Not Right, But Not a Crime


Young Matt Skillern over at the new Greater Houston Criminal Defense Law Blog (another LexBlog product; not everyone can roll his own blawg. I’ve added it to the blawgroll nevertheless) writes about the no-bill of Joe Horn for the shotgunning of two burglars (illegal immigrants from Colombia) after they left his neighbor’s house:

What do I think? Well if you ask, based on the facts as presented in the media, Joe Horn did not have a legal right to shoot those men. The evidence presented through the news was that Joe Horn was in his home and not in danger, but chose to go outside and confront these men. If you look at it morally, it gets a little cloudier.

Cloudy indeed. In fact, one could reasonably take exactly the opposite of Young Matt’s position: legally cloudy though morally unjustified. I think Mr. Horn’s lawyer, Tom Lambright, got it right in the Chronicle article by Brian Rogers and Ruth Rendon:

“Was it a mistake from a legal standpoint? No. But a mistake in his life? Yes,” Lambright said. “Because it’s affected him terribly. And if he had it to do over again, he would stay inside.”

It was a bad call that he’ll have to live with for the rest of his life. But not every bad decision — not even every horrifically bad decision that ends in the death of a two human beings — should be treated as a crime.

Burglarizing a home in Harris County, Texas, is an activity that is so inherently dangerous that nobody engaged in it should be the least bit surprised to wind up dead, but stupid is not generally a capital offense in Texas.

In a Texas murder case, though, the focus is often not on the accused and his “legal right” to shoot the decedent, but instead on the decedent and whether he needed killing. Then the only question is whether the decedent was the right guy to do it.

It wouldn’t surprise me at all if in this case the grand jury was convinced that Mr. Torres and Mr. Ortiz had needed killing, and that Mr. Horn was the right guy to do it.

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0 responses to “Not Right, But Not a Crime”

  1. “According to a transcript of Horn’s 911 call, which he made about 2 p.m., the operator repeatedly urged Horn to stay in his house, but Horn said he did not believe it would be right to let the burglars get away.”

    “Well, here it goes, buddy,” Horn can be heard telling the operator. “You hear the shotgun clicking and I’m going.”

    The operator replies: “Don’t go outside.”

    Then the tape records Horn warning someone: “Move and you’re dead!” Two quick shots can be heard, followed by a pause and then a third shot.

    “Ortiz and Torres died a short distance from Horn’s house, both shot in the back”

    Not exactly a textbook justified homicide!!

  2. The reason Horn was no-billed was because Harris County has very conservative (and very white) grand jurors. The act may or may not have been legal (I think it was not). But there was never any doubt that a Harris County grand jury would refuse to indict, in view of who did the shooting and who got shot. A more racially and politically diverse grand jury would have indicted. Perhaps more damning, I also think this same grand jury would have indicted had the races of the shooter and victims been reversed.

    In my view, the endorsement of this kind of vigilantism is troubling.

  3. I think Horn regrets his decision. I wouldn’t want my neighbor to have to live with the thought of killing 2 people to protect my crap.

  4. Matt, if it were a textbook justified homicide, we wouldn’t be talking about it, would we? “Homeowner shoots, kills intruder” makes page 3 of the City/State section once; the no-bill in that case isn’t news.

    PJ, you may be right.

    Ron, It sounds like he does.

  5. we have seen this story over here in the uk, although I did not know that the man was up before a grand jury.
    A few years ago a british man was drunk and he went to a house to ask for directions as he had got lost. The house holder panicked and he shot and killed the man. I cannot remember what part of the usa this took place in.
    Regards John Gibson

  6. Sorry, even as a PD I think this is total BS. Race probably had a lot to do with it and that’s unfortunate.

    The man was repeatedly warned by the police dispatcher not to go; that the cops were on their way. He wanted to shoot them – for no other reason than to shoot them and he did and the great state of Texas rewarded him.

    He should feel bad. He murdered two people. I’ll defend him, but he won’t get any sympathy from me.

  7. The absence of a punishment is a reward? There’s something Orwellian about that; you sound like a prosecutor.

    Sure he should feel bad. He was wrong. It was morally unjustified. But not every morally-unjustified act should lead to prosecution.

  8. In this case – yes. I strongly dislike the castle doctrine. Always have, always will. I don’t think use of deadly force in any case is justified to protect property and especially in this case, given the facts.

    Yes, it’s Orwellian, or incongruous with our “stated purpose” as defense lawyer. I don’t care. There is still loss of life and I don’t have to gloat over this “no-bill” just because I’m a defense lawyer.

    He killed two people in cold blood. It’s that simple. He gets away with it. That’s a reward. Call it a “good result” if you want, but there’s nothing in common with this guy and a majority of my clients.

  9. Gideon wrote: “I strongly dislike the castle doctrine. Always have, always will. I don’t think use of deadly force in any case is justified to protect property and especially in this case, given the facts.”

    That makes two of us. The accused in this case were the two Hispanic males. Horn acted as the State (judge, jury, and executioner). The (official) State then retroactively condoned his acts, despite the sentence he imposed having been exceeded the maximum under law. Under these circumstances, there is nothing incongruous about being a defense attorney and feeling dejected by the no bill. In my view, the State won. And what it won was a death sentence for two persons accused of burglary.

    The notion that shooting each other over property should be legal is utterly absurd. As long as it is on the books, rational people should read it as narrowly as possible. In this case, for instance, what evidence reflected that Horn’s belief that the property could not be recovered by other means was reasonable?

  10. Can we get off the “vigilante” talk? Horn was not seeking targets. He was on his own property. I think you got it right for the most part Mark. The action is morally problematic, and Horn will have to live with what he did. Anyone concerned with the morality of his deeds should consult a prayerbook. But a citizen has a presumption of safety on his own property and there is no legal compulsion to stay in-doors; a home needn’t be a hermitage. Even in Houston.v2008 we should insist that fear is an emotion, not a requirement.

  11. IJ wrote: “Can we get off the ‘vigilante’ talk? Horn was not seeking targets.”

    One meaning of vigilante is: “any person who takes the law into his or her own hands, as by avenging a crime.” That is precisely what Horn did. Horn told the 911 operator just prior to shooting the two men: “I ain’t letting them get away with this shit. They stole something. They got a bag of something.” True enough, the law empowers Horn to use lethal force to “take the law into his own hands” to recover property under some circumstances (that I don’t believe were met here), but that’s just a technical distinction. It doesn’t remove Horn from the category of vigilante.

    IJ wrote: “But a citizen has a presumption of safety on his own property and there is no legal compulsion to stay in-doors; a home needn’t be a hermitage. Even in Houston.v2008 we should insist that fear is an emotion, not a requirement.”

    Neither should a citizen have the prerogative to shoot people he suspects of committing property crimes. Horn could have gone outside, even with his firearm as protection. What he should not have done is shoot two people.

    I am not trying to vilify Horn, as he does appear to be sincerely remorseful for what he did, and I am confident he acted in a heightened state of fear and anxiety. But, if those two men he saw were white youths instead of Hispanic youths, something tells me Horn would not have felt as threatened and may not have shot them at all. That isn’t necessarily Horn’s fault, since those kind of associations can (and often do) occur at a completely subconscious level, but it should give serious pause to anybody seeking to justify (legally or morally) what Horn did.

  12. Two comments about the Joe Horn matter. First, Joe Horn disregarded a police department representative’s order to not go outside. Horn put his life and any police officer responding to the call in jeopardy. If Horn stays inside, the crooks get caught red handed, case over.
    Secondly, Horn had his case heard before a Grand Jury and if he had been true billed then a jury would have heard his case. This is a procedure not available to the two corpses he created. I really feel he should face civil rights charges for this act.

  13. This happened in Pasadena, so I can’t say how long the typical wait is for police to show up. But I bet this incident was much quicker because the dispatcher had probably alerted nearby police about what was going on, and being said.

    I live in Houston, and depending on quite a few things, the wait for police to show up can be very long. According to some, police don’t even show up at all (I’ve never seen this happen myself).

    So the law makers come up with a new law that’s supposed to prevent homeowners from being sued by criminals that’ve broken into a home. Well they certainly worded their law loosely.

    But is it REALLY racism, or is it that citizens are sick and tired of criminals not being caught, returning to a successful neighborhood for more stolen goodies? If those illegals hadn’t been shot by Mr. Horn, and the police hadn’t arrived in time to catch them, what are the chances they’d be caught later? If they left DNA, would they even be in the system to check against since they were illegals?

    So they’d rob another house, maybe in the same neighborhood since they got away with it already, and what if the next home had people in it?

    Citizens that obey the law, and work and save for their stuff are not only being robbed by criminals, including illegal citizens, but we’re also having our lives placed in danger by these worthless criminals. There’s not enough police to keep up with them, then they get out of jail after a short period of time.

    Perhaps the grand jury was also tired of our protection system being broken.

    I’m sure the lawmakers didn’t plan on their Castle Law loosely enabling neighbors to shoot criminals fleeing from the home they robbed, but I think the Grand Jury’s decision speaks for most law abiding citizens in Texas. The more liberal states can continue to allow criminals to do whatever they want with minimal punishment, IF they’re even caught. I would have no-billed Mr. Horn myself, just because he was asked to protect his neighbor’s home while he was out of town, and the law was gray’ish about how he over-protected his neighbor’s home.

    And I’ll never cry and moan about a criminal losing his life or injured by a home-owner, because every home owner, and their family, is in mortal danger for most robberies (that wasn’t the case with Mr. Horn’s shooting, but if a criminal was inside a home with someone in it, we must protect ourselves against assumed threats — they are criminals!)

  14. Finally, someone with a gravatar comments!

    It’s not really a castle doctrine case — it’s a defense-of-property case. And Joe Horn wasn’t asked to protect his neighbor’s home (nor was he required to have been asked).

  15. The law aside, I feel deadly force is justifiable to protect property and I see no problem with shooting a burglar in the back to stop him from stealing and to prevent him from preying on other people in the future. I do not believe that the life of a thief or any other criminal is equivalent to that of his victim and according criminals the same rights as their victims is in my opinion evil. I also don’t think this point can really be argued. To me, tolerance or intolerance of predators appears to be a fundamental part of a person’s character.

    • Lots of people talk tough about the relative values of lives before they take one. Joe Horn didn’t trade the crooks’ lives for his own; he traded their lives for a bit of swag—a decision that he now regrets.

      Respect for the sanctity of human life is a fundamental part of a person’s character. Humility is a fundamental part of a person’s character. Having neither doesn’t make you right, it just makes you shallow and annoying.

      It’s easy to demonize someone by calling him “predator”. Human beings didn’t get to the top of the food chain by grazing or scavenging, though; we are naturally predators, no matter how desperately you would like to pretend otherwise. Calling criminals “predators” is a bit of programming from those who would like us all to act like sheep.

      If you’re going to comment here, please try to think a little deeper.

      Thanks.

  16. There are some people who do not give a damn about an innocent person’s life and have no problem robbing, raping, killing people. Those crooks should have stopped and surrendered. Maybe the thieves were not psychopaths or career criminals, but they wanted someone else’s rightful property, took a chance and lost big.

    I don’t think Horn should regret his decision. Humility and respect for life is by no means universal among people. It is not a fundamental part of everyone’s character. Neither is respect for property. Pretending that all people are worthy and somehow good inside perpetuates crime. It is a mistake and it is wrong. Some people will be civil with each other and some will be criminal. I cannot in good conscience value both the same.

    Equating hunting an animal for food in nature with existing as a criminal, an intraspecies predator in a human society preying on it’s own kind is not honest. A person who steals the rightful property of another person is a social predator and a criminal.

    • Well, when you’ve killed someone over a piece of property, you may be qualified to say that Horn shouldn’t regret his decision. Until then, you’re talking out of your ass. As far as I can tell, your philosophy is limited to ideas that can be conveyed in a 40-minute episode of Law and Order.

      You’re right that humility and respect for life are not universal. Some people think, like you do, that they have the wisdom to decide who lives and who dies.

      So now it’s not predators you’re intolerant of, but a particular type of predator. We could continue splitting that particular hair, but I doubt that you’ll ever catch on.

  17. Whether I or any other stranger has killed over a piece of property is not something you would know nor do I require any qualification to have an opinion on Horn’s feelings.

    A criminal who murders someone in some alley obviously feels he can decide whether his victim lives or dies. Killing in defense of self or property is not a matter of wisdom, but reciprocity. You don’t need wisdom when someone is visibly and obviously doing you or your neighbor harm. Legal nonsense aside of course.

    ‘Predator’ in the context of crime among human beings does not have a double meaning. It is dishonest to equate a hunter killing a deer in the woods with a human stalking another in order to murder, rob or rape. Both are predators, one is criminal. Any honest person can see that.

    • No, you don’t need any qualification to have an opinion. Opinions are like assholes: everyone’s got one. Don’t confuse this with a place where anyone is interested in your anonymous opinions if you don’t have some special qualification.

      You are no better than the criminal who feels that he can decide who lives or dies. You may have more legal cover, but morally you’re the same. Your “reciprocity” would drag us all down to the lowest moral level.

      You claim intolerance of predators, but we’re all predators. Not just as hunters, but sexually, socially, and in commerce. Your complaint is with those who go too far. That’s fine, but the distinction is not between predators and non-predators, but between rule-breakers and non-rule-breakers.

  18. Yes everyone has an asshole and it looks like I have more than one to deal with. This blog is your baby. If anonymous opinions from people without their ‘papers’ aren’t welcome you should just say so and if you say my opinions aren’t welcome here then this will be my last post.

    You accuse me of being no better than a criminal because I have strong opinions on crime, because I think a criminal should pay for his actions. I’m not surprised really since you need a good supply of low lives to make a living. I doubt you are moral at all.

    The distinction IS absolutely between predators and non-predators. Playing with context doesn’t fool anybody.

    Merriam Webster – predation
    1. the act of preying or plundering
    2. a mode of life in which food is primarily obtained by the killing and consuming of animals

    Dictionary.com – predation
    1. depredation; plundering.
    2. act of plundering or robbing.
    3. predatory behavior.
    4. a relation between animals in which one organism captures and feeds on others.

    Dictionary.com – predator
    1. Zoology. any organism that exists by preying upon other organisms.
    2. a predatory person.

    No we’re not all predators sexually, socially and in commerce, maybe you are. You may wish it so, but no we are not all criminals. Sexual, social, and commercial exchange is not predation. Rape and theft is. And no it is not about going too far, that’s a criminal’s mind set. It is not okay to steal from your neighbor a little, rape a little, beat innocent people a little.

    And it is not about rule breaking. Whether rules are just depends upon who makes them, usually and unfortunately by people of your ilk. Since you claim to be anti-totalitarian here’s a quote you can pretend to respect.

    Rightful liberty is unobstructed action according to our will within limits drawn around us by the equal rights of others. I do not add ‘within the limits of the law’ because law is often but the tyrant’s will, and always so when it violates the rights of the individual. – Thomas Jefferson

    • I think I’d made it clear that anonymous opinions, with no bona fides, are unwelcome here. If you’re a disembodied opinion, with no particular life experience, nobody cares what you think.

      Predator ? criminal. We’re hardwired as predators by natural selection. You can take the human out of the wild, but you can’t take the wild out of the human. For proof, see Friday evening in a bar where people look for mates: every trick of the predator can be observed. Joe Horn stalked his prey, but you applaud him. Yet you’re so stuck on “predators bad” that you can’t recognize that it’s not being a predator that’s bad, but being a criminal.

      Who defines “criminal” (traditionally the government)? What criminals should be shot? Who should shoot them? These might be entertaining questions, but you’re so insistent on words meaning what you say they mean that you’re failing either to communicate or to entertain.

      So go ovinely forth. Watch Law and Order. Listen to talk radio. Be scared. It’s what the government wants.

      You’re done here. It’s not that you’re wrong, but that you’re shallow.

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