent constant training while we were in the military, is it not?
     ((I am seeing a lot of typos here, if I don’t catch all of them, I apologize. Got a keyboard problem.)))

     Comment by Another Drew — 12/4/2007 @ 9:35 pm

151. The “snark” at the brave soldiers who were fighting alongside your country’s forces with older rifles in Korea is not completely understood. You did correctly describe how to use a bolt action rifle. Horn had a pump action shot gun. Do you have some point in all of this?

     Comment by Christoph — 12/5/2007 @ 1:06 am

152. http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/5349444.html

     http://www.liveleak.com/view?i=48c_1196806689

     Comment by voiceofreason — 12/5/2007 @ 3:56 am

153. I wonder how much longer it will take for the citizens of this country to take back and reinstate a JUSTICE system in place of what is currently the “Legal system” that hijacked it?

     The perps got caught, red handed, and got punished, and neither will EVER become a repeat criminal again!

     Their decisions got themselves killed!

     Deal with it.

     Comment by TC — 12/5/2007 @ 4:19 am

154. voiceofreason, that’s a great article you linked to. And it basically sums up my thoughts.

     nk, can you comment on whether you believe the anonymous experts cited in it have a point that the fact this occurred in daytime matters? I don’t read it this way because the suspects were fleeing. Although if they WEREN’T fleeing, then again Horn wasn’t justified in shooting.

     I just thought of something — nk, Patterico, anyone half-assed knowledgeable, please reply: nk’s defense is based on the suspects fleeing with burgled property. However, Horn says at least one of the men was in his yard and both lunged at him. The physical evidence suggests they were both shot within, say, 15 feet give or take.

     If that’s so, doesn’t this mean the men weren’t fleeing with the stolen property and nk’s suggested defense is null and void? Further, doesn’t it mean Horn would have to rely on a plain old-fashioned self-defense defense? In other words, if they were both lunging at a man armed with a shotgun, he’s justified, and if not, it’s voluntary manslaughter or the nearest Texas equivalent as Patterico said above?

     Finally, the Black Panthers often act like a bunch of ignorant (sometimes racist) thugs of the highest order; I can’t overstate how much. But that day, and only on that day, I would have been more likely to march with them than against them. Because on that day I believe they were in the right.

     Comment by Christoph — 12/5/2007 @ 4:23 am

155. I don’t believe that nighttime/daytime makes a difference except as provided in the statute for “theft in the nighttime”.

     Section 9.43 places him where he had a right to be, outside confronting the burglars. Whether the “lunge” meant that he stood between them and their car or other means of escape, or that they wanted to eliminate a witness, or keep him from raising an alarm, or even if they thought that he was going to kill them and were themselves acting in self-defense, is almost collateral. At least secondary to the 9.43 defense. What would nullify the 9.43 defense would be that he or others (police or bystanders) were able to wrestle the stolen property from the burglars without use of deadly force.

     Comment by nk — 12/5/2007 @ 5:17 am

156. wrestle the stolen property ?

     Or point a shotgun at them and say, “Move, you’re dead!”

     Correct me if I’m wrong. It comes down to two things:

     1. Did Horn believe they in fact lunged at him? If he did, he was clearly justified in shooting.
     2. Was there a reasonable way of stopping the suspects short of deadly force? In other words, if they didn’t “lunge” at him, were only 15 feet away, why didn’t he wait say a few more seconds for them to comply instead of one second before proceeding to kill them both? He would have been justified in using threat of force, the shotgun, but having done so, I see no justification in pulling the trigger immediately unless he believed he was in imminent danger.

     So his statement about them “lunging” at him could come back to haunt — or save — him after all. And a person’s willingness to believe him on this point may be diminished somewhat by his eagerness to use lethal force as expressed by himself on the audio.

     Comment by Christoph — 12/5/2007 @ 5:28 am

157. Christoph,

     The Texas statutes describe the circumstances under which an individual is lawfully authorized to act. From the tape, it is clear that Mr. Horn was observing a burglary in progress (one of the circumstances set forth in the law). Hence, notwithstanding the 911 Dispatcher’s instructions, it appears that Mr. Horn was lawfully authorized to go out and confront the criminals.

     Once Mr. Horn was outside, IF they lunged at him, IF they changed their course to engage him, THEN Mr. Horn was acting in SELF-Defense, as opposed to Defense of Another’s Property. Self-Defense is authorized too.

     As I posted earlier, the physical evidence will be critical in deciding whether Mr. Horn’s actions were reasonable. Do the ballistics show entry wounds to the criminals’ front side, or back? Was there a crowbar found in hand or nearby one of the criminals? I’ve personally never heard of a 21 foot rule, but it sounds reasonable to me.

     And, as I posted above, no you don’t get to shoot shoplifters, even at night, even in Texas. That would most likely be considered an excessive use of force. Whether you or others believe that use of deadly force to stop a burglary is reasonable or not is, ultimately, irrelevant, because the Texas legislature made this decision on behalf of their constituents. Whether it is good policy or bad policy, somebody made the call. The issue, other than the hyperventilating about racism, that seems to generate the heat here is simply the dispute of whether it’s good or bad policy.

     I live in Virginia, it’s not my call to say whether Texas law is good or bad policy. If I thought it was bad policy, I could move to Massachusetts (or D.C.), give up my guns, and wait to become a victim. Since I do not choose to be a victim, I live in Virginia.

     Comment by 509th Bob — 12/5/2007 @ 5:36 am

158. Well put, 509th Bob. So it comes down to self-defense as I speculated. And ballistics, the audio tape, and Horn’s state of mind, etc., will become matters to be decided if it goes to trial.

     My point now is that Horn can’t claim to be acting lawfully in shooting fleeing suspects per § 9.42 and § 9.43 if he also claims they lunged at him, which prompted him to shoot them. So, by op