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There it is. You are absolutely right. I had forgot about that.

Thanks,

tex

Steven6702 wrote:I've been doing a lot of thinking about carrying regularly and have some questions that keep coming up for me that I'd appreciate any insight into.

The main one is about what would happen if I had to brandish a gun in various circumstances. My understanding in Texas is that one can lawfully display a firearm whenever the use of force or deadly force would otherwise be authorized; in other words, that brandishing a firearm is simply a use of force until you pull the trigger, at which point it becomes deadly force. So if someone is harassing me or my family and starts to get physical, for example, I could display or draw a gun to create apprehension against that further illegal use of force against me, right?

Where it gets sticky for me is this: if someone is using some non-deadly force against me, and I display or draw a gun to create that apprehension, I still can't really do anything with the gun if that behavior continues, right? e.g. someone is following me and trying to beat me up; probably not trying to kill me, but I don't want to get beaten up either, especially when I'm carrying and could be at risk for having this person disarm me and potentially use my gun. So let's say I draw a gun on this person who keeps following me around and throwing punches, and tell them to back off. If they then continue in an effort to throw more punches, the brandishing of the gun is for naught, right?

Seems like it would kind of defeat the point of drawing a firearm unless you are absolutely ready and willing to use it - with seems consistent with common sense - but I just want to make sure I'm thinking about this correctly.

The rule states...(h) It is a defense to prosecution under Subsection (a) or (a-1) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.

One of the requirements for the use of force or deadly force is the "when and to the degree one has reasonable believe that for is immediately necessary" test. 46.035h doesn't require that specifically. It simply states that you must meet the authorization threshold of 9.31 for force or deadly force in 9.32, which themselves have the requirement. Each section, 9.31 and 9.32, have a checklist of conditions that disqualify one from being authorized. If the authorization thresholds are met in either of those two sections, then 46.035h kicks in and gives one a defense for having their handgun out of its holster or unconcealed in plain sight of another person in a public place. In other words, the defense is against a prosecution for the violation of "openly carried guns must be in a belt or shoulder holster" or the concealment rule. This does not add any measure of authorization for the actual threatening of deadly force with the gun.

You can not take away from the analysis and wording of this rule that it says it's OK to threaten people with your gun as a means of deterring force or deadly force against you. NOT FROM THIS RULE. From other rules but not from this rule. You will have a defense if they try to prosecute you for unlawful display only. Notice I am not saying it is NOT OK to threaten to use deadly force by threatening with a gun. I am saying that you can not infer from this rule on display violation defense that you have authorization to do so. That will have to come from elsewhere.

The question really is...under the circumstances, would threatening the other person with deadly force be justified under 9.31 or 9.32. 9.31 only authorizes the use of simple force (when and to the degree necessary) as a remedy to the situations spoken of in 9.31. What, in 9.31 would justify using the threat of deadly force as a defense to meet the reasonably believed, immediately necessary threat of simple force against you? That is what 9.31 is all about. Therefore threatening someone with deadly force (in a simple force 9.31 situation) reverses the roles. Now YOU run the risk of becoming the one giving the other person a reasonable belief that immediate action is necessary to defend against you from reasonably believed fear of immediate serious bodily injury or death...at least in a 9.31 situation. I believe that 9.31 in no way authorizes the use of a threat of deadly force to meet simple force.

9.32 does however. But the prime requirement to move into the statutory realm of 9.32 is that you must first qualify under the elements of 9.31. If you first meet the justification requirements of 9.31 and then 9.32 then the use of deadly force is authorized. But one need not fire the weapon. Perhaps just the threat with the deadly weapon will deter the threat. And if so, then you have thankfully avoided having to shoot someone and you have a defense to the unholstered or unconcealed display violation.

Remember, 46.035h deals with a defense to the prosecution of the violation of the unholstered or concealed (in 46.035 a, a-1, a-2, or a-3) display rule. 46.035h does not say it is a defense to prosecution to threatening someone with deadly force when you thought is was necessary under section 9.31... or 9.32 for that matter. The single, ONLY, test for that is whether or not you were authorized under 9.32 to use deadly force and thereby the threat of deadly force in that situation.

So when IS deadly force and thereby the threat of deadly force permissible in a simple force 9.31 situation. I don't believe there is any situation. I can't see any situation that is not, in reality after analysis, an escalation from simple force in 9.31 into 9.32 threat of and defense by deadly force.

tex