TexasCHLforum.com

Bart wrote:

mr.72 wrote:Is there any definition in the Texas Penal Code of a circumstance or set of circumstances which would justify the use of the "threat of deadly force" while not also justifying the use of "deadly force"?

What charges are you suggesting the DA will bring against the defender who threatens deadly force and scares away the criminal without a shot fired? Answer that and maybe we can answer your question.

Sorry; LOOOOONG post.

Well, threatening harm involving a deadly weapon involving display of that weapon is aggravated assault. A lesser related charge is disorderly conduct (display of a firearm in public in a manner calculated to alarm). Applicable statutes:

§ 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

§ 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in § 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, ...

§ 42.01. DISORDERLY CONDUCT. (a) A person commits an offense if he intentionally or knowingly:
...
(4) abuses or threatens a person in a public place in an obviously offensive manner;
...
(7) discharges a firearm in a public place other than a public road or a sport shooting range, as defined by Section 250.001, Local Government Code;
(8) displays a firearm or other deadly weapon in a public place in a manner calculated to alarm;
(9) discharges a firearm on or across a public road;...

As I said before, the threat of deadly force is equivalent to the use of force. Therefore yes, there are many cases where you are justified in threatening the use of deadly force, but not using it.

In general, you are justified in using force, but not deadly force:
- If necessary to prevent imminent harm when the consequences of inaction clearly outweigh those of action. You are allowed to physically restrain a drunk who is attempting to drive, and if he won't respond to anything else than you can hold him at gunpoint, but pulling the trigger is always a no-no in that situation.
- To prevent from occurring or stop the progress of a serious misdemeanor or felony offense against a person or property, if the crime is not robbery, aggravated assault, rape (forcible or otherwise), or murder (those named crimes justify use of deadly force). If someone's making unwanted advances or physical contact, that's simple assault. You are allowed to forcibly stop the advance or contact, but you cannot immediately draw and fire to stop it since the encounter does not pose any threat of death or grievous injury.
- To counter unlawful force levied or meaningfully threatened against you. Force justifies force but not deadly force. Force is generally unlawful if not also justified under Chapter 9, or lawfully used by a peace officer in the course of official duties. A verbal provocation or threat is not a justification; you must reasonably believe the other person is about to make good on it such as display or production of a weapon, or a swing taken at you.
- To prevent the imminent commission of suicide or self-inflicted serious bodily injury (remember that a shot taken is the use of deadly force even if you intended to only disable, so a shot made to stop a deadlier shot is not justified)
- To prevent or end trespass on property you lawfully own or control.
- If you reasonably believe it is required or allowed in order to fulfill a public duty. This includes actions taken to assist a public servant. Deadly force is only allowed if specifically required by statute or at a time, place and in lawful conduct of war. Thus, you can draw on a suspect fleeing toward you being chased by a cop, but unless that evolves into a situation where you could die you cannot fire.
- In disciplining or controlling a minor who is your child or ward, or to whom you are acting in the role of a parent, educator or legal guardian.


Now, the third and last points on this list raise a very important distinction; if you threaten, or are threatened, with deadly force that is not "necessary" at law (generally, if you are being threatened with deadly force and you didn't do anything to give the other person justification), that threat DOES constitute the use of deadly force. 9.04 states that the threat doesn't count as deadly force only if the purpose was to create apprehension relating to use of deadly force by necessity. If a person draws a gun with intent to commit a crime, that is the use of deadly force because non-submission to a criminal actor's will doesn't make use of deadly force "necessary" at law (any court in this state would convict you if you tried to argue that it was necessary for you to shoot because the person you shot didn't hand over their money). Thus, if you are drawn on and weren't doing anything to earn the experience, you are justified in drawing AND firing. Similarly, the use of deadly force against your child, student or legal ward is justified only in specific cases where it's justified no matter their relation to you. For purposes of control or discipline, the use of deadly force is never considered necessary, thus the threat of deadly force creates an apprehension other than that you will use it if necessary.

Confused yet? I just told you that the threat of deadly force is not the use of deadly force, however, that's true only if the situation in which you threatened deadly force is such that you reasonably believe if you didn't make the threat (or regardless), it could escalate into a situation where you COULD use deadly force. That's the spirit of the law; to protect the gun's role as a force equalizer and allow its use as such (you threaten me with fists, I can't win with fists so I threaten back with a gun) while recognizing that a gun is far deadlier than fists, so while threats are equivalent, following through is radically different. That still backs up most of these situations where you could draw on someone, however you have to reasonably believe the situation if it continues unchecked will eventually result in death or severe bodily injury to an innocent.

THAT'S why most CHL instructors will tell you only to draw if you would be justified in firing; there's a fine line between being justified in drawing but not firing and not being justified at all, and though you may believe in your heart of hearts that you're going to end up dead if you don't draw, if you do draw and the guy stands up in court and says all he wanted was to ask a question or beg for spare change, you could easily find yourself convicted of aggravated assault. On the other hand, if you draw only when you could fire, and by so doing you de-escalate the conflict and do not have to fire, by being justified in using deadly force you have cemented your justification for the threat of same, because your threat was well-founded in the possible necessity of using it. That's harder to demonstrate in reverse, when you threaten in a situation that wouldn't allow you to immediately fire; you would have to show that there was a good chance it would escalate otherwise and that's hard to prove given that you stopped it from doing so (or worse, escalated it by producing your weapon when there was a reasonable chance the situation would have resolved peacefully if you hadn't).

Hope this helps.

mr.72 wrote:Well this debate hinges on the presumption that "threat to cause death or serious bodily injury by the production of a weapon..." is defined as "force" or "threat of force", and not "deadly force".

However I can find nowhere in these sub-sections where it is clearly defined. We simply have the definition that the "threat to cause death..." does not constitute the use of deadly force, without any definition of what it does actually constitute. We are presuming it constitutes "FORCE" as someone else mentioned, but it is nowhere clearly defined as such that I can find.

Also reasonably the "threat to cause death..." might lead to a situation that results in justification for the use of deadly force, such as in the baseball bat to the car idea. If you had not presented the weapon, then perhaps the slugger would not have come at you with the bat.

I think this is a gray area at best.

No. As defined at law this is quite black and white, and here's why. There are two levels of physical violence in Texas law; force, and deadly force. A threat to cause death is synonymous with a threat of use of deadly force, as deadly force is defined as "force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury" (Sec 9.01 clause 3). Section 9.04 states specifically that the threat to cause death (which is the threat of use of deadly force) does not constitute the actual use of deadly force. It is thus "force other than deadly force" which is mentioned many times in Chapter 9 and equates simply to "force", as it's the only remaining option recognized at law.

BigBlueDodge wrote:

Liko81 wrote:

mr.72 wrote:drawing your weapon is typically the same as the use of deadly force. if you are justified to use deadly force, you are justified to use deadly force. if you are justified to draw, you are justified to fire. I don't think there is a distinction. perhaps a lawyer will chime in.

TPC § 9.04. THREATS AS JUSTIFIABLE FORCE. 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.

If you draw with the intention of shooting, that is the use of force. It is not deadly force until you pull the trigger. IANAL but this seems pretty cut and dried.

Hmm. it's seemed like we were moving to a consensus that deadly force would be justified, and then Liko throws us a bone :) Given what I've read of Liko's posts, I respect his opinion with regard to the law. Let me ask you this. PC 9.04 says that "as long as the actor's purpos is limited to creating an apprehension that he will use deadly force", then that does not constitue deadly force. If I translate that into layman's terms, if all he is trying to do is to make you think wil use deadly force, but does not intend to, then that does not constitue use of deadly force on my part. The question I have is how does a jury determine if he was faking it and never intended to use deadly force, versus determining that he did intend on using deadly force?

I disagree with your interpretation (respectfully of course ). The clause in question is: "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...". So, you feel in danger for your life and you draw. Whether you intend to warn the other guy or not, by drawing and holding on the BG without firing, you are warning him you will fire if you are forced to defend youself (creating the aforementioned apprehension). If that is sufficient to end the threat, you have used force, but not deadly force. You are justified based on necessity and self-defense in using force other than deadly force in most situations where the result would otherwise have been significant and unlawful personal loss or injury.

The line is crossed, and the threat DOES count as use of deadly force, when the weapon is produced to create an apprehension other than "I will defend myself if necessary". Such apprehensions are generally heralds of a violent felony. "Give me your money or I will shoot you", "Get in my car or I will shoot you", or "I am going to shoot you because I feel like it" are all examples of apprehensions created that, because they do not meet the limitation (it is NEVER considered "necessary" at law to use force to commit a crime unless the criminal act was somehow justifiable), DO constitute use of deadly force because of the threat of same. Similarly, "I am a bad boy, don't start $#%* with me" does not count as creating an apprehension that you will use force if necessary.

mr.72 wrote:drawing your weapon is typically the same as the use of deadly force. if you are justified to use deadly force, you are justified to use deadly force. if you are justified to draw, you are justified to fire. I don't think there is a distinction. perhaps a lawyer will chime in.

TPC § 9.04. THREATS AS JUSTIFIABLE FORCE. 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.

If you draw with the intention of shooting, that is the use of force. It is not deadly force until you pull the trigger. IANAL but this seems pretty cut and dried.

BigBlueDodge wrote:Okay, this is a real life situation, so let's talk hypotheticals here.

1. What was the attempted crime, theft or robbery? My guess is aggravated robbery, because it was attempted theft, with use of force with a deadly weapon.
2. Was the victim in his legal right to shoot the attacker when the attacker brandished his weapon? Hmm, I'm not sure on this. I want to say yes, but since the attacker never actually grabbed the weapon, that has me thinking that there would be a discussion of was the victim's life really at hand, since attacker did not point gun in a threatening manner at victim.
3. What threat does brandishing a weapon consititute? In this case, the attacker didn't physically have gun in hand, pointed at victim. Can your life be in danger if attacker has a weapon (gun inside waistband, knife in pocket) that he shows you, but does not actually have it in his hand?

These real life situations are great, because they allow us to analyze, after the facts, what the victim was legally allowed to do so that we may be better prepared for future occurrances.

1: The attempted crime was aggravated robbery; theft from another person by threat of deadly force.
2: If this happened in Texas, as soon as the attacker said "give me your money" with the threat of force to back it up, robbery is being committed. That provides presumption of justification not only for drawing, but firing.
3: Brandishing a weapon is not, by itself, any crime justifying drawing; it was the words AND the actions combined that justified the defender's response. However, if the guy had simply lifted his shirt to show the gun in an attempt to intimidate (typical banger behavior), the defender may have a plausible claim that his assailant threatened deadly force, which counts as use of force, and you are justified in drawing, which is the same threat of deadly force and justified as if it were the use of force to stop same. I do not think however that firing would be justified unless the other guy then went for his gun.