Drawing weapon to scare threat away

[cubbyjg]

I would like to believe that drawing your weapon, when applicable, with the intent to scare the threat off would be justifiable and allowed. I mean, that is just another warning to the BG which is clearly saying, "BACK AWAY AND LEAVE ME ALONE!! I HAVE A WEAPON!". To me, that is just another way of avoiding having to use deadly force all together. Yet another reason why i would consider going to law school; to get a better grasp of TX law! I am glad to see that i am not the only one confused.

[cubbyjg]

I just sent this to my state Senator and Representative. I would urge others to do the same.

Senator Carona, I would like to ask you to introduce an amendment to Texas Penal Code §46.05 Section h. The law presently reads, "It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9."

Baldeagle, shouldn't it be 46.035?

[baldeagle]

I just sent this to my state Senator and Representative. I would urge others to do the same.

Senator Carona, I would like to ask you to introduce an amendment to Texas Penal Code §46.05 Section h. The law presently reads, "It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9."

Baldeagle, shouldn't it be 46.035?

Yes, darn it. Guess I need to resend.

[Oldgringo]

IANAL either and won't attempt to interpret the statutes or anticipate a court's ruling. I suggest that no weapon be displayed until the situation demands it AND you are prepared to use it.

[joe817]

IANAL either and won't attempt to interpret the statutes or anticipate a court's ruling. I suggest that no weapon be displayed until the situation demands it AND you are prepared to use it.

Yup, yup.

[Charles L. Cotton]

Hang on folks, please don't start flooding Senators and Representatives with emails and letters on this or any other issue yet. It won't help at this point. Baldeagle's letting Senator Carona know is fine, but timing is everything in politics and I can assure you that the "call to action" will go out when it will do the most good.

Chas.

[drjoker]

Dude, carry pepper spray, it costs $5 or less and will save you from the legal headaches and costs of shooting an unarmed man. If the other guy is unarmed and you draw a gun. If he lunges for your gun and you shoot him, no matter how justified, you're going to be spending 6 figures on a defense attorney and get arrested. Not good.

I remember seeing some other dude on the open carry forum, Hank T's postulate goes something like this, "It is always bad form to shoot an unarmed man."

[The Annoyed Man]

Dude, carry pepper spray, it costs $5 or less and will save you from the legal headaches and costs of shooting an unarmed man. If the other guy is unarmed and you draw a gun. If he lunges for your gun and you shoot him, no matter how justified, you're going to be spending 6 figures on a defense attorney and get arrested. Not good.

I remember seeing some other dude on the open carry forum, Hank T's postulate goes something like this, "It is always bad form to shoot an unarmed man."

I have seen the effects of PCP up close and personal on a number of occasions. If the other guy is unarmed and he is "dusted," your pepper spray is going to be no more a deterrent than a shpritz of Old Spice aftershave. And if he gets his hands on you, he's going to tie your gun's barrel in a knot and stuff it where the sun don't shine - after he gets done caving you skull in with it.

Nope. Not for me. He lunges at me, he gets shot. A lot. End of story. I'll take my chances with law enforcement and the justice system.

[Saintkingdom]

My instructor repeated through out the class "gun comes out, gun goes bang", clearly a good theory but back to scaring off an attacker. If he is unarmed and we fight to the death, at what point do I draw to save myself? when I have lost depth perception? when I can barely lift my arm? I do not want to fight, if I draw and he clearly sees the gun but decides to continue I will give him reason to stop! how is this connected to "stand your ground law"? Shouldn't a person have the duty to cease actions when presented a firearm?

"well your honor, I clearly stated that I meant business and he clearly stated he had no value for his own life."

[The Annoyed Man]

Is the threat of beating someone is an assault? justifying producing a deadly weapon as a threat to terminate the threat of physical assault? Not sure in this scenario we CHLer can prematurely draw. Now if the assailant proceed to throw punch whether landed or otherwise, it is another story. Talking tough is just that talking tough and kind of verbal intimidation.

That's a good question. gigag04 told me in another thread a couple of months ago that producing your weapon in anticipation of needing it might be prosecutable as an "aggravated assault."

Here was the scenario in that thread, best as I can remember them: OP said he and girlfriend were departing theater/event/bar late at night in downtown Dallas. While they were in the parking lot walking toward their car, 2 males appear from shadows of adjacent building and start to walk rapidly toward OP and GF. As they draw closer, OP verbally challenges 2 males, who both fail to acknowledge or respond to challenge and continue to advance rapidly toward OP and GF. OP draws weapon (a Keltec or LCP if I recall) with a laser light mounted on it and plays beam across the chests of both advancing males. They both stop, turn around, and discover pressing business elsewhere. Neither of the two men ever responded verbally or acknowledged in any way the OP's verbal challenges. They just kept walking forward toward OP & GF at rapid walk. When confronted with laser beam, both turned and walked rapidly away. OP & GF jump in car and make rapid getaway, leaving cloud of burned rubber and acrid scent in the air. Calm returns.

OP's question in the above event was whether or not he was legally justified in drawing his weapon. He said it all happened very quickly, and he was extremely frightened at the time, and drawing his weapon seemed to be the appropriate response. His question was directed at the LEOs on the forum, and was to the effect of, "if you responded to my 911 call and I told you what I had done, would you arrest me or let me go?"

gigag04, who is a LEO, responded that, since both males never said a word, never spoke any threats, never produced a weapon, and never acted aggressively except in walking toward OP & GF at a rapid and purposeful pace, that OP's actions rose to the level of aggravated assault against the 2 males. Consensus reached in the thread was that whether or not OP would be arrested depended on whether he or the 2 males called 911 first. gigag04 pointed out, quite rightly, that for all the OP knew, the 2 males were just as afraid of the dark as OP, and were trying to get to their own car as quickly as possible. IIRC, OP & GF were not of the same race as the 2 males, and some of OP's fear may have been based on that factor.

If anyone else remembers that thread and can add to or correct what I've written here, I would appreciate it.

My own response to the above scenario, and to the original question in this thread is that the legality of one's response in drawing your weapon prophylactically might be reasonably tied to your own physical condition. I, as are several other members here, am not in the best physical condition and I am hobbled by various medical conditions which reduce the responses available to me. I cannot run to save my life. If walking away is not an option available to me, then the other person's threat toward me rises exponentially. I refuse to allow someone to administer a beating to me because my inability to respond in kind places my life at risk. A fist can kill, and it has happened. Since I cannot respond in kind, a threat to beat me is a threat to take my life. The fact that I have fewer options available to me escalates the situation quite rapidly. I do not believe that my gun is some kind of magical talisman, and I do believe that drawing it or using it is a last resort. But my point is that, for me, "last resort" approaches more quickly because of having fewer other options available to me.

In yet another thread a while back, the OP asked, do we have any kind of responsibility to permit physical contact or even go to ground with the opponent before drawing and firing the weapon. My response to that was absolutely not. I cannot afford your contact. If you get physical with me, that is a real-world threat to my life, and I will draw and shoot. I recall that Crossfire quoted my words at the time and answer in wry humor, "In other words, never pick a fight with an old man. If he's too tired, he'll just have to kill you." I still chuckle at that, but that does essentially cover how I feel about it.

The sections of the law about use of force and deadly force justifications include words like "actor reasonably believes...." I don't by any means believe that this will help me to beat the ride, but it might well beat the rap, and given physical disparities, I'll just have to trust in the justice system, and hope that the court takes into account my age and condition versus the other guy's in rendering a decision as to whether or not my producing a firearm rose to the level of an appropriate response to the threat. And, what we need to remember is that LEOs see a lot of different kinds of human behavior, and they are often very good impartial judges of what they observe. Consequently, there may not be any ride at all to beat if he/she is convinced that your response was the appropriate one.

[Dragonfighter]

Dude, carry pepper spray, it costs $5 or less and will save you from the legal headaches and costs of shooting an unarmed man. If the other guy is unarmed and you draw a gun. If he lunges for your gun and you shoot him, no matter how justified, you're going to be spending 6 figures on a defense attorney and get arrested. Not good.

I remember seeing some other dude on the open carry forum, Hank T's postulate goes something like this, "It is always bad form to shoot an unarmed man."

I have seen the effects of PCP up close and personal on a number of occasions. If the other guy is unarmed and he is "dusted," your pepper spray is going to be no more a deterrent than a shpritz of Old Spice aftershave. And if he gets his hands on you, he's going to tie your gun's barrel in a knot and stuff it where the sun don't shine - after he gets done caving you skull in with it.

Nope. Not for me. He lunges at me, he gets shot. A lot. End of story. I'll take my chances with law enforcement and the justice system.

I pulled up on a cop who was quickly losing the fight and had gone to retention mode whilst a PCP'd 6'6" gorilla (I am not exaggerating) was trying to tear him apart. I had to climb on (literally) and wrap my arms around a tree trunk that passed for a neck and threw my weight into the choke hold. After a few seconds he stands bolt upright and back we go. It hurt. The cop is standing there thanking me and all I could get out with the wind knocked out of me was, "Get him off!"

My partner had called in an assist officer which this cop hadn't had the chance to do and ran over with the flex cuffs and we proceeded to truss him up as backup was arriving. He was so big we had to call for an EMS SDO to take our stretcher to the hospital as we had to pull it out to get this tank in the back.

It's just one of many misadventures but it is enough to remind me that I agree with TAM, absolutely, completely, 100% and with out caveat.

[Dragonfighter]

Is the threat of beating someone is an assault? justifying producing a deadly weapon as a threat to terminate the threat of physical assault? Not sure in this scenario we CHLer can prematurely draw. Now if the assailant proceed to throw punch whether landed or otherwise, it is another story. Talking tough is just that talking tough and kind of verbal intimidation.

That's a good question. gigag04 told me in another thread a couple of months ago that producing your weapon in anticipation of needing it might be prosecutable as an "aggravated assault."

<SNIP>

That was quite the lively thread. One thing he taught me after much explaining, re-explaining and then explaining some more was the crime (aggravated assault) occurs. It is just in this case a legal justification in the law may nullify the crime, but it still occurred.

[bigred90gt]

Here's a scenario. A guy twice your size threatens to beat your ass to a pulp. He makes two fists, and he starts walking toward you. You would be justified in drawing your weapon and shouting, "Do not come any closer or I will shoot!" If he stops, your actions were justified. If he keeps coming, you are justified in shooting.

Is the threat of beating someone is an assault? justifying producing a deadly weapon as a threat to terminate the threat of physical assault? Not sure in this scenario we CHLer can prematurely draw. Now if the assailant proceed to throw punch whether landed or otherwise, it is another story. Talking tough is just that talking tough and kind of verbal intimidation.

Moreover, even if you are subjected to a punch, under the TX law, you are not automatically allowed to shoot and kill the assailant. I want to be proven wrong, but simple physical assault is not listed a defense to the use of deadly force

What we were told in the class was exactly as BaldEagle put it in the quote above. A threat from across the room is nothing more than a verbal threat, and nothing can legally be done. Once he clinches his fist and begins moving toward you in an aggressive manner, all bets are off. At that point, you would be justified in "being in fear for your life". The threat of force is justifiable. If you have enough time to draw and verbally command him to stop, that's great. if he does stop, that is even better. If not, than in fear for your life, the use of force would be justified to stop the threat. just because he has no weapon in his hand means nothing. As has been mentioned, a punch can be lethal. it never quite goes down like it does on TV. A man of reasonable strength punches you, there is a great chance you will go down. Who is to say he would stop there? Say he hits you, and you hit the deck, and in the process you fracture your skull, now what? These are chances I am not willing to take, regardless of the fact that I am 29 years old, in relatively good shape, and 6'2" 275lbs. ever hear the phrase "it aint the size of the dog in the fight, but the size of the fight in the dog"? There's a lot of fight in this dog, but never underestimate the effects of hard drugs (cocaine, crack, meth, PCP, LSD, etc).

Sec. 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

Sec. 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:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Sec. 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.
(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the deadly force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit an offense described by Subsection (a)(2)(B);
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

IANAL, but it seems pretty clear to me.

[Beiruty]

Is punching someone considered legally an assault with deadly force? was anyone charged as such ?
The reason is that in those cases when an unarmed assailant is shot by CHLer only a jury will decide if the actor is justified or not.

[Carry-a-Kimber]

Is the threat of beating someone is an assault? justifying producing a deadly weapon as a threat to terminate the threat of physical assault? Not sure in this scenario we CHLer can prematurely draw. Now if the assailant proceed to throw punch whether landed or otherwise, it is another story. Talking tough is just that talking tough and kind of verbal intimidation.

That's a good question. gigag04 told me in another thread a couple of months ago that producing your weapon in anticipation of needing it might be prosecutable as an "aggravated assault."

Here was the scenario in that thread, best as I can remember them: OP said he and girlfriend were departing theater/event/bar late at night in downtown Dallas. While they were in the parking lot walking toward their car, 2 males appear from shadows of adjacent building and start to walk rapidly toward OP and GF. As they draw closer, OP verbally challenges 2 males, who both fail to acknowledge or respond to challenge and continue to advance rapidly toward OP and GF. OP draws weapon (a Keltec or LCP if I recall) with a laser light mounted on it and plays beam across the chests of both advancing males. They both stop, turn around, and discover pressing business elsewhere. Neither of the two men ever responded verbally or acknowledged in any way the OP's verbal challenges. They just kept walking forward toward OP & GF at rapid walk. When confronted with laser beam, both turned and walked rapidly away. OP & GF jump in car and make rapid getaway, leaving cloud of burned rubber and acrid scent in the air. Calm returns.

OP's question in the above event was whether or not he was legally justified in drawing his weapon. He said it all happened very quickly, and he was extremely frightened at the time, and drawing his weapon seemed to be the appropriate response. His question was directed at the LEOs on the forum, and was to the effect of, "if you responded to my 911 call and I told you what I had done, would you arrest me or let me go?"

gigag04, who is a LEO, responded that, since both males never said a word, never spoke any threats, never produced a weapon, and never acted aggressively except in walking toward OP & GF at a rapid and purposeful pace, that OP's actions rose to the level of aggravated assault against the 2 males. Consensus reached in the thread was that whether or not OP would be arrested depended on whether he or the 2 males called 911 first. gigag04 pointed out, quite rightly, that for all the OP knew, the 2 males were just as afraid of the dark as OP, and were trying to get to their own car as quickly as possible. IIRC, OP & GF were not of the same race as the 2 males, and some of OP's fear may have been based on that factor.

If anyone else remembers that thread and can add to or correct what I've written here, I would appreciate it.

My own response to the above scenario, and to the original question in this thread is that the legality of one's response in drawing your weapon prophylactically might be reasonably tied to your own physical condition. I, as are several other members here, am not in the best physical condition and I am hobbled by various medical conditions which reduce the responses available to me. I cannot run to save my life. If walking away is not an option available to me, then the other person's threat toward me rises exponentially. I refuse to allow someone to administer a beating to me because my inability to respond in kind places my life at risk. A fist can kill, and it has happened. Since I cannot respond in kind, a threat to beat me is a threat to take my life. The fact that I have fewer options available to me escalates the situation quite rapidly. I do not believe that my gun is some kind of magical talisman, and I do believe that drawing it or using it is a last resort. But my point is that, for me, "last resort" approaches more quickly because of having fewer other options available to me.

In yet another thread a while back, the OP asked, do we have any kind of responsibility to permit physical contact or even go to ground with the opponent before drawing and firing the weapon. My response to that was absolutely not. I cannot afford your contact. If you get physical with me, that is a real-world threat to my life, and I will draw and shoot. I recall that Crossfire quoted my words at the time and answer in wry humor, "In other words, never pick a fight with an old man. If he's too tired, he'll just have to kill you." I still chuckle at that, but that does essentially cover how I feel about it.

The sections of the law about use of force and deadly force justifications include words like "actor reasonably believes...." I don't by any means believe that this will help me to beat the ride, but it might well beat the rap, and given physical disparities, I'll just have to trust in the justice system, and hope that the court takes into account my age and condition versus the other guy's in rendering a decision as to whether or not my producing a firearm rose to the level of an appropriate response to the threat. And, what we need to remember is that LEOs see a lot of different kinds of human behavior, and they are often very good impartial judges of what they observe. Consequently, there may not be any ride at all to beat if he/she is convinced that your response was the appropriate one.

Here's that thread.
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