Deadly force and unarmed attackers

[Ruark]

I brought up a question during the CHL class and the instructor never really answered it. In Texas, can you use your concealed weapon, or threaten to use your concealed weapon, against an unarmed assailant? The instructor got off onto a tangent talking about using pepper spray, putting something between you and the assailant, etc. and never really got back to the original question.

When I say "can you do it" or "is it legal," what I'm really asking is if you can do it without being criminally prosecuted, or under what circumstances you could do so.

There are two scenarios here:

(1) Some guy walks up to you and makes physical contact: he starts trying to shove you around or grab your shirt sleeve or paw your wife. You push him away and he just comes back and won't stop. Maybe he's high or has had a few drinks. But he's apparently not armed. Would the law find me justified in, say, exposing my weapon and telling him to back off? What about pointing it at him? If, after that intervention, he continues, what about actually SHOOTING him, at least maybe in the knee or foot?

(2) Same thing, but he doesn't make physical contact. He's following you and making verbal threats and trash talking and making demands, even though you try to ignore him.

Of course, we've all heard the example of the little old lady who would be justified in using deadly force against a big thug. I'm not a little old lady. I'm a 6 foot, 220 pound dude, but I'm 61 years old. I'm not a cripple by any means, but I stopped being 25 a long time ago... I can understand not blowing somebody's head off just for trash talking you, but at the same time, I resent the fact that I might be REQUIRED to get into a knock down, drag out, John Wayne fistfight with some punk, just because he's unarmed.

We've heard all the reasons why deadly force might be necessary one or both of those situations, but I'd like to know just how far Texas law goes in protecting you and saying what you can and can't do. Can anybody clarify?

[mreavis]

Fear for your life/safety or that of another are what give you the right to respond with deadly force. That fear does not have to come from an individual who is armed in anyway. However, you being armed and a certain distance away from that unarmed attacker could lead others to the opinion that your life or safety was not in immediate danger (and they might be your jury).

To put it simply:
By law, your attacker being armed or not isn't what gives you the right to deploy deadly force. Your assement and judgment of the risk to your life, saftey, or property is.

If you decide to use deadly force on an unarmed attacker, you better make sure for one reason or another it appears they intended to do significant harm to you or someone else. Because it will obviously be beneficial to the attackers defense that they were not armed.

Edit:

P.S - Unarmed people are the safest assailants to practice deescalation and avoidance skills with. Once a weapon comes out on his end it is a whole different ball game. But while he remains unarmed you should feel fairly comfortable knowing your sidearm is available to you. Knowing that you have that option should allow you to (somewhat) calmly approach the situation and attempt to lead it in a direction that does not involve the use of weapons. And or safely remove yourself from it.

[AEA]

Disparity of Force.

[Texas Dan Mosby]

an unarmed assailant?

Deadly force is not defined by the tool, but HOW the tool is used.

A firearm is not a "weapon" until it is used as such.

A hammer is not a "weapon" until it is used as such.

A fist is not a "weapon" until it is used as such.

An individual who uses their hands as a weapon can certainly inflict great bodily harm or death, and there very well may be the need to immediately use deadly force, including the use of a firearm, to stop their threat.

So, in short, yes.

However, you must be able to justify your use of force.

My ROE is based on intent, ability and immediacy.

When intent to cause great bodily harm or death is displayed, they have the ability to carry out the intent, and there is an immediate need to use deadly force to stop the intent, then I will use deadly force to stop the threat. Regardless of the tool they are using.

[RHenriksen]

I'm on the way out the door, but first and foremost: if you can make it to one of Charles Cotton's (free) seminars on the use of deadly force in Texas, GO! It's invaluable.

Someone else will be along shortly to quote the appropriate sections of the penal code. Plenty to say:

attempt to deescalate
attempt to disengage
if you reasonably believe deadly force is immediately necessary to protect yourself against death or serious bodily injury, you're off the chain - but you do need to be mindful that you'll have to sell your story to a policeman, to the assistant D.A. on call at the time, to a grand jury, and potentially to a jury of your peers.

I brought up a question during the CHL class and the instructor never really answered it. In Texas, can you use your concealed weapon, or threaten to use your concealed weapon, against an unarmed assailant? The instructor got off onto a tangent talking about using pepper spray, putting something between you and the assailant, etc. and never really got back to the original question.

When I say "can you do it" or "is it legal," what I'm really asking is if you can do it without being criminally prosecuted, or under what circumstances you could do so.

There are two scenarios here:

(1) Some guy walks up to you and makes physical contact: he starts trying to shove you around or grab your shirt sleeve or paw your wife. You push him away and he just comes back and won't stop. Maybe he's high or has had a few drinks. But he's apparently not armed. Would the law find me justified in, say, exposing my weapon and telling him to back off? What about pointing it at him? If, after that intervention, he continues, what about actually SHOOTING him, at least maybe in the knee or foot?

(2) Same thing, but he doesn't make physical contact. He's following you and making verbal threats and trash talking and making demands, even though you try to ignore him.

Of course, we've all heard the example of the little old lady who would be justified in using deadly force against a big thug. I'm not a little old lady. I'm a 6 foot, 220 pound dude, but I'm 61 years old. I'm not a cripple by any means, but I stopped being 25 a long time ago... I can understand not blowing somebody's head off just for trash talking you, but at the same time, I resent the fact that I might be REQUIRED to get into a knock down, drag out, John Wayne fistfight with some punk, just because he's unarmed.

We've heard all the reasons why deadly force might be necessary one or both of those situations, but I'd like to know just how far Texas law goes in protecting you and saying what you can and can't do. Can anybody clarify?

[mamabearCali]

I'm on the way out the door, but first and foremost: if you can make it to one of Charles Cotton's (free) seminars on the use of deadly force in Texas, GO! It's invaluable.

Someone else will be along shortly to quote the appropriate sections of the penal code. Plenty to say:

attempt to deescalate
attempt to disengage
if you reasonably believe deadly force is immediately necessary to protect yourself against death or serious bodily injury, you're off the chain - but you do need to be mindful that you'll have to sell your story to a policeman, to the assistant D.A. on call at the time, to a grand jury, and potentially to a jury of your peers.

This precisely. You do what you can to resolve the situation without escalating it. If there are no other options you do whatsoever you must. I always find the disparity of force is an intersting question because unless you are all by yourself if you have anyone with you (your wife, your kids, your mom) that immediately puts you at a considerable disadvantage. As I always have my kids with me (well 95% of the time), this question is going to be a whole lot different for me than for you.

[A-R]

I'd highly recommend the OP take Charles Cotton's Use of Deadly Force class to become better educated on these issues than is possible in a CHL class.

I'm no lawyer and this is NOT legal advice, but I do teach CHL classes so I'll walk you through various legal justifications as I understand them.

(1) Some guy walks up to you and makes physical contact: he starts trying to shove you around or grab your shirt sleeve or paw your wife. You push him away and he just comes back and won't stop. Maybe he's high or has had a few drinks. But he's apparently not armed. Would the law find me justified in, say, exposing my weapon and telling him to back off? What about pointing it at him? If, after that intervention, he continues, what about actually SHOOTING him, at least maybe in the knee or foot?

Let's look first at what "crime" the guy may be committing against you. From your description, I'd describe this crime as a "simple assault" , likely PC 2201 (a)(3) (as opposed to aggravated assault which would require actual serious injury to you or the use of a weapon by the assaulter)

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse; (2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

So your response to this, let's start with whether any response at all is justified:

Sec. 9.22. NECESSITY. Conduct is justified if:(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

From the above, I'd say you have a desirability and urgency of avoiding continued harm ...

Now let's start with the strongest possible response - "actually SHOOTING him" which is a definite use of deadly force:

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);

I see no justification above for shooting someone over a "simple assault" as you couldn't yet be in actual fear of death or serious bodily injury (in your description he's shoving, grabbing, pawing - not striking, hitting, or pulling - as if trying to pull you away, like into a van for a kidnapping or something). And it does not seem from your description that any of the crimes in 9.32 (a) (1) (B) are yet being committed or threatened - closest would be robbery, but no theft has been attempted or threatened in your description - so can't be robbery yet.

Now let's go to exposing your weapon or pointing it at him (which I THINK are basically the same thing under the law) - both are a threat to the other person. Question is whether you are justified in making that particular threat.

Sec. 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.

This would seem to give you justification, as long as you meet the use of force justification:

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.

Looking at 9.31 (b) I can see a case to be made for justification, but again because this is just a simple assault at this point it doesn't meet the more stringent list of crimes that could give you more solid justification by being "presumed reasonable" if the other had been commiting a more serious crime or had been committing the crime while illegally inside or attempting to enter with force your home, car, etc.

So if we stop at this point, I think you COULD be justified in exposing your gun as a threat to back off. But there is one more piece of this puzzle that makes it even more dangerous for you to "go to guns" in response to this simple assault.

Because you're not in your home, the assumption is this assault takes place in a public place. Thus you MUST be carrying your gun under authority of your CHL (you're not at home, in your car, or in your workplace - the requirements to carry without a CHL in Texas).

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (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.
{truncated}
(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.

PC 46.035 makes intentionally unconcealing your handgun a crime while carrying under authority of your CHL and the ONLY defense to prosecution for this is if you were justified in using DEADLY FORCE - not merely FORCE - under Chapter 9.

As we've already established above, you weren't yet justified in shooting the person, so if you even expose your gun on purpose as a threat you COULD be guilty of violating PC 46.035 (a)

(2) Same thing, but he doesn't make physical contact. He's following you and making verbal threats and trash talking and making demands, even though you try to ignore him.

I'd say you have even less justification than above if no physical contact is made. And the verbal threats alone do nothing to support a use of force justification, much less use of deadly force.

Of course, we've all heard the example of the little old lady who would be justified in using deadly force against a big thug. I'm not a little old lady. I'm a 6 foot, 220 pound dude, but I'm 61 years old. I'm not a cripple by any means, but I stopped being 25 a long time ago... I can understand not blowing somebody's head off just for trash talking you, but at the same time, I resent the fact that I might be REQUIRED to get into a knock down, drag out, John Wayne fistfight with some punk, just because he's unarmed.

We've heard all the reasons why deadly force might be necessary one or both of those situations, but I'd like to know just how far Texas law goes in protecting you and saying what you can and can't do. Can anybody clarify?

As above poster stated, "disparity of force" can quickly change the use of force/deadly force hierarchy in favor of using more force. If there is an accomplice watching closely what the assaulter is doing to you, if the assaulter is much younger and more physically fit, you may be justified more quickly and easily in using force.

None of this, of course, gets around PC 46.035 UNLESS you can justify a use of DEADLY force. For that I think you'd have prove the assaulter was trying to a) rob you b) severely beat or kill you, with the understanding that depending on the disparity of force from age, size, physical prowess, a single strike to the head could cause you serious bodily injury - basically a broken bone - or even death from blunt force head trauma.

[Paladin]

You better make sure your "right" in the eyes of the law or your life is really in danger if you shoot an unarmed attacker.

Mr. Fish spent $600,000+ in court costs link

From what I've seen if you are being assaulted by someone with a gun, and you take it from them and shoot them with it, the shooter is not normally prosecuted.

Practically speaking, there tends to be a public outcry if an unarmed attacker gets shot. Unless the circumstances are something like the shooting occurred inside your own home or there were multiple attackers where you could not get away, expect the DA will want to prosecute.

[A-R]

P.S - Unarmed people are the safest assailants to practice deescalation and avoidance skills with. Once a weapon comes out on his end it is a whole different ball game. But while he remains unarmed you should feel fairly comfortable knowing your sidearm is available to you. Knowing that you have that option should allow you to (somewhat) calmly approach the situation and attempt to lead it in a direction that does not involve the use of weapons. And or safely remove yourself from it.

This is great advice. If you CAN de-escalate or back away from the encounter without "going to guns" by all means do so. While you may no longer have a "duty" to retreat under the law in Texas, it is often the best possible action to take.

[srothstein]

Deadly force is not defined by the tool, but HOW the tool is used.

A firearm is not a "weapon" until it is used as such.

This is one of those cases that is a yes and no thing. The basic premise that deadly force depends on how the tool is used is correct and this is seen in Penal Code section 9.01 (3) that says:

"Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.

But a firearm is ALWAYS a deadly weapon as defined in Penal Code section 1.07 (17) that says:

"Deadly weapon" means:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

This means you are using a deadly weapon, even if you are using the butt of your 1911 to hammer in a fence post nail (bet no one does that with a Glock).

And if you do use the firearm as intended, even to shoot in the leg or arm, it is deadly force for real.part of this is the definition of a firearm and part is the fact that deadly force does not need to kill, just inflict serious bodily injury (which differs in some points based on jurisdiction).

But this will get even more confusing when you add that the threat of deadly force is not the use of deadly force. And since it just gets harder to refine as we add more into it, the safest rule is to consider the USE of a firearm as deadly force no matter what, but threatening it is not. Using a weapon like a club or knife MAY be deadly force but can be argued.

[Dragonfighter]

Disparity of Force.

This. Our first Texas CHL shooting involved an unarmed attacker who started beating a man in his car. The man in the car was around 175# and trapped in his car while the attacker was closer to 400# and mobile. He was no-billed.

[Ameer]

If your life is really in danger, legality is a problem you can worry about if you're lucky enough to survive.

[speedsix]

...when all you have is a hammer...everything tends to look like a nail...

...I've carried most of my life...most of 48 years...and one thing having a deadly weapon within reach has taught me...knowing I have an ace up my sleeve lets me be calmer and assess what's happening a lot better...and become somewhat good at nonviolent means of defusing situations...without even threatening or letting on I'm armed...time reading and studying, and learning the mindset that the gun is a LAST resort...though you're perfectly willing to use it if forced to, will lesson the likelihood that it'll become necessary in situations like you describe...Mas Ayoob has written on the subject...I'm sure Skiprr teaches it and can recommend some good material on the subject...
...it's for sure a dangerous world out there...and I don't go a step unarmed...but the most effective weapon you possess keeps your ears from bumping together...

[wgoforth]

...when all you have is a hammer...everything tends to look like a nail...

...I've carried most of my life...most of 48 years...and one thing having a deadly weapon within reach has taught me...knowing I have an ace up my sleeve lets me be calmer and assess what's happening a lot better...and become somewhat good at nonviolent means of defusing situations...without even threatening or letting on I'm armed...time reading and studying, and learning the mindset that the gun is a LAST resort...though you're perfectly willing to use it if forced to, will lesson the likelihood that it'll become necessary in situations like you describe...Mas Ayoob has written on the subject...I'm sure Skiprr teaches it and can recommend some good material on the subject...
...it's for sure a dangerous world out there...and I don't go a step unarmed...but the most effective weapon you possess keeps your ears from bumping together...

Yup, I can afford to be calmer longer knowing I can afford to and can always use it as a last resort. I remember soon after getting my plastic, a guy almost ran into me, then yelled and gave me the finger. I just smiled and waved...patting my little friend in my pocket thinking "That's ok buddy...."

[speedsix]

...if I'm near trouble, I'd rather have my friends weighing in at 230, rather than 95!!!