Force to deadly force when displaying a firearm

[Steven6702]

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.

THANK YOU, this is exactly what I was getting at and really speaks to the heart of my question.

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.)

[ralewis]

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."

Disagree - it depends. That could all too-easily lead to a misunderstanding by the newbie who hears "If you pull it, you have to use it"; I've (justifiably) held a number of people at gun-point without pulling the trigger (although I was fully prepared to if it was required).

He strongly advised against a CHL'er drawing your gun as a de-escalation tool for the reasons you say in your post.

Disagree again - to a minor extent. The use of force is a continuum - drawing and pointing a firearm is one more step in the continuum to hopefully avoid *having* to shoot. That said, I agree that a firearm should not be drawn unless one is fully prepared to - legally and rightly - pull the trigger if necessary. What he's talking about, I believe, is "Don't use it as a threat in situations when you wouldn't be justified in shooting someone".

Don't draw it solely as a threat-display or bluff - you draw it if you fully expect that you'd be justified in using it.

On the contrary... his point was if the situation meets the need for deadly force, then pull your gun. Absent that, use other de-escalation techniques. Don't use the gun as a de-escalation tool. Introducing a gun when not absolutely needed introduces more variables (my -- any my first CHL instructors - opinion).

[Ruark]

Good responses. What, then, is the purpose of 9.04? Why is it there?

[thetexan]

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 or deadly 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.

The rule states...(h) It is a defense to prosecution under Subsection (a) or (a-1) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.

One of the requirements for the use of force or deadly force is the "when and to the degree one has reasonable believe that for is immediately necessary" test. 46.035h doesn't require that specifically. It simply states that you must meet the authorization threshold of 9.31 for force or deadly force in 9.32, which themselves have the requirement. Each section, 9.31 and 9.32, have a checklist of conditions that disqualify one from being authorized. If the authorization thresholds are met in either of those two sections, then 46.035h kicks in and gives one a defense for having their handgun out of its holster or unconcealed in plain sight of another person in a public place. In other words, the defense is against a prosecution for the violation of "openly carried guns must be in a belt or shoulder holster" or the concealment rule. This does not add any measure of authorization for the actual threatening of deadly force with the gun.

You can not take away from the analysis and wording of this rule that it says it's OK to threaten people with your gun as a means of deterring force or deadly force against you. NOT FROM THIS RULE. From other rules but not from this rule. You will have a defense if they try to prosecute you for unlawful display only. Notice I am not saying it is NOT OK to threaten to use deadly force by threatening with a gun. I am saying that you can not infer from this rule on display violation defense that you have authorization to do so. That will have to come from elsewhere.

The question really is...under the circumstances, would threatening the other person with deadly force be justified under 9.31 or 9.32. 9.31 only authorizes the use of simple force (when and to the degree necessary) as a remedy to the situations spoken of in 9.31. What, in 9.31 would justify using the threat of deadly force as a defense to meet the reasonably believed, immediately necessary threat of simple force against you? That is what 9.31 is all about. Therefore threatening someone with deadly force (in a simple force 9.31 situation) reverses the roles. Now YOU run the risk of becoming the one giving the other person a reasonable belief that immediate action is necessary to defend against you from reasonably believed fear of immediate serious bodily injury or death...at least in a 9.31 situation. I believe that 9.31 in no way authorizes the use of a threat of deadly force to meet simple force.

9.32 does however. But the prime requirement to move into the statutory realm of 9.32 is that you must first qualify under the elements of 9.31. If you first meet the justification requirements of 9.31 and then 9.32 then the use of deadly force is authorized. But one need not fire the weapon. Perhaps just the threat with the deadly weapon will deter the threat. And if so, then you have thankfully avoided having to shoot someone and you have a defense to the unholstered or unconcealed display violation.

Remember, 46.035h deals with a defense to the prosecution of the violation of the unholstered or concealed (in 46.035 a, a-1, a-2, or a-3) display rule. 46.035h does not say it is a defense to prosecution to threatening someone with deadly force when you thought is was necessary under section 9.31... or 9.32 for that matter. The single, ONLY, test for that is whether or not you were authorized under 9.32 to use deadly force and thereby the threat of deadly force in that situation.

So when IS deadly force and thereby the threat of deadly force permissible in a simple force 9.31 situation. I don't believe there is any situation. I can't see any situation that is not, in reality after analysis, an escalation from simple force in 9.31 into 9.32 threat of and defense by deadly force.

tex

[Soccerdad1995]

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?

I'll take that deal. I might catch a bullet, or not (no guarantee that you will actually hit me as I move and then dive toward the money, plus you might hesitate on actually pulling the trigger), but even if I get hit, I may likely survive. And there is the possibility that I fall forward and a part of my body touches the money even if I don't survive. I'm almost 6 feet tall, so just falling forward gets me the last bit of distance needed. We would need to have one of my heirs present to verify the results, of course.

Not to be superficial here, but $50 million is ALOT of money. It is a "family legacy changing" amount of cash.

[locke_n_load]

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 or deadly 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.

The rule states...(h) It is a defense to prosecution under Subsection (a) or (a-1) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of force or deadly force under Chapter 9.

One of the requirements for the use of force or deadly force is the "when and to the degree one has reasonable believe that for is immediately necessary" test. 46.035h doesn't require that specifically. It simply states that you must meet the authorization threshold of 9.31 for force or deadly force in 9.32, which themselves have the requirement. Each section, 9.31 and 9.32, have a checklist of conditions that disqualify one from being authorized. If the authorization thresholds are met in either of those two sections, then 46.035h kicks in and gives one a defense for having their handgun out of its holster or unconcealed in plain sight of another person in a public place. In other words, the defense is against a prosecution for the violation of "openly carried guns must be in a belt or shoulder holster" or the concealment rule. This does not add any measure of authorization for the actual threatening of deadly force with the gun.

[uYou can not take away from the analysis and wording of this rule that it says it's OK to threaten people with your gun as a means of deterring force or deadly force against you. NOT FROM THIS RULE. From other rules but not from this rule. You will have a defense if they try to prosecute you for unlawful display only. Notice I am not saying it is NOT OK to threaten to use deadly force by threatening with a gun. I am saying that you can not infer from this rule on display violation defense that you have authorization to do so. That will have to come from elsewhere.

The question really is...under the circumstances, would threatening the other person with deadly force be justified under 9.31 or 9.32. 9.31 only authorizes the use of simple force (when and to the degree necessary) as a remedy to the situations spoken of in 9.31. What, in 9.31 would justify using the threat of deadly force as a defense to meet the reasonably believed, immediately necessary threat of simple force against you? That is what 9.31 is all about. Therefore threatening someone with deadly force (in a simple force 9.31 situation) reverses the roles. Now YOU run the risk of becoming the one giving the other person a reasonable belief that immediate action is necessary to defend against you from reasonably believed fear of immediate serious bodily injury or death...at least in a 9.31 situation. I believe that 9.31 in no way authorizes the use of a threat of deadly force to meet simple force.

9.32 does however. But the prime requirement to move into the statutory realm of 9.32 is that you must first qualify under the elements of 9.31. If you first meet the justification requirements of 9.31 and then 9.32 then the use of deadly force is authorized. But one need not fire the weapon. Perhaps just the threat with the deadly weapon will deter the threat. And if so, then you have thankfully avoided having to shoot someone and you have a defense to the unholstered or unconcealed display violation.

Remember, 46.035h deals with a defense to the prosecution of the violation of the unholstered or concealed (in 46.035 a, a-1, a-2, or a-3) display rule. 46.035h does not say it is a defense to prosecution to threatening someone with deadly force when you thought is was necessary under section 9.31... or 9.32 for that matter. The single, ONLY, test for that is whether or not you were authorized under 9.32 to use deadly force and thereby the threat of deadly force in that situation.

So when IS deadly force and thereby the threat of deadly force permissible in a simple force 9.31 situation. I don't believe there is any situation. I can't see any situation that is not, in reality after analysis, an escalation from simple force in 9.31 into 9.32 threat of and defense by deadly force.

tex

My empahsis in bold.

Sec. 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.

The threat of deadly force is only the "use" of force, not deadly force. You are allowed to use force if unlawful force is being used against you. You don't need to meet the requirements of deadly force 9.32 to use the threat of deadly force, only 9.31, since the threat you made by the production of a weapon is only the use of force, not deadly force.

Also, the statements you made about the roles being reversed when you produce a weapon, and now the guy who was using unlawful force against you has a defense to use legal force or deadly against you, can't be correct.
Self defense is only legal if the actor:

(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

If you are the instigator then you don't meet the qualification of (2) for lawful self defense, and if you did anything like hit someone, that is assault and is criminal activity, so you fail qualification (3).

Only way they would have some legal standing would be if they met these requirements:

(b) The use of force against another is not justified:
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor;

[thetexan]

There it is. You are absolutely right. I had forgot about that.

Thanks,

tex

[ralewis]

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."

Disagree - it depends. That could all too-easily lead to a misunderstanding by the newbie who hears "If you pull it, you have to use it"; I've (justifiably) held a number of people at gun-point without pulling the trigger (although I was fully prepared to if it was required).

He strongly advised against a CHL'er drawing your gun as a de-escalation tool for the reasons you say in your post.

Disagree again - to a minor extent. The use of force is a continuum - drawing and pointing a firearm is one more step in the continuum to hopefully avoid *having* to shoot. That said, I agree that a firearm should not be drawn unless one is fully prepared to - legally and rightly - pull the trigger if necessary. What he's talking about, I believe, is "Don't use it as a threat in situations when you wouldn't be justified in shooting someone".

Don't draw it solely as a threat-display or bluff - you draw it if you fully expect that you'd be justified in using it.

On the contrary... his point was if the situation meets the need for deadly force, then pull your gun.

While I agree with your new point, you're now moving the goalposts - that's not what he said nor what I'm pointing out.

He said: "if its bad enough to pull the gun, it's bad enough to pull the trigger." (I'm disagreeing with the implication that pulling the trigger should always result from drawing the gun).

Now you're saying "if the situation meets the need for deadly force, then pull your gun" (no argument there but that doesn't cover my concerns re the point to which I *was* responding)

I'm not trying to be nit-picky but those are 2 very different things.

Absent that, use other de-escalation techniques. Don't use the gun as a de-escalation tool. Introducing a gun when not absolutely needed introduces more variables (my -- any my first CHL instructors - opinion).

No disagreement there either.

I'm sure he wasn't advising that you MUST pull the trigger if you pull the gun. The purpose and context of the statement was regarding de-escalation strategies.

I manage an engineering organization, and I should have known better than to not be absolutely precise with the language.

[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?

I'll take that deal. I might catch a bullet, or not (no guarantee that you will actually hit me as I move and then dive toward the money, plus you might hesitate on actually pulling the trigger), but even if I get hit, I may likely survive. And there is the possibility that I fall forward and a part of my body touches the money even if I don't survive. I'm almost 6 feet tall, so just falling forward gets me the last bit of distance needed. We would need to have one of my heirs present to verify the results, of course.

Not to be superficial here, but $50 million is ALOT of money. It is a "family legacy changing" amount of cash.

Where is Ruark??? WE WANT THE MONEY!!!!!!!