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*They could have just said "A threat of Deadly Force" rather than that whole sentence.

Yes, they could have. But they did not in fact say that. Also there is no other reference to the "threat of deadly force" in the code that I can find, at least not in these sections.

I'm not sure I know what definition you're looking for, but here goes.

Well no offense, but while I agree with your opinion, I was looking for some legal definition that's outlined in the penal code.

you MAY or MAY NOT be able to use DEADLY FORCE. You can use the THREAT of DEADLY FORCE only if it is limited to just being a threat.

Of course, that is clear. However what is whether there is any circumstance, which can be identified in the penal code, whereby you would be justified to use the "threat of deadly force", while not at the same time being justified in using "deadly force".

Since I seem to be unable to articulate this question correctly after numerous posts, I will try it again all by itself:

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"?

Like I said before, I will see if I can ask my friend who is a judge tonight at church.

boomerang wrote:Honestly, sometimes it's worth paying a lawyer for their perspective.

well certainly if I find myself arrested for SD, I will. However I figure having a discussion about this topic on the TexasCHLforum is a good way for more people than just those who have consulted a lawyer to be informed about it.

Having said that, can we all agree that "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" for this discussion?

Sure, that's clear. What's not clear is exactly what 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, does not constitute the use of deadly force" in the terminology of the penal code, and therefore, what situations or conditions justify the use of "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". I thought that's one thing we were discussing.

hey boomerang this is not a personal thing. I am reading the code same as you. I would like to understand it.

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.

boomerang wrote:

mr.72 wrote:right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

Yes. See 9.04, 9.31 and 9.32.

9.04:

§ 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.[/b[

This section deals with the use of force in general, and only mentions "deadly force" in this definition whose intent is not clear.

It seems clear that they are saying there is a difference between the "use of deadly force", and "a threat to cause death...", but then does not go on to identify what exactly justifies the "threat to cause death...". There are numerous citations o the "threat of force" being justified equally to "force", but none which identify this amorphous "threat to cause death", which is not necessarily clearly defined as a "threat of force" but logically may be the "threat of deadly force", which again is not made distinct in terms of justification.

9.31:

§ 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b), a person is justified in using force ...
(d) The use of deadly force is not justified under this
subchapter except as provided in Sections 9.32, 9.33, and 9.34.

9.31 explicitly does not cover "deadly" force. 9.32 on the other hand, deals specifically with deadly force and says [among other things] the following:

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person
is justified in using deadly force against another:
(1) if the actor would be justified in using force
against the other under Section 9.31; and
(2) when and to the degree the actor reasonably
believes the deadly force is immediately necessary:
(A) to protect the actor 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.
...

Added together, this all seems to indicate that:

- the use of force, and the threat of force, carry the same justification
- the use of deadly force is justified given the use of force is justified, and when the other circumstances in 9.32 are met (prevent commission of those listed crimes, etc.)
- so it only makes sense, since 9.32 references the justification for the use of deadly force being predicated upon that for the use of force, that the use of deadly force and the threat of deadly force also must carry the equivalent justification.
- so it seems that the threat of deadly force is the same (in terms of whether you are justified to do so) as the use of deadly force.

Nowhere can I find any mention that offers a distinction between the justification for the threat of deadly force and the justification for the use of deadly force.

I think the 9.04 part that says "the threat... does not constitute the use of deadly force" is just saying that if you threaten deadly force but only in order to "create apprehension", then in you cannot have been judged to have used deadly force. However there seems to be little point in this distinction in terms of justification. Perhaps in terms of prosecution there is a difference. This is why we have lawyers :)

Regarding the cases upon which the use of deadly force is not justified, but the use of force is justified, it is defined as the difference between 9.31 (force) and 9.32 (deadly force), and additionally 9.34:

§ 9.34. PROTECTION OF LIFE OR HEALTH. (a) 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.

So you can't kill someone in order to prevent them from committing suicide.

So as I see it, maybe our CHL instructors are vindicated. I would be very interested to see any citation that can define the difference in justification for the threat of deadly force vs. the use of deadly force. So I think it applies that if you are justified in drawing your weapon, you are justified to fire it. However if you don't have to fire because the BG turned and ran, then you will not likely face prosecution as if you had used deadly force.

So in this carjacking scenario, if the BG was shot and then fled, then the police would have come, taken your gun into evidence, and you would be investigated and eventually no-billed by a grand jury etc. But since you didn't shoot the BG, then they take your statement and that's it. That's where I see the distinction between the "threat..." and the "use of deadly force".

Please, correct me if I am wrong. I have not made a lifetime hobby of parsing the penal code. I am an engineer, not a lawyer.

I have a friend who is a judge. Maybe I will ask him for some clarification if I see him tonight at church.

right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

§ 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter.

OK, see here this is where it is really strange.

It says very clearly, the threat of force is justified when the use of force is justified.

So the question is, when is the threat of force justified when the use of force is NOT justified.

It would seem, just from reading this sub-section, that the threat of force is justified by the same circumstances which would justify the use of force, which is kind of what our CHL instructors have been telling us: the justification for drawing is the same as the justification for firing.

ISTR our CHL instructor told us is that the justification for the use of deadly force is the same as the justification for the threat of deadly force, and therefore there is no point in drawing a gun unless you are prepared to shoot.

However, obviously this is at least not completely true and may be completely untrue. I will watch this thread for further discussion :)

thanks for the clarification Liko.

Seems like splitting hairs to me... my CHL instructor did not describe it this way.

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.

he was attempting to commit aggravated robbery.

clearly deadly force is justified in the TX law.

IMHO the difference between pointing your gun at the BG in this scenario, vs. shooting the guy, is that if you just point it at him and allow him to flee, gain support from his backup guys in the beater car, then you are at very high risk of being shot at by the bad guy(s) as they drive by. However if you just shoot the guy right off the bat, then the other dudes are going to run hard in the other direction.

Common sense says it is very risky to point a gun at the bad guy without pulling the trigger.

duplicate post