Comments on Current Events In Criminal Law from the Federal Criminal Courts in Texas

December 10, 2007

JOE HORN’S SELF-DEFENSE SAGA CONTINUES

Part Two: Discussion of Use of Deadly Force and Self Defense by Houston Criminal Defense Attorney John T. Floyd

On November 14, 2007 a Pasadena, Texas resident named Joe Horn shot and killed two men who had burglarized his neighbor’s home. The case immediately generated national media attention, and an onslaught of Internet discussion. This case captured the public’s imagination for several reasons. First, Horn called a 911 operator to not only report the burglary but to state his willingness to use deadly force and perhaps kill Miguel Antonio DeJesus and Diego Ortiz with his shotgun. The 911 recording, which has been publicly repeated thousands of times, captured the operator’s instructions that Horn remain inside his residence and Horn’s repeated comments that he was going to shoot, and kill, the burglary suspects.

Second, true to his stated intention, Horn confronted the two men in his front yard and warned, “move, you’re dead.” The fatal shotgun blasts reverberated across the 911 recording and eventually across the rest of the nation.

Third, Joe Horn is a 61-year-old Caucasian and the two burglary suspects were African Columbians. The race of the shooter/victims has triggered racial divisions not only in the local Pasadena community but throughout the rest of the country fed by racially motivated Internet blogs.

Finally, issues like homicide being justified by self-defense, defense of personal property, or defense of a neighbor’s property have become a central part of the public debate about crime in our society. In a previous article (“In Defense of Thy Neighbor”) on www.JohnTFloyd.com, these issues were dealt with in a comprehensive manner. The purpose of this article is to examine the history of self-defense in this country and whether the 2007 Texas Legislature’s amendment of the state’s self-defense statutes support Horn’s claim of self-defense about which he referred when he mentioned the “new” law as he spoke to the 911 operator. This analysis is based upon the limited facts as they have surfaced in the public record. Only a trial by jury and vigorous cross examination of the state’s witness can develop the self defense defense completely.

NEW FACTUAL DEVELOPMENTS

The most recent media reports indicate that the two burglary suspects were illegal immigrants. This latest information has served to only heighten the racial implications associated with the shooting. The “illegal immigrants” issue has been a swirling “hot button” political issue over the past year with illegal immigrants being involved in some high profile crimes, including the shooting death of a Houston police officer.

The Pasadena Police Department recently released some preliminary information that an “undercover” police officer had arrived at Horn’s residence just moments before the shooting. The undercover officer reportedly claims he witnessed the entire shooting incident. According to the officer’s account, the two burglary suspects were between Horn’s house and the neighbor’s house before entering Horn’s front yard. The officer said Horn had the shotgun raised to his shoulder when he confronted the men.

One of the men, according to the officer, at first ran toward Horn before angling away from him toward the street curb in front of Horn’s residence. Horn shot this man in the back just before he reached the curb. He staggered across the street where he collapsed and died.

In the meantime, the second suspect ran away from Horn toward the neighbor’s yard where Horn shot him in the back. The wounded man continued to flee. Horn fired a third shot. It is unclear from media reports whether this third shot struck either the first or second man. The second man ran a few hundred yards before he collapsed and also died.

Pasadena Police Captain A.H. “Bud” Corbett said he didn’t think either Horn or the burglary suspects knew the undercover cop was present. When asked why the officer did not intervene, Corbett responded:

“It was over within seconds. The detective never had time to say anything before the shots were fired. At first, the officer was assessing the situation. Then he was worried Horn might mistake him for the ‘wheel man’ (getaway driver). He ducked at one point.”

The reported presence of the undercover officer triggered immediate skepticism from community activists who have called for an independent investigation in the shooting. One activist, Quannel X, commented: “This case stinks.”

HISTORY OF SELF DEFENSE

On November 20, 1772 Samuel Adams submitted a “Report of the Committee of Correspondence” to a Boston Town Meeting during which he articulated the “natural rights” of the Colonists:

“Among the natural rights of the Colonists are these: First, a right to life; Secondly, to liberty; Thirdly, to property; together with the right to support and defend them in the best manner they can. These are evident branches of, rather than deductions from, the duty of self-preservation, commonly called the first law of nature.” See: Eugene Volokh, State Constitutional Rights of Self-Defense and Defense of Property, 11 Tex. Rev. L. & Pol. 399, 407 (Spring 2007).

Adams and the other Founding Fathers would later enact the Second Amendment to the United States Constitution which provides: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.”

Between 1776 and 1998 forty-four states would enact similar constitutional provisions securing the individual’s right to keep and bear arms. Forty of these states complimented the “right to keep and bear arms” provisions with the right, in one way or another, to use these arms in self-defense. Id., 11 Tex. L. & Pol., at 414.

Most legal scholars, like Eugene Volokh, believe that inherent in the constitutional right to “keep and bear arms” is the right to use lethal force in self defense. See: Webb v. State, 439 S.W.2d 342, 343 (Tex. Crim. App. 1969) [Texas Constitution secured “[t]he right ... to arm [one]self in self-defense”]. But see: Walker v. State, 2007 WL 895826 (Tex.App.-Houston [14th Dist.] 2000, no pet.h.) [“the right to keep and bear arms” under Texas Constitution, Art. I, § 23, does not explicitly translate into a “fundamental right to defend one's self” rejecting ex-felon’s challenge to state law criminalizing felon’s possession of body armor].

Altogether, forty-four of the nation’s 50 state constitutions protect the individual’ right to self-defense in some manner: four through right to defend life, twenty-three through a right to bear arms in self-defense, and seventeen through both. See: 11 Tex. L. & Pol., at 415. However, as Eugene Volokh wrote, it is not at all certain if these “provisions presuppose a right to use force in defense of property rather than in defense of life or in resistance to serious infringements on liberty, such as attempted rape or kidnapping. American law has generally not allowed the use of deadly force in defense of property (with some important exceptions), so a right to bear arms, which generally refers to deadly weapons, is usually seen as focusing on self-defense rather than defense of property. In fact, only 8 of the right-to-bear-arms provisions mention defense of property, though 3 more mention defense of home but not of property generally.” Id. See also: Eugene Volokh, State Constitutional Rights to Keep and Bear Arms, 11 Tex. Rev. L. & Pol. 192, 193-204 (2006).

The right of self-defense of oneself is nonetheless firmly rooted in this nation’s social and legal framework. Famed legal scholar William Blackstone wrote that the right to use lethal force to prevent “any forcible and atrocious crime [is] justifiable by the law of nature.” See: 4 William Blackstone, Commentaries 180. Another early American legal commentator, St. George Tucker, said the “right of self defence [is[ the first law of nature.” See: N.Y. Times Co. v. Sullivan, 376 U.S. 254, 296 n. 2 (1964).

Legislative and judicial interpretations of this historical right have imposed some legal restraints on the right, such as a “duty to retreat” if available prior to the use of deadly force. An early 20th century California statute described it this way: “a person claiming [self-defense] if he were the assailant or engaged in mortal combat, must really and in good faith have endeavored to decline any further struggle before the homicide was committed.” A California appeals court in 1917 declared unconstitutional a trial court jury instruction based on this statutory language:

“The right to defend life is one of the inalienable rights guaranteed by the constitution of the state. It is plain that if a person without fault is assailed by another and a mortal combat is precipitated, to require the former to attempt to withdraw before killing his adversary is to require the very thing that may prevent him from defending himself at all. The instruction is quite capable of the interpretation that although the defendant was without fault and the deceased was the aggressor, yet, if they were engaged in a mortal combat, it was the duty of the defendant to endeavor to withdraw before killing his adversary, although he had reason to believe, and did believe, his life was in imminent danger, and that to attempt to decline further struggle would increase his peril and probably enable his adversary to kill him. Such, of course, was not the intention of the learned trial judge in giving the instruction nor, probably, of the legislature in enacting the law, but it is capable of such interpretation and may have been so interpreted by the jury.” See: People v. McDonnell, 163 P. 1046, 1051 (Cal. Dist. Ct. App. 1917). See also: People v. Rich, 2002 WL 1609058 (Cal. Ct. App. July 22, 2002) (dictum) (“[P]erfect self-defense is a constitutional right, applicable to any crime.”) [citing Cal. Const. art. 1 §1]), depublished without opinion.

Eugene Volokh put it this way: “Like other rights, the right to self-defense might also be subject to various regulations, so long as they do not substantially interfere with the ability to defend oneself. This offers another argument for the constitutionality of the duty to retreat (even to those who might think the duty is bad policy): Given that the duty generally requires retreat before using force only when a safe retreat is possible, the duty does not-- assuming the factfinder's judgments about safety are correct--materially interfere with the ability to defend life. One is simply required to defend life by retreating without using lethal force when that is safe, and is free to defend life using lethal force when no safe retreat is available.” Id., 11 Tex. Rev. L. & Pol., at 413-14.

DOES JOE HORN HAVE A SELF-DEFENSE CLAIM?

The United States Justice Department in 1999 reported that most violent crime in America, including homicides, occurred in “hotspots” or “a small number of city blocks.” See: Promising Strategies to Reduce Gun Violence, U.S. Department of Justice (1999). The report found that “the risk of being killed is 60 times greater among young gang members than in the general population and in some cities, far higher.” Id. Other social researchers have reached similar conclusions. See: Scott H. Decker & Barrik Van Winkle, Life in the Gang: Family, Friends, and Violence 173 (1996). These researchers found in one small area in St. Louis, Missouri that the youth gang homicides occurred at a rate 1,000 times higher than the homicide rate in the general population. Id.

Harris County is no different than other metropolitan areas like St. Louis. It has its “hotspots” for violence. Pasadena is not one of those hotspots. The two Hispanic men who burglarized Joe Horn’s neighbor’s house were not armed with firearms. They did not go there to commit a violent “home invasion” like the young thugs who killed Washington Redskins safety Sean Taylor. DeJesus and Ortiz broke into a home to steal something. They accomplished their criminal objective. They were about to flee the area when confronted by Horn armed with a stated intent that he was going to kill them before they could flee. And he accomplished that objective.

The critical question, therefore, is exactly what transpired in those few seconds after Joe Horn left his residence and the sound of the shotgun blasts being picked up by the 911 recorder. Liberal estimates say that some 5 to 13 percent of all the firearm homicides in this country are justified through self-defense. See: Don B. Kates, Jr. & Gary Kleck, The Great American Gun Debate 199 (1997).

Does Horn’s homicides fall into that range of justification?

This year the Texas Legislature expanded the state’s self-defense statutes enhancing the “use of force or deadly force in defense of a person.” See: 2007 Tex. Sess. Law Serv. Ch. 1 (S.B. 378) (VERNON'S). This ACT [effective September 1, 2007] amended Section 2 of Article 9.31 of the Texas Penal Code and added Subsections (e) and (f) to read as follows:

“(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.”

This amended version of art. 9.31 does not appear to help Horn’s self-defense claim. DeJesus and Ortiz did not break into Horn’s home or vehicle. Horn saw the two men break into his neighbor’s home. He retrieved a loaded shotgun, informed the 911 operator that he was going to kill them, and left the safety of his own home to confront the two men despite instructions from the 911 operator not to do so.

SECTION 3, Article 9.32, Texas Penal Code, was amended to read as follows:

“(a) A person is justified in using deadly force against another:
(1) if the actor he would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.”

This amended version of art. 9.32 eliminated the “duty to retreat,” but it imposes requirements that (1) the actor have a right to be present at the location where deadly force is used and (2) not provoke the confrontation leading to the use of “deadly force.” While Horn had a “right” to be present on his front porch with the shotgun (even those he had been instructed by the 911 operator not to do so), it could be argued that he provoked the confrontation by picking up his weapon and addressing the two burglary suspects with the warning, “Move, you’re dead.” The two burglary suspects had not committed any crime against Horn nor had they committed any of the enumerated felonies in arts. 9.31 and 9.32 that would have permitted use of deadly force.

There are no cases from the appeals courts interpreting the 2007 legislative amendments to the self-defense statutes.

Horn’s “threat to kill” warning clearly indicates that he was trying to detain the suspects. In other words, he was attempting to make a citizen’s arrest. Only a second or two passes from the “threat to kill” warning to the fatal shotgun blasts, indicating little time for the two men to attempt to use any deadly force against Horn – the only way he could justify use of deadly force while attempting to make a citizen’s arrest. See: Tex. Penal Code, art. 9.51.

The latest information from the Pasadena police department is that neither man was armed. One of the men had a six-inch metal tool called a “center punch” in his pocket. There is no indication that the man attempted to use this “weapon” in a manner that could reasonably be considered as “deadly force.”

But the most damaging information was provided by the undercover police officer. He reportedly said that while the first suspect initially ran toward Horn, he angled away and ran toward the curb. He was shot in the back before he reached the curb. While Horn was shooting the first man, the second man had turned and was fleeing across the neighbor’s yard when he was also shot in the back. Finally, a third shot was fired.

Even if Horn could offer a reasonable defense that he believed the first man posed an immediate threat when he ran toward him, it appears that the second man did not pose any threat to Horn because he had turned and was fleeing across the neighbor’s yard when he was shot in the back. There does not appear to be any justifiable reason for shooting the second burglar as he fled away from the scene other than Horn was reacting immediately to remove all threats while he was still under the belief that he was in immediate danger. Given the incredibly short time frame during which the shooting occurred, the argument that Horn was still under the belief that his life was threatened seems to be his best defense.

While Joe Horn was armed with a legal weapon, the appellate cases discussing deadly force are instructive in the Horn case for one reason: the courts generally reject self-defense claims when the shooter is the one precipitating the confrontation. It can be argued that Joe Horn precipitated the confrontation with DeJesus and Ortiz. He left the safety of his home, where he faced no threat and against the instructions of the 911 operator, to precipitate the confrontation. A prosecutor could argue and a jury could find that Joe Horn went looking for “trouble” when he left his residence to confront the two burglary suspects – and that finding could be supported by his own stated intention that “I’m gonna kill them” before he left the residence. However, given Harris County’s tough on crime persona, coupled with the anti-illegal alien movement sweeping the country, an indictment in this case seems doubtful and a conviction, after trial by jury, unlikely.

CONCLUSION
Joe Horn has become a tragic figure. He is now being defined by others based on their own personal views about society, race, and crime. He has become a murderer to some and a hero to many. He recently told the news media that if he had to do it all over again, he would have remained inside his residence. Hindsight is indeed 20-20.

Beyond a doubt, Horn’s life is now in personal and legal turmoil. The peace of his neighborhood has been shattered by activists and bikers hurling racial slurs and physical threats at each other. The neighbor whose home was burglarized and who did not know Joe Horn that well now finds himself at the epicenter of this roiling public debate.

No rational person can question the inalienable right of every person to protect oneself, one’s family, and one’s home. This natural right, embodied in constitutions and statutes across the country, exists concurrent with our duty to protect and defend our nation’s sovereignty.

But with any vested natural or state-bestowed right attaches an individual obligation to exercise that right in a responsible, rational manner. Laws exist to curb the excesses of human behavior – and that includes the criminal behavior of DeJesus and Ortiz, and the law will ultimately determine whether Joe Horn acted in self-defense when he killed the two men.
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