When does 'verbal provoication' cross the line?

[WildBill]

If an LEO doesn't know the law, their supervisor and an ADA are only a cell phone call away.

"If you ask a person in authority if something is against the law, it is always easier for them to tell you that it is." - WildBill's Law

[CopOnce]

When I was in law enforcement, I always carried my penal code, code criminal procedure and my uniform traffic books with me. Even in writing a traffic ticket, I always included the code in the citations (IE: 'Fail to control speed'; sec. 166B of the uniform act). It helped the court clerks with the cases also. If they wanted to confirm what the citation was, they could look it up. The same goes for other infractions of the law. I always read the codes to increase my knowledge for performing my duties. If I wasn't sure, I looked it up. Never lost a case in court either.

[KRM45]

I think you would have a hard time with a conviction on the Terroristic Threat charge. The reason being you have to prove what the actors intent was. In the case of the 19 year old where he did not make any moves toward you I think it would be difficult.

I would charge him under PC 22.01 Assult by threat:

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

You don't have to prove the intent of the statement, only that he made it. This is a class C misd. rather than the B of the Terroristic Treat though.

[srothstein]

Well, I hate to disagree with so many of you, but there is an old AG opinion on verbal provocation justifying force. If you call someone a communist, he is allowed to punch you. Or so the AG said in a case involving Henry B. Gonzalez one night in the 90's.

On a more serious note, the law does say verbal provocation does not justify force, so the threat in and of itself cannot justify force. But, if there is another element you can cite, such as his size, position, or possession of a weapon, then force may be justified by that element.

In the one example given, the courts have ruled many times that you do not have to wait to see the other weapon, but the movement towards it and a reasonable belief it might be a weapon could justify your draw and possibly even your shooting. If someone says "I am going to kill you" and has a shotgun over his arm, I can probably justify shooting him. If he just says the threat and is not clearly armed or never makes a move towards me, I don't think I could justify even drawing.

And KRM beat me to pointing out the simple assault by threat charge.

On the issue of cops knowing the laws, I have always said it is not important to know the law verbatim. It is important to know exactly where it is and how to find it, which I expect any officer to be willing and able to do. That is how I see the job and the standard I would hold my subordinates to. I am not sure which is worse, the stupid cop who doesn't know how to find the real law or the lazy one who knows how and just refuses. I want both out of law enforcement though.

[nitrogen]

Ignorance of the law is no excuse for me, it's no excuse for an LEO either.

[Originalist]

I think you would have a hard time with a conviction on the Terroristic Threat charge. The reason being you have to prove what the actors intent was. In the case of the 19 year old where he did not make any moves toward you I think it would be difficult.

I would charge him under PC 22.01 Assult by threat:

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

You don't have to prove the intent of the statement, only that he made it. This is a class C misd. rather than the B of the Terroristic Treat though.

Possibly, Would truly depend on the totality of the situation, However you did pick up something I overlooked in my haste to reply. Guess its time for a reread..... Anyone got any NoDoze?

[Originalist]

On the issue of cops knowing the laws, I have always said it is not important to know the law verbatim. It is important to know exactly where it is and how to find it, which I expect any officer to be willing and able to do. That is how I see the job and the standard I would hold my subordinates to. I am not sure which is worse, the stupid cop who doesn't know how to find the real law or the lazy one who knows how and just refuses. I want both out of law enforcement though.

+1

[Morgan]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws.

This is the part I specifically disagree with. A LEO is by authority supposed to enforce the laws of this state, if he doesn't know them, he needs to make every attempt to know as much about them as possible. Case in point: When I read the situation presented by Txflyer I wasn't 100% sure which law had been violated so I went to the penal code and looked at Harassment and Terroristic Threats because I knew enough to know some crime had been committed and I haven't even been to a full fledge police academy (Took supplemental course for my TCLEOSE). It took me an internet connection and 5 minutes to figure out which violation of law took place. This should always be the route LEO take, not misquoting law.

There are a lot of building codes out their, how would you like it if the contractor you hired to build your house didn't "know the codes" and after your house was built and payed for some housing inspector said you couldn't move in because of several "violations". No one would except that excuse in that situation nor would you use the same excuse for an inept attorney no matter which side of the isle your where on.

Does it happen, yes. Should it be excepted, no.

So you're disagreeing with what you think I said, not what I said. ALL I said was that it's not a police officers fault if they don't know every law by heart WITHOUT looking it up, because there are too many laws. I have zero sympathy for someone who's so incompetent that they don't know their knowledge gaps and how to overcome them (by looking things up, for example.)

[Originalist]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws.

This .....

ALL I said was that it's not a police officers fault if they don't know every law by heart WITHOUT looking it up, because there are too many laws. I have zero sympathy for someone who's so incompetent that they don't know their knowledge gaps and how to overcome them (by looking things up, for example.)

Is alot different then this......


With the second quote,

[Liko81]

"Your mother..." = provocation

"Give me your money!" = statement of intent

As far as a line, there really isn't one. "I'm going to kill you", believe it or not, has ambiguous meaning depending on the situation. Said by your wife after you publicly embarrass her, it's harmless. Said by a guy in an alley brandishing a knife and charging you, the statement is very clearly evidence of a clear and present danger.

The test used by the GJ and courts in such situations is the universal "reasonable man". When determining justification, they will consider whether anyone else, or equivalently the fictional "reasonable man", if placed in your position, would consider whatever was said to be evidence of an imminent attack. The very nature of this test means that what is dangerous and what is merely provocation is decided case-by-case.

[bryang]

Man...I love this forum!! you guys are great...sorry, I just had to say that.

-geo

[LarryH]

As far as a line, there really isn't one. "I'm going to kill you", believe it or not, has ambiguous meaning depending on the situation. Said by your wife after you publicly embarrass her, it's harmless. Said by a guy in an alley brandishing a knife and charging you, the statement is very clearly evidence of a clear and present danger.

The first is just verbal provocation, at worst. The second is "verbal provocation PLUS", a concept that Charles covered extensively in Friday night's seminar. A guy in an alley brandishing a knife and charging you is (IMHO) justification for deadly force whether he says anything or not.

[Morgan]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws.

This .....

ALL I said was that it's not a police officers fault if they don't know every law by heart WITHOUT looking it up, because there are too many laws. I have zero sympathy for someone who's so incompetent that they don't know their knowledge gaps and how to overcome them (by looking things up, for example.)

Is alot different then this......


With the second quote,

Only if you use one definition of the word "ignorant" and not another. "Lacking in knowledge of a particular fact." Simply stated, if you don't have full familiarity with any single particular law, you are ignorant of it.

Ignorance isn't a bad thing. We're ALL ignorant of TONS of stuff. What's bad is if we act as if we are informed when we're ignorant, or act like we're not ignorant, or choose to remain ignorant.