(The short answer is…not unless they somehow injure you in the process of committing the theft, making it a robbery. “During the process of committing the theft” would include while trying to escape with the property.)

This question came up in one of our neighbor States in the last few weeks: can a bystander in lawful possession of a firearm (an in a store in which he is co-owner) shoot and kill a shoplifter that is struggling to get away with their stolen goods?  In other words, can you use deadly force against another that you witness commit a theft, who then struggles to get away when you try to detain them in the store?

I am not licensed to practice Florida law – ONLY Texas law – so I will address my analysis of the situation in this article under Texas criminal law.  Before you go any further reading, understand that I am not condoning what this man did, and I am not asserting that what he did was “right” or moral.  I am only intending to dissect the situation under the principles set out in the Texas Penal Code relating to deadly force, and its use in defense of property.

One thing that is UNIQUE to Texas is the ability to use deadly force to protect property, even if you are not in fear for your life.  Florida’s self defense law says a person can use deadly force “if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.” The controversial stand your ground law does not require people to retreat before using deadly force..  Texas, however, stands out as the only state that does not require a threat of death or great bodily harm before deadly force may be used to protect property.

Last week in Florida, Lakeland city commissioner Michael Dunn fatally shot an alleged shoplifter.  Yesterday, October 16, 2018, Lakeland police released surveillance video that clearly show the final moments of the shooting.

The video from the Army/Navy Surplus store shows Dunn holding a gun in his right hand as the shoplifter (Christobal Lopez) tries to exit the door. Dunn pushes Lopez with his left hand, and Lopez goes for the door again.

While pointing the gun at Lopez, Dunn tries to grab Lopez’s shoulder from behind with his left hand. Lopez is actively resisting and trying to make it out the door.  Dunn’s hand slips off Lopez’s shoulder, and he instead grabs Lopez’s shirt.  After Lopez raises his left arm to break free, Dunn appears to fire.  When Dunn fires his weapon, Lopez is holding the door with his right hand and is holding what could be the hatchet he had stolen from within the store.

Dunn keeps the gun on Lopez, who dies shortly thereafter.  Paramedics pronounced him dead at the scene. Lopez lies face down as Dunn walks in and out of the frame. No one is seen attempting to render first aid.

No charges have been filed against Dunn.  According to police, Lopez tried to steal a hatchet from the store. Dunn, a co-owner of the business, approached him, asking if he was going to pay for the item.

So, in Texas would the business owner be justified in using Deadly Force?

I contend that NO, Dunn would not be justified in using deadly force under Texas law, unless he experienced some kind of bodily injury as a result of his altercation with Lopez, and, the hatchet Lopez stole was unsheathed, and immediately capable of being used by Lopez as a deadly weapon.  While an axe in its sheath could be used to bludgeon, I do not believe it would pose a substantial risk of being capable of causing serious bodily injury.

Before I explain further abut my reasoning, it is important to note the unique character of deadly force in defense of property in Texas.

Before you can get to the right to use deadly force, you must first be justified in using force.  Under Section 9.41 of the Texas Penal Code, a person you are justified in using force against another when and to the degree you reasonably believe the force is immediately necessary to prevent or terminate another’s unlawful interference with your property.  You may use the force to the degree you reasonably believe is immediately necessary to recover your property, if the force is used immediately or in fresh pursuit after the dispossession of your property, and the other person accomplished the dispossession by using force, threats, or fraud against you.

Theft would be a form of fraud – so we know Dunn would be justified in using some force, if he were in Texas.  It is reasonable to think force was immediately necessary to prevent Lopez from escaping with the axe he stole from inside Dunn’s store.  Dunn acted immediately and was in fresh pursuit at the exit of his business.

To use deadly force to protect your property under Section 9.42, there are more requirements.   You must be justified in using force under 9.41 above, and, either:

1.  The force is being used to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

2.  The force is being used to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and:

   a) You reasonably believe the property cannot be protected or recovered by any other means; or,

   b) The use of force other than deadly force to protect or recover your property would expose you or another to a substantial risk of death or serious bodily injury.

Now I will explain why I think it he could be be justified in using deadly force if the axe was unsheathed, and he experienced some kind of bodily injury.  First, the fact that an axe was stolen is crucial.  An axe is a deadly weapon.  Unsheathed, it can be used to kill or cause serious bodily injury.  When Lopez began fighting with Dunn in the doorway in an attempt to make his exit,, had he caused any kind of bodily injury to Dunn, he would have committed a Robbery.  Robbery under Texas law theft is where someone intentionally, knowingly, or recklessly causes bodily injury to someone else in the course of committing a theft. As far as I know, Dunn was not injured.

It appears Lopez was trying to flee when he was shot and there’s no evidence in the video that he tried to use the hatchet as a weapon or gain control of Dunn’s gun.  Unless the axe was capable of being used as  deadly weapon, it cannot be argued less than deadly force would expose Dunn to a substantial risk of Serious bodily injury or death.  If the hatchet is out of its sheath, Lopez could have taken a swipe at the store owner with a hatchet to try and get away.

The shooting is the second time Dunn has shot a person. But it’s the first time the shooting was fatal. The Lakeland Ledger reported that Dunn accidentally shot a man when he was 19.

CHARGED WITH A WEAPON OFFENSE?