CO Trailer Defender Charged With 12 Felony Counts

“82-year-old Robert Wallace said in February that he looked out his window and saw two men hooking his flatbed trailer up to their pickup,” kdvr.com reports. “He yelled at them to stop, but they sped away, stealing his trailer. He told police he fired two shots at the pickup. Minutes later, police say 32-year-old Damacio Torres dropped 28-year-old Alvaro Cardona off at a hospital emergency room with a gunshot wound to the face.” Wallace is looking at twelve felony counts, including four counts of attempted first degree murder. The news station’s Old Testament talking head pronounces that “something doesn’t feel right.” Yes, well, Colorado law’s clear on this one . . .

18-1-706. Use of physical force in defense of property.

A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.”

So you can you can push and shove a thief or thieves around to defend your stuff, but you can’t shoot the bastards—unless you’re in danger of losing your life. And there are caveats in that regard, as well, of course. The relevant section states:

(1) Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.

Imminence is a large factor in determining justifiable use of deadly force. It’s not enough that your life’s in danger. Your life has to in danger right now.

Common sense suggests that Mr. Wallace’s life was not in danger as the felons left the scene of the crime with his trailer. He says they tried to run him over. Given that the area surrounding his house is built-up, it’s hard to imagine that Mr. Torres and Mr. Cardona would have had enough time/space/distance to achieve the necessary velocity to run him over.

Perhaps they did make the attempt. But still, did Mr. Wallace have to shoot their pickup to prevent the felons turning him into road kill? Is there a direct, causal link between the fact that he wasn’t run over and his discharge of a deadly weapon?

If you’re about to be squashed by a car driven by murderous felons, you might want to just step out of the way, rather than shoot the driver. That could be considered the “reasonable” response. And reasonability is a big deal in the justifiable use of lethal force business.

(2) Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:

The principle is called “proportionality.” Is the force used proportional to the threat? As Mr. Wallace was not threatened with force, I’m thinking no.

In most states, you can use slightly more force than the force being used against you—to stop the confrontation. But you can’t go hog wild; if someone shoves you, you can’t shoot them. And not if they’re taking your stuff, oddly enough.

I’d also like to point out that it’s only a damn trailer. Mr. Wallace is extremely lucky that the thieves didn’t take umbrage at his armed assault, turn their truck around, get out and beat him to death. Strategically, the best gunfight is always the one you avoid (providing you live to tell the tale).

(a) The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or

Again with the imminence. BTW: great bodily injury usually means the possible loss of a major body part or a sense.

(b) The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or

Imminence front. And center. Still.

(c) The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.

Kidnapping has its own set of rules. Rest assured that if someone tires to kidnap your child, you can plug them. That’s “child” not “trailer.” But even if you were preventing a kidnapping with a gun, it would still be very helpful to try something else first. Like, I dunno, shouting “let her go!”

There are always extenuating circumstances. For example, if Torres and Cardona HAD tried to assault Mr. Wallace and he’d shot them, his status as an octogenarian would have been taken into account by the District Attorney. If his grandkids had been playing nearby, that too would have been a factor.

Everything is a factor: time of day, crime levels in the neighborhood, Mr. Wallace’s record, the thieves’ record, astrological forecasts, everything. The prosecutors look at the totality of a shooting and ask “what would a reasonable person—of the same age, sex, physical condition, etc.— in the same circumstances have done?” If the answer is shoot the bastards (i.e no jury in the world would convict him and I’m running for office), you’re good. If not, not.

(3) Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:

(a) With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or

You can’t start a fight and then finish it with a firearm. Even if you do so in self-defense, you’re still up shit creek. That’s one good reason to NEVER be rude or aggressive whilst carrying a gun. See? An armed society IS a polite society. You can thank the lawyers later.

(b) He is the initial aggressor; except that his use of physical force upon another person under the circumstances is justifiable if he withdraws from the encounter and effectively communicates to the other person his intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force; or

So you start a fight, try to stop it and your combatants come at you with a knife or gun or a two-by-four. THEN you can shoot them in self defense. It didn’t happen here, but it’s interesting that Colorado considers an attempt at de-escalation a kind of reset button.

(c) The physical force involved is the product of a combat by agreement not specifically authorized by law.

A duel? Seriously? I have no idea what this is about.

Bottom line: don’t shoot anyone if you don’t have to. Remember: your results may vary. Google your state’s laws to be sure who you can and can not shoot, when and how many times. In all cases, say “I thought my life was in danger” and nothing much else until you get a really good lawyer.

comments

  1. avatar Wes says:

    Yep, it's unfortunate. Some states allow it, but, concealed-carriers aside, it's a good rule of thumb to never point a gun at someone who isn't inside your home.

  2. avatar Patrick says:

    Wes – even with a CCW, it isn't a good idea to point a gun at anyone outside your home. This is usually considered "assault", even if no bullets are fired. Also, I don't know of any state where you can legally point a gun at someone (inside or out) without a good reason to do so.

  3. avatar Brad Kozak says:

    I dunno…I can see both sides of this one. Fortunately, In Texas, deadly force can be used in a little wider range of situations – fortunately, if you wanna protect your property. That Castle Doctrine thang's been expanded two ways in Texas – your castle is defined as your property, including your car and your "personal space" – think of it as your own security perimeter. The other expansion of rights concerns your own behavior – you no longer have to run away and get cornered before using deadly force.

    Practically speaking, I agree, firearms are a "last resort." But consider this – if the banditos had been heisting horses, shootin' 'em woulda been all sorts o' legal, since the days of the Wild West.

    Being the caretaker/son of an 84-year-old man, I'm also aware that all octogenarians are not created equal. For the sake of the argument, let's assume that the seasoned citizen in question is in full control of his faculties. I get this vision of Walter Brennan on his front porch with a Winchester lever-action, saying "Well, dag-nabbit, ya knotheads…keep off my gol-darn land, you little whippersnappers…and STAY out!"

    I think this rap's gonna be pretty easy for him to beat. The D.A. must get a conviction, to look tough on gun crime, but there will be zero public sympathy for the perps who stole the trailer. I'd predict the homeowner will get a light sentence that will be suspended, and he'll have to promise not to do it any more. (Hopefully, he won't run into a similar situation, and have to worry about doing it less.)

    Bottom line, I think we have a long way to go in this country, post-Heller and post-McDonald, to rewrite gun laws so that those that are protecting their property, families, and selves aren't treated like criminals, while the real criminals get off, scott-free.

    1. avatar Donal Fagan says:

      I was kinda hoping someone would mention the Wild West mentality towards guns and property. Robert can quote current law 'til the cows come home (moo), but I suspect a lot of people want guns to protect their property as well as their lives. I haven't been able to pin down when the laws changed away from when Trespassers Will Be Shot was not a joke, but it is clear that in many places the attitudes don't necessarily match up with the law.

      And while a trailer isn't much in our largely insured society, what if those two miscreants had been stealing a wagon full of Mr Wallace's cash crop – the only thing standing between him and living on food stamps? As we wonder whether this recession will double dip, it isn't hard to imagine a society in which property becomes a lot more important to people. We're already being robbed by corporations behind the scenes – are we willing to be robbed by Damacio and Alvaro in person?

  4. avatar Wes says:

    "Wes – even with a CCW, it isn’t a good idea to point a gun at anyone outside your home."

    Of course. I wouldn't expect a concealed-carrier to whip out their gun unless threatened. I meant concealed-carriers when away from home, and that, if you're threatened at home, it's in your best interest to be threatened inside of it.

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