Deadly Force and Home Defense: Texas Man Kills 2 Teens

By Caleb Groos on September 04, 2009 | Last updated on March 21, 2019

A San Marcos man killed two teenagers and seriously wounded a third after they reportedly broke into his home. Yet more home protection killings bring up the age old question of when the law allows violence in self defense or defense of property.

Since few facts regarding the San Marcos shootings have been released, it's hard to predict any outcome. However, given the degree to which Texas law allows the use of deadly force to defend oneself, one's home or place of business, one's property and even the property of others, it's hard to imagine the San Marcos shooter being charged with anything.

States vary greatly regarding when force or deadly force is allowed in defense of self or property. The general rule for self-defense is that force is allowed if the actor reasonably believes it is required to protect him- or herself from someone else's use or attempted use of unlawful force against them. The amount of force used typically must also be reasonably proportionate to ending the threat faced.

Many states have enacted the so-called "castle doctrine," which generally holds that a person does not have to retreat instead of using force or deadly force. These laws are aimed at situations where the person could avoid confrontation and the use of force by retreating, but instead they choose to stay and defend their home (or car, or workplace, or in some states any physical location they have a right to occupy).

States legalizing the "castle doctrine" do it in different ways. For example, some don't allow deadly force if the intruder retreats. Others, such as Texas, allow deadly force even against fleeing intruders in some circumstances.

The Texas law that would apply to analysis of the San Marcos shooting allows the use of deadly force if the person knows or reasonably believes that someone has or is attempting to unlawfully enter by force the person's occupied home, vehicle or place of business.

One point where many states diverge is on when force or deadly force can be used to protect property.

Texas illustrates one end of the spectrum -- where deadly force is allowed in certain circumstances to protect or recover one's own property or the property of another person. Many states forbid the use of deadly force to protect or recover property.

In addition to the many situations in which it allows deadly force in self-defense, Texas law allows deadly force in defense of property if:

  • The person reasonably believes force is necessary to prevent another from taking the property or to recover it once taken (if in fresh pursuit); and
  • when the person reasonably believes deadly force is necessary to prevent someone from committing arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime, or to prevent a person from fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime; and
  • the person reasonably believes that the property can't be recovered by any other means, and that using less than deadly force might expose the person to substantial risk of bodily harm or death.

This is likely why, in 2008, a Harris County grand jury refused to indict Joe Horn, who shot and killed two men who had robbed his neighbor's house. The story stunned many, in large part due to the entire incident being recorded through Horn's 911 call. After the 911 operator pleaded with Horn not to go outside with his shotgun, Horn took matters into his own hands.

"I'm not gonna let them get away with this [expletive]," he repeats at one point, before saying "I'll kill 'em." After the 911 dispatcher pleaded with him that property was not worth killing someone over, he told him, "[w]ell, here it goes buddy, you hear the shotgun clicking and I'm going." "Move. You're dead," is the next thing we hear Horn yell on the recording, immediately before the first of three shotgun blasts are heard. Horn shot the two men in the back, killing both.

Many were outraged at the perceived indifference to human life in the grand jury's decision not to have Joe Horn charged. However, under current Texas law, the grand jury's decision was not out of the ordinary.

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