srothstein wrote:I wanted to point out the first and mos timportant thing was said in your first post. It was handled correctly and a win since everyone of the good guys (and even the bad guy) went home with no problems.
I also want to second everything Excaliber said. He beat me to most of it and added points I would not have (I usually don't remember to add the warning of the distraction though it is an important point).
I would probably have drawn my weapon after the first time I yelled stop and he kept coming. And, since I do not bluff with weapons, I would probably have fired the pistol after he refused to stop when I pointed the gun at him. Just my way, and I truly am not sure if it is legal in this case. As was pointed out, there is nothing in Chapter 9 that justifies the use of force against someone asking for a ride home. I would have pointed out that my fear was that he was attempting to commit a crime by his persistence and refusal to move away, but the law really does require the commission or attempt at the crime and not the fear of it. I think most cops, D.A.'s, and Texas juries would agree with me, but I have to recognize the wording of the law.
And, as an observation on CHL's in general, we really do need to practice calling 911 more often. When we get into a situation, our mind shuts down and we react. If we are confident and experienced in handling problems,w e do so. If we are with someone we trust to handle problems, we wait while they do (which is why the women did not call, but helped free his hands so he could handle the situation). But those of us who handle problems for a living are trained to call for help. Sometimes the training does not take, but we really do emphasize it in training. CHL's need to practice that also and have the person with them calling 911 while the incident is being handled. Probably the best example of this in practice is the current CPR training (we have all had it, right?). When you verify the emergency, the first thing you do is point to a specific person and tell them to call 911. In practice, we get confident and know we know what to do and they ofund people not calling 911. So, they have added it as the first step in rescuing people for that reason. We need to practice the same thing as a CHL.
I can't support those who have strongly criticized Kythas, and respectfully suggest that they take a more charitable approach.
This is one of the most difficult tactical situations I have seen on this Forum, and, in agreement with Steve, 03Lightningrocks, and others, I can't say enough good things about how Kythas handled it to achieve the best possible result.
After thinking about this a lot, I agree with Steve that justification for the use of deadly force was present, and I would reason it this way:
The subject's continuous stalking and aggressive advances despite clear and repeated verbal warnings were inconsistent with a peaceful request for a ride. However, they were demonstrably consistent with the actions of a person intent on committing robbery and using a verbal distraction to create a diversion to confuse the intended victim and cover the final approach to contact distance. The law does not require us to take a bandit's word for what he's doing. It provides for us to make the judgments a reasonable person would make.
On this basis, I believe the situation would have justified the use of the degree of force necessary to deal with the situation under PC 9.31(1)(C):
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 the actor reasonably believes the force is immediately necessary
to protect the actor against the other's use or attempted use of
unlawful force. The actor's belief that the force was immediately
necessary as described by this subsection is presumed to be reasonable
if the actor:
(1) knew or had reason to believe that the person against whom
the force was used:
(C) was committing or attempting to commit aggravated kidnapping,
murder, sexual assault, aggravated sexual assault, robbery,
or aggravated robbery;
Kythas further stated that he himself was recovering from a knee injury and surgery which caused him to limp visibly and which would certainly impair his ability to successfully defend himself from even a body force robbery without serious injury or worse. Although the subject's appearance is not described in detail, he was a mid twenties male. Even without considering whether the subject might have been armed or not, I believe one could make a good case that a disparity of force existed, and that once the subject came closer than 10 feet from which point he could be in contact with the intended victim in 1 second, deadly force would have been Kythas' only viable option for protecting himself from serious physical injury or death. If the subject got any closer, he could reach Kythas before Kythas could successfully draw and fire, and even if he could do so, it might well not prevent the subject from reaching him and harming him anyway unless the shot(s) was in a critical central nervous system or skeletal support structure. I think I could also make a reasonable case for justifying the use of deadly force even earlier, but the closer the subject got, the clearer the justification.
While the rest of us have all Monday morning to suggest some refinements around the edges, the fact is that Kythas successfully kept the subject from harming himself or those he was with, everyone went home without battle damage, and he is not in jail, out on bail, or having to thread his way through satellite news trucks to get into his driveway. Not only did he do the right things, but he was able to think of them and execute them under the stress of a real life encounter and in the very short time period available to him. Even those of us with extensive law enforcement backgrounds had to think long and hard about this one, and I have met very few people without lots of prior experience in dealing with street bandits who could have done nearly as well.
More good advice.
That is disturbing.
