Burden of truth lies with Horn
These are good times for gun owners.
Between the U.S. Supreme Court striking the D.C. gun ban and the clearing of Pasadena vigilante Joe Horn, I'm halfway expecting Gov. Rick Perry to issue an executive order this afternoon granting the long-held wish of open-carry petitioners to grant their right to sport handguns in hip holsters.
But seriously, folks, nothing about the Harris County grand jury's refusal yesterday to indict Horn was surprising. I wrote several months ago about how Texas law seemed to be on the side of the Pasadena retiree who in November shot to death two men who had just burglarized his neighbors' unoccupied home.
'Castle Doctrine'
What made the case so controversial is that, even though Horn seemed to mistakenly evoke the recently passed "Castle Doctrine" in a 911 recording, Horn's own life and property were never in jeopardy until he decided to disregard a dispatcher's pleadings to stay inside his home and took it upon himself — and his 12-gauge shotgun — to stop the bad guys before they "get away with it."
Police said Horn shot both burglars in the back, although a plainclothes officer who had arrived in time to witness the shooting said one of the burglars appeared to run toward Horn before angling away.
But even if Horn hadn't created a situation where he needed to defend himself, a section of the Penal Code dealing with protection of a neighbor's property basically grants Horn the right to shoot if he thought the bad guys were getting away with it.
Antiquated statute
According to the statute, deadly force is justified if the shooter "reasonably believes" it's 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."
Now, Texas law isn't known for its progressive trend-setting. Ours is the same state that had to be told recently by the nation's highest court that we can't wait until indictment to give poor people attorneys to defend themselves. But this statute appears to be particularly antiquated.
George Dix, a law professor at the University of Texas, located its predecessor in criminal code from the mid-1850s. The statute, very similar to the modern one, was found in the "Chapter of Justifiable Homicide," which also included an article explaining the circumstances under which it's justified to kill a slave.
The statute survived extensive revisions to the Penal Code in the 1970s and won't likely be changed soon. The hands of grand jurors may have been tied. Or they simply may have believed the grandpa when he claimed self-defense in a situation of his own making.
But the greater question is whether their decision — albeit tailored for the specific circumstances of Horn's case — will be construed more widely by some. Will some see it as a declaration of open season on all suspicious people who appear to be lurking around a neighbor's house? Are Texas gun owners suddenly deputized to take the law into their own hands?
If Joe Horn got away with it, can you? And should you even try?
These questions may be part of what compelled District Attorney Kenneth Magidson to issue a statement following the grand jury's no-bill.
Saying he respected the grand jury's decision, the DA wrote that he understood "the concerns of some in the community regarding Mr. Horn's conduct. The use of deadly force is carefully limited in Texas law to certain circumstances, and each case stands or falls on its particular facts.
"This office will continue to aggressively prosecute anyone who illegally engages in the use of force, deadly or otherwise, against another."
But the best person to answer the question of whether Horn acted appropriately is Horn himself. He didn't need a grand jury to give him an answer.
He seemed to realize early on that needlessly shooting two men — regardless of their criminal behavior and illegal immigrant status, of which Horn was unaware at the time — would weigh heavily on him.
Through his attorney, Horn said he regretted shooting and that, if he had it to do over again, he would have stayed inside.
"Was it a mistake from a legal standpoint? No. But a mistake in his life? Yes," said defense lawyer Tom Lambright.
That message shouldn't get lost in all the celebrating from gun-rights advocates and armchair vigilantes who continue to proclaim Horn a hero and invite him to move next door.
This case has never been about gun rights, or self-defense. There are few people in this state who question someone's right to protect themselves with a gun if his or her life, family's life or property are threatened.
That wasn't the case with Horn.
The little old man from Pasadena gunned down two men like dogs. For a bag of loot.
He escaped indictment, but he'll carry that burden for the rest of his life.
Original Source : http://www.chron.com/disp/story.mpl/metropolitan/falkenberg/5865045.html
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