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Texas Night Terrors: Defending Against Criminal Mischief


The following is a video transcript.

You hear your doorbell ring. You look out the window. A masked man, covered in blood, knife in hand, stands menacingly, waiting to make his move. You open your door and he screams, “Trick or treat.”

We’ve talked about carrying firearms in self-defense at Halloween in the past, but a reoccurring question we hear this time of year is, “When are you justified in using force or deadly force to defend your property or to stop criminal mischief?” It’s not a simple answer. The law favors lives over things and gun owners must exercise extreme caution to stay on the right side of the law.

What if you’re woken up in the middle of the night on Halloween, only to find a group of masked people stealing decorations, smashing pumpkins or toilet papering your house? What’s your recourse? Texas Penal Code Section 9.41 explains when you’d be justified in using force, not deadly force, to protect your property from theft or criminal mischief. The most common scenario is when a person believes that force is immediately necessary to prevent or terminate another’s unlawful interference with their property. Like most cases of justification, there’s no clear-cut answer here. This often leaves the question of whether your actions were reasonable and immediately necessary in the hands of a jury.

What about deadly force to stop and prevent theft and criminal mischief? Lawful gun owners need to pay close attention. Texas Penal Code Section 9.42 describes the many legal hurdles that a person must overcome. This section requires three separate reasonable belief standards be met, meaning a jury will have their work cut out for them.

First, a jury will have to determine is you were justified using force under Section 9.41 as we just described. Second, the jury must decide whether you had a reasonable belief that deadly force was immediately necessary to prevent the imminent commission of theft during the nighttime or criminal mischief during the nighttime, or if deadly force was used to prevent a person who was fleeing immediately after the commission of theft during the nighttime from escaping with the property.

Third and finally, a jury will have to agree that you reasonably believed the property could not have been protected or recovered by other means or that using something less than deadly force would expose you to a substantial risk of death or serious bodily injury. If a jury finds that your actions were immediately necessary and reasonable under all three of these requirements, only then would you be legally justified.

What does this mean for you? The theft of decorations or a candy basket in front of your house may actually constitute a theft or interference with your property and force or even deadly force might technically be justified. However, it will be very difficult to convince a jury that you were reasonable in shooting someone over these types of Halloween pranks.

Another point to note, smashing pumpkins, egging houses and the like are probably considered criminal mischief and even though you can legally use force or deadly force at night to stop or prevent this type of mischief, if it’s already over and the kids run away when you open your door you probably have no right to use any type of force because the act is already over.

If this legal justification sounds complicated and fraught with peril, it’s because it is. Using deadly force or force to protect property is for the rarest of circumstances. If you’re looking out your window on All Hallows’ Eve and see a roaming gang of zombies toilet papering your house, calling the police first might be the reasonable course of action.

If you have any questions about the law and defense of property call Texas LawShield and ask to speak to your Independent Program Attorney.

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