U.S. LawShield Independent Program Attorney Michele Byington:
First let's define burglary. A burglary occurs when somebody breaks and enters into a structure to commit a crime inside of that structure. So, for instance, say we have an individual who breaks into your barn. They break into your barn because they want to steal your tools. That would be an example of a burglary.
Now, here in Texas can you use deadly force against a burglar? And the answer is yes.
Now, let's take that inquiry one step further. Say the burglar is immediately fleeing with your property. Can you use deadly force? And the answer is maybe.
Now, if we've got an instance where the burglar is, number one, immediately fleeing with your property and you would not be able to recover that property by any other means, then you may be justified in using deadly force.
So, let's take an example with that one. Say, for instance, that Usain Bolt stole my TV out of my house and is running down my driveway. In fact, he's sprinting down my driveway because he's Usain Bolt. And I, unwilling to kick off my 4-inch heels, cannot recover that property reasonably because, number one, I'm in 4-inch heels and I can't run. And, two, it's Usain Bolt. Therefore, [I am] unable to recover that property.
Now, there's also a second analysis that could be applied in this sort of scenario. So, again, number one, someone is immediately fleeing with your property after the commission of a burglary. And, two, you would not be able to recover that property without the substantial risk of death or serious bodily injury.
Now, what we have to remember in these sorts of instances, you must be acting reasonably when you use deadly force. And who considers whether you acted reasonably? A jury will. So, a jury of your peers will determine whether they think that you had a substantial risk of death or serious bodily injury or whether you
could even recover that property by any other means.
So, what if you don't see your property as they are fleeing from whatever structure they're fleeing from? Well, then we're going to have a problem. You cannot use deadly force if you see someone just fleeing from your property because they could just be a trespasser. And as many of you know, you can't use deadly force against a trespasser. So, the fact they are immediately fleeing with your property is an essential element that must be met. So, if you don't see any property, quick answer, don't shoot.
Does it matter that it is daytime or nighttime in order to use deadly force against a burglar? The answer is no.
When it comes to the commission of a burglary or someone is immediately fleeing with your property after the commission of a burglary, daytime, nighttime, does not matter. Now, let's take the example of you see someone immediately fleeing from your neighbor's home after the commissionof a burglary. Can you protect your neighbor's property?
And the answer hinges on a two-prong analysis.
Number one, would you be justified in using deadly force if it were your own property? And number two, you must have a reasonable belief that your neighbor wanted you to protect that property.
So, this is an example where you may want to talk with your neighbors and perhaps get something in writing stating that you agreed to both watch out for each other's property.
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