Brother needs advice about near altercation...

[C-dub]

So, according to Charles:

Unfortunately, I think the McDermott Court completely missed the issue. It focused solely on TPC §46.035(h) and held that the only time a CHL could intentionally fail to conceal is when they would be justified in actually using (as opposed to threatening) deadly force. This case becomes even more egregious with passage of the Motorist Protection Act in 2007, since a non-CHL cannot be convicted of a violation of TPC §46.035(a). Thus a non-CHL has another legal tool at their disposal to diffuse a potentially deadly confrontation that is not available to a CHL. (By no means am I suggesting that people should be quick to draw, show, or point their handgun at someone with the intent of relying upon TPC §9.04. That provision is still untested in the Texas appellate courts.)

McDermott is a terrible case, but it is probably a good example of the old lawyers' saying that "bad facts make bad law." This is also a good example why one should be very careful in choosing what cases to take up on appeal. If the court doesn't like your client, there's a good chance you won't like their decision.

Chas.

and later,

When I last renewed my CHL Instructor's Certificate, Lt. Derrick did talk about §9.04, but not by specific reference to that Code Section. He gave an example of proper use of §9.04 without any reference to the McDermott. It's clear that, at that time, DPS correctly taught that §9.04 would allow the threat of deadly force even when you couldn't yet use deadly force.

§9.04 is also a defense to a charge of aggravated assault, if the elements of §9.04 are present. It is necessary to be justified in using some force, but it need not be deadly force. Again, there are no cases on point in Texas, but this is the intent of the Model Penal Code section dealing with "Threats as force" that was incorporated in the Texas Penal Code.

Chas.

It looks like a defense is there, but it is untested. I have volunteered for many things, but I don't think so on this one.

[Reserve161]

pdubyoo wrote:

A couple of years ago, before I applied for my CHL, I was in a similar situation with two males who were basically standing beside me in line. I gave one of them an annoyed look, and he pipes-off, "am I bothering you?". I said "yes, it appears that you two are in a hurry...why don't you go in front of me". The expression on the guys face looked like he was surprised at the answer. I stepped back, and they stepped-up in front of me. The other of the two gave me a fist bump and said thanks.
After they checked-out and walked away, the couple behind me said..."that could have gotten ugly really fast...thanks for letting them go ahead". I can't stand guys that use intimidation to get what they want, but I came away completely unharmed. The fact that your brother and his wife walked away unharmed and without an altercation means that they handled it the correct way IMHO.

I agree. Letting them go ahead of you helps totally diffuse the situation, and costs you nothing but a couple of minutes. You don't lose face, in fact,
you gain face because you are being nice.

Besides, I would rather be behind them, than them behind me.

Bryan

[casingpoint]

Ask Pete Kanakidis how that worked out for him.

Mr. Kanakidis lacked self conviction, and undoubtedly was not very convincing when he retrieved his weapon from his vehicle on three separate occasions. It's kind of hilarious in a perverse way. Three guys beat the tar out of him and break his nose, Kanakidis gets his gun, then puts it away when they back off, here come the guys again, Kanakidis gets his gun, they back off and he puts the gun away, here they come again, Kanakikis then has to go get his gun for the third time. He's a guy who just didn't get it at the time. I'll bet he does now.

Then he got smart-mouthed with the cops on arrival, who promptly put him into the grinder. That machine was always up and running down on Reisner Street.

Arroyo was definitely involved as a participant in the beating of Kanakikis by preventing his escape, and was probably later in the event trying to run Kanakikis down in an automobile when he was shot and killed by Kanakikis. Where the Harris County Assistant DA got off on prosecuting Kanakakis for murder is anybody's guess. My guess is the staff was just totally anti-gun and self-righteous about it. It was an onerous prosecution and a total waste of taxpayer dollars. To a reasonable person, this was a clean a shoot as they come, by Bird's account.

[karder]

By the way, I "talk" a good game of de-escalation and non-violence but I have a quick temper and can get my dander up in a hurry myself, so I certainly know where you're coming from. I'd much rather stand up for myself. But when my choices are "fight or flight" and I'm carrying a gun, I'll choose flight unless absolutely forced with no other alternative to use fight.


I think that most of us feel this way. To those of you who wouldn't want to back down in these situations, I fully understand, and as one of the posters here noted, letting jerks get away with stuff like this is not a good thing.
In my younger more reckless days, my response to the "what are you looking at" question was always "apparently an idiot". This would usually get me an ugly look or flipped off, but that was as far as it ever went. The problem with concealed carry is I don't have the option of trading punches with anyone. I cannot risk losing the gun in a wrestling match. This means my response has to be one extreme or the other, walk away or risk escalating the situation and having to draw. No more being a wiseguy for me! (darn it)

[boomerang]

One thing I would have added would be discreetly hanging around the parking lot, and if the guy gets in a car, call it in as a DUI.

[mgood]

The problem with concealed carry is I don't have the option of trading punches with anyone. I cannot risk losing the gun in a wrestling match. This means my response has to be one extreme or the other, walk away or risk escalating the situation and having to draw. No more being a wiseguy for me! (darn it)

Right. And I think this is a sticking point for a lot of people.
You really can't get in a fist fight or wrestling match while carrying a concealed handgun. I mean you can, but like you say, you run the risk of losing the gun.

And if:
He's doing something annoying.
You ask him to stop.
He gets confrontational.
You give it right back.
He throws a punch.
You throw a couple punches.
He sees he's getting beat and pulls a knife.
You draw your gun.
He doesn't see it or is to enraged or high to notice or just doesn't think you have the stones to pull the trigger and he lunges at you.
You shoot.
You might be completely justified all the way, but it's not going to look good and at best is going to be a lengthy and expensive legal battle. They're going to say you escalated the confrontation at a couple points there when you could have just backed off with nothing hurt but your ego. And whether you're convicted or not, the Brady's are going to have a field day screaming about "blood in the streets." I think the law now says we have no duty to retreat. I'm not sure how it would apply to this and wouldn't care to be the test case.

If you want to fight. Don't carry a gun. If you carry a gun, you'd better avoid the fight until there's just absolutely no other choice.

[Beiruty]

Deescalation is the key. Unless someone threatened with deadly force, and had the capability of inflicting severe or deadly injuries, one has to resort to deescalation. Pride or ego could be hurt is nothing compared to live the reset of your life behind steel doors.

[dicion]

If someone gets that irritated at you, and wants to fight to seriously injure or kill you, even if he doesn't have a weapon to start, He'll more than likely grab something nearby if possible to make it a weapon.
The one time that 3 punks attempted to rob me on the subway in Belgium, I refused, and decked one of them after they headbutted me. (Seriously, yes, one of them headbutted me.... )They fell back and started grabbing wood-backed seat coushins off of the chairs. I pulled out my knife, and we stood at a stalemate about 15 feet apart until they got off 2 stops later because other people were getting on. (Carrying a Knife may or may not have been Illegal in Belgium... I don't know... I was in the military at the time, and It was standard for me to carry one) All I know is the single old lady that was on the subway with me at the time was practically kissing me after I ran them off.. No idea what she was actually saying though.

Side note: This was also when I learned that I was not someone who simply complied with BG's and gave in, even with unfavorable odds, 1v3. My response to them when they said 'your wallet or I Kill you' was instantaneous and a non-thought. It consisted of a 4-letter word, followed by 'you'.

Key is gaining/keeping/maintaining distance from them before they start to attempt to pummel you with bare hands

Every other fight I've seen & NOT been in (only a few), all in Bars (Yes, I was younger at one point in my life, and did frequent these places... but only to meet women, I swear! ) if something in the immediate vicinity is easily grab-able and usable as a weapon (beer bottles, pool cue or pool balls anyone?) It probably will be. People seem to just love to make objects weapons. Mainly because I think that they think it gives them a better edge over the person they are planning on fighting.

As soon as they have a weapon, then it's a no brainer.

[fm2]

The problem with concealed carry is I don't have the option of trading punches with anyone. I cannot risk losing the gun in a wrestling match. This means my response has to be one extreme or the other, walk away or risk escalating the situation and having to draw. No more being a wiseguy for me! (darn it)

Right. And I think this is a sticking point for a lot of people.
You really can't get in a fist fight or wrestling match while carrying a concealed handgun. I mean you can, but like you say, you run the risk of losing the gun..

That's why we need to be mindful of selecting where we carry our pistol (able to get it into play (standing-grounded-confined spaces) even if we get pulled into wrestling with the bg AND be able to defend the pistol if the bg feels it and tries to take it away).

And if:....
He throws a punch.
You throw a couple punches.
He sees he's getting beat and pulls a knife.
You draw your gun.
He doesn't see it or is to enraged or high to notice or just doesn't think you have the stones to pull the trigger and he lunges at you.
You shoot..

The bg may have already decided he was going to bring the knife into play after he sucker punches you. He may not be interested in participating in your idea of a "fair fight". Your realization of the knife in play may very well be when you feel it, see it, or notice things are getting slippery. Look at some vids of bg's using the knife in prison. Y2bad4u can probably shed some light or check out u tube.

[fm2]

If someone gets that irritated at you, and wants to fight to seriously injure or kill you, even if he doesn't have a weapon to start, He'll more than likely grab something nearby if possible to make it a weapon.

Good point! They may have already decided you were Mr. Cheeseburger and scanned for improvised weapons before the verbals started.

The terrain can also play into this. It could very well be bouncing your head off the cement floor or a boot party raining down on your grape

[magicglock]

I don't intend any disrespect here but I view this situation a little differently than most points I have seen in the thread. I agree that your brother did a good job of getting himself out of a situation after he realized that he opened a can of worms so to speak. I will point out that if he had taken the high road and ignored the rude behavior this situation would not have happened at all. Maybe just chalk it up to a bad choice of words by telling the guy to "back off", but it was your brother that initiated the incident. My mouth does a fine job of getting me in trouble so I can certainly relate.

I have read a good deal of material from Massad Ayoob and I think this guy's viewpoint is generally right on the money. One of his articles dealt with the topic of brandishing and if I can find an online reference I will post it. Massad not only looks at the legal aspects of a situation but he also does some analysis of the tactical advantages/disadvantages to the CHls response. Brandishing your weapon puts you at a tactical disadvantage. You lose the element of suprise and you are opening the door to so many opportunities that put you on the wrong side of the fight in the heat of the moment and in court. His viewpoint from this article supported one basic concept: Brandishing or drawing your weapon are the same as firing the weapon. If you would not shoot in the situation you should not brandish or draw. I agree with his point! His point is very similar to some of the arguments against open carry vs concealed carry.

I highly recommend reading some of his books or articles as they do help you think through situations exactly like this topic. I tend to listen to a guy that has spent as much time as he has in the legal system defending people like us!

Sometimes it's better just to bite your tongue.

[casingpoint]

Sometimes it's better just to bite your tongue.

Always.

[dihappy]

Being arrested and losing my freedom for 13 hours, sitting next to crazy, drugged up individuals, is quite an incentive to "be the bigger man" and find a way to de-escalate any and every situation :)

[C-dub]

I don't intend any disrespect here but I view this situation a little differently than most points I have seen in the thread. I agree that your brother did a good job of getting himself out of a situation after he realized that he opened a can of worms so to speak. I will point out that if he had taken the high road and ignored the rude behavior this situation would not have happened at all. Maybe just chalk it up to a bad choice of words by telling the guy to "back off", but it was your brother that initiated the incident. My mouth does a fine job of getting me in trouble so I can certainly relate.

I have read a good deal of material from Massad Ayoob and I think this guy's viewpoint is generally right on the money. One of his articles dealt with the topic of brandishing and if I can find an online reference I will post it. Massad not only looks at the legal aspects of a situation but he also does some analysis of the tactical advantages/disadvantages to the CHls response. Brandishing your weapon puts you at a tactical disadvantage. You lose the element of suprise and you are opening the door to so many opportunities that put you on the wrong side of the fight in the heat of the moment and in court. His viewpoint from this article supported one basic concept: Brandishing or drawing your weapon are the same as firing the weapon. If you would not shoot in the situation you should not brandish or draw. I agree with his point! His point is very similar to some of the arguments against open carry vs concealed carry.

I highly recommend reading some of his books or articles as they do help you think through situations exactly like this topic. I tend to listen to a guy that has spent as much time as he has in the legal system defending people like us!

Sometimes it's better just to bite your tongue.

I have not read a lot of Ayoob's stuff, but this is where I would stand on this type of incident. I was only pointing out that according to the code "brandishing" in this scenario was a legitimate course of action. Charles backed this up, but also pointed out that it had not been held up in court. Personally, I don't see myself showing my weapon until I needed to actually use it.

[Y2bad4u]

The bg may have already decided he was going to bring the knife into play after he sucker punches you. He may not be interested in participating in your idea of a "fair fight". Your realization of the knife in play may very well be when you feel it, see it, or notice things are getting slippery. Look at some vids of bg's using the knife in prison. Y2bad4u can probably shed some light or check out u tube.

Every fight I saw or investigated, the inmates would pull or use a weapon quick. Either right off the bat, or after the initial punch. And they would sucker punch you if they could.