TexasCHLforum.com

flintknapper wrote:

Kyle Brown wrote:Flint,

I don't know if you have read the discussion buried in the history of this forum wherein several of us discussed 9.31 and 9.04. It is found here:

http://www.texasshooting.com/TexasCHL_F ... highlight=

Now, it's a long read but well worth it. Long story short, Charles had a view of 9.04 not unlike yours. Mine was then as it is now. .

Just read it all (every word). One thing is for certain: If I had known this had already been discussed..I would not have wasted anyones time rehashing it.

I can see your point of view more clearly now, so it was well worth my effort. I disagree with the "broad view", or at least I'm unwilling to be the test case for it, but I can see how someone might arrive at the conclusion.

I am all the more convinced that the "narrow view" better portrays the true intent of code..and is certainly a safer model to follow IMO. Nonetheless, it remains sufficiently unclear.. that good argument can still be made of it.

My apologies for dragging everyone back through this. I was horrified to discover that all my points of contention had already been covered, and in a more eloquent fashion than I am able to muster.

I resolve myself to read more and post less in the future.

My parting shot: (I'm pretty set on the "narrow view" interpretation) but not "dead set"!

Thanks, Flint.

JohnKSa wrote:Kyle,

I'm not arguing that drawing is justified or not if force is justified. I believe that the law is fairly clear on the point, and I think your interpretation is good.

What I'm arguing is whether or not any kind of force is justified AFTER an attack in the absence of further provocation or attack.

All the provisions of the law which allow the use of force or deadly force are oriented toward PREVENTION. Therefore, if the act is complete and no further attack is imminent, there is no longer any justification for the use of force--at all.

From 9.31 "when and to the degree he reasonably believes the force is immediately necessary to protect himself"

From 9.32 "when and to the degree he reasonably believes the deadly force is immediately necessary:
(A) to protect himself against the other's use or attempted use of unlawful deadly force; or
(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."

From 9.33 "A person is justified in using force or deadly force against another to protect a third person"

From 9.34 "A person is justified in using force, but not deadly force, against another when and to the degree he reasonably believes the force is immediately necessary to prevent the other from committing suicide or inflicting serious bodily injury to himself"

From 9.41 "A person in lawful possession of land or tangible, movable property is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property."

Clearly, all of these are oriented toward PREVENTION and PROTECTION.

After the slap has been administered, as long as the attack ends there, AT THAT POINT, there is no longer anything to prevent. There is no longer any need for protection. Therefore, there is no longer any justification for force, deadly force or threat of force.

JohnKSa wrote:Kyle,

I agree with your first premise. If you are justified in using force to prevent an attack then drawing is also justified.

Drawing after being slapped (in the absence of further provocation) isn't preventing anything and therefore the law offers no recourse in terms of using or threatening force or deadly force. I suppose you might try to argue that you're performing a citizen's arrest, but even in that case, pulling a gun isn't warranted in the absence of resistance. At this point (after the slap) it's going to take another attack by the slapper to warrant anything other than calling the cops.

If the guy slaps you and then tries to slap you again, THEN you're back to situation one and drawing is probably justified but perhaps unwise. It would be much better to withdraw, gather your witnesses and call the cops, IMO.

I think that we have some people who think that the law gives them the right to "prosecute on the spot" anyone who commits a legal offense against them. That is simply not true.

A person is given the legal right to take action to PREVENT attacks--nothing more. Once the attack is clearly over, it's in the hands of the cops & courts.

JohnKSa wrote:Kyle,

You would probably be justified in threatening deadly force to PREVENT a slap, but pulling a gun on someone because they slapped you (past tense) isn't warranted by anything I see in the law.

We're back to retaliation vs self-defense.

flintknapper wrote:

Kyle Brown wrote:

flintknapper wrote:

Kyle Brown wrote:§ 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

After reading that you cannot legally pull that "hog leg" just because you are about to take a "butt whipping" (after someone has slapped you across the face with an open hand), I thought it was time to revisit 9.04.

Now, I am not saying that all slaps across the face justify the production of a weapon under 9.04. Likewise, I don't believe that it is correct to state/imply the production of a weapon is not justified if you are about to take a butt whipping after someone has slapped you across the face with an open hand.

I don't know what else to tell you except... "give it a whirl" and good luck.

Simple (lawful) fact: In defense of yourself, you may only use the same amount of force as that being used against you (unless you are LE).

By "butt whipping", I'm referring to your common everyday fight between two unskilled people. Pushing, shoving, slapping, even striking with a closed fist (to a limited degree) is not likely to result in serious bodily injury or death. There are exceptions of course , and that is why the law allows for the use/threat of deadly force when there exists "disparity" of force.
Flint.

Let me start by saying that I am not trying to be argumentative...but...well, for instance, you state that it is a "simple (lawful) fact" that a person may only use the same amount of force as that being used against them (unless you are an LE). Again, not trying to be argumentative, but exactly where did you read this...can you point me to a statute???

You then add that the law allows for the use/threat of deadly force when there exists "disparity" of force. Again, is this your interpretation of 9.04???...or...can you direct us to a statute???

IF you are right, then I have been mislead by those who are paid to know.

Kyle,

I do not regard your reply as argumentative. Even if it were, that is your privilege. I have never experienced anything other than civil discussions on this site. There is no requirement for us to agree on everything said here.

My post/position is not derived from an interpretation of PC 9.04, nor does it have a specific chapter devoted to it. It comes from the wording in PC 9.31. SELF DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

The key words here are (reasonably, necessary, and unlawful). A topical reading of this chapter could lead one to believe that all that is necessary is to believe that you were in danger. In fact, what you must prove...is that your conduct was "reasonable". Additionally, "unlawful force" is a term that applies both ways.

Where is the chapter on unlawful force, where are we told conclusively what "reasonable" is. These are principles that will be examined as component parts of a "total" situation. Likewise, "disparity of force" and "proportionate force" are principles subject to the scrutiny of case law and the defense. This is where I get it from, and my purpose for bringing it up in the first place.

Should your case go to court

JohnKSa wrote:Shooting someone, or even drawing on someone in response to getting slapped is extremely likely to result in sucessful prosecution of the person with the gun.

There are two CHL cases that I am aware of where someone has shot someone in response to an unarmed assault.

In the one case I am more familiar with, the CHL holder's injuries included severe concussion and permanent hearing loss. Yet he was STILL criminally prosecuted and might have been convicted had he not hired a good lawyer. What eventually made up the juror's minds is not absolutely clear, but the fact that the defender was quite small and the attacker was quite large probably played an important part--autopsy photographs of the attacker showing his impressive size and musculature and a "Born to Kill" tattoo were probably the clincher.

In the second case, the CHL holder took what was described as a "severe beating".

BOTH cases definitely resulted in criminal prosecution in spite of the fact that CHL holder was severely injured.

There are certainly cases where drawing on, or possibly even shooting an unarmed person who is attacking you in public** makes good sense, but it is important to understand that if you shoot in such a situation, criminal prosecution is a certainty. If you have sustained no injuries, and there is no obvious disparity of force (multiple attackers to one defender, large, fit attacker vs small, disabled defender, large male vs small female) then the prosecution is going to be successful.

Remember that you and your lawyer will have to convince a jury that what you did was reasonable and immediately necessary to prevent serious injury or death. That is the ONLY legal justification for using deadly force.

IMO, getting slapped is not justification for drawing on a person, and it is certainly not justification for shooting. Here's my reasoning. If a person has the chance to hit you in the face and they choose to make that blow an open-handed slap rather than a punch, that would almost certainly be viewed by a reasonable person as evidence that severe injury was not the goal of the slapper. If you can't convince a jury that the person was intent on severe injury then you won't be able to convince them that it was legal for you to threaten or use deadly force.

At that point, the thing to do is to withdraw from the confrontation and call the police. With witnessess, you are going to be able to get a criminal and very likely a civil judgement against the slapper. If you choose to pull a gun, the tables are turned and now you're the one likely to be facing criminal charges and civil prosecution.

So, i should just resolve myself to be slapped by some punk?

Your gun is there to defend your life, NOT your honor. You have a legal right not to be slapped--if you are, you can have the slapper prosecuted. But since there is no threat of severe injury or death, that "right not to be slapped" doesn't extend to a justification for you to use or threaten deadly force.

** Note that shooting an unarmed attacker who has broken into your own home is a totally different situation in legal terms. Since this is primarily about CHL specific shootings, my comments relate to things happening in public vs shooting a home invader.

gigag04 wrote:Vote: Close/lock

Reason: WAAAAAAAAAY off topic

flintknapper wrote:

Kyle Brown wrote:§ 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

After reading that you cannot legally pull that "hog leg" just because you are about to take a "butt whipping" (after someone has slapped you across the face with an open hand), I thought it was time to revisit 9.04.

Now, I am not saying that all slaps across the face justify the production of a weapon under 9.04. Likewise, I don't believe that it is correct to state/imply the production of a weapon is not justified if you are about to take a butt whipping after someone has slapped you across the face with an open hand.

I don't know what else to tell you except... "give it a whirl" and good luck.

Simple (lawful) fact: In defense of yourself, you may only use the same amount of force as that being used against you (unless you are LE).

By "butt whipping", I'm referring to your common everyday fight between two unskilled people. Pushing, shoving, slapping, even striking with a closed fist (to a limited degree) is not likely to result in serious bodily injury or death. There are exceptions of course , and that is why the law allows for the use/threat of deadly force when there exists "disparity" of force.
Flint.