Trespassers – Can You Shoot ‘Em?

by Gray Reed & McGraw
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While riding the perimeter of his South Texas ranch in preparation for the upcoming dove season, Gaul Derrnit spies trespassers crawling through a new hole in his fence.  Twice before other illegal immigrants damaged Gaul’s fences and gates, water lines and water storage tanks, vandalized his property, burglarized an isolated ranch home and left massive amounts of trash. Derrnit is fed up. Recalling the murder of an off duty Border Patrol officer, Gaul is armed and “about ready to shoot ‘dem S.O.B.’s.”  May Derrnit shoot these trespassers?

NO. Keep your powder dry, Derrnit. Despite an erroneous internet belief, there is no law in the State of Texas, and no case law, that permits Gaul to shoot these trespassers on his property.

Trespasser, Licensee or Invitee? Under the law, anyone who enters your property is an invitee, licensee or a trespasser.  You can summon an invitee, like a pizza delivery driver. An invitee generally enters the property for the parties’ mutual benefit – usually an economic benefit. Or you can welcome a licensee, such as a social guest. Typically a licensee is someone who enters your property for their own convenience – and not a mutual economic benefit – and with your permission. A trespasser enters your property without your permission.

Do Trespassers Have Rights? Yes, but not as many as a guest or invitee. Gaul Derrnit’s only responsibility to trespassers is to avoid injuring them “wilfully, wantonly, or through gross negligence.” The Texas Supreme Court upheld a property owner chasing trespassers on his ranch as not being grossly negligent. Gaul may be liable for gross negligence when two elements are present: (1) viewed objectively from Gaul’s standpoint, the act or omission complained of must involve an extreme degree of risk, considering the probability and magnitude of the potential harm to others; and (2) Gaul must have actual, subjective awareness of the risk involved, but nevertheless proceed.

Could Derrnit Have Criminal Liability? Maybe. Texas protects property owners from criminal liability against trespassers in certain circumstances. The Texas Penal Code provides that Gail Derrnit is justified in using force to remove a trespasser if he believes the force is immediately necessary to prevent or terminate the trespass. Derrnit is also justified in using deadly force if: (1) he reasonably believes that it is necessary to use force to prevent or terminate the trespass; and (2) he reasonably believes deadly force is necessary to prevent the trespasser from committing certain crimes, such as arson, burglary, or robbery.

Tilting the Scales in Your Favor

Call a law enforcement officer. Shooting someone and killing them is always a homicide. It may be justified, absolving Derrnit of criminal responsibility for the act if, and only if, there is a provable, defensible justification for use of deadly force. Generally, the exception requires a belief that deadly force is reasonably necessary to protect Derrnit’s life or the infliction of serious bodily injury to him or someone else. Gaul is also allowed to use deadly force to protect his property or the property of others in certain limited circumstances, for example, to prevent commission of arson, burglary, robbery, theft during night time or criminal mischief during the nighttime.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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