Thread by @AmySwearer

A number of people have asked about this shooting in Lubbock, Texas, for which video was just released showing the confrontation from two angles. Here's the tl;dr - there is a pretty strong case for criminal charges against the shooter. THREAD kcbd.com/2021/11/24/att…

In Texas, the use of deadly force is only justified “when and to the degree the actor reasonably believes the deadly force is immediately necessary” to protect against another’s unlawful use of deadly force, or to prevent the imminent commission of specific violent felonies. 1/

The use of deadly force in defense of property is justified only when immediately necessary to prevent the imminent commission of serious crimes like arson, burglary, or robbery – note, trespassing is not included. You can't shoot or threaten to shoot trespassers without more. 2/

Texas considers the threat of force and the use of force to be the same, except for an explicit provision that producing a weapon is fine as long as the “purpose is limited to creating an apprehension that he will use deadly force if necessary.” 3/

So it's a thin line between "I'm taking a gun to ward off a trespasser just in case I'm attacked" and "I'm unlawfully telling a trespasser I will shoot him for trespassing/threatening to shoot him if he doesn't leave my property, which I can't do." 4/

Finally, a person employing deadly force must not have provoked the situation in which he was otherwise justified in employing deadly force. The explanation below is from the state’s District and County Attorneys’ Assn. 5/

With this, I see two potential problems for the shooter (1) He arguably provoked the physical attack upon himself by producing a firearm in an impermissibly confrontational way (2) When he fired, it arguably wasn’t reasonable to believe such force was immediately necessary. 6/

The broader context matters. This isn’t some random person showing up on his property for no reason. It’s the ex-husband of a woman the married shooter is having an affair with, who is there because the ex-wife knowingly failed to abide by a court-ordered custody arrangement. 7/

The other man is threatening legal action against the ex-wife and to disclose the affair to the public. Both are serious motives for wanting him dead - especially the latter. In Texas, marital misconduct like infidelity means a lot during the division of marital property. 8/

Re: confrontation. I see nothing in the 30+ seconds before the shooter appears with his gun to suggest that the man was a violent threat. He’s angry, but he’s not threatening violence. He's even maintaining physical distance. He’s threatening *legal action.* 9/

This isn’t a matter of standing one’s ground – the shooter had already retreated into his home and actively chose to re-engage in a manner that was arguably both unnecessarily confrontational and calculated to provoke an even more confrontational response from the other man. 10/

Keep in mind, at this point, the shooter has no lawful grounds on which to threaten the use of deadly force, and the line between producing a gun and unlawfully threatening someone with it is remarkably thin and based primarily on context that might show one’s intent. 11/

And provoke the other man, it does. This is the first we see anything remotely resembling a threat of violence from the other man. Even then, he’s not armed. He doesn’t take a swing. He makes verbal threats that, under Texas law, might not even rise to justifying deadly force.12/

The shooter then fires a warning shot. A warning shot that arguably isn’t justified as a threat of lethal force at this point, because it's a trespasser. It’s only then that the other man grabs for the gun and swings the shooter around. 13/

Even if we assume the shooter’s actions are entirely lawful to this point and that grabbing for the gun/tossing the shooter aside rises to a level justifying deadly force, we have a problem. Was it immediately necessary to shoot him? 14/

When he actually shoots the guy, he has to show the force is “immediately necessary.” But his hands are no longer on the gun, he’s now about 6-8 yards away with the ability to continue backing up, and it’s not at all clear the other man intends to come back at him violently. 15/

And again, when you put all of this against a backdrop of the shooter having a good reason to want the other man dead, and the reality that no hint of actual violence started until the shooter re-engaged (after police were called) with a firearm….provocation is a real issue. 16/

In that situation? Stay in your home. Call the police. Let the guy rant and rave all he wants outside. Yes, he’s trespassing. No, in the middle of the day with cops on the way you don’t need to come outside to confront an identifiable trespasser with your gun. 17/

Anyway, Texas is a mandatory grand jury state. Every homicide, regardless of how justified it is on its face, is reviewed by a grand jury. And I’m not sure I want to be this guy right now. 18/

And before the inevitable "but what about Rittenhouse you hypocrite" tweets, please show me where this shooter actively disengaged and ran 40+ yards while being chased by a guy who singled him out for violence because he put out a fire started during a riot. Context matters.

Another important point - the other man was apparently there because it was the court ordered place and time for a child custody exchange. I'm not even sure he's trespassing at this point. You can read the criminal trespassing statute below.

If that's where they have a legal agreement for him to pick up his kids, that's at least initial consent for him to be there. It's unclear to me whether the ex-wife's lover has the lawful authority tell someone with a court order to be at the ex-wife's property to leave.

Re: Physical distance.

This is the distance. In the video, before he shoots, he even appears to take a half-second to ground his stance and assess his target. Green shirt doesn't appear to being moving forward. Was it immediately necessary? Little confidence before a jury here.

And here's why I frame it as "I don't feel very confident in front of a jury" if I'm this guy. Juries often convict in even less questionable circumstances, just because someone was being unnecessarily confrontational - take the Michael Drejka case.

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