THANK YOU, this is exactly what I was getting at and really speaks to the heart of my question.Ruark wrote:It's very important to use the correct language. "Deadly force" means force that causes or can cause death or serious bodily injury. "Force" doesn't, or can't. There's no such thing as "non-deadly force" at least in the law. Lots of people get the two mixed up.Steven6702 wrote: 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?
9.04 states that displaying your weapon in such a manner as to "create an apprehension" that you will use it if necessary constitutes force, not deadly force. So if somebody is using force against you, and you display your weapon per 9.04, you're correct, you can't do anything if that behavior continues, at least as long as that behavior is force, and doesn't change to deadly force.
Say you're walking to your car and some guy with too many drinks is walking behind you sort of shoving you with his hand, trying to provoke you into a fight or something. That's force. You can respond to force with force, including displaying your weapon per 9.04.
A couple of years ago, I spent several hours in the State Capitol talking about this with a senator's policy analyst. I was trying to solve the problem of, "if you display a weapon per 9.04 and the illegal use of force continues, what can you do?" I wanted to explore the possibility of modifying the code to say that if the illegal use of force continued after a 9.04 weapon display, that illegal use of force became deadly force, thereby permitting you to respond in kind. The addition I suggested is in red (2 versions):
The senator fully understood the situation, but said he couldn't support it. There were just too many "what ifs" in the scenarios. A group of DAs reviewed it as well, and felt the same way, although they sympathized with the hypothetical victim. The problem was that you can't ignore the fact that the guy shoving you in the parking lot is NOT using deadly force against you. It's irresponsible to call his behavior "force" one moment, flash your weapon, and then suddenly it becomes "deadly force" and you can blow his head off.
- Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. (a)The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
(b)If, in response to another person attempting to use or attempt to use illegal force, the actor produces a weapon under subsection (a), and the other subsequently continues to use or attempt to use illegal force, the actor is then justified in using deadly force against the other as defined in Section 9.32 and related sections.
or:
(b)If, in response to another person attempting to use or attempt to use illegal force, the actor produces a weapon as described by Section 9.04(a), and the other subsequently continues to use or attempt to use illegal force, the behavior of the other shall be said to constitute deadly force, and the actor is thereby justified in responding as defined in Section 9.32 and related sections
Further, we have definitions of when deadly force can be used: when you are in immediate danger of death or serious bodily injury. And in the case of the parking lot scenario, you're not.
At least you would never convince a jury otherwise. And as one DA said, "in general, we want to avoid killing people."
But still, the legal quandary exists, where you do a 9.04 weapon display and the other just laughs it off and continues using illegal force. After all, what is a "threat"? It's not logical. 9.04 is saying you can respond to force by "threatening" to use deadly force, but really, you can't actually use it. So is it a threat, or not? Scrutinizing it a little closer, 9.04 seems to be saying you're NOT threatening to use deadly force in response to the original illegal force; you're just demonstrating that you will use it if necessary.
So I'm not satisfied with the discussion. The guy's shoving you in the parking lot, you expose your weapon, he keeps shoving you, so you think "well, so much for that idea," and put your weapon back in the holster (you can't use it anyway) and he falls over laughing.....
I'd still like to address this in some way, but I'm not sure what language would work. Thanks for listening.
Displaying a weapon under 9.04 feels like a half measure; it seems like the law should either not allow a 9.04 display outside of situations in which deadly force has been attempted or threatened or is otherwise reasonably believed to be imminent, or the law should allow escalation to deadly force if the illegal use of force continues after a 9.04 display. Some others have commented that in general, an illegal use of force that continues after 9.04 does rise to deadly force, but I don't necessarily believe that and think it would be highly situational at best. e.g. the drunk guy who's bigger than you, following you around and shoving you, and continues to do so after a 9.04 weapon display... I don't think I'd be in legitimate fear for my life if all he's doing is shoving me repeatedly and he's too drunk to have the good sense to stop after I display a weapon, but then all I've done is show him where my gun is.
I can see where your potential changes would have left a lot of room for what-ifs, especially considering the variation in degrees of use of force. I'm having trouble coming up with examples, but it might leave room for a very mild use of force that no reasonable person would consider as potentially deadly resulting in a death just because the person against whom that mild force was committed happened to display a firearm. I can see where some legislators and DAs might object, but definitely think you were on the right track.
The law being as it is, I think I would personally lean toward avoiding a 9.04 display unless the illegal use of force against me was significant and potentially crossing into deadly force territory (e.g. significant physical aggression from someone who I believe could cause seriously injury or death.)