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Murder? Man Returns to Bed After Killing Thief

James Michael Meyer, a 72-year-old Dallas man, returned to bed after shooting and killing a purported thief this past week, before later calling police He’s now been charged with murder.

While Meyer going back to bed is bizarre behavior that leads every headline on this story, is it the major evidence supporting a murder charge? Are there other facts in this case that undermine his claim of lawful self-defense and (likely in Texas) deadly force defense of property?

First, it’s important to recognize that the media in such cases generally gets all the important facts wrong, and further is generally unable to differentiate the important facts from the unimportant. Accordingly, everything we’re reading in the media about this case ought to be assumed to be mistaken until proven otherwise.

That caution extends, by the way, the arrest warrant affidavit, which is absolutely not immune to being utter garbage (see Zimmerman, George).

Nevertheless, for purposes of analysis we’ll go with the facts as being shared by The Dallas Morning News reporting:

Meyer told police that he had been awakened about 5 a.m. by noise outside and saw someone trying to break into his storage shed with a pickax when he looked through the window, the affidavit said.

Meyer said he grabbed his handgun and chambered a round, then came out of his home yelling at the person to stop what he was doing …

So, the confrontation begins with a threat to Meyer’s personal property, against which he brought a firearm. Interestingly, while in most states the use of deadly defensive force in defense of personal property would not be permitted, Texas is the one state that has an explicit statutory provision allowing precisely for the use of deadly force in defense of personal property.

That statute is Penal Code §9.42, and it has a lot of conditions that must be met in order for the use of deadly force in defense of personal property to be lawful. Fail to meet any of the conditions and the justification for the use of deadly force in defense of personal property fails. Further, some of those conditions are actually simply judgment calls that will be made by other people, with perfect 20-20 hindsight, and it’s not your judgment of your use of force that will control your legal outcome, but their judgment.

The first of the conditions of §9.42, “Deadly Force to Protect Property” is that the defender first meets all the conditions for the use of non-deadly force in defense of property, found under the immediately preceding statute, §9.41:

9.42. DEADLY FORCE TO PROTECT PROPERTY.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under §9.41; and

The relevant portion of §9.41 is pretty straightforward:

9.41. PROTECTION OF ONE’S OWN PROPERTY.

(a) A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land or unlawful interference with the property.

A stranger breaking into someone else’s toolshed can be fairly described as unlawfully interfering with that other owner’s property, and thus the owner would be justified in using force to prevent such unlawful interference under §9.41. While that justification under §9.41 is a necessary condition of being justified in the use of deadly force under §9.42, however, it is not by itself a sufficient condition for the use of deadly defensive force.

Indeed, §9.42 imposes a variety of additional conditions:

9.42. DEADLY FORCE TO PROTECT PROPERTY.

A person is justified in using deadly force against another to protect land or tangible, movable property:

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other’s imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) 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

To simplify this language in the context of this event, in order for deadly force in defense of property to be justified under §9.42, in addition to meeting the conditions of §9.41, the defender’s use of force must meet the following additional conditions:

(2) EITHER to (A) prevent imminent commission of theft during the nighttime or criminal mischief during the nighttime OR (B) to prevent immediate flight by someone who has committed theft during the nighttime and is escaping with property;

Let’s take a further look at the reported facts of this event:

Meyer said he grabbed his handgun and chambered a round, then came out of his home yelling at the person to stop what he was doing and not come any closer or else he’d shoot.

Instead, he told police, the person took several steps toward him, so he fired his gun, according to the affidavit.

Those facts disclose an additional justification for the use of deadly defensive force, in addition to that of §9.42—straight-up deadly force self-defense against an advancing aggressor armed with a deadly weapon, to with a pick-axe.

Frankly, with respect to this fired shot, Meyers is probably in pretty good shape with respect to his legal justification for the use of deadly defensive force. He approached the thief breaking into his shed in the nighttime prepared to use deadly force per §9.42, and then he actually used deadly defensive force when he was threatened with deadly force harm personally. Looks like a strong case of legal justification for that use of deadly defensive force.

Unfortunately, Meyers didn’t stop with that single shot, but instead fires a second time after the thief “dropped his pickaxe and ran toward the park behind his home.”. To continue the reported facts:

Instead, he told police, the person took several steps toward him, so he fired his gun, according to the affidavit.

At that point, the burglar dropped the pickax and ran toward the park.

Meyer said he fired an additional shot “into the night” in the direction of the park …

It’s this second shot that profoundly undermines his justification defense. It cannot be justified as self-defense, because the thief had dropped his weapon and was in flight from the scene. There was no longer an imminent deadly force threat against Meyer, and he should have recognized as much.

It also cannot be justified under §9.42. In order to do so the second shot must meet the conditions of either paragraph (2)(a) or (2)(b).

Under (2)(a), the second shot must have been fired to prevent the imminent commission of theft—but the attempted threat was already over, and the victim in flight, when the second shot was fired, so there was no prevention of an imminent theft.

Under (2)(b), the second shot must have been fired to prevent the imminent flight of a thief escaping with property—but there is no reported evidence that the victim in this case was escaping with property.

Without either (2)(a) or (2)(b) there is no defense of property justification for Meyer’s second shot, and as already discussed there was also no self-defense justification for that second shot.

Bottom line, no justification for that second shot, period.

Also damaging to any claim of justification that Meyers might make is this consciousness of guilt evidence—specifically, apparently tampering with evidence:

When investigators couldn’t find any spent shell casings, Meyer told them he had thrown them in the trash.

Might there be a reasonable explanation for why the shells were tossed in the trash? Maybe, if this was done before Meyer was aware that his bullets had struck and killed the victim. This explanation similarly applies to the return to bed.

It would be bizarre in the extreme to knowingly have killed someone and simply return to bed. Often when shots are fired, however, those shots miss, and it’s quite possible that Meyer in good faith believed that he had failed to hit, much less kill, the victim in this case.

If Meyer believed that his shots, however intended, had no more effect than would have warning shots, that might explain both the return to bed and the discarding of the shell casings—he wasn’t aware that he was responsible for an actual killing.

Per Meyer’s explanation, once he was aware that the victim had been shot and killed, it was at that point that he called the police, as one would reasonably have expected him to do.

Other purported facts are being highlighted by news reports but are relatively unimportant:

Meyer’s wife called an attorney for advice before Meyer called 911, the affidavit said.

According to the affidavit, he refused to answer the dispatcher’s questions, saying repeatedly that he was the victim of a crime and that medical assistance was needed.

Neither of these is necessarily fatal to an otherwise valid claim of justification—but that caveat that the claim of justification be otherwise valid is an important one.

As I often caution, your lawyer is stuck with the facts that you give him. Give him bad facts and it’s going to be a tough case. That doesn’t change simply because you call your lawyer before you call the police. (Arguably, talking with your lawyer first might result in being cautioned against making damaging statements to the police in the first case, but it still doesn’t change the underlying facts—as in, you fired a shot at a fleeing victim.)

Also, stating on 911 that one is a victim of a crime, while perhaps helpful to an otherwise valid claim of justification, cannot change a bad shoot into a good shoot.

Unfortunately for Mr. Meyer it appears this is a case in which he did almost everything right—except for that final second shot, which arguably turns what was an otherwise justifiable use of deadly defensive force into murder.

Don’t be Meyer, folks. Know the rules, and know their boundaries, and stay well within them.

And, once again, I urge you to seriously consider refraining from ever using deadly force in defense of mere personal property, even if in Texas, where such a use of deadly defensive force may be lawful, if all the required hoops are jumped through. The consequences of missing any one of those hoops might well be life in prison.

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8 thoughts on “Murder? Man Returns to Bed After Killing Thief”

  1. Seems likely that the 2nd shot might have been the fatal one, though people do run and so on when shot; your recent videos show that. How far did the guy run, and was he in fine running form, or maybe limping or hunched over? I guess we “hadda be there.” (We are getting jaded. Now we feel deprived because we didn’t get a video, nice and clear, of this shoot.)
    A person, especially a crime victim, might wonder Couldn’t some laws be, er, “improved” to allow for a defense “Well, he NEEDED to be shot–he was a (burglar/carjacker/gangster/pickpocket/___)” or “He NEEDED killin’ because (he menaced the town for years, like that true case 20+ yrs ago; or __________!”

    1. I’ve heard rumors that Texas even allows a “He needed killing” defense, although I suspect that “He needed killing” would only be a valid defense if the person doing the killing indeed knew that the person being killed needed killing.

      I can’t help but think that “He needed killing” is a vicious rumor. I haven’t yet tried hunting down either statutory or case law that would address this, though. I strongly doubt that “He needed killing” would be something that would be established by a legislature, so I have a funny feeling that if, indeed, this exception exists, it only exists in case law.

      (Having said that, I’m imagining the fireworks that would happen if a legislature actually *did* consider such an exception to the law….)

      (I sort-of take that back. Laws that make it easier for alleged victims of abuse to murder their alleged abusers can certainly fall into the category of “he needed killing…)

  2. The thief got what he deserved…one less POS on the street. The home owner should have fired a 3-5 shot burst…instead of allowing the thief to turn and run and then shoot again. Also too bad the thief wasn’t found to have stolen property next to them. I love living in Texas…sad one of our fellow patriots didn’t know enough or prepare enough to have a clean shoot.

  3. There is a need for an autopsy in this case. If there are two bullet wounds, one in the front and one in the back, both fatal, then his second shot may be relevant to his defense. If there is only one fatal shot to the front, who cares about the second shot into the night? If there is only one fatal shot to the back, then that would lessen the strength of his self-defense claim.

    Going back to bed indicates that he didn’t think he hit the bad guy, just chased him off. Another point, being awakened in the night and being threatened with a pick-axe, should be enough to reduce the charges from murder to manslaughter in Texas.

  4. This case also reminds me of the advice that it’s important to be the first person to dial 911 — and that any show of defensive force, no matter how benign the outcome, should result in you calling 911 to report it.

    Of course, if you are, indeed, the person who is wrong in such a situation, then ultimately such a call will condemn you…but then again, there are too many cases where someone justifiably brandishes a gun for self defense, but it’s the attacker (after having run off) who calls 911, and the defender now has to spend time in jail while the police and the courts sort out what actually happened.

  5. I’m far from being an attorney and perhaps I’m splitting hairs:

    Under item (3 A) below concerning §9.42. If owner reasonably believes the land cannot be protected by any other means? Seems like this is the case for the shooter. (3 B) Goes further to state the use of force other than deadly force to protect would expose the actor or another to a substantial risk of death or serious bodily injury. The deceased had already demonstrated a willingness to use or threaten deadly force with a pick-axe…Who’s to say if the individual had another weapon or not.

    (B) 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

    (3) he reasonably believes that:

    (A) the land or property cannot be protected or recovered by any other means; or

    (B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

  6. I don’t believe that deadly force should be used to protect property unless the thief also tried or threatened to inflict bodily harm on the victim. Deadly force should be the ultimate response to defend oneself and others from being killed or injured. For protection against theft or vandalism a good iinsurance policy is what is needed, not the use of a gun.

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