Almost had to draw on someone today.

[Kyle Brown]

§ 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

[Kyle Brown]

Kyle,

You would probably be justified in threatening deadly force to PREVENT a slap, but pulling a gun on someone because they slapped you (past tense) isn't warranted by anything I see in the law.

We're back to retaliation vs self-defense.

No, we are not. Let me try again, and please don't get impatient with me because I mean no harm. I just do not believe you understand what I am saying.

If a person is justified in the use of force, then the person is justified in the threat of deadly force by and through the production of a weapon per 9.04. I suppose if you do not agree with that, then I am beating a dead horse. IHMO, there is no other way to read 9.04.

Now, if a person slaps you, are you then justified in the use of force? I say probably, in most cases. However, I recognize there are some cases wherein there would not be the justification of the use of force after a slap.

It seem to me you are far more justified in the use of force AFTER the slap than BEFORE the slap. Does my point/position make any sense to you?

[JohnKSa]

Kyle,

I agree with your first premise. If you are justified in using force to prevent an attack then drawing is also justified.

Drawing after being slapped (in the absence of further provocation) isn't preventing anything and therefore the law offers no recourse in terms of using or threatening force or deadly force. I suppose you might try to argue that you're performing a citizen's arrest, but even in that case, pulling a gun isn't warranted in the absence of resistance. At this point (after the slap) it's going to take another attack by the slapper to warrant anything other than calling the cops.

If the guy slaps you and then tries to slap you again, THEN you're back to situation one and drawing is probably justified but perhaps unwise. It would be much better to withdraw, gather your witnesses and call the cops, IMO.

I think that we have some people who think that the law gives them the right to "prosecute on the spot" anyone who commits a legal offense against them. That is simply not true.

A person is given the legal right to take action to PREVENT attacks--nothing more. Once the attack is clearly over, it's in the hands of the cops & courts.

[Kyle Brown]

Kyle,

I agree with your first premise. If you are justified in using force to prevent an attack then drawing is also justified.

Drawing after being slapped (in the absence of further provocation) isn't preventing anything and therefore the law offers no recourse in terms of using or threatening force or deadly force. I suppose you might try to argue that you're performing a citizen's arrest, but even in that case, pulling a gun isn't warranted in the absence of resistance. At this point (after the slap) it's going to take another attack by the slapper to warrant anything other than calling the cops.

If the guy slaps you and then tries to slap you again, THEN you're back to situation one and drawing is probably justified but perhaps unwise. It would be much better to withdraw, gather your witnesses and call the cops, IMO.

I think that we have some people who think that the law gives them the right to "prosecute on the spot" anyone who commits a legal offense against them. That is simply not true.

A person is given the legal right to take action to PREVENT attacks--nothing more. Once the attack is clearly over, it's in the hands of the cops & courts.

John, I am NOT saying that a person is only justified in the threat of deadly force if such threat is used to PREVENT an attack. Sorry if I confused you.

I am saying a person is justified in the threat of force when the person is justified in the use of force. I never mention prevention.

Let's take another look at the statute:

§ 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.

In the very first sentence it states the threat of force is justified when the use of force is justified. Next, it states a threat to cause death or seriously bodily injury (deadly force) by the production of a weapon or otherwise does not constitute the use of deadly force as long as the actor's purpose is limited to creating an apprehnsion that he will use deadly force if necessary.

IMHO, it is clear...if a person is justified in the use of FORCE, then he is justified in the threat of force by the production of a weapon per 9.04.

Nowhere is there a reference to "prevention" or the necessity to "prevent" anything as justification.

[stevie_d_64]

Question...

Is the point of contention possibly in the terminology used so far???

"slap" vs. "strike with hand, either closed or open"???

Either way I have heard over the years that "simple" assault could be defined by the manner in which a hand is either open or closed to present either an insulting strike with an open handed slap to the facial area, or a closed "fist" to the same area, designed to inflict a more serious injurous attack???

Either way, thats an assault...To the degree in which it is delivered or percieved to be delivered may, or may not warrant a presentation or potential defensive use of force, or deadly force response...

Guys...

To me this is really a simple issue, I am not saying anyone is making this difficult or contentious...I think we all know, regardless of where you fall on this, that we know we are very capable of dealing with something like this very decisively...

Would we be in the right to shove a .45 up under someone's nose after they "slapped" us???

Or would it be better to turn around, and leave to difuse the situation, and do our part to disengage to prevent any further assault??? Now, of course if the slappee follows you, and continues the assault...Well, that may be a separate issue and discussion...That is certainly a risk you take by walking away...And you may have to take a few lumps before effectively getting away from that person(s)...

Either way...It is a difficult decision to make, and I know with high confidence that the good manners and genuine maturity of people I know of on this forum, that it would take a lot more than a slap to the face to warrant the use of force, or the threat to use, deadly force to stop an assault...

The thing that pops into my mind is the beginning of a question you have to ask yourself...But certainly not at the time of an incident:

"Would a reasonable person _______________..." (fill in the blank)

I believe, without a doubt that we are all reasonable people, that use good judgement, react properly and effectively to any incident...We are certainly not perfect, but you should strive to be so...And encourage others to do the same...

My intention is not to appear to get on anyones case exclusively, but to offer what I hope is understood to be an objective analysis...And not be critical of one or more persons opinion or thoughts...

Like I've always said...Better to work it out here, than try to figure it out when you don't have the leisure of time out in the world...

This place offers that opportunity...

[txinvestigator]

Not if you have a good lawyer...

Zha-Zha Gabor got off for slapping an LEO in the face...She took the ride, but she got off pretty light if I recall correctly...

She did not put a gun in the officers face Steve. Thats what I am talking about.

[txinvestigator]

There is no need for all of that. If you don't know the definition of deadly force, you should not be carrying.

So, i should just resolve myself to be slapped by some punk? I would hope my conflict resolution skills would be up to par.
Any suggestions toward resolutions are always appreciated.

I would never suggest that; however, if No Force and Deadly Force are the only types you have at your disoposal, I would suggest you need to explore more options. (I don't mean you as in just you, I am writing in general terms).

If I were to slap you and walk away, you could not justifiably even strike me back in return. However, you can use force, but not deadly force, to prevent the slap. ALso if the person were to slap you and not move away, I believe it would be reasonable to believe that another use of unlawful force were about to be attemted. ;)

That is why lesser means of force should be carried such as OC. For the record, I don't claim to be any though guy AT ALL, but I have studied 3 different martial arts. I would much rather use OC than go hands on with anybody.

[txinvestigator]

Your gun is there to defend your life, NOT your honor.

I think you have hit the nail on the head here.

[txinvestigator]

Shooting someone, or even drawing on someone in response to getting slapped is extremely likely to result in sucessful prosecution of the person with the gun.

There are two CHL cases that I am aware of where someone has shot someone in response to an unarmed assault.

In the one case I am more familiar with, the CHL holder's injuries included severe concussion and permanent hearing loss. Yet he was STILL criminally prosecuted and might have been convicted had he not hired a good lawyer. What eventually made up the juror's minds is not absolutely clear, but the fact that the defender was quite small and the attacker was quite large probably played an important part--autopsy photographs of the attacker showing his impressive size and musculature and a "Born to Kill" tattoo were probably the clincher.

In the second case, the CHL holder took what was described as a "severe beating".

BOTH cases definitely resulted in criminal prosecution in spite of the fact that CHL holder was severely injured.

There are certainly cases where drawing on, or possibly even shooting an unarmed person who is attacking you in public** makes good sense, but it is important to understand that if you shoot in such a situation, criminal prosecution is a certainty. If you have sustained no injuries, and there is no obvious disparity of force (multiple attackers to one defender, large, fit attacker vs small, disabled defender, large male vs small female) then the prosecution is going to be successful.

Remember that you and your lawyer will have to convince a jury that what you did was reasonable and immediately necessary to prevent serious injury or death. That is the ONLY legal justification for using deadly force.

IMO, getting slapped is not justification for drawing on a person, and it is certainly not justification for shooting. Here's my reasoning. If a person has the chance to hit you in the face and they choose to make that blow an open-handed slap rather than a punch, that would almost certainly be viewed by a reasonable person as evidence that severe injury was not the goal of the slapper. If you can't convince a jury that the person was intent on severe injury then you won't be able to convince them that it was legal for you to threaten or use deadly force.

At that point, the thing to do is to withdraw from the confrontation and call the police. With witnessess, you are going to be able to get a criminal and very likely a civil judgement against the slapper. If you choose to pull a gun, the tables are turned and now you're the one likely to be facing criminal charges and civil prosecution.

So, i should just resolve myself to be slapped by some punk?

Your gun is there to defend your life, NOT your honor. You have a legal right not to be slapped--if you are, you can have the slapper prosecuted. But since there is no threat of severe injury or death, that "right not to be slapped" doesn't extend to a justification for you to use or threaten deadly force.

** Note that shooting an unarmed attacker who has broken into your own home is a totally different situation in legal terms. Since this is primarily about CHL specific shootings, my comments relate to things happening in public vs shooting a home invader.

If you are justified in the use of force but not deadly force, then you are justified, per TPC 9.04, in the threat of deadly force (which is not the use of deadly force). If someone slaps you, in most cases, you would be justified in the use of force but not deadly force. Therefore, if you are justified in the use of force after the slap, then you are justified in the threat of deadly force per 9.04.

NO, NO, NO You all know I am a huge advocate of our justification under 9.04. However, 9.04 requires that your production of the weapon is limited to creating an apprehension that he will use deadly force if necessary.

Drawing on someone who only commits simple assault against you, IMO, would not give you justification under 9.04.

It is also foolish tactically. You can't shoot the person, and now you have presented a weapon you cannot use.

Bad JuJU all the way.

[ElGato]

I want to get back to basics here, I have never been slapped, but being a product of a time when young men fought just to see who could whup I certainly have been hit. If some one "strikes" me I will presume (I know the meaning of presume tho some DA's don't) that they intend to follow up that action and will react with whatever it takes to win or get control of the situation, (this includes running away tho not much of an option at my age and OC is still my first thought) I'm not going to stand there and see if this attacker want's to strike me again, immeditate reaction is required! One punch can finish a fight or severely hurt me, If the threat or use of my handgun is needed to win that's why I have it.
Action that might be reasonable and necessary for me might not be reasonable for a person that is 35 year's old, 6'4" and 240 lb's.

If you can slap me and walk away before I can react then I will press criminal charges and call Charles for the civil response.

[DMG]

Charles:

I am curious about your advice to roll down your window. Could that not be viewed as escalating the situation, or at least not trying to retreat if your car was otherwise blocked in?

I recently had the opportunity of watching someone try to break in the side window of a pickup truck involved in an accident, where the driver was not responsive. It took a lot of work with a brick, and still not broken entirely through!

If my vehicle is othewise blocked in, and someone pounds on the window with their fist, I do not think they will get through. With a baseball bat, probably, but seeing them approach would give me the opportunity to get on the other side of the car seat.

DMG

[TxFire]

Slightly off topic, but in response to above:
Blunt objects have difficult time in breaking the tempered safety glass of vehicle side windows. Baseball bats and police batons are poor chioces also, though they will eventually get it done. You need a sharp point to break the surface tension on the tempered glass for a quick and easy shattering. A spring loaded center punch will take out a window quite handily and it is alot of fun.

[Charles L. Cotton]

Charles:

I am curious about your advice to roll down your window. Could that not be viewed as escalating the situation, or at least not trying to retreat if your car was otherwise blocked in?

DMG

I agree that rolling down a car window could be considered a provocative action, so that's why I said it was not intended to be a response to Show Killer's scenario. The only point I want to make about car windows is not to plan on shooting through one, especially one on your side of the car.

I'm not going to roll down a car window and expose myself more directly to a potential attacker, unless I feel there is a reasonable chance that I'm going to have to use deadly force. If he has a baseball bat, then he's armed and I'll respond accordingly. That doesn't mean I'm definitely going to shoot, but you can bet the window is going down and I'll be ready of necessary. This presumes I can't simply drive away.

I appreciate TxFire's comments about blunt instruments on safety glass. However, I typically drive a Corvette and moving to the other side of the car isn't an option and I can't afford to give someone unlimited time to keep beating on the window until it finally shatters. Plus, I'm not going to turn my back on an attacker to move, or otherwise put myself in a position where I cannot shoot, in the event he reaches for a gun while I'm trying to climb over a console into the passenger's seat. In a larger vehicle, that may be an option.

Regards,
Chas.

[Paladin]

2. Use of OC spray in a confined area seems like a good way to get yourself gassed also. Is the use of OC spray considered assault in TX?

Some types of OC are better than others. Mine are 'stream' models that are better in the wind than the 'fog' ones.

Unprovoked use of OC could get you in trouble, but if somebody tries to assault you, within the limits of the law you do have the right to respond with a minimum amount of force.

[Paladin]

In relation to the discussion, this thread has some info:

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

...