Force to deadly force when displaying a firearm

[Beiruty]

Let me understand, What is brandishing in other state? Is it unjustified waving a gun in face of other for no legal reason? If so, The actor in Texas can be charged with at least a disorderly conduct or maybe a assault with a deadly weapon (not sure...)

[Scott B.]

'Brandishing' isn't specifically in the penal code, but it's a term I think we all understand. I use the term in my classes when talking about 46.035 vs 9.04.

"§46.035 - Unlawful Carrying of Handgun by
License Holder


(a) A license holder commits an offense if the license
holder carries a handgun on or about the license
holder's person. . .and intentionally displays the
handgun in plain view of another person in a public
place. It is an exception to the application of this
subsection that the handgun was partially or wholly
visible but was carried in a shoulder or belt holster
by the license holder."

Versus

"§9.04 Threats as Justifiable Force

The threat of force is justified when the use of force
is justified by this chapter. For the 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 the will use deadly force if
necessary, does not constitute the use of deadly force."


What I need to dig up is the charge you'd face under 46.035...but I've had a long day. Somebody else do my homework.

[ScottDLS]

'Brandishing' isn't specifically in the penal code, but it's a term I think we all understand. I use the term in my classes when talking about 46.035 vs 9.04.

"§46.035 - Unlawful Carrying of Handgun by
License Holder


(a) A license holder commits an offense if the license
holder carries a handgun on or about the license
holder's person. . .and intentionally displays the
handgun in plain view of another person in a public
place. It is an exception to the application of this
subsection that the handgun was partially or wholly
visible but was carried in a shoulder or belt holster
by the license holder."

Versus

"§9.04 Threats as Justifiable Force

The threat of force is justified when the use of force
is justified by this chapter. For the 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 the will use deadly force if
necessary, does not constitute the use of deadly force."


What I need to dig up is the charge you'd face under 46.035...but I've had a long day. Somebody else do my homework.

Intentionally displays...is legal if you have it in a shoulder or belt holster, so it's not "brandishing" as other States use the term. It's generally understood to mean bringing the weapon into a position to fire, or drawing it from where you're carrying it and bringing it to your hand for imminent use, or "waving it around"...

ETA: You wouldn't face any charges under 46.035 in OP example. You'd potentially face "assault" or "disorderly conduct" or "menacing" or "terroristic threats".

[Scott B.]

'Brandishing' isn't specifically in the penal code, but it's a term I think we all understand. I use the term in my classes when talking about 46.035 vs 9.04.

"§46.035 - Unlawful Carrying of Handgun by
License Holder


(a) A license holder commits an offense if the license
holder carries a handgun on or about the license
holder's person. . .and intentionally displays the
handgun in plain view of another person in a public
place. It is an exception to the application of this
subsection that the handgun was partially or wholly
visible but was carried in a shoulder or belt holster
by the license holder."

Versus

"§9.04 Threats as Justifiable Force

The threat of force is justified when the use of force
is justified by this chapter. For the 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 the will use deadly force if
necessary, does not constitute the use of deadly force."


What I need to dig up is the charge you'd face under 46.035...but I've had a long day. Somebody else do my homework.

Intentionally displays...is legal if you have it in a shoulder or belt holster, so it's not "brandishing" as other States use the term. It's generally understood to mean bringing the weapon into a position to fire, or drawing it from where you're carrying it and bringing it to your hand for imminent use, or "waving it around"...

ETA: You wouldn't face any charges under 46.035 in OP example. You'd potentially face "assault" or "disorderly conduct" or "menacing" or "terroristic threats".

No argument from me on that account. It's the two extremes, although 'display' could be taken a lot of ways if they hadn't addressed manner of carry a bit earlier.

[Beiruty]

'Brandishing' isn't specifically in the penal code, but it's a term I think we all understand. I use the term in my classes when talking about 46.035 vs 9.04.

"§46.035 - Unlawful Carrying of Handgun by
License Holder


(a) A license holder commits an offense if the license
holder carries a handgun on or about the license
holder's person. . .and intentionally displays the
handgun in plain view of another person in a public
place. It is an exception to the application of this
subsection that the handgun was partially or wholly
visible but was carried in a shoulder or belt holster
by the license holder."

Versus

"§9.04 Threats as Justifiable Force

The threat of force is justified when the use of force
is justified by this chapter. For the 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 the will use deadly force if
necessary, does not constitute the use of deadly force."


What I need to dig up is the charge you'd face under 46.035...but I've had a long day. Somebody else do my homework.

Intentionally displays...is legal if you have it in a shoulder or belt holster, so it's not "brandishing" as other States use the term. It's generally understood to mean bringing the weapon into a position to fire, or drawing it from where you're carrying it and bringing it to your hand for imminent use, or "waving it around"...

ETA: You wouldn't face any charges under 46.035 in OP example. You'd potentially face "assault" or "disorderly conduct" or "menacing" or "terroristic threats".

As long as the use of force was justified, like someone attacked/assaulted the CHLer using hist fist or limb, then the CHLer is still in the clear.

[Steven6702]

Thanks all, appreciate the insights and advice.

A few notes and follow-ups...

To those asking about my use of the word brandishing, I was doing so in a literal sense as a synonym for display, not in the legal sense, since my understanding of Texas Penal Code is that there is no such thing as "brandishing."

You're right, I was not thinking of a fist fight as deadly force, but I guess it comes down to the judgment call and that grey in the law (e.g. the difference between a little old lady trying to beat me up vs. a body-builder who is twice my size).

One thing that was emphasized in my LTC class was that showing your gun in any form - drawing, or even aiming it at somebody - is considered FORCE until you pull the trigger. Even when displaying a handgun in a threatening manner, it is a defense to prosecution that it was done "under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9." So I have to disagree with:

Steven, what you are proposing is reckless and illegal.

since I think the law pretty clearly allows for the display of a firearm whenever the use of FORCE is justified.

What I was really getting at I guess is the distinction that there are times when it is legal to aim a gun at someone, but not to fire it at them. I'm not saying I would be likely to do that or that it's necessarily a good idea, but I'm trying to think through a large range of scenarios and this distinction is one that caught my interest.

I agree that de-escalation and avoidance are always preferable to any sort of physical conflict, absolutely.

[Liberty]

Using force when threatened it is reasonable to use force to protect yourself. If someone were to attack you while you have legally unholstered your gun. A reasonable person would be afraid for their life and serious injury. A person attacking to take away ones weapon is cause for reasonable fear for ones life and serious injury.
All this being said it could be difficult to prove this wasn't an ordinary argument that got out of control because the shooter was hot headed.

[WildBill]

Let me understand, What is brandishing in other state? Is it unjustified waving a gun in face of other for no legal reason? If so, The actor in Texas can be charged with at least a disorderly conduct or maybe a assault with a deadly weapon (not sure...)

Maybe not the precise legal definition, but In other states brandishing is displaying a weapon in a menacing or threatening manner.
For example, in California Penal Code 417 states in part:

PENAL CODE - PEN
PART 1. OF CRIMES AND PUNISHMENTS [25 - 680] ( Part 1 enacted 1872. )
TITLE 11. OF CRIMES AGAINST THE PUBLIC PEACE [403 - 420.1] ( Title 11 enacted 1872. )
417.
(a) (1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.
(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:
(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

[TreyHouston]

Simply put, if you think a troublemaker is going to be deterred because you show him a gun think again.If you show a gun it will escalate the situation and you will be forced to deal with that. Also showing him that you have a firearm is not wise to the tour. A Person can cover 20 feet before you can draw and fire. The only time anyone would see my weapon is whenever it's pointed at their chest. They can't out run that.
Regardless of what happens afterwards I call 911 and be very careful of my surroundings.

[Ruark]

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?

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.

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):

• 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
  

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.

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.

[Ruark]

A Person can cover 20 feet before you can draw and fire.

I'm really tired of hearing this old chestnut. Sure, some super-athletic guy going all-out might be able to do that, but it's not like if your opponent is inside 20 feet, you're just utterly helpless.

Tell you what. I'll put $50,000,000 in unmarked bills on my dining table, and stand in front of it with my holstered Walther 9mm. You stand over there, 20 feet away. If you can touch the money, you can have it. Deal?

[TreyHouston]

A Person can cover 20 feet before you can draw and fire.

I'm really tired of hearing this old chestnut. Sure, some super-athletic guy going all-out might be able to do that, but it's not like if your opponent is inside 20 feet, you're just utterly helpless.

Tell you what. I'll put $50,000,000 in unmarked bills on my dining table, and stand in front of it with my holstered Walther 9mm. You stand over there, 20 feet away. If you can touch the money, you can have it. Deal?

Yes! I will be in a line of 30. 29 will not run but i will. If u jump the "gun" on one of the 29 then i win!

[WTR]

A Person can cover 20 feet before you can draw and fire.

I'm really tired of hearing this old chestnut. Sure, some super-athletic guy going all-out might be able to do that, but it's not like if your opponent is inside 20 feet, you're just utterly helpless.

Tell you what. I'll put $50,000,000 in unmarked bills on my dining table, and stand in front of it with my holstered Walther 9mm. You stand over there, 20 feet away. If you can touch the money, you can have it. Deal?

What is your average draw time? You can figure a human covering 20 feet in 1 sec. Your most likely a poor man.

[ralewis]

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 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.

My CHL instructor (PD from Horseshoe Bay TX) about 15 years ago conveyed this notion of drawing your firearm very simply and concisely "if its bad enough to pull the gun, it's bad enough to pull the trigger." He strongly advised against a CHL'er drawing your gun as a de-escalation tool for the reasons you say in your post.