If you can't shoot it, don't show it!

[stevie_d_64]

I have spoken to criminal defense attorneys and an ADA in the Galveston County DA's office who had a "round table" with his fellow prosecutors. They believe that the degree of force you can threaten is equal only to the degree of force you would be justified is using. In short, if you can't use deadly force, you can't threaten deadly force, regardless of your motive.

Charles...

I think you know that I believe its great we have the ability to throw issues like this around for discussion...And that your knowledge and ability to take the question to some very credible and knowledgable people is what I enjoy most about our discussions, on and off the forum...

I guess its just my stubborn side that has a slight problem with the last part of that paragraph...If its your opinion, I can certainly understand and appreciate that conclusion, and its obviously nothing personal...

Put me into a situation where I have done everything I can to difuse, de-escalate, remove myself from the encounter, etc. etc...And the person(s) are continuing to demonstrate a threat to me...My last chance that I may consider presenting to them would be to clear the "concealment" of my defensive weapon, and (be prepared) to draw and discharge that weapon to "stop" the continuing attack...

Now if thats not giving an attacker(s) a chance to disengage from their actions against me, I don't know what more it would take...Maybe thats not a proper way to think about issues like this, but I'd like to think that I am always capable of dealing with situations very effectively and decisively...And anything I can do right up to the point of having to decide to defend myself with the use of deadly force becomes almost absurdly moot...

I just can't understand why you would even be called on the carpet for doing everything right up to that point...And no bodies being an issue, that a DA would consider pursuing charges against someone who does everything up to shooting someone, to stop an attack or deadly crime against them...

Almost like the old saying, no harm no foul...A criminal should be counting their blessings that they are still alive to cry about having someone actually having the gall to defend themselves in this manner...

I hope you see my sarcasm, and in no manner am I intending to insult anyones knowledge or experience on this issue...

I actually enjoy where this discussion has led, and that of course this is something everyone needs to really think deep down about and apply to the ever present "mindset"...

Respectfully,
Steve

[Charles L. Cotton]

This thread has been inactive since Dec. 19th, so people may have forgotten the very narrow issues presented. Remember, the discussion centers on two issues: 1) whether TPC §9.04 authorizes a person (other than a LEO) to threaten the use of deadly force by the production of a weapon when they would not be justified in actually using deadly force; and if so 2) does TPC §46.035(a) subject a CHL holder to prosecution for intentionally failing to conceal his handgun if they did so. (The McDermott case upheld the conviction of a CHL under these circumstances.)

Just to make sure there is no confusion, if you would be justified in using deadly force to thwart an attack, then you are justified in threatening the use of deadly force by pulling your gun on someone. Just because you can shoot someone, you doesn't mean you have to!

Back to the scope of TPC §9.04. Between Kyle and I, we have spoken to criminal defense attorneys, prosecutors for various DA’s offices, police officers, judges and a law school professor that teaches criminal law. Everyone Kyle talked with believes TPC §9.04 authorizes the threat of deadly force even when the use of deadly force would not be lawful, if the other requirements of §9.04 were met. (Let’s call this the “broad view.�) The people I’ve talked with fall on both sides of the interpretation. Some accept the “broad view,� while others contend that TPC §9.04 only authorizes the threat of force equal to the degree of force you would be authorized to use; i.e. you can’t threaten deadly force unless you can use deadly force. We’ll call this the “narrow view.�

To complicate matters further, I just received a return telephone call from a lady who is an attorney on staff with the DPS in Austin. She apparently teaches the law portion of the CHL Instructor Certification and re-certification course. She believes the “narrow view� of TPC §9.04 is correct.

I’ve spoken with a lot of very knowledgeable people who have differing opinions on the scope of TPC §9.04. However, if I were forced to choose one on whom to rely, I would have to choose the law school professor. As a law professor, he must remain current on issues such as this one and the professor I spoke with said the “broad view� is very common in the U.S. He also said the “broad view� is codified in the Model Penal Code. That said, he also concedes it’s an open question in Texas, since there is no case law on point, but the express language in TPC §9.04 appears to adopt the “broad view.�

All throughout my deliberations on this issue, I keep coming back to the two hypothetical scenarios txinvestigator and I presented. Mine was the slap in the face in the restaurant and his was the gang members following my wife and I in a theater parking lot. I have presented these scenarios to everyone I have spoken with and we all agree that these polar opposites are troublesome to reconcile. The restaurant scenario was presented to show the absurd result that could occur with adoption of the “broad view� of TPC §9.04 while the gang members in the parking lot reveal a reasonable application of the “broad view.�

The only way I can reconcile the potential abuse of TPC §9.04 with its useful application is much like txinvestigator did, i.e. by incorporating the requirements of TPC §9.31 (force). That is, §9.31 will allow the use force “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. In the restaurant scenario, a person could not reasonably believe it was necessary to pull a gun to keep a woman from slapping you. Conversely, in the theater parking lot scenario, a person could reasonably believe it was necessary to reveal or even present a pistol to thwart an apparent stalking or impending assault. Beware! This is merely my evaluation and attempt to reconcile differing views on the scope of TPC §9.04. Don’t try to rely upon it!

However, this academic discussion of the scope of TPC §9.04 is even more complicated when we introduce TPC §46.035(a) - Intentional failure to conceal and the McDermott case. The statute and the McDermott opinion expressly state that you are justified in intentionally failing to conceal when you are justified in actually using deadly force.

These few facts are certain: 1) there is no case law in Texas interpreting the scope of TPC §9.04; 2) there is no agreement among experts in the field on the scope of TPC 9.04; 3) it is common in the U.S. for state penal codes to allow the threat of deadly force when the use of deadly force is not authorized, so long as the sole motive for the threat is to cause apprehension that you will use deadly force if necessary; 4) TPC §46.035(a) makes it an offense to intentionally fail to conceal your handgun, unless you are authorized to actually use (not merely threaten) deadly force; and 5) the McDermott Court rejected a CHL's attempted reliance on TPC §9.04.

Whatever the Courts ultimately determine concerning the scope of TPC §9.04, TPC 46.035(a) needs to be amended to include the justification found in either TPC §§ 9.04 (threats), 9.31 (force) or 9.32 (deadly force).

Regards,
Chas.

[stevie_d_64]

Just to make sure there is no confusion, if you would be justified in using deadly force to thwart an attack, then you are justified in threatening the use of deadly force by pulling your gun on someone. Just because you can shoot someone, you doesn't mean you have to!

My sentiments exactly...

[carlson1]

Kind of reminds me of the drunken teenager who came to my house one very late night, and demanded to see my daughter, describing in exacting and explicit detail just what her intended to do with and to her.
After he physically threatened me a couple of times, my very astute wife handed me my (unloaded) shotgun which I proceeded to point at his head while I held him for the police.
When the police arrived and I let him up, he proceeded to try to have me arrested for assault with a deadly weapon. Dutch and George, the two cops who arrived first, found that quite funny and presented him with silver bracelets anyway.
The next day his mother decided to try similar tactics, which didn't work either.
My stepson seems to be related to them.

When my son in law was going to court my daughter he came to my office to ask if he could sit with her in Church and maybe take her to dinner with his parents a long. I pulled one .45 out of my extra clip and handed it to him. I told him if he did anything God did not approve of that this bullet had a brother! When they were married 2 years later and 3 years ago, he gave me that same bullet back after the wedding and told me he did not think he needed it anymore until my granddaughter would be born. I am still waiting for that baby.

[anygunanywhere]

I am still waiting for that baby.

Not me. My grandbaby is on the way, due 14 April.

[da.suxor]

To further complicate this, would it be considered that a:

1) CHL holder, who
2) has been licensed by the state of texas, who
3) presumably has attended a course covering all of this, and
4) has a clean background, and
5) is a law abiding, employeed, family man

would be less likely to be prosecuted for drawing when leathal force may not have been applicable (based on opinions of the statments of the situation)?

I mean I can understand the average Joe pulling a firearm when it was not necessary, but I would believe the legal system to assume that a CHL holder, who has gone through the necessary steps to be proven a upstanding individual to carry a firearm in the first place, likely had a good reason to pull it.

Thoughts? Do CHL holder get viewed in a differnet light then the average Joe?

[carlson1]

I am still waiting for that baby.

Not me. My grandbaby is on the way, due 14 April.

Congratulations on the grandbaby. My son has given us a grandson. They are terrific. I wished we could of had the granchildren without the children

[kanders]

Forgive me for resurrecting this old thread. I just read it for the first time and found it interesting.

The problem I have with the "narrow" view is this - To me, it implies that, if some mugger approaches me, and does not back off after I warn him to keep away, but gets close and takes a swing at me (which is the use of non-deadly force), I can only try to defend myself hand-to-hand (non-deadly force) until the point that I feel he's going to beat me to death (justifying my use of deadly force). Then and only them can I show him that I'm armed. But at that point, I'm not going to just show him my gun, or just point it at him, I'll be at the point where I will have to shoot him.

This just doesn't make sense, because if I had been lawfully allowed to show him my gun when he first used non-deadly force by swinging at me, he now wouldn't be dead or injured, I wouldn't be facing charges for trying to de-escalate a potentially deadly situation, and we'd both have gone our separate ways and each learned something that might keep both of us alive in the future.

I really hope that this gets cleared up before I get my CHL, along with the equally absurd prosecution of CHL holders who are found to be carrying in places which are not posted with the correct 30.06 signs, or at places with the 51% sign that don't meet its requirement but don't have a clue as to the correct signage they should be using!

OK, I'm done ranting now. Have a nice day!

[seamusTX]

Two comments:

• You said "mugger." If that means "robber," you are justified in threatening and using deadly force to prevent robbery.
• Striking with a fist can be deadly force. It would depend upon the size, strength or medical condition of the parties involved.

My take on it as a non-lawyer is that the gray area is somewhere between a thug who makes a vague verbal threat, and someone who is about to assault you.

- Jim

[oilman]

Two comments:

• You said "mugger." If that means "robber," you are justified in threatening and using deadly force to prevent robbery.
• Striking with a fist can be deadly force. It would depend upon the size, strength or medical condition of the parties involved.

My take on it as a non-lawyer is that the gray area is somewhere between a thug who makes a vague verbal threat, and someone who is about to assault you.

- Jim

Yes.

And Kanders you do not have to wait until "he is ready to beat me to death." An assailant uses deadly force against you when the force is such that it can cause death or serious bodily injury.

[txinvestigator]

Two comments:

• You said "mugger." If that means "robber," you are justified in threatening and using deadly force to prevent robbery.
• Striking with a fist can be deadly force. It would depend upon the size, strength or medical condition of the parties involved.

My take on it as a non-lawyer is that the gray area is somewhere between a thug who makes a vague verbal threat, and someone who is about to assault you.

- Jim

Yes.

And Kanders you do not have to wait until "he is ready to beat me to death." An assailant uses deadly force against you when the force is such that it can cause death or serious bodily injury.

Yep, now define serious bodily injiry.

[age_ranger]

Great topic. Glad it was revived. I hadn't seen it previously. There's alot of good points being made. I think that there's alot ot be said for following some simple rules. Knowing your surroundings and what's going on is certianly paramount. Calling the police and de-escalating a situation should be on the top of the "things to do " list. If you're confronted there's alot to consider and it only makes it more apparent to me that carrying a concealed handgun is a great responsibility which is not to be taken lightly and definitely not for everyone.

There's also alot to be said here for the use of less-lethal means of self defense. Of course, turning the other cheek is a good way to avoid it altogether, but using OC to "escape" is certaily going to better than ventilating a person for screaming at you. I'm also thinking that the reason for most concealed handgun shootings occur under 3ft away is because it's a last minute decision and quite possibly, there were no other means of defense available.

[KD5NRH]

Yep, now define serious bodily injiry.

I can't even find a definition for "injiry."

In the context of a robbery, however, it doesn't say serious:

Sec. 29.02. Robbery.
(a) A person commits an offense if, in the course of committing theft as defined in Chapter 31 and with intent to obtain or maintain control of the property, he:
(1) intentionally, knowingly, or recklessly causes bodily injury to another; or
(2) intentionally or knowingly threatens or places another in fear of imminent bodily injury or death.
(b) An offense under this section is a felony of the second degree.

So, bodily injury appears to be:

Texas Penal Code Section 1.07(a)(8)"Bodily injury" means physical pain, illness, or any impairment of physical condition.

Apparently, if it hurts, it's bodily injury.

Serious bodily injury would bump it up to aggravated robbery, of course,

Sec. 29.03. Aggravated Robbery.
(a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:
(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

but the fact that the code specifies both robbery and aggravated robbery as justifications for force, up to and including deadly force, would seem to indicate that the fear need only be of bodily injury, not serious bodily injury, when someone is using it for the purpose of taking something from you.

Of course theft during the night being a justificaiton would also seem to indicate that, at night, there doesn't even need to be a threat.

Any comments from those who get paid to make sense of this stuff? [/quote]

[kanders]

Yes, good points!

By using "mugger", I was trying to describe a loser who seems to want to get something from me, but has not shown any sort of weapon. Or even a drunk hothead who comes up to you to start a fight because he thinks I'm flirting with "his woman" or something.

I guess I still don't understand what constitutes use of force vs. deady force, i.e. if he hits you in the gut with a fist or pushes you to the ground, that doesn't seem "deadly" to me, but where do you draw that line?

My point is that I would like to be able draw on a guy BEFORE he starts using deadly force, and that is exactly what I thought section 9.04 allowed for by stating that threatening to use deadly force is NOT using deadly force.

The thing about the McDermott case that sticks out to me is that he had no justification to use ANY force whatsoever. I like to think that if I was justified in using force for self defense when the BG strikes me or tries to strike me, my displaying my gun would constitute a threat to use deadly force, which is not in itself the use of deadly force.

I just don't want to have to think about it too long if that scenario ever comes up!

[seamusTX]

I guess I still don't understand what constitutes use of force vs. deady force, i.e. if he hits you in the gut with a fist or pushes you to the ground, that doesn't seem "deadly" to me, but where do you draw that line?

Harry Houdini was killed by a single punch in the gut (it ruptured his appendix). Many people have been killed or permanently disabled by being knocked down and hitting their head.

Unfortunately, you are very much at the mercy of the district attorney and the specific facts of any incident.

One thing on the side of the good guys is that the bad guys generally have a long history or crime or violent mental illness. Not always, but generally.

- Jim