Patterico's Pontifications

4/4/2008

Houston Clerk Owner Kills Fleeing Robber

Filed under: Crime — DRJ @ 1:01 pm



[Guest post by DRJ]

The Houston Chronicle reports another robber was shot in Houston:

“A grand jury will decide whether a Houston convenience store owner was justified when he fatally shot one of two men who tried to rob his business late Thursday night, authorities said today.

Peter Quang Dan fired at two men as they fled his store in southwest Houston, hitting one in the head, Houston Police said. The man’s name has not been released.

Police said he and another man entered the Colony Express Market at 2525 Broadway about 11 p.m. and robbed Dan, who was behind the cash register.

Dan, 50, told investigators one of the men pistol-whipped him after demanding cash, then forced him to lie on the floor of the store. As the two fled, Dan grabbed a pistol he keeps in the store and fired, police said.

Dan was not seriously injured in this attack.”

People in the area were surprised by the incident and concerned for the store owner:

“Customer Angela Bradley, who works across busy Broadway at James S. Deady Middle School and has known Dan for 15 years, said she was shocked to hear about the incident but thinks Dan did the right thing. “It’s sad but he’s got to protect his business,” Bradley said.

Joanna Tamez works at a tax preparation service her father runs in the same strip-mall that houses Dan’s business. Other neighboring stores include a nail salon, a hair salon and a laundromat. “They are really nice people,” Tamez said of Dan and his wife. “I really was completely shocked when I heard about it this morning. I really got goose bumps.”

Dan is a kind man who keeps an eye on the area, she said. “He looks out for us,” said Tamez.”

Since the Joe Horn case, Houston-area prosecutors, defense counsel, and grand juries have spent a lot of time thinking about Chapter 9 of the Texas Penal Code — self-defense and defense of property and other persons.

— DRJ

34 Responses to “Houston Clerk Owner Kills Fleeing Robber”

  1. One out of two ain’t bad.

    daleyrocks (906622)

  2. He may not have gotten his story figured out in time. A cop once told my wife, “If you shoot a burglar, be sure to drag him into the house before you call the cops.” I hope that slip doesn’t cost him.

    Mike K (f89cb3)

  3. Moving the body is a good joke, but it’s terrible advice.

    It will be glaringly obvious to any cop that the body was moved. Then you’re looking at all sorts of new charges, and your credibility takes a huge hit.

    Daryl Herbert (4ecd4c)

  4. no dead criminal has ever committed another crime.

    /the only rehab with a 100% success rate. %-)

    redc1c4 (a877b7)

  5. Having been mugged myself, I know where the clerk was coming from. Shooting at anyone’s back is a bad idea (esp. legally), so I can’t support his action. But I can commend his aim.

    Michael Llaneza (10657b)

  6. Dan’s batting .500, which ain’t too shabby…

    Scott Jacobs (d3a6ec)

  7. The first article described Dan as a clerk but the updated version I excerpted lists him as the store owner, so I corrected the title.

    DRJ (a431ca)

  8. Hey, these guys were armed and could have turned around. Yeah, maybe the risk was miniscule, but so f’in what.

    Law (62ca0c)

  9. Texas Penal Code Section 9.41 seems to authorize an owner to use deadly force in this situation. Specifically, it authorizes an owner to use deadly force to recover property if the owner “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.”

    DRJ (a431ca)

  10. I will wait for the video (which I presume exists) before making comment.

    For the owner’s sake, I hope he has a better case to make than did the Soon Ja Du, the Korean grocery store clerk who shot Latasha Harlins (aged 15) in the back of her head. In March 1991, Du and Harlins scuffled over a counter as to whether or not Harlins tried to shoplift a bottle of orange juice. Videotape clearly shows that Harlins had left the juice bottle on the counter and was walking away when Du reached under the counter for a handgun, and then fired at Harlins.

    Du got off almost scot-free. She was convicted of voluntary manslaughter, but served no prison term — just a fine, community service and probation. Factor this clear miscarriage of justice in with the acquittal of the officers in the Rodney King trial later that month (a verdict I agree with), and it adds needed perspective on the outrage of the community that eventually led to the L.A. riots.

    L.N. Smithee (e1f2bf)

  11. I would say Section 9.32. The robbery was legally still in process.

    § 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (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.

    And I just can’t wait for all our colleagues to tell me how wrong I am. 😉

    nk (34c5da)

  12. Smithee #10,

    Totally different case. Latasha was not armed, did not pistolwhip Du, did not leave the store armed and, like you wrote, it was just a 79-cent bottle of pop.

    nk (34c5da)

  13. “A grand jury will decide whether a Houston convenience store owner was justified when he fatally shot one of two men who tried to rob his business late Thursday night….”

    Maybe they should have been there?

    J. Peden (224b1c)

  14. NK,

    I think 9.32 might apply, too, since the robber was armed and had already pistol-whipped Dan. Dan might very well fear that the robber would shoot him as he left or come back and shoot him. I just think 9.41 is easier.

    DRJ (a431ca)

  15. Or that he might shoot the cop who just happened to stop by for a Twinkie and a Coke. A violent crime is not over until the criminal has been disabled — whether by his own volition, force, or time and distance.

    nk (34c5da)

  16. #15 – okay, so what if he had followed them out of the store, saw them get in a car, got in his car. followed them to their residence or wherever and then confronted and shot them to retrieve his property. justified?

    chas (536ceb)

  17. P.S. I agree with you that 9.41 is the bread but for the trier of fact that might think that killing somebody over property is a bad habit (I am one of them) 9.32 is the butter.

    nk (34c5da)

  18. Yes the dragging part was a joke but the point was there is no need to indict your self when telling the story.

    Mike K (86bddb)

  19. chas #16,

    No. No, again. No, one more time. DRJ has given us a link to Texas’s criminal code. Read it.

    nk (34c5da)

  20. #19 as a layman (and one who is buzzed silly at the moment) it would make no sense to me which is why i asked a pro. so under the law here in Texas i couldnt chase someone down to retriever my property. i would need to get law enforcement involved at that point.

    chas (536ceb)

  21. Chas,

    Your hypothetical would probably run afoul of this part of Section 9.32:

    “[Authorized to use deadly force …] (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;”

    Had Dan followed the robbers for that length of time, it’s unlikely a jury would agree that he “reasonably believed” that deadly force was necessary to protect himself.

    So, yes, you would need to call the law. The exact point at which you have to do that is subject to interpretation.

    DRJ (a431ca)

  22. chas #20,

    If I were your judge, I would say that you could have retrieved your property, under your scenario, by not, yourself, causing a breach of the peace. By calling the police. Again, please read the law DRJ linked slowly and carefully.

    nk (34c5da)

  23. Under 9.42, it requires the actor acts “immediately or in fresh pursuit.” I don’t know how cases have construed that. Most commenters here seem to think we Texans are wild people but I really doubt that section has been construed liberally.

    I think the protection of property provided under Texas law goes back to the days when you could effectively kill someone by stealing their property — their horse, their gun, their tools — all these things kept people alive in the harsh environment that most Texans lived in.

    In modern times, while we won’t die if we lose our possessions, the precedent is there. In addition, many Texans (myself included) believe that disrespect for another person’s property is a short hop from willingness to commit crimes against the person.

    DRJ (a431ca)

  24. Most commenters here seem to think we Texans are wild people …

    Not me. I consider you Texans very conservative (small “c”), even Puritanical. Seriously. I am not joking.

    West Virginians on the other hand … I could be persuaded that they are a “wild people”. Is walking outside barefooted in below-zero weather “wildness”?

    nk (34c5da)

  25. NK — Everyone knows that West Virginia is for lovers. Or is that Virginia?

    PS – Just kidding, Virginia lovers.

    DRJ (a431ca)

  26. Looks like the guy was with his rights, but… shooting a man in the back? I wouldn’t do it – especially since those guys are on camera an always end up getting caught.

    I wouldn’t support a change in the law, though. The victim in a case like this should be given all benefit of doubt, especially since he didn’t initiate the incident.

    Eric (09e4ab)

  27. Even if Dan was legally in the wrong (not that I’m arguing that) he can plausibly argue that he wasn’t thinking clearly since he had just been pistol-whipped. If the robbers wanted him to think carefully about the precise boundaries of what he could and could not legally do to them, they should have left him in a condition to think clearly.

    Dr. Weevil (d1212a)

  28. I agree with DRJ at comment 23. I spent my summers on a cattle ranch in California in the 1950’s and 60’s. It was legal to shoot cattle rustlers and those of poor character who loitered in the towns that dot Hwy 395 to Reno knew it. Cattle was a persons “livelihood” and legally defensible. Even though it was “only a cow”. When I turned 16 and was allowed to sit the herd at night, I was given a lever action .30-30 rifle and was told to use it. BTW, I was taught by the county sheriff to shoot that rifle and could claim “deputation”, if the need should arise to use it. I Never had to except on coyote.

    When another man is willing to threaten another man’s life with a firearm and demand his money, he has altered the social contract. Is it worth a mans life if he steals a loaf of bread? Absolutely not. Theft is a different crime than armed robbery. But, if the robber offers the shopkeep the bargain of; “Your money for your life”, he has set the terms of that transaction – unless there is a sign on the store counter that says: “You are welcome to rob me”.

    That said, I have been robbed three times, unsuccessfully. No one was shot, no shots were fired. I had more problems from the city attorney, my attorney and the police than I did from the punks who tried to rob me. Now, isn’t this what this issue is really all about? What should the authorities do next in order to appear authoritative? Police policing, lawyers lawyering, all trying to find fault where, at the most, there was only the natural fear for one’s life? Just what is the definition of “Justice”?

    C. Norris (66f482)

  29. C. Norris –
    Right now, the biggest weapon I carry is a pocket knife.

    More than once, on the way back from the mailbox, I’ve palmed it and flicked out the blade– I doubt an evil-do-er will be able to attack me if I slice the tendons on his gun-hand. (and more than once, there have been shady characters who I did not recognize from the housing area; generally, I pull my cell phone and act like there’s someone on the other end while I pull my little knife.)

    Some SOB actually jumps me? I’m goning to either make sure he never uses that hand again, or gut the SOB. If have something heavy, his brains will come out his ears.

    Foxfier (74f1c8)

  30. Oh boy. Personally, just glad Dan wasn’t “seriously injured.” (WTF?)

    Anyway, like most places, the Texas code uses that “reasonably believes” phrase that is fraught with all kinds of unintended consequences when it comes to application.

    Since my training has always been focused more on developing the judgement to decide whether or not deadly force is justified and/or necessary (then applying it effectively if so warranted), my take is just a little different on which sections of Chapter 9 actually apply, and how.

    As the story is reported, the miscreants are described variously as those “…who tried to rob his business…” and as crooks who came in “…and robbed Dan, …” without clarifying whether they were in possession of the cash they demanded or not when they fled. If they were (and it doesn’t really matter which one was), then Dan’s action is covered under Ch 9.42(2)(B). It may be that the courts have seen 9.41 as applying in a situation like this, but I think it’s a bit of a stretch because there is no indication that Dan was actually trying to recover the money or pursuing.

    Which brings us back to “reasonably believes,” because if I were Dan, I’d be toast. Because of my experience, it would be difficult indeed to convince a jury (peers of mine or not) that I feared for my life and that my actions should be justified under 9.31 or .32 if the guys were fleeing. If I gave chase, I might be protected under .41 & .42, but not likely because I am expected to be able to judge whether the bad guys continue to pose a threat justifying deadly force.

    ‘Course, I could just shoot ’em before they tried pistol whipping me and be fine.

    And as for dragging bodies here and there, forget it. Too much work, and you only get yourself in trouble. But as the Arizona study syllabus for concealed weapons licensees states, you are not required to nor should you make a statement until after consulting a lawyer!

    Preferably one who has experience in working with justifiable force. Like, say, the guys on retainer to the local law enforcement union. 😉

    EW1(SG) (84e813)

  31. EW1(SG) – I agree. We ought to be focused on discovering the root causes of why those individuals decided to rob Dan in the first place.

    daleyrocks (906622)

  32. daleyrocks:

    We ought to be focused on discovering the root causes of why those individuals decided to rob Dan in the first place.

    Well, I suppose. At least Mr. Dan did a good job of reducing the workload by 50%…

    EW1(SG) (84e813)

  33. Shooting in the back is bad, that is why in TX they attempt to train you to shoot in the leg or arm, convincing the fleeing asswipe to turn around and take it with honor in the chest!

    As in, “I wonder who may be shooting me”, stance. Curiosity killed the cat and the cat burglar as well.

    One can only really hope the early demise of most of these creatures happens prior to conception of another just like them.

    SIGH, oh well, probably too much to hope for.

    TC (d16524)

  34. Well that miserble thug will never again pistolwhip or rob another good samaritint running their own buisness and he shouldnt be indited. Here in KALIFORNIA he would be indited for murder and sued by the dead robbers family of perhaps DIRTY ILLEGAL ALEINS

    krazy kagu (5e1710)


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