November 26, 2022

Deadly Force

The question of when or if deadly force can be used is an open one in the minds of many Americans.  Not so in the case of Joe Horn.

joehorn

The Houston Chronicle first reported on Mr. Horn’s case and the pair of burglars he gunned down nearly a month ago, saying:

On a 911 tape released Thursday, a dispatcher is heard asking Joe Horn to stay inside his home until police arrived. But Horn, who had called police about 2 p.m. Wednesday to report that he witnessed two men break into a neighbor’s home, told the dispatcher he planned to “kill” the suspects.

“I’m not going to let them get away with it,” said Horn, who reported being inside his home in the 7400 block of Timberline looking out a window. “I’m gonna shoot. I’m gonna shoot.”

For approximately six minutes, the Pasadena police operator told Horn to remain in his home and repeatedly discouraged the 61-year-old man from taking his gun outside.

Police have not found the families of the dead men. One had identification indicating he was from Puerto Rico, the other had documentation indicating he may have been from Puerto Rico, Colombia or the Dominican Republic, Corbett said.

Both men were shot once at a range of less than 15 feet with a 12-gauge shotgun.

The shootings have been a newsworthy topic in south Texas ever since and now even the NY Times has gotten in on the act with this reasonable treatment:

When Mr. Horn, a 61-year-old retiree living with his daughter and her family in a growing subdivision in this Houston suburb, saw two burglars breaking into the house next door on Nov. 14, he called 911 and grabbed his shotgun.

Moments later, after what the police say was a confrontation on Mr. Horn’s front lawn, the two men — both illegal immigrants — lay dead on winding Timberline Drive, leaving behind a pillowcase stuffed with jewelry and about $2,000 in cash.

The shootings in Village Grove East, where the biggest excitement is usually the comings and goings of school buses, have set off a storm of issues.

“There’s the First Amendment,” said Charles Lamont, a neighbor and a marine captain who served in Iraq, citing the protests for and against Mr. Horn that have convulsed the neighborhood. The Pasadena City Council on Tuesday gave preliminary approval to a ban on demonstrations at private residences.

Then there was Mr. Horn’s claim of self-defense under the Legislature’s reformulation of the “castle doctrine” that, as of September, no longer requires a Texan to retreat before using deadly force at his own “habitation” in the face of a perceived lethal threat. Protecting a neighbor’s property, however, is not included.

Protesters have also made race an issue. Mr. Horn is white and the burglars, he told the 911 operator, were black. Yet the neighbors whose house Mr. Horn was protecting are Vietnamese. They later said they thought the two men had been stalking them.

A police report suggests Mr. Torres and Mr. Ortiz may have been shot in the back.

And both, the police say, were illegal immigrants from Colombia, Mr. Ortiz having been deported in 1999 after being sentenced to 25 years for cocaine convictions.

Unfortunately race – both of the deceased burglars were dark-skinned Hispanic men – has entered into the discussion:

The shootings were denounced by scores of black demonstrators including Quanell X, the leader of the Houston-based New Black Panther Nation, who led a march on Dec. 2. He denounced Mr. Horn as “judge, jury and executioner” amid scuffles with white biker counter-protesters.

For once Mr. X has gotten it right:  Horn did act decisively to stop the crime he witnessed and did so with deadly force.  Judge, jury, and executioner.  Was he wrong to do so?

Knowing Texans as I do, I do not believe that Mr. Horn will be indicted for the shootings, let alone be tried and convicted by a jury of his peers.  That’s very unlikely, as Lisa Falkenberg, who has written several Chronicle articles about the case writes:

To some, he’s a murderer. But to most of the hundreds of people who wrote me after my column Tuesday, he’s a hero, worthy of a medal, a parade or even the mayor’s office.

“He aided all of us by ridding the planet (of) two undesirables,” wrote Trimm Jones of Channelview.

“The message was sent,” wrote John Mays of Victoria. “Harsh, but sometimes in the world we live in today, it’s the only way.”

Wrote David “Old Dave” Dobson of Cooper: “I just hope that if men break into your home some time and are intent on stealing, or worse, that an old man with a shot gun doesn’t just turn away from the window and go back to his reruns of Gun Smoke.”

“What’s missed in all this rhetoric,” wrote Kay Walton of Houston, “is that the general public is fed up with being victimized by thugs, punks, and trash who prey on defenseless people.”

Not everyone agrees, of course – Falkenberg says that perhaps 1/3 of those who have written the Chronicle about the case condemn Horn’s actions as reckless and needlessly aggressive.

I am nearly inclined to agree because there was no imminent threat to anyone’s life until Joe Horn loaded his weapon and stepped out into the street.  He could have let them go.  Perhaps he should have.  But we don’t know what would have happened after that.  Perhaps the homeowners would have come home, surprised the thieves, and been killed instead.  Certainly the pair would not have stopped with the crime in question; they would have been in someone else’s home soon, possibly with deadly results.  Ultimately, however, there’s little use questioning what might have been. 

Personally I would have let the two thugs drive away, not only because their crime wasn’t worth shooting two men to death over but also for sheer fear of confronting two younger, stronger men in the act of a felony.  Horn acted in a way that, though I cannot embrace it fully, people of good faith must accept as being border-line legitimate.  The right to protect one’s community is arguably the most elemental behind all American law.

Agreement comes from a surprising source:

Patrick McCann, president of the Harris County Criminal Defense Lawyers Association.

“At the risk of being quoted, I’m not going to weep for those two,” he said of the burglars. “I guess what this comes down to, was this good judgment? No. Was it legal? Probably. Is it something that anyone is going to indict him for? Probably not.

“We are in Texas. Things are different here.”

What’s different is the fact that Texans still believe that the law belongs to the people, that it exists to serve and protect us, not the other way around. 

Lisa Falkenberg again:

I’ve researched the Texas Penal Code and discovered some provisions that were surprising even to this fifth-generation Texan.

The law of our land seems to place more value on the property being stolen — even if it belongs to a neighbor — than on the life of the burglar stealing it.

A review of our state’s protection-of-property statutes suggests that Horn’s repeated declarations about not letting the burglars “get away with it” may be the words that ultimately set him free.

If Horn doesn’t get indicted, don’t blame the grand jury. And don’t blame Harris County District Attorney Chuck Rosenthal. Blame the section of Chapter 9 of the Penal Code that deals with protection of property.

Under the section, which has been in place at least since 1973, a person is justified in using deadly force to protect a neighbor’s property from burglary if the person “reasonably believes” deadly force is immediately necessary to stop the burglars from escaping with the stolen property. It’s also justified if the shooter “reasonably believes” that “the land or property cannot be protected or recovered by any other means.”

Texas isn’t unique in allowing the use of deadly force in the protection of property during felony crimes such as burglary, but the experts I talked with weren’t aware how many states allow deadly force in the protection of a neighbor’s property.

And for those of us tempted to dismiss such laws as backward or antiquated notions in a trigger-happy state, experts suggest states are moving closer to Texas’ model than away.

Steven Goode, a law professor at the University of Texas, chalks this up to politics, saying: 

“They don’t want the next attack ad to be one where they are criticized for voting against someone’s ability to protect themselves in their home.”

“In a calmer and less politicized environment we might have different laws,” Goode said. “But campaign ads don’t allow for particularly nuanced discussions of issue.”

While that’s certainly true in an age of the sound bites and short attention spans, the fundamental issue is that law-abiding citizens should have the right to protect themselves and their property while those in the act of committing felonies must forfeit some of their protections as a result of their actions.  Elected officials should recognize that, during and after the election cycle.

No one forced Mr. Torres and Mr. Ortiz to burglarize that house or, if the homeowners are to be believed, to stalk them while planning the job or to make their modus operandi the targeting of immigrants who would likely be afraid of going to the police for help.  For that matter, no once forced the pair to enter the U.S. illegally either.  In a very real way, the men chose the fate to which they were consigned.

Falkenberg doesn’t agree and makes a desperate attempt to convince her readers:

There’s a difference between what we can do and what we should do. Without careful judgment and discretion, the law can be a dangerous thing.

The same law that may protect Horn from indictment could also protect someone who, in the dark of night, discovers a group of teenage girls wrapping his front yard trees with toilet paper.

To a rational person, this is a harmless prank. Under Texas law, in a world without discretion, the girls are engaging in criminal mischief and the homeowner would be justified in mowing them down with a shotgun.

If Texas is without discretion it’s because every additional layer of law removes a bit more of it from the grasp of the lay citizen.  Joe Horn may yet be indicted, charged, and convicted in this case.  Or he may not be.  The law has ample discretion in this case.  So did the dead criminals.  The question is, do ordinary people like you and me?

As Joe Horn’s attorney says:

“The facts remain the same in this case as they were on November 14th,” wrote Horn’s attorney, Tom Lambright. “Joe Horn shot in defense of his life in his own yard.”

marc

Marc is a software developer, writer, and part-time political know-it-all who currently resides in Texas in the good ol' U.S.A.

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