The Most Common Reasons Alarm Installers are Sued

Posted on July 8, 2022 by El Dorado

Alarm systems are an integral part of home and business safety: That also means they are more likely to be subject to liability issues when something goes wrong. Alarm installers face their share of lawsuits, too. Installation companies should always be aware of the risks and how to mitigate them, but it’s also a good idea to understand where lawsuits are coming from. Installers can sometimes be named in a lawsuit even if they had little to do with the situation. Here are the most common examples, and what to watch for!

Negligence In Contracts or Alarm Installation

These lawsuits claim that alarm installers were negligent in some way that led to specific kinds of damages. Sometimes, this is related to contracts – here’s a case where an alarm installer was found at fault because they waited on a signed contract and security deposit when doing work for an old friend (always get a signed contract before beginning work). Other lawsuits may claim that an alarm system was installed improperly so that it couldn’t do its job properly.

This is also a tricky area where installers can get roped into broader lawsuits. For example, if someone broke into a home and stole items while causing damage, the owner may sue both the alarm monitoring company and the alarm installer – they have an incentive to cast as wide a net as possible. This is one reason that thorough paperwork and quality installation work are important for every installer.

Misrepresenting What Alarm Systems Can Do

In these cases, installers may have made claims that were untrue regarding what the alarm system is capable of. Maybe they claimed an immediate response from a monitoring company when there was actually a delay – or in some cases, claimed professional monitoring when the service did not exist. Lawsuits may also claim that installers misrepresented what alarm sensors could do, or what the system could protect against.

Alarms That Don’t Function Because of Faulty Installation

This is a straightforward problem: Alarm systems were installed improperly and did not work, leading to a lawsuit. The system may not have been wired correctly in some cases, or devices may not have been properly paired with the security hub. If improper installation led to a fire or break-in that could have otherwise been prevented, that presents a serious liability issue for the installer. This is another reason it’s important to vet your employees!

Not Repairing or Replacing Broken Systems

This can be a gray area, but lawsuits have been settled for millions of dollars over it in the past. In our linked example, a hotel clerk tried to use a panic button that was part of the building’s security system, but it didn’t work. The alarm installation company was likely in a contract to provide maintenance services and had not repaired the system appropriately. Any type of ongoing maintenance, from replacing the batteries in security devices to replacing faulty system components, should be treated seriously. Repairs should be made quickly and appropriately for the system.

Keep in mind that some previous clients may also be angry if parts of their systems are aged out, as we saw when 3G alarm connections started losing service. While this may not be the fault of the installer, alarm companies can be easy targets when system features are lost.

Deceptive Sales Lawsuits

We discuss this elsewhere in more depth, but it’s a good idea to avoid the possibility of a deceptive sale lawsuit. This a broad category of lawsuits over fraudulent business practices that seek to get a sale by lying to potential customers or hiding fees. Sometimes even well-meaning installers can run into problems here if they practice door-to-door sales, have tricky “free” product offers, or represent themselves as employees of a particular security brand when they aren’t. Fortunately, this is also an easy type of lawsuit to prevent with straightforward and honest business practices.

Repeated False Alarms

False alarms can cause disruptions and annoyance, as well as leading to increasing fines from the city if law enforcement is contacted. Some owners may sue installation companies for improper placement or faulty installation leading to false alarms. This is typically difficult to prove, but it remains one of the more common types of alarm installation lawsuits.

Injury or Damage During a Response

This is another case where installers may get involved in a broader lawsuit that’s targeting as many entities as possible. In these cases, the monitoring system worked as intended and personnel were dispatched to the location. However, the incident led to injury or damage, which resulted in a lawsuit. As long as the alarm system performed as expected, installers may not have much to fear from these lawsuits.

Final Notes

If you’re concerned about your installation company facing a lawsuit, we have targeted coverage to help cover these situations. Additional coverage is available depending on the industries you work in and what specific kinds of lawsuits you may face. As usual, the best defense is being prepared and making sure both you and your clients are well-informed. It’s also a good idea to keep an eye on local regulations and building codes so you can make sure you’re avoiding liability issues wherever possible.

Source: El Dorado Insurance Agency, Inc.

How to Recognize Scams Targeting Older Adults

Financial fraud and scams targeting older adults are on the rise. Preventing these fraud schemes starts with knowing how they work and what to look out for.

Posted on May 16, 2022 by Wells Fargo | Written by Eric Best

The woman on the screen said she lived in Poland, worked for the United Nations, and had just received a huge inheritance, but she was having issues with her bank. She needed to move the money into the account of a man she was romantically involved with online. But none of this was true. She was a scammer targeting a customer’s bank account. Luckily, a Wells Fargo employee reached out to educate the man about such financial scams before he lost any money.

These fraud attempts targeting older Americans are on the rise because perpetrators know they can catch isolated or unaware older adults and other customers who may get caught up in the moment and not spot the red flags.

“With these scams, there’s a combination of pulling heartstrings, danger, and urgency. Everything operates in extremes when it comes to fraud,” said Andy Collins, a principal business consultant with Wells Fargo’s Consumer and Small Business Banking’s Fraud & Claims Management department. “The bad guys try to find that vulnerable individual who will send money.”

But when it comes to preventing scams, knowledge is power. Staying on top of the latest fraud schemes is one of the best ways of avoiding losing money to them.

“In my research, I discovered that when a consumer has existing knowledge about a particular scam, they are 60-80% less likely to respond when they are targeted,” says Dr. Marti DeLiema, a gerontology consultant with Wells Fargo’s Aging Client Services team and an assistant professor at the University of Minnesota’s School of Social Work.

Here are three common financial scams targeting older adults and how they work.

Tech imposters

Countless customers rely on tech support to use their latest gadgets, but scammers often pose as helpful customer service experts with knowledge of an unknown or nonexistent problem to gain access to sensitive information.

That’s one reason why this is the most reported scam, with more than 13,900 cases reported to the FBI in 2021 alone, according to the 2021 FBI Elder Fraud Report.

This scam may involve calls from organized criminal call centers, known as “fraud farms,” or businesses that employ fraudsters to dial up consumers with the intent of launching scam attacks, sometimes from thousands of miles away.

“This is concerning and speaks to an underlying increase in the prevalence of technology-facilitated scams, the majority of which originate from overseas and target North American consumers,” DeLiema said.

Romance con artists

The same technology that we use to connect with romantic partners can also connect us with scammers. Romance fraudsters often appear exactly like typical social and dating site users, but instead of being interested in you, they’re only in it for your money. 

With the rise of online dating and social applications, these scams are becoming surprisingly frequent, and they’re often the most severe. Romance and family member imposter scams led to more than $432 million in losses in 2021, according to the FBI’s Internet Crime Complaint Center. One in three people have known somebody who has fallen for one, according to a 2022 Wells Fargo survey.

The same survey indicated that older men may be disproportionately vulnerable, as they report being more willing to engage in risky behaviors around dating. For example, about three in four men age 65 and older say they wouldn’t check someone’s background, compared to 39% of women.

Family and friend imposter scams

Other scammers are leveraging the close ties between older customers and their families to get them to send money. These scams involve fraudsters acting as grandchildren or other loved ones who need money quickly to get out of a crisis.

While they may have collected some personal information to make these stories believable, scammers depend on their target not thinking through the situation.

“Scammers rely heavily on a victim being secretive about money movement or providing false information about the reasons for a transaction. The fraud quickly falls apart when you and your family fully disclose the financial request,” said Ron Long, head of Aging Client Services at Wells Fargo.

This and the other scams aren’t unique to older adults, but older customers are more often targeted by criminals because they’re perceived as more vulnerable and less likely to report fraud. They may also face age-related declines in financial decision-making, social isolation, or disability that can make them more at risk.

“Fraud criminals know how to deceive a person by making them feel special and important,” DeLiema said. “When we don’t have a strong sense of purpose to begin with, those messages from scammers are more persuasive.”

3 tips for thwarting scams

1. Keep an open dialogue

Anyone who is unsure if they’ve been targeted by a scam should talk about it with a trusted family member or loved one. Often, a discussion will make it evident that the fraudster’s logic or story doesn’t make sense.

But it also pays to discuss fraud before it happens. Families should share information about such schemes.

“One of the key things we find that can frustrate scammers is a family that has talked about the threat of financial fraud,” Long said. “For example, a family password is a perfect defense against scammers posing as a grandchild or other family member.”

2. Get another review of your finances

Giving a trusted family member view-only access to a bank account or duplicate bank statements is one way financial institutions and their customers can work together to prevent scams.

“This way you can have a second set of eyes looking for potentially concerning financial activity,” Long said.

Look out for common signs of scams, including unusual financial activity, family mentioning unknown friends or contacts, and unforeseen changes to bank accounts or estate plans.

3. Stay informed about the latest scams

Scam prevention starts with learning what to look out for.

With a little education, you and your loved ones will be ready to hang up the phone, delete the email, or simply move on when a scammer reaches out with their phony emergency, romantic story, or tech demands.

“That’s why we are focused on helping keep our customers safe and get them out of these scams whenever possible,” Collins said.

Source: Wells Fargo

Back to School 2017: New Firearms Laws You Need to Know in Texas

Posted on

Edwin Walker, Independent Program Attorney for Texas Law Shield:

Well, back-to-school time is almost here, so let’s talk a little bit about the relationship between schools and guns.

I’m Edwin Walker, Independent Program Attorney for Texas Law Shield. As of August 1st, 2017, it will become legal for LTC holders to take their concealed handguns onto the campuses and inside of the buildings of public junior colleges here in the state of Texas. This has been legal to do for universities since August 1st, 2016. This has now been extended to junior colleges.

This means that an LTC holder can carry their concealed handguns into previously prohibited areas at junior colleges, which include the buildings. Now a junior college may limit certain specific areas where a license holder would not be allowed to carry a concealed handgun, but those areas must be posted or the person’s given effective trespass notice under Texas Penal Code 30.06.

Back to School: No open carry on college campuses

It is very important to remember that any handgun carried anywhere on a campus by an LTC holder must be concealed. There is no open carry on college campuses. Also, it must be carried concealed in areas where carrying a handgun by an LTC holder is not prohibited. Those areas include parking lots, sidewalks, walkways, and streets. Remember, carrying on a college campus is a concealed-carry-only area.

It is legal for an LTC holder to have their handgun on the sidewalks, walkways, parking lots, and parking garages of a high school, middle school, or elementary school. Now, is it legal to have a firearm in your automobile while you are picking up or dropping off a child at a high school, middle school, or elementary school? This is a very interesting question because the law would seem to stay that it is, as parking lots are exempted from being premises under the law.

However, the law does contain a provision that a person is not allowed to bring a firearm onto the grounds of a school-sponsored activity. There have been some school districts across the state that have taken the position that the pick-up and drop-off of children is a school-sponsored activity that occurs on the grounds of the school. Therefore, possession of a firearm would be prohibited in these areas.

We disagree with this interpretation, but there have been several school districts that have put it into a written policy that this is their belief. Fortunately, we are unaware of anybody who has been arrested or prosecuted under this interpretation of the law. Hopefully, nobody will before the legislature has an opportunity to redress it.

School-sponsored activity that occurs outside of the area of a school

Now, what about carrying at a school-sponsored activity that occurs outside of the area of a school? For example, let’s say that a license to carry holder is having dinner at a Dairy Queen. The high school basketball team just happens to show up for their after-game meal. Is this LTC holder now carrying at a school- sponsored event, and therefore would be prohibited? Well, the Texas Legislature in this past session had a bill filed that would clear up this area, and it would specify that a school-sponsored activity could only occur on property that is owned by the school, therefore exempting off-premises locations such as restaurants, parks, museums, etc. However, this bill did not pass.

So, does there continue to be a risk that an individual carries at a school-sponsored activity if they just happen to lawfully be somewhere and a school-sponsored activity happens upon them. In theory, this could happen. However, we have yet to see anybody arrested or prosecuted for this, and we continue to hope that it does not happen. Obviously, the defense would be that the individual did not intend to carry a school-sponsored activity. They just happened to be in a place where they were lawful to be, and the school-sponsored activity happened upon them. They did not intend to carry at the event.

One area where the Texas Legislature did provide some clarification is that as of September 1st, 2017, a school district or open enrollment charter school cannot have an employment policy that prohibits its employees who are LTC holders from keeping firearms or ammunition in their private motor vehicles that are parked on school parking lots. Now, keep in mind that the firearm does have to be concealed, it cannot be in plain view.

What this means is that while it has never been a criminal act for an employee of a school to have a handgun in their motor vehicle on a parking lot, it now cannot be considered to be a violation of employment rules or school policy.

So now a school district cannot discipline or fire an employee who is an LTC holder who lawfully keeps a handgun concealed in their motor vehicle on a school parking lot. This is a great win for school employees who previously had been prohibited under the threat of losing their job for lawfully carrying a handgun in their motor vehicle on a school parking lot.

Source: Texas Law Shield

Texas: Can I Use Force Against Someone Burglarizing My Car?

Posted on by Texas and U.S. Law Shield Admin

Texas Law Shield Independent Program Attorney Emily Taylor, Walker & Taylor Law Firm, Houston:

Today, we’re going to talk about what you can do if someone is breaking into your vehicle while you’re at your house. Well, first of all, what is this crime even called? It’s called burglary of a motor vehicle.

Now, that’s what makes this discussion interesting, because as you may already know, you can have the right to respond with deadly force when someone is committing a burglary against your property. The problem here is that the statute only reads burglary, and there are multiple different kinds of burglary in the State of Texas.

Things like burglary of the habitation, burglary of a building, burglary of a coin-operated machine, and, of course, our topic today, burglary of a motor vehicle. Because the statute doesn’t specify which kind of burglary you can respond to with deadly force, we’re kind of at a loss legally.

The problem here is that there’s no controlling case law that says that you are allowed to use deadly force against a burglar who’s breaking into your car. I know you’re probably thinking I’ve seen it on the news. I’ve heard anecdotes about people who shoot at someone who’s burglarizing their car and that shooter doesn’t get arrested. Nothing terrible happens to them; they’re allowed to go on about their lives.

I’ve heard those anecdotes, too; the problem is that because we don’t have case law that controls if you use deadly force against someone who’s burglarizing your vehicle, you could be put in the position of being the test case for whether or not that behavior is allowed under Texas law.

If someone’s breaking into your vehicle in the nighttime, the law becomes much more clear. Texas statutes say that you can, if you act reasonably, use deadly force against someone committing a theft during the nighttime.

The person who’s breaking into your vehicle is doing so presumably to commit a theft of what’s inside, so if you witness this activity in the night time, so long as you’re acting reasonably, as determined by potentially a judge or a jury, you can have the right in Texas to use deadly force against that person.

Day or night, you always have the right to use force against the person who’s committing the burglary of a motor vehicle. Use of force can look like a lot of different things, could look like anything from verbal commands to stop to actually physically going over and stopping the person with your hands, engaging them physically with your hands.

It could look like everything up into pointing a firearm at someone, so the question becomes, could you point your gun at someone and hold them at gunpoint until the police arrived because they’ve been burglarizing your motor vehicle?

Well, that would be a use of force, and a use of force can be justified in this instance. But keep in mind, your use of force has to be reasonable, it has to be immediately necessary, and it should be proportional to the amount of force that the person is perpetrating against you.

So while holding someone at gunpoint is potentially something that you’re allowed to do when they’re burglarizing your motor vehicle, keep in mind that the ultimate authority on whether or not that’s allowed is potentially a jury at trial, or a judge.

 

Source: U.S. Law Shield

Fired for Your Firearm: Do You Have any Options?

A recent incident in which a Waffle House waittress was fired after defending herself against an attempted robbery shows that even when people exercise their legal right to self defense, they can still be terminated by their employers.

According to WSBTV in Georgia, “Deputies said robbers gave a note to a waitress that threatened to shoot everyone unless she gave them money.” Heather Stanley, another waitress at the Newnan, Georgia eatery, went out to her car, retrieved her handgun, and “fired one shot into the air” as the would-be robbers ran to their cars.

Stanley was fired by Waffle House after the incident.

Stanley told WSBTV, “I didn’t know if they had guns. I didn’t know if they were going to their vehicle to get another one and could come back and try to get to the safe, so my instinct was to go to my car and get the gun.” Stanley added, “For trying to protect their Waffle House and trying to protect their money and to get their money back, they let me go.”

In Texas, employers can fire employees for similar policy violations. Independent Program Attorney Emily Taylor of Walker & Byington discusses the limited options fired employees in the Lone Star State have if they violate an employer’s firearms policy:

What happens if you do get fired for violating a firearms policy? Well, unfortunately, Texas is an “employment at will” state, so your employer can fire you for virtually any reason, or no reason at all at any time.

So if you’re fired for violating a firearms policy you don’t really have a recourse. Firearms owners in Texas are not a protected class of persons, so you can’t come back then and sue your employer and say you were discriminated against for being a firearms owner. We reserve this protected-class status for things like race, gender, ethnicity, religion, and things of this nature.

There’s one more quirk in Texas firearms law that pertains to employers and employees, and this is having your firearm in your vehicle at work. We have a bill here in Texas that says that the general rule is employers must allow you to do this.

However, that bill doesn’t have a punishment for employers who violate this law, so at the end of the day, if you have your firearm in the car, your employer tells you that you cannot do this, and then they fire you for having your firearm in the car, unfortunately, even though, they are in violation of the statute, you have again no legal recourse because Texas is employment at will.

 

Source: U.S. Law Shield

Levi’s CEO: ‘You don’t need a gun to try on a pair of jeans’

Last week, Levi Strauss Chief Executive Chip Bergh posted an open letter on LinkedIn asking the company’s customers not to bring weapons into the company’s stores. Does Bergh’s statement raise legal problems for LTC permit holders in Texas?

From Bergh’s statement:

“Providing a safe environment to work and shop is a top priority for us at Levi Strauss & Co. That imperative is quickly challenged, however, when a weapon is carried into one of our stores. Recently, we had an incident in one of our stores where a gun inadvertently went off, injuring the customer who was carrying it.

levi's, carry handgun, holster
Levi Strauss Chief Executive Chip Bergh has asked customers not to bring weapons into the company’s stores. Is that effective notice for LTC permit holders in Texas?

“So, while we understand the heartfelt and strongly-held opinions on both sides of the gun debate, it is with the safety and security of our employees and customers in mind that we respectfully ask people not to bring firearms into our stores, offices or facilities, even in states where it’s permitted by law. Of course, authorized members of law enforcement are an exception.”

“It’s not an anti-Second Amendment thing,” Bergh told Fortune magazine. The denim apparel maker stopped short of issuing an outright ban on firearms. Bergh, 59, is a former U.S. Army captain and claimed he is currently not a gun owner.

“You don’t need a gun to try on a pair of jeans and it’s really out of respect for the safety of our employees and consumers shopping in our stores,” Bergh told Fortune.

Texas & U.S. Law Shield commenters on our Facebook pages pointed out, however, that it is necessary to bring your carry handgun if you’re trying on pants, otherwise, “How do you know the jeans will fit over your IWB holster?” said Chris W. The positioning of belt loops on the waistband can also affect where OWB is most comfortable, others mentioned. And the cut and size of pockets affects pocket carry, commenters said.

The legal issue for Texas Law Shield Members is, does Bergh’s statement constitute legal notice under the state’s 30.06 and 30.07 statutes?

Independent Program Attorney Michele Byington, of the Houston-based Walker & Byington law firm and a contributing legal editor for Texas Law Shield’s blog, said, “Do his statements give LTC holders proper notice to prohibit them from carrying into a Levi’s store? Nope.”

She added, “We’ve seen these sorts of statements before from Target and Starbuck’s executives, but they have no legal bearing on Texas LTC holders. In order to prohibit an LTC holder from carrying into a store, there are three ways to give effective notice.”

She described those methods: “The most popular is by posting a 30.06 sign to prohibit concealed carry or a 30.07 sign to prohibit open carry. Second, a person with apparent authority may approach a person to specifically tell them guns are not allowed on the premises. Finally, giving a written communication to a person with the proper 30.06 or 30.07 language will suffice as effective notice.”

“If Mr. Bergh wants to prohibit LTC holders from carrying into his stores, he must follow the law as it is laid out by Texas Penal Code sections 30.06 and 30.07 like the rest of us,” Byington said.

The incident that precipitated Bergh’s statement, he said, was when a customer carrying a handgun accidentally shot himself inside a Levi’s store in Commerce, Georgia. He suffered a non-life threatening injury.

Here is the text of Bergh’s open letter to customers:

An Open Letter to Customers: Our Weapons Policy

November 30, 2016

Dear Customers,

The debate in the U.S. over gun safety and gun rights is as complex as it is divisive. As a former army officer, a father and business leader, I’ve heard the arguments from all sides. And, as CEO of a 163-year-old company whose products and presence rest at the intersection of culture and community in more than 110 countries around the world, I feel a tremendous responsibility to share our position on the issue, now, at a time when clarity is paramount.

With stores in Paris, Nice and Orlando, and the company’s European headquarters in Brussels, I’ve thought more about safety in the past year than in the previous three decades of my career because of how ‘close to home’ so many incidents with guns have come to impacting people working for this company.

We operate in hundreds of stores across every state in the U.S., and laws are different in each one. We know that the presence of firearms in our stores creates an unsettling environment for many of our employees and customers. We also know that trying to enforce a ban could potentially undermine the purpose of the ban itself: safety. With that in mind we’ve made this decision as a business – a request not a mandate – and we sincerely hope responsible gun owners will respect our position.

It boils down to this: you shouldn’t have to be concerned about your safety while shopping for clothes or trying on a pair of jeans. Simply put, firearms don’t belong in either of those settings. In the end, I believe we have an obligation to our employees and customers to ensure a safe environment and keeping firearms out of our stores and offices will get us one step closer to achieving that reality.

Sincerely,

Chip Bergh

President and Chief Executive Officer, Levi Strauss & Co.

Source: U.S. Law Shield

Understanding the Castle Doctrine

Written by Michele Byington; originally published on Jan. 27, 2014.

Catchy terms like “Stand Your Ground” and the “Castle Doctrine” remain common topics of dinner-table discussions because the media acts very authoritative when they glibly throw around those terms. However, these are not legal terms or standards when it comes to Texas law. You will not find the words “stand your ground” or “castle” anywhere in the Texas Penal Code. So what do these terms mean? Below, we explain the Texas laws that are loosely called the Castle Doctrine and Stand Your Ground.

What is the Texas Castle Doctrine?

The “Castle Doctrine” is a concept that comes from the philosophy that every person is the King or Queen of their home. Thus, there is never a need for the monarch of the kingdom to flee the castle before using force against an unlawful intruder. Texas Penal Code §9.31 (governing the justified use of non-deadly force) and §9.32 (governing the justified use of deadly force) are our state’s version of the Castle Doctrine. Just proving that everything is bigger in Texas, our law extends the “Castle Doctrine” beyond your residence to include your occupied vehicle and workplace.

Inside your “castle,” under certain circumstances, Texas law presumes you acted reasonably and justifiably if you use force or deadly force to defend yourself against an intruder who enters your occupied habitation, vehicle, or place of business or employment. What are the circumstances that will give you this important legal presumption? The first is where an individual unlawfully and with force, enters or attempts to enter your occupied habitation, vehicle or place of business or employment. The second situation is if an individual unlawfully and with force, removes or attempts to remove you from your occupied habitation, vehicle, or place of business or employment. If you are ever confronted with either of these situations, Texas law will presume that you acted reasonably and were justified in using force or deadly force. Therefore, in order for you to be convicted of any crime, a prosecutor would have to overcome this presumption in order to prove that you did not act reasonably. Overcoming this presumption is nearly an impossible task in a court of law.

With regard to using force or deadly force to defend your “castle,” the Texas Penal Code specifically uses the word “habitation,” not the words “building” or “property.” Texas has a very limited definition of what qualifies as a person’s habitation. The “Castle Doctrine” does not cover your entire piece of property. The legal term “habitation” is defined by Texas Penal Code §30.01 as “a structure or vehicle adapted for the overnight accommodation of persons; and includes each separately secured or occupied portion of the structure or vehicle; and each structure appurtenant to or connected with the structure or vehicle.” This means structures that are detached from where you sleep at night are not considered to be your habitation. For example, Texas law does not consider your detached garage, shed, and/or barn part of your habitation. However, if your garage, front or back porch is connected to the structure containing your sleeping quarters (as exists in many suburban communities), it is considered part of your habitation as defined by the Texas Penal Code. Yes, this slight distinction in architectural design can affect your legal rights.

Turning to the subject of vehicles, Texas Penal Code §30.01 defines a vehicle “as any device, in, on, or by which any person or property is or may be propelled, moved, or drawn in the normal course of commerce or transportation.” This is a very broad definition and appears to include anything that carries people or property from one place to another, including cars, trucks, boats, airplanes, golf carts, etc. The important point to remember is that you or someone else must be occupying the vehicle to be given the presumption of reasonableness under Texas Penal Code §9.31 and §9.32.

What About People Who are Only Trespassers?

Make sure that you do not fall victim to the common misconception that the Castle Doctrine gives you carte blanche to use deadly force merely because someone is on your property. It does not. Many people think that the law allows you to use deadly force against a mere trespasser. In fact, Texas law says the exact opposite. Texas Penal Code §9.41 allows you to use force, not deadly force, that is reasonably necessary to prevent or terminate another’s trespass on your land.

You still have a legal right to exclude or remove trespassers from your land; however you are limited to only using non-deadly force to do so. The use of force can have many different manifestations, from physical confrontation to displaying a weapon. Texas Penal Code §9.04 states that for defensive purposes the display of a weapon in order to create apprehension in another person is considered a use of force, not deadly force. That means if someone trespasses on your property, you may display your firearm to create apprehension that you will use deadly force if necessary. You will not be legally justified in discharging the firearm, but you will be legally justified in displaying it to “create apprehension” under the law. Only if the trespasser is committing other acts where the law states that you are justified in using deadly force would you be allowed to discharge your firearm legally.

For example, if you are sitting in your living room and see an individual peering in your window, you will probably not be justified under Texas law in using deadly force against the suspicious person. However, if the same fellow breaks a window and climbs through, you will be legally justified in using deadly force under Texas Penal Code §9.32. If you see the same individual scoping out your detached barn, you will not fall under Texas Penal Code §9.32, because it is not considered an occupied habitation. Note under our examples you may very well be justified under another section of the law in the use of deadly force, but not under Texas Penal Code §9.32, or what the media calls the “Castle Doctrine.”

What if a Trespasser Starts Committing Other Property Crimes?

What about defense of property? The use of deadly force to protect property is contained in Texas Penal Code §9.42. This section of the law lays out a couple of scenarios where you are justified in reasonably using deadly force to protect your property. The first is if someone is committing trespass or interference with your property and you must reasonably use deadly force to prevent arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime. If someone is unlawfully on your property and attempting to commit any of these crimes, you will gain the legal justification for using deadly force.

The second scenario is the law of recovering your property by using deadly force. Texas has a 3-prong test that, if met, gives a justification in using deadly force to recover stolen property. This test is as follows: (1) force is necessary to prevent or terminate another’s trespass on land or unlawful interference with the property, (2) deadly force is reasonably necessary to prevent another who is immediately fleeing after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property, and (3) the person reasonably believes that the property cannot be recovered by any other method or that the use of non-deadly force to recover the property would expose them to a substantial risk of death or serious bodily injury. We as lawyers cannot stress enough that under this scenario, while the law may allow you to use deadly force – It Is Most Likely A Very Bad Idea!

As you see, criminal trespass alone is not one of the crimes listed in Texas Penal Code §9.42 or even as part of the “Castle Doctrine” under §9.31 or §9.32. A mere criminal trespass may, however, evolve into one of the above crimes where you may be justified in using deadly force to protect your property. Let’s take another example, if someone decides to sit on your lawn, you holler at them from your bedroom window to “get off my property.” If the trespasser refuses to leave, you are almost certainly not justified in using deadly force to remove him. But if that person sitting on your lawn gets up and charges towards your bedroom window with a firearm and a crow bar, you will very likely be legally justified in using deadly force to protect yourself and your home. His actions of charging you with a weapon make him more than just a trespasser under Texas law.
Criminal Prosecution Even If You Were Justified.

Just because Texas law affords you a legal justification for using deadly force when someone attacks you or enters or removes you from your occupied habitation, vehicle, or workplace, does not mean you are immune from being arrested or criminally prosecuted – even if you are completely in the “right” as far as the law is concerned. Your right to assert legal justifications is just that: a legal justification. It is not a get out of jail free card, or an “I get to skip the entire legal process” card. In fact, always remember, there is a high possibility that you will go to jail and have to post bond to get out long before the issue of justification is considered by the government. We see cases like this commonly under the firearms program, not to mention seeing cases of this nature unfold in other states everyday. You may ultimately have to go to court and assert your justification defense before a judge or jury. This process may take months or even years to get resolved. You just dont know.

Does Texas Have a Stand Your Ground Law?

The term “stand your ground” law, again, is not a legal phrase but a phrase the media frequently uses in its reporting. Texas law tells us that there is no duty to retreat if faced with a situation where you have to use force or deadly force to protect yourself or another. Even if by retreating you could avoid the entire confrontation, you do not legally have to. Texas Penal Code §9.32(c) states that in defending yourself or another person, you have no duty to retreat if: (1) you have a legal right to be at the location where deadly force is used, (2) you did not provoke the person against whom deadly force was used, (3) and you were not engaged in criminal activity at the time deadly force was used. The statute is better classified as a “no duty to retreat” law. Under these very limited circumstances, a prosecutor or law enforcement can no longer argue that you had a reasonable “escape route” or that you should have had to “fall back” before justifiably using deadly force. If you are facing a criminal charge, qualifying under this statute could mean the difference between a conviction or not!

In order to receive the “no duty to retreat” protection from the law, first, you must have been justified under the Texas Penal Code in using force or deadly force. As we discussed above, Texas Penal Code §9.32 states that you will be presumed to be legally justified in using deadly force if someone is entering, attempting to enter, removing you or attempting to remove you from your occupied habitation, vehicle, or workplace. Texas Penal Code §9.32 also states that you will be presumed to be justified in using deadly force if someone commits or attempts to commit: aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery. Deadly force can be used to stop any of these crimes, as well as when it may be immediately necessary to protect yourself or another person from the attacker’s use of deadly force. If you are anywhere you have a right to be, only then does the use of deadly force with no duty to retreat apply under the statute. To paraphrase a very effective jury argument, the statute is designed to protect you when “trouble finds you, but not when you go looking for trouble.”

Disqualifications for No Retreat Protection

There are multiple situations where your conduct may potentially disqualify you from the Texas “no duty to retreat” provision. In order to receive Texas Penal Code §9.32(c)’s “no duty to retreat” protection, you must be justified in using force under Texas Penal Code §9.31. Second, the no retreat statute itself has three more qualifications that must be met before you gain the statute’s protection.

Disqualifying Under Texas Penal Code §9.31

If you want to protect yourself or another person, there are multiple situations under Texas Penal Code §9.31 where you will not be justified in using force or deadly force. If you fall under one of the following situations, you will not be given the “no duty to retreat” protection in the legal system:

1. The use of force is not justified in response to verbal provocation alone. (If someone is only yelling at you, you are not justified in using force against them).

2. You will not be justified in using force to resist arrest or search being made by a police officer. Even if the arrest or search is ultimately proven to be unlawful.

3. The use of force against another is not justified if you consent to the force. (No dueling or consenting to gun fights).

4. If you seek a discussion with another person regarding your differences while unlawfully carrying a weapon, you will not be given the “no duty to retreat” protection. Unlawful carry of a weapon includes:

a. a non-CHL holder carrying in places other than their premises, vehicle or watercraft;

b. having a handgun in plain view;

c. engaging in criminal activity while carrying a weapon; or,

d. carrying a weapon by a person who is a member of a criminal street gang.

 

Qualifying Under the No Duty to Retreat Statute

As we discussed earlier, the first thing that must be satisfied to receive the no duty to retreat protection is that the person had a legal right to be in the location where deadly force was used. What does the law mean that you “have to be in a location where you have a legal right to be?” The best way to address this topic is to discuss places where you do not have a legal right to be. Any location where you would be considered a trespasser is by definition, a place where you do not have a legal right to be. Under Texas Penal Code §30.05, a person becomes a criminal trespasser if a person enters or remains on property without effective consent, or the person had notice that entry was forbidden or received notice to depart but failed to do so. Notice of trespassing includes: oral or written communication, fencing, signs posted on the property indicating that entry is forbidden, purple paint marks on trees or posts on the property, or crops for human consumption growing on the property. As long as you are in a place where you are not considered a trespasser by the law, you most likely have a legal right to be there under the no duty to retreat statute.

If you satisfied the location test, you cannot have provoked the other’s use or attempted use of force. You can’t start the fight and claim justification, however, there are several exceptions to this rule. (Yes, an exception to the exception.) If you abandon the encounter or clearly communicate your intent to abandon and you cannot do so safely, and the other continues to use unlawful force against you, you do not have a duty to retreat.

A very similar scenario recently played out in a district court in Harris County. The accused was convicted of murdering his neighbor in a conflict that started with a noise complaint. The accused videotaped the entire confrontation. If you watch the last couple of minutes of the video, it appears that the accused was justified in discharging his firearm after three men charged him. However, the previous approximately twenty minutes of the video showed the accused leaving his property with his handgun, trespassing on his neighbor’s property, and taunting the neighbors by flashing his pistol. Thus, the accused did not qualify for the “no duty to retreat” statute. In fact, the prosecutor in that case told the jury that “self-defense was never meant to protect the one that started the fight.” The jury only deliberated for 90 minutes before returning a verdict of guilty on a murder charge and ultimately sentenced him to 40 years in prison.

Finally, you cannot be engaged in any criminal activity, other than a Class C misdemeanor traffic offense, at the time deadly force was used and claim self-defense. I would advise refraining from any criminal activity.

As you can see, the Texas versions of the Castle Doctrine and Stand Your Ground laws are extremely complex and cannot be summarized with a simple catch phrase. These topics consume thousands of pages of legal treatises and many lawyers’ careers, so obviously this article is only a brief overview. If you have any questions about Texas firearms laws, do not hesitate to contact us.

Source: Texas Law Shield

Gas Station Theft Prevention

Recently, there has been increased media coverage across the country regarding theft at gas stations. The unique setting allows thieves to catch their victims by complete surprise — when they are pumping gas or paying their tab inside the station. Most of the time, gas station customers leave their car doors unlocked and items like purses and wallets are often left in plain view. A thief is able to drive up next to the victim’s car, open an unlocked door, and grab any valuables within reach. Then, the thief quickly drives off. It happens in a matter of seconds.

But these thefts can be easily prevented if the appropriate precautions are taken. NCPC and the Metropolitan Police Department of the District of Columbia recommends the following tips to prevent citizens from becoming victims of theft at area gas stations.

  • Pick stations that are well-lit and have video surveillance cameras at the pump.
  • Always remove your keys and lock the doors while you are pumping gas.
  • Keep valuables out of plain view in your vehicle and lock the doors even if you are going inside for a moment.
  • Pay attention to your surroundings.
  • Don’t let your cell phone distract you.

Source: National Crime Prevention Council

When You Must Show Identification in Texas

As a Texan, you probably engage in activities that require licenses on a daily basis. Most of us carry our IDs with us when we’re going about our business, including driving, and we don’t give it a second thought. Still, because it is such a daily part of our lives, it’s important to brush up on something we might not think about often – the law regarding identifying yourself in Texas.

So who can ask to see your ID? Typically, only peace officers and magistrates may demand to see your ID. When can they ask to see your ID? Generally, only when you have been placed under arrest. However, we should note that certain activities in Texas are considered “privileges,” not “rights,” under Texas law. When you’re engaged in one of these “privileges,” you lose the ability to refuse to ID yourself. That’s because the law says you must present a license proving that you are allowed to engage in the “privileged” activity; because if you are unlicensed, you would be committing a crime! For example, if you’re driving a car and a peace officer lawfully detains you, you must present your Driver’s License to him to avoid being arrested; if you don’t, there is no proof to that officer you aren’t driving without a license. Likewise, if you are licensed to carry a handgun in Texas and you are actually carrying that gun, you must present an officer with your License to Carry if you are lawfully detained; if you don’t, you could be arrested because the officer may think you are a criminal without a license carrying a gun around.

Can you get in criminal trouble for refusing to show ID to a peace officer? If you have been placed under arrest and the officer has requested your name, address of your residence, and/or date of birth, it is a Class C misdemeanor to refuse to provide the information.

What if you’re only the passenger in a vehicle that gets pulled over? Let’s look at a hypothetical scenario:

David the Driver is riding around with his buddy, Patrick the Passenger. David has a bit of a lead foot, and is cruising at 60mph down a 35mph street. David and Patrick see flashing blue lights behind them, and a peace officer is quickly at David’s window, asking for David’s license and insurance information.

Does David have to present his ID? Yes! He his driving, and he has to show his Driver’s License to the officer. Further, if David holds a License to Carry and is carrying a handgun, he must present his license to carry as well.

What about Patrick? Is he under the same obligation to ID to the officer as David? No! Because Patrick is not under arrest (the legal requirement), and he is not exercising a privilege that requires a license (Patrick is just along for the ride), he is under no legal obligation to present his ID to the officer, or to provide him with any identifying information. He can refuse to answer the officer’s questions without fear of committing a criminal act. However, even though Patrick is not required to ID himself, he is still under an obligation to be truthful if he chooses to respond. Let’s go back to the hypothetical scenario:

The officer shines his flashlight in Patrick’s face and says “Hey fella, give me your name and ID.” Patrick, knowing that because he is a passenger he does not have to give his name, says “Sure, my name is Larry the Liar.”

If Patrick had just refused to give his name, he would have been completely within his rights. But, by giving a false name, Patrick has just broken the law! It is a Class B misdemeanor in Texas to intentionally give a false or fictitious name to a peace officer if you are 1) under arrest; 2) being detained; or 3) the peace officer has good cause to believe you are a witness to a crime.

What about if Patrick has a License to Carry, and is carrying his handgun? Now, Patrick must ID himself to the officer and provide his License to Carry because he is exercising his “privilege” to carry!

In summary, you do not have to show your ID unless you’re under arrest. The exception is if you’re engaged in a “privilege,” be prepared to show your ID to a peace officer or magistrate if asked. Regardless as to whether you have to show your license or not, remember that it’s always a good idea to be truthful with peace officers if you want to avoid any legal troubles!

Source: Texas Law Shield