Almost had to draw on someone today.

[flintknapper]

§ 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

It appears this discussion revolves around two questions:

1. Wheather a person justified in the use of force is also justified in the threat of deadly force by and through the production of a weapon per TPC 9.04.

I say absolutely, he is. I say "absolutely" because that is the exact requirement per the statute.

2. Wheather a person is justified in the use of force after he has been slapped in the face with an open hand.

I say more than likely, but will admit that in some cases such action does not justify the use of force.

But clearly (pun intended...lol), if a person is "about to take a butt whipping" then obviously the person has the right to defend himself. If the person has the right to defend himself (per TPC 9.31), then the person has the right to threaten to use deadly force by and through the production of a weapon per TPC 9.04

Sorry it took so long to respond, I've had some computer problems.

Kyle,

Nowhere in my posts will you find me arguing that you have no right to defend yourself. How you defend yourself, and to what degree you can defend yourself are my only questions. I thought I had made that abundantly clear.

IMO, you are reading too much into PC9.04, I am getting the impression that you interpret it to mean: That if force of any nature is justified.. then "deadly force" (or the threat thereof) is also available to you.

Something for all to consider is that "the law" really gets it's teeth when it gets to court. This is where things can get incredibly complicated...and if PC 9.04 even got honorable mention, you'd be lucky.

Fortunately, the court will consider what a "reasonable" and "prudent" person might have done under the same or similar circumstances. This means that a person's fears, confusion, and excitement will be considered to the degree that such emotions may reasonably be expected to influence ones behavior. Even so, you'll want to have all of you ducks in a row. Personally, I want to appear extra reasonable, but not at the cost of life or limb.

If I have misinterpreted your meaning in any way, then please indulge me and give it one more shot. It wouldn't be the first time I misunderstood someone. I certainly respect and value your opinion/position in this matter and hope to learn something from it.

Thanks,

Flint.

[Kyle Brown]

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. We discussed our respective opinions re 9.04 with several attorneys. I discussed my take on it with one DA, three ADAs, four criminal defense attorneys and one very well known civil trial lawyer in my area. All that I spoke with agreed with my interpretation. Charles spoke with numerous attorneys including a DA and some ADAs. In addition, I think he spoke with at least one law professor. About half agreed with Charles and about half agreed with me.

I make mention of this in hopes that you and others will read the discussion and then speak with attorneys in your respective circles. Maybe through this process we can all gain more light with regard to "how" 9.04 will be heard/argued in different venues.

In your last post to me, you stated, "IMO, you are reading too much into PC9.04, I am getting the impression that you interpret it to mean: That if force of any nature is justified.. then "deadly force" (or the threat thereof) is also available to you."

Let me clarify my position by saying I DO NOT mean if force of any nature is justified, then "deadly force" (or thee threat thereof) is also available. I interpret 9.04 to say that if a person is justified in the use of force, then the person is justified in the use of the THREAT of deadly force. Furthermore, per 9.04, the THREAT of deadly force by the production of a weapon or otherwise is not the use of deadly force as long as the actor's purpose is limited to creating an apprehension that the actor will use deadly force.

You also stated in your last response to me, "Something for all to consider is that "the law" really gets it's teeth when it gets to court. This is where things can get incredibly complicated...and if PC 9.04 even got honorable mention, you'd be lucky."

This is an interesting comment and a very valuable one indeed provided you are speaking from experience with a 9.04 case. I find this comment interesting because none of those people I spoke with mentioned above ever made such a statement or even slightly implied 9.04 would not receive "mention" in trial or that it otherwise was of no value in court.

Finally, I have always wanted to discuss the meaning of "the production of a weapon or otherwise." That would be fun. FWIW, I think "or otherwise" refers, at least, the a verbal warning like "I will kill you if you come any closer" or something along those lines.

Anyway, sorry for the length of this post.

[flintknapper]

Kyle,

I will make time to read the posts you referenced.

Thanks again.

Flint.

[JohnKSa]

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.

[one eyed fatman]

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

Why wouldn't this cover the face slapping? You have been attacked, and you have no idea if that person may have a weapon. If I drew my weapon after being attacked (face slapped) I wouldn't be doing anymore than stopping an assault. If he then draws a weapon you have a much better chance of staying alive because you didn't let him draw first.

[flintknapper]

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.. such 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]

I wouldn't be doing anymore than stopping an assault.

That assumes that there is evidence that there is a continuing assault. If he's not trying to slap or hit you again, then you're not stopping anything because there is nothing to stop.

In the absence of a continuing assault, the fact that you just got slapped doesn't warrant force or threat of force.

There must be an imminent or continuing threat before you are justified in using or threatening force.

If you wish to remain within the law, you must be PREVENTING, not RETALIATING.

[one eyed fatman]

I don't know.... sometimes I get the feeling from these post that it would be better for me to get killed thereby staying within the limits of the law instead of protecting myself and staying alive.

[JohnKSa]

There is a HUGE difference between getting killed and getting slapped once.

What I said was that if there is no ongoing or imminent threat, you can not legally use or threaten deadly force.

There is NO way that can be interpreted as advising you that "it would be better for me to get killed thereby staying within the limits of the law instead of protecting myself and staying alive". If there is no ongoing or imminent threat then there is no danger--and certainly no danger of you getting killed.

AND, since there is no danger, you can not use deadly force.

The legal use of force and deadly force are to allow you to PREVENT and PROTECT. Both of those are about stopping something from happening--NOT about retaliating for something that has ALREADY happened.

[Kyle Brown]

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.

I believe I understand your point and accept it when tempered with a "dash" of...

9.22 Necessity which states that conduct (in our scenerio, production of a weapon after being slapped) is JUSTIFIED if

(1) the actor believes the conduct is immediately necessary to AVOID imminent harm (being slapped again and/or suffering further harm through actions including but not limited to further slapping which, if left unchecked, could escalate to more aggressive forms of contact);

(2) the desirability AND urgency of AVOIDING the harm clearly outweigh, according to standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; AND

(3) a legislative purpose to EXCLUDE the justification claimed for the conduct does not otherwise plainly appear.

So....in our scenerio, if a person slaps me and "immediately" walks away, my use of force is not justified because "urgency" has left the scene, so to speak.

On the other hand, if a person slaps me and remains "in my face", then my conduct (presenting the weapon) is justified because 1, 2, AND 3 have been met.

I think we are on the same page...but I was not sure because there was no reference to 9.22 which tempers "prevention" by adding a dash of "avoid."

[Kyle Brown]

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.

Thank you for taking the time. I think my position is brought into focus if you read it with 9.22 in mind (see my post to JohnKSa).

..."parting shot"..."dead set"...

[JohnKSa]

the actor believes the conduct is immediately necessary to AVOID imminent harm (being slapped again and/or suffering further harm through actions including but not limited to further slapping which, if left unchecked, could escalate to more aggressive forms of contact);

Agreed but with another dash... ;)

There needs to be a CLEAR continuity between the slap and the continuing confrontation/attack. If not, drawing on the part of the "slappee" could actually be legally interpreted by the slapper as a threat to which he can legally respond with deadly force.

In other words, if there is not a clear continuing attack, then by drawing the CHL holder is instigating a NEW confrontation and HE is now the aggressor.

[Show Killer]

The legal use of force and deadly force are to allow you to PREVENT and PROTECT. Both of those are about stopping something from happening--NOT about retaliating for something that has ALREADY happened.

So, let's go back to my original post that started this thread.

The guy was walking back to my truck, I prepared to draw by gripping my pistol. Had the guy made it to my vehicle and started pounding on the glass I could've drawn down on him, right? I mean, at this point I don't know what his intentions are. Maybe he wants to do me bodily harm, maybe not. By drawing down on him I would be PREVENTING a possible attack. Would I have been in the wrong? Up till now all he would've done was assault my truck, not me.

[one eyed fatman]

The legal use of force and deadly force are to allow you to PREVENT and PROTECT. Both of those are about stopping something from happening--NOT about retaliating for something that has ALREADY happened.

So, let's go back to my original post that started this thread.

The guy was walking back to my truck, I prepared to draw by gripping my pistol. Had the guy made it to my vehicle and started pounding on the glass I could've drawn down on him, right? I mean, at this point I don't know what his intentions are. Maybe he wants to do me bodily harm, maybe not. By drawing down on him I would be PREVENTING a possible attack. Would I have been in the wrong? Up till now all he would've done was assault my truck, not me.

If I gotta take a face slapping you gotta take someone beating on your window. With that said I also gotta say BULLTORK! If you can't at least pull your weapon to stop a possible attack against you then the law is not on our side. The reason we have trouble understanding the law is because the law is on the side of the lawyers. They want money, they create vague laws, they get to take you to court. That's what it's really about.

[txinvestigator]

The legal use of force and deadly force are to allow you to PREVENT and PROTECT. Both of those are about stopping something from happening--NOT about retaliating for something that has ALREADY happened.

So, let's go back to my original post that started this thread.

The guy was walking back to my truck, I prepared to draw by gripping my pistol. Had the guy made it to my vehicle and started pounding on the glass I could've drawn down on him, right? I mean, at this point I don't know what his intentions are. Maybe he wants to do me bodily harm, maybe not. By drawing down on him I would be PREVENTING a possible attack. Would I have been in the wrong? Up till now all he would've done was assault my truck, not me.

If I gotta take a face slapping you gotta take someone beating on your window. With that said I also gotta say BULLTORK! If you can't at least pull your weapon to stop a possible attack against you then the law is not on our side. The reason we have trouble understanding the law is because the law is on the side of the lawyers. They want money, they create vague laws, they get to take you to court. That's what it's really about.

Ya'll have to stop using non-specific words like "attack".

You can use deadly force when you reasonably believe it is immediately necessary to prevent the others use of unlawful deadly force.

You can use a degree of force (not deadly force) when you reasonably believe it is immediately necessary to prevent the other use of unlawful force (not deadly force) against you.

The law does not allow for things like "he could have a weapon" or "you don't know what his intentions are".