Attempted Carjacking ...

[Liko81]

drawing your weapon is typically the same as the use of deadly force. if you are justified to use deadly force, you are justified to use deadly force. if you are justified to draw, you are justified to fire. I don't think there is a distinction. perhaps a lawyer will chime in.

TPC § 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.

If you draw with the intention of shooting, that is the use of force. It is not deadly force until you pull the trigger. IANAL but this seems pretty cut and dried.

[WarHawk-AVG]

He who draws 1st opened the dialog for the return of deadly force

[BigBlueDodge]

drawing your weapon is typically the same as the use of deadly force. if you are justified to use deadly force, you are justified to use deadly force. if you are justified to draw, you are justified to fire. I don't think there is a distinction. perhaps a lawyer will chime in.

TPC § 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.

If you draw with the intention of shooting, that is the use of force. It is not deadly force until you pull the trigger. IANAL but this seems pretty cut and dried.

Hmm. it's seemed like we were moving to a consensus that deadly force would be justified, and then Liko throws us a bone :) Given what I've read of Liko's posts, I respect his opinion with regard to the law. Let me ask you this. PC 9.04 says that "as long as the actor's purpos is limited to creating an apprehension that he will use deadly force", then that does not constitue deadly force. If I translate that into layman's terms, if all he is trying to do is to make you think wil use deadly force, but does not intend to, then that does not constitue use of deadly force on my part. The question I have is how does a jury determine if he was faking it and never intended to use deadly force, versus determining that he did intend on using deadly force?

[mr.72]

thanks for the clarification Liko.

Seems like splitting hairs to me... my CHL instructor did not describe it this way.

[DoubleJ]

not necessarily splitting hairs. there are a few instances where you cannot use deadly force, but using the threat of deadly force can stop the illegal action and therefore can be the best solution.

[mr.72]

ISTR our CHL instructor told us is that the justification for the use of deadly force is the same as the justification for the threat of deadly force, and therefore there is no point in drawing a gun unless you are prepared to shoot.

However, obviously this is at least not completely true and may be completely untrue. I will watch this thread for further discussion :)

[DoubleJ]

Well, to be honest, my CHL instructors said the same thing, and to further be honest, that is a good rule of thumb.
however, it's not necesarily always the case, and I wish I could quote you some good instances, but at the moment, I can not.
maybe you can search that topic and find something useful, I'll try to do some hunting, and see what I can come up with.

[DoubleJ]

This Thread had some good info in it.

§ 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.

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) 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.

[KD5NRH]

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) 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.

See my previous post; though one could argue that the force was necessary to prevent unlawful interference with property, the BG was already committing robbery, (threatening force in an attempt to gain control of the property) so 9.31 provides a clearer justification.

[HerbM]

ISTR our CHL instructor told us is that the justification for the use of deadly force is the same as the justification for the threat of deadly force, and therefore there is no point in drawing a gun unless you are prepared to shoot.

However, obviously this is at least not completely true and may be completely untrue. I will watch this thread for further discussion :)

So did my instructor (say this) and I wrote it down word for word, just in case.

We don't have to act on it, but that is what was taught. Also, like most good instructors, the instructor offered to testify if any of his students ever were charged for using a firearm in such cases.

My previous, CHL instructor (not the one who directly said the above) also made this offer, and had done so before. Turns out he was the instructor for the CHL holder in the infamous Austin incident where the truck was being burglarized, the CHL holder was threatened with later reprisal, and while talking to 911 to direct police to the location he trailed the criminal until the criminal threatened to shoot him and made a motion as if to draw.

He did in fact testify and the CHL holder was found not guilty. This was another one where the press screamed "shot in the back" but the criminals have a strong tendency to TURN AROUND when they realize (to late) that you are ready to fire. Never should have gone to trial but you know Austin.

[mr.72]

§ 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter.

OK, see here this is where it is really strange.

It says very clearly, the threat of force is justified when the use of force is justified.

So the question is, when is the threat of force justified when the use of force is NOT justified.

It would seem, just from reading this sub-section, that the threat of force is justified by the same circumstances which would justify the use of force, which is kind of what our CHL instructors have been telling us: the justification for drawing is the same as the justification for firing.

[DoubleJ]

now don't confuse Force with Deadly Force.

world of difference between the two.

[mr.72]

right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

[boomerang]

right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

Yes. See 9.04, 9.31 and 9.32.

[mr.72]

right, so is there a difference between the justification for the threat of deadly force, and deadly force itself?

Yes. See 9.04, 9.31 and 9.32.

9.04:

§ 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.[/b[

This section deals with the use of force in general, and only mentions "deadly force" in this definition whose intent is not clear.

It seems clear that they are saying there is a difference between the "use of deadly force", and "a threat to cause death...", but then does not go on to identify what exactly justifies the "threat to cause death...". There are numerous citations o the "threat of force" being justified equally to "force", but none which identify this amorphous "threat to cause death", which is not necessarily clearly defined as a "threat of force" but logically may be the "threat of deadly force", which again is not made distinct in terms of justification.

9.31:

§ 9.31. SELF-DEFENSE. (a) Except as provided in
Subsection (b), a person is justified in using force ...
(d) The use of deadly force is not justified under this
subchapter except as provided in Sections 9.32, 9.33, and 9.34.

9.31 explicitly does not cover "deadly" force. 9.32 on the other hand, deals specifically with deadly force and says [among other things] the following:

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person
is justified in using deadly force against another:
(1) if the actor would be justified in using force
against the other under Section 9.31; and
(2) when and to the degree the actor reasonably
believes the deadly force is immediately necessary:
(A) to protect the actor 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.
...

Added together, this all seems to indicate that:

- the use of force, and the threat of force, carry the same justification
- the use of deadly force is justified given the use of force is justified, and when the other circumstances in 9.32 are met (prevent commission of those listed crimes, etc.)
- so it only makes sense, since 9.32 references the justification for the use of deadly force being predicated upon that for the use of force, that the use of deadly force and the threat of deadly force also must carry the equivalent justification.
- so it seems that the threat of deadly force is the same (in terms of whether you are justified to do so) as the use of deadly force.

Nowhere can I find any mention that offers a distinction between the justification for the threat of deadly force and the justification for the use of deadly force.

I think the 9.04 part that says "the threat... does not constitute the use of deadly force" is just saying that if you threaten deadly force but only in order to "create apprehension", then in you cannot have been judged to have used deadly force. However there seems to be little point in this distinction in terms of justification. Perhaps in terms of prosecution there is a difference. This is why we have lawyers :)

Regarding the cases upon which the use of deadly force is not justified, but the use of force is justified, it is defined as the difference between 9.31 (force) and 9.32 (deadly force), and additionally 9.34:

§ 9.34. PROTECTION OF LIFE OR HEALTH. (a) 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.

So you can't kill someone in order to prevent them from committing suicide.

So as I see it, maybe our CHL instructors are vindicated. I would be very interested to see any citation that can define the difference in justification for the threat of deadly force vs. the use of deadly force. So I think it applies that if you are justified in drawing your weapon, you are justified to fire it. However if you don't have to fire because the BG turned and ran, then you will not likely face prosecution as if you had used deadly force.

So in this carjacking scenario, if the BG was shot and then fled, then the police would have come, taken your gun into evidence, and you would be investigated and eventually no-billed by a grand jury etc. But since you didn't shoot the BG, then they take your statement and that's it. That's where I see the distinction between the "threat..." and the "use of deadly force".

Please, correct me if I am wrong. I have not made a lifetime hobby of parsing the penal code. I am an engineer, not a lawyer.

I have a friend who is a judge. Maybe I will ask him for some clarification if I see him tonight at church.