When is it Legal to Shoot a Trespasser?

Surprisingly, my 2008 post entitled How to Deal With Trespassers on Your Property has returned more hits than virtually any other single post on the Equine Law Blog. The search terms that usually land people on that post are some variation of “when is it legal for me to shoot a trespasser?” or “shoot + trespasser + [name of state]”.

Looking at the almost daily searches about shooting trespassers that keep landing people on the Equine Law Blog, it would seem that we have a real issue in this country with trespassers. It would also seem that landowners do not feel that dialing 9-1-1 is going to solve the problem. 

Last weekend's bizarre horse-stabbing case from Pine Grove, California perhaps illustrates the trespassing problem. According to news reports, a man named Gaylord Neil Story, 59, trespassed onto his neighbor’s property, appeared at her door covered in blood, attempted to force his way into her home, chased her through a pasture, rummaged through her vehicle, and stabbed her 14 year-old Quarter Horse gelding. 

But this victim never shot at Story. Instead, she fled her residence and called 9-1-1. Sheriffs’ deputies arrived 12 minutes after the call.

At some point after sheriffs’ deputies arrived at the scene, Gaylord Story brandished a large butcher knife and advanced towards the officers. Deputies opened fire on Story in self defense. Story, who was struck by four rounds (two rounds each from two officers), was dead when medical personnel arrived. However, an autopsy also revealed several self-inflicted stab wounds, one of which would have been fatal.

Luckily, the victim was not injured. The horse was severely injured as a result of the stab wounds, but is expected to make a full recovery.

Reports indicate that the deputies who shot Story have been placed on administrative leave pending an investigation by the California Department of Justice. 

All of this raises some questions: 1) is the trespassing problem increasing because trespassers are no longer afraid of being shot at by landowners? 2) if even the sheriff’s deputies are being investigated for shooting Story (who would have probably died anyway due to self-inflicted stab wounds), what does this mean for landowners?

This prior post contains a summary when it’s permissible under Texas law to use deadly force against a trespasser.  My dad, a native Texan, always says, "I'd rather be judged by 12 than carried by 6."  Texas law basically says that If you reasonably believe you'll be "carried by 6" (i.e. dead) if you don't shoot, you're probably justified in shooting.

The facts surrounding the Story case seem to fit the bill of a case where the victim landowner could have legally opened fire on a trespasser (at least if the incident had occurred in Texas). But unfortunately for landowners, they probably subject themselves to an investigation (and possibly even a trial) if they choose to shoot a trespasser (no matter the circumstances). And would-be trespassers probably know this.

Disclaimer: I don’t specialize in criminal law…so don’t go shootin’ somebody based solely upon something you read on the Equine Law Blog!

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In a Nutshell: Texas Recreational Use Statute

September will bring the opening of Texas bird hunting season and (hopefully) the onset of cooler weather. This means that many Texans may soon be emerging from air-conditioned vehicles and buildings to enjoy outdoor activities. Texas land owners who allow others to use their land for trail riding, hunting, or other recreational uses should be aware of when Texas law says they may be held liable for injuries arising from the use of their property. 

The applicable legal standard is found in the Texas Recreational Use Statute (RUS) (Chapter 75 of the Texas Civil Practice & Remedies Code). A link to the full language of the statute can be found here

The RUS was originally enacted in 1965 to limit the liability of Texas land owners who allow others to use their land for hunting, fishing or camping. The RUS has been amended many times over the years to expand the immunity and to broaden the scope of the law. The current law is summarized below:

  •  Limits liability of land owners, lessees, and occupants of agricultural land and other real property. All references to “land owners” below includes also lessees and other occupants;
  • Provides that if land owners give permission to others to use the land for recreational purposes, the land owner is not liable to the invitee unless the land owner was grossly negligent, acted with malicious intent, or acted in bad faith;
  • Provides that a land owner is not liable for any injury to a trespasser except for willful or wanton acts or gross negligence by the land owner;
  • Covers any activity associated with enjoying nature or the outdoors;
  • Covers a land owner who meets one of the following tests: (1) does not charge for entry to the premises; (2) charges for entry to the premises, but the total charges collected in the previous calendar year were not more than 20 times the total amount of ad valorem taxes imposed on the premises; or (3) has premises liability insurance coverage in effect that meets the statutory requirements($1 million for each occurrence of bodily injury or death and $100,000 for each occurrence of property damage or destruction);
  • The following damages caps apply to claims against owners of agricultural land if they are covered by premises liability insurance that meets the statutory requirements:1) $500,000 in damages per person; 2) $1 million for each occurrence of bodily injury or death; and 3) $100,000 for each occurrence of damage to or destruction of property.

Tips to avoid liability: Post “No Trespassing” signs in conspicuous areas around your property. Do not charge invitees for using the land. Get premises liability insurance that meets the statute’s guidelines if you believe you will be allowing visitors to use your land for recreational purposes. Lastly, it never hurts to have invitees sign a liability release.

All 50 states have some form of Recreational Use Statute, and the law varies greatly from state to state.  To locate recreational use statutes in other states, see this site.  For more information on the Texas RUS, see this article from the Texas A&M Real Estate Center.

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