What is your Limit?

[chasfm11]

In my younger days, I played in a rock band in Harrisburg, PA. A lot of the bars that we played in were pretty seedy and there was an average of 2-3 fights (usually outside) per night. I noticed in the links provided in previous post showed several in bars. Several times, members of our band were called out or fights were aimed us when we were doing nothing but playing. Of the fights that I saw, many started when an uninvolved party attempted to verbally respond to a belligerent drunk.

My personal fight avoidance procedure is to stay away from places where alcohol use is poorly supervised and to never make eye contact with someone who has obviously had too much to drink.

I haven't figured out how to avoid the road rage types yet. They appear to be much more explosive than the drunks. I will admit that I'm personally a much less aggressive driver than I used to be. I have no desire to mess up my day with someone who has a boat load of personal issues and wants to use their car like a weapon.

[TexasTom]

This really interests me. So, let's say I order a person to stop beating an elderly man and not come any closer, and they charge me in an aggressive manner. Do I have the right to draw my weapon? And if they continue the advance?

I was under the impression that I could use the threat of force, but not actually use deadly force unless the threat was commensurate to my defense. (i.e. life threatening)

In this scenario I would think you have to take a beating or give one. (I'm 28, 6'1" ,210 lbs, athletic and fist/grapple ready)

Is this just opinionated or is there some clarifying language?

I'd appreciate some of the more experienced members offering some advice here.

[jamisjockey]

This really interests me. So, let's say I order a person to stop beating an elderly man and not come any closer, and they charge me in an aggressive manner. Do I have the right to draw my weapon? And if they continue the advance?

I was under the impression that I could use the threat of force, but not actually use deadly force unless the threat was commensurate to my defense. (i.e. life threatening)

In this scenario I would think you have to take a beating or give one. (I'm 28, 6'1" ,210 lbs, athletic and fist/grapple ready)

Is this just opinionated or is there some clarifying language?

I'd appreciate some of the more experienced members offering some advice here.

The threat of force can only be as much as the level of force that is justified.

If you have reason to believe that someone intends to harm you but deadly force is not justified, you cannot threaten deadly force. For instance, if you're going to be in a "fair" fight, and you tell them to back off or you'll shoot them, you're in the wrong. But if you tell them to back off or you'll punch them, its justified.

Now, IMHO, there is rarely any such thing as a "fair" fight. Pockets conceal weapons. If I'm taken out of a fight, my weapon can then be used against me. Larger faster younger meaner attackers can kill with their hands.

[sjfcontrol]

The threat of force can only be as much as the level of force that is justified.

If you have reason to believe that someone intends to harm you but deadly force is not justified, you cannot threaten deadly force.

PC 9.04 states that the threat of deadly force (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.

That sounds to me like it IS allowed to threaten deadly force when the use of force is justified.

[TexasTom]

The threat of force can only be as much as the level of force that is justified.

If you have reason to believe that someone intends to harm you but deadly force is not justified, you cannot threaten deadly force.

PC 9.04 states that the threat of deadly force (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.

That sounds to me like it IS allowed to threaten deadly force when the use of force is justified.

This is what my instructor stated.

[jamisjockey]

INAL, but thats not how I read it

PC §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


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.

Now, its a matter of making a case for what level of force was reasonable in your response.

Now, I could be wrong. Wouldn't be the first time. That's how I read the statutes and interpreted some of the information I was taught in my class.

[sjfcontrol]

INAL, but thats not how I read it

PC §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


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.

Now, its a matter of making a case for what level of force was reasonable in your response.

Now, I could be wrong. Wouldn't be the first time. That's how I read the statutes and interpreted some of the information I was taught in my class.

I'm afraid I don't follow what you are trying to say. 9.04 pretty clearly states that the threat of deadly force is NOT deadly force (with the appropriate provisions). Therefore it would be "legal force", and appropriate in a situation where (that level of?) legal force was justified.

You stated,

If you have reason to believe that someone intends to harm you but deadly force is not justified, you cannot threaten deadly force.

I took exception to that statement based on 9.04

[Hoosier Daddy]

This really interests me. So, let's say I order a person to stop beating an elderly man and not come any closer, and they charge me in an aggressive manner. Do I have the right to draw my weapon? And if they continue the advance?

It depends why the person was beating an elderly man. If the elderly man is resisting being arrested by an undercover cop, you just stepped in it.

[jamisjockey]

I respectfully disagree; that's not how I read it

...when and to the degree...

I read that to mean that your response has to be an appropriate degree. Threatening deadly force is a pretty serious act.

I'd love to hear from on eof the legal eagles on this one.

[Beiruty]

Simply,
1) if someone physically attacked you (fist fight), fighting back and drawing a weapon to stop the attack is justified. pre-maturely shooting the attacker could be dicey.
2) of course, if the would be attacker diplayed a deadly weapon, or bets are off. Shoot to stop the threat.

I guess all those scenarios should be taught at the CHL class. I mean all possible cases.

[sjfcontrol]

I respectfully disagree; that's not how I read it

...when and to the degree...

I read that to mean that your response has to be an appropriate degree. Threatening deadly force is a pretty serious act.

I'd love to hear from on eof the legal eagles on this one.

Threatening deadly force may be serious, but then so is threatening a fist fight. Neither constitutes the use of deadly force. Now if it's a 100 lb 5-ft woman bare-handldly threatening a 250 lb 6'5" buffed-out guy, it would probably be difficult to justify his pulling a firearm. But short of a "wrong-way" disparity of force issue, it would seem a reasonable response to me. I believe that was the whole point of PC9.04 specifying that the threat of the use of deadly force does not constitute the use of deadly force.

[jamisjockey]

I knew something didn't sit well with me. Making an argument in another thread made this one click for me.


Threatening to use deadly force in response to force is not deadly force, and is allowed under PC9.04 as long as you're justified to use force as a response. Yelling "get back or I'll shoot!" Is one thing. Actually drawing or otherwise unconcealing a weapon is another.

46.035

(a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.
<snip>
(h) 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.

I don't think we were on the same wavelength.

In my brain I was following the mindset of drawing or unconcealing the weapon as a threat. By PC 46.035 (a), that is not allowed unless deadly force is authorized.

So, sjfcontrol, you are right....with a caveat.

[jamisjockey]

Simply,
1) if someone physically attacked you (fist fight), fighting back and drawing a weapon to stop the attack is justified. pre-maturely shooting the attacker could be dicey.2) of course, if the would be attacker diplayed a deadly weapon, or bets are off. Shoot to stop the threat.

I guess all those scenarios should be taught at the CHL class. I mean all possible cases.

No. Read the post I just put up before this one.

[sjfcontrol]

I knew something didn't sit well with me. Making an argument in another thread made this one click for me.


Threatening to use deadly force in response to force is not deadly force, and is allowed under PC9.04 as long as you're justified to use force as a response. Yelling "get back or I'll shoot!" Is one thing. Actually drawing or otherwise unconcealing a weapon is another.

46.035

(a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.
<snip>
(h) 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.

I don't think we were on the same wavelength.

In my brain I was following the mindset of drawing or unconcealing the weapon as a threat. By PC 46.035 (a), that is not allowed unless deadly force is authorized.

So, sjfcontrol, you are right....with a caveat.

Had me for a minute... BUT!

PC9.04 specifically states, "... a threat to cause death or serious bodily injury by the production of a weapon or otherwise ... does not constitute the use of deadly force."

So the "threat" does not have to be oral only. It CAN involve the "production" of a weapon. The only caveat is that your purpose for producing the weapon must be to produce an apprehension that deadly force will be used if necessary.

(And, yeah, yeah -- IANAL)

[jamisjockey]

You're right, I totally missed that.
But....
Rock, meet hard place. Hard place, meet rock.

46.035 (h) 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.

So, it would seem then that if you're carrying under the authority of your CHL, you do not have a defense to display your weapon unless the use of deadly force is authorized.

Splitting hairs, I know. I think your argument is stronger, and it would take a vindictive DA to not prosocute under TPC 9 and yet pursue suspension or revocation of your license under 46.035.
I think we're both right, but you're more right. Inconsistency in the law, as far as I can tell. INAL and all that.