Threatening Deadly Force/Use of Deadly Force

[speedsix]

...came up again in another thread...and I have no peace about it...here is the law verbatim...

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.

...it doesn't make logical sense that in a situation where the use of force is justified by that chapter, (which covers BOTH force and deadly force) that the above law means that in a situation where force (but not deadly force) is justified, that we should be able to threaten deadly force...for instance, if someone came up to you and hit you in the stomach...you would be justified in using force to get him off you...but not, at that point, deadly force...and, size/age being close to the same, you would likely be in trouble to pull a gun on him...because it's not REASONABLE to threaten deadly force in a situation where it wouldn't be justified to USE deadly force...in other words, don't BLUFF what you can't use...what if they call your bluff??? you've shot a man that you hadn't the right to shoot...
...now my opinion conflicts with the written law...clearly...but I believe that the INTENT of 9.04 was to say that the threat of force is justified when the use of force is justified, and the threat of deadly force is justified if the use of deadly force is justified...no other interpretation makes sense to me...but it doesn't SAY that...

...one of the reasons I've continued to feel this way...and argued it often...is what's said in 46.035 (h). below...

(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.

...THAT law precludes our displaying the handgun in a situation unless we would have been justified in USING deadly force...

...I know there are often laws that are at odds with each other...however, I believe that, in this case, 46.035 (h) shows us the intent of the legislature...better than the wording of 9.04 does...and it makes a lot more sense...I wonder how we could get this dispute resolved in an official manner...I can see someone relying on 9.04 and pulling a gun on another...and the situation turning very bad for him because the use of DEADLY force was not justified...I have found no caselaw on the problem...

[The Annoyed Man]

Speedsix, I concur that you shouldn't bluff what you're not willing to back up with action. But here's where I think the law actually protects us as CHLs without crossing over into overt threat......

Example scenario:
I'm at a gas station late at night and a thuggish character heads toward me with threatening body language. No words have been spoken yet, but only an idiot would assume that this is a benign character. I reach back to put my hand near my gun, but I don't uncover or draw the gun. He sees what I do, and without saying a word, he retreats. I've just threatened him. Not overtly, and not verbally, but I have intentionally communicated to him that I've got a surprise for him if he comes any closer. I think that the law protects me because of this wording:

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....

In my scenario, I have non-verbally created an apprehension in the thug's mind that I will use deadly force if necessary. I have not actually used deadly force, I've just communicated that I'm prepared to do so if necessary.

If I understand your objection to the wording of the law, you're objecting to the possibility that someone would use the threat of deadly force to "bully" someone else into surrendering something they would not normally surrender if politely asked? If I've understood you correctly, then I don't think that is the intent of the wording in this piece of code. One of the things I really like about the laws regulating self-defense in Texas is that they make reference to "reasonable," "reasonably." They assume that a reasonable person would reasonably behave in a certain way given certain circumstances, and then they make allowances for that reasonableness such that a reasonable person ought not to be penalized for acting reasonably in those circumstances.

So if a person uses the threat of deadly force to compel behavior that the other person would not normally do—i.e. "give me your wallet!" with the implied threat that I'll shoot you if you don't—then I don't think that would be covered by the wording of the law.

.......or am I merely restating what you just said......now I'm confused.

[johncanfield]

The way I read the law is if I believe my life is in danger, I pull my weapon and shout "stop or I'll shoot..", those two acts (threatening deadly force and the production of a weapon) do not constitute use of deadly force.

TAM's example of reaching behind your back being inferred as deadly force is a bit of a stretch I think - you could be scratching your butt , however I think that is exactly what I would do in his gas station scenario. Get ready but literally don't show your hand. Condition yellow going to red. If the movement of the hand didn't wake up the potential BG, a verbal warning would be necessary for those a little slow on the uptake.

[speedsix]

Speedsix, I concur that you shouldn't bluff what you're not willing to back up with action. But here's where I think the law actually protects us as CHLs without crossing over into overt threat......

Example scenario:
I'm at a gas station late at night and a thuggish character heads toward me with threatening body language. No words have been spoken yet, but only an idiot would assume that this is a benign character. I reach back to put my hand near my gun, but I don't uncover or draw the gun. He sees what I do, and without saying a word, he retreats. I've just threatened him. Not overtly, and not verbally, but I have intentionally communicated to him that I've got a surprise for him if he comes any closer. I think that the law protects me because of this wording:
*you wouldn't be justified in the use of force...he hasn't done anything yet...unless he was swinging his fist, maybe...but moving your hand near your belt isn't threatening deadly force, either...unless he can see the weapon there...it'd be a good example for you assuming and him assuming...either could have been wrong...your "gonna draw something" COULD be construed as covered by 9.04 but if it was...you're in trouble...he hasn't used any force...nor has he communicated a criminal intent...it'd be a hairy dilemma...

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....

In my scenario, I have non-verbally created an apprehension in the thug's mind that I will use deadly force if necessary. I have not actually used deadly force, I've just communicated that I'm prepared to do so if necessary.
*this part could be part of the intent of 9.04, but the motion you made would first have to be judged a threat...and I think it could be explained away too easily...

If I understand your objection to the wording of the law, you're objecting to the possibility that someone would use the threat of deadly force to "bully" someone else into surrendering something they would not normally surrender if politely asked? If I've understood you correctly, then I don't think that is the intent of the wording in this piece of code. One of the things I really like about the laws regulating self-defense in Texas is that they make reference to "reasonable," "reasonably." They assume that a reasonable person would reasonably behave in a certain way given certain circumstances, and then they make allowances for that reasonableness such that a reasonable person ought not to be penalized for acting reasonably in those circumstances.
*this is not at all what I object to or meant...re-read what I said...I believe that a person who believes the exact wording of the law and uses the threat of deadly force to stop someone from using force, but not deadly force, will be left hanging out on a limb by the folks who decide to arrest, charge, convict, punish him...because it's just not REASONABLE that one would be justified in THREATENING deadly force...if he couldn't legally USE deadly force in that situation...I think he'd be charged with assault with a deadly weapon or like charges...I don't believe a reasonable person would believe that 9.04 actually means exactly what it says (or was intended to)...

So if a person uses the threat of deadly force to compel behavior that the other person would not normally do—i.e. "give me your wallet!" with the implied threat that I'll shoot you if you don't—then I don't think that would be covered by the wording of the law.
*this is nothing I was referring to...

.......or am I merely restating what you just said......now I'm confused.

...you're confused...I din't mean any of what you think I meant...I don't know how to state it more clearly...but I'll go into your quoted post and with * address each part...

...PC 9.04 doesn't use that word reasonable...I'm saying I don't believe it's reasonable to believe that we can use the threat of deadly force i.e. pulling a gun on someone to answer force that is not deadly force and to which we could not legally USE deadly force to resist...and I think the later passed law PC46.035 (h) better shows the intent of the legislature...I think the wording in 9.04 is an error which has become law...reading it word for word, it is NOT REASONABLE...but until we have it tested in court, we'll probably have to wonder...I can't find any caselaw yet...

[speedsix]

The way I read the law is if I believe my life is in danger, I pull my weapon and shout "stop or I'll shoot..", those two acts (threatening deadly force and the production of a weapon) do not constitute use of deadly force.

TAM's example of reaching behind your back being inferred as deadly force is a bit of a stretch I think - you could be scratching your butt , however I think that is exactly what I would do in his gas station scenario. Get ready but literally don't show your hand. Condition yellow going to red. If the movement of the hand didn't wake up the potential BG, a verbal warning would be necessary for those a little slow on the uptake.

...your first statement here is key... if something has happened where you feel you would be justified in USING deadly force "if necessary"...and you're REASONABLE in threatening (producing) a weapon and telling him that...I'm sure 9.04 means that...

...but the way the law is written...you can do that if he has done something that would justify you using ANY force, deadly or not...and I believe the legislature goofed...it would be much more reasonable if, for instance:

...you tell me you're going to punch me in the nose...and I make a fist and say "Don't you do that, or I'll knock your lights out"

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

[Heartland Patriot]

The way I read the law is if I believe my life is in danger, I pull my weapon and shout "stop or I'll shoot..", those two acts (threatening deadly force and the production of a weapon) do not constitute use of deadly force.

TAM's example of reaching behind your back being inferred as deadly force is a bit of a stretch I think - you could be scratching your butt , however I think that is exactly what I would do in his gas station scenario. Get ready but literally don't show your hand. Condition yellow going to red. If the movement of the hand didn't wake up the potential BG, a verbal warning would be necessary for those a little slow on the uptake.

...your first statement here is key... if something has happened where you feel you would be justified in USING deadly force "if necessary"...and you're REASONABLE in threatening (producing) a weapon and telling him that...I'm sure 9.04 means that...

...but the way the law is written...you can do that if he has done something that would justify you using ANY force, deadly or not...and I believe the legislature goofed...it would be much more reasonable if, for instance:

...you tell me you're going to punch me in the nose...and I make a fist and say "Don't you do that, or I'll knock your lights out"

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

I don't think you are quite accurate, speedsix. I posited a situation before where I asked words to the effect of: do I have to START taking a beating from someone before I am justified in pulling out my firearm? And the answer was no, I don't. How am I supposed to know if the guy trying to "whoop" me knows martial arts, or is a boxer, or "pushed weight" in jail for the last six months? If he were some really mean so-and-so who just didn't like my face (vs. being whacked out on "bath salts"), it might make ALL the difference in the world for me to give him an "apprehension" without having to actually put holes in him, which action we would both regret (him just a bit more). I think THAT is what the penal code is covering.

[JJVP]

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

Why wouldn't deadly force be justified? How many people have been killed by a single punch to the head. Should you wait until the punch hits before you are justified to pull your gun? You might be dead then.

Saying they are going to punch you is not justified. Once they take a swing at you, that is a different story. IMO IANAL

[pbwalker]

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

Why wouldn't deadly force be justified? How many people have been killed by a single punch to the head. Should you wait until the punch hits before you are justified to pull your gun? You might be dead then.

It's been addressed here quite a bit...depending on the circumstances (you wouldn't pull your weapon if a 12 year old scrawny kid weighing 98lbs wet, etc.) you're safe drawing in that type of situation.

[speedsix]

The way I read the law is if I believe my life is in danger, I pull my weapon and shout "stop or I'll shoot..", those two acts (threatening deadly force and the production of a weapon) do not constitute use of deadly force.

TAM's example of reaching behind your back being inferred as deadly force is a bit of a stretch I think - you could be scratching your butt , however I think that is exactly what I would do in his gas station scenario. Get ready but literally don't show your hand. Condition yellow going to red. If the movement of the hand didn't wake up the potential BG, a verbal warning would be necessary for those a little slow on the uptake.

...your first statement here is key... if something has happened where you feel you would be justified in USING deadly force "if necessary"...and you're REASONABLE in threatening (producing) a weapon and telling him that...I'm sure 9.04 means that...

...but the way the law is written...you can do that if he has done something that would justify you using ANY force, deadly or not...and I believe the legislature goofed...it would be much more reasonable if, for instance:

...you tell me you're going to punch me in the nose...and I make a fist and say "Don't you do that, or I'll knock your lights out"

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

I don't think you are quite accurate, speedsix. I posited a situation before where I asked words to the effect of: do I have to START taking a beating from someone before I am justified in pulling out my firearm? And the answer was no, I don't. How am I supposed to know if the guy trying to "whoop" me knows martial arts, or is a boxer, or "pushed weight" in jail for the last six months? If he were some really mean so-and-so who just didn't like my face (vs. being whacked out on "bath salts"), it might make ALL the difference in the world for me to give him an "apprehension" without having to actually put holes in him, which action we would both regret (him just a bit more). I think THAT is what the penal code is covering.

,,,my example may not be the best here, but my point is that there are a lot of situations where we are justified in using SOME force by PC9.31, and yet are NOT justified in using DEADLY FORCE by PC 9.32...and yet 9.04 clearly states that we can threaten deadly force for either one...and produce a weapon...it just says "force"...I believe that the person who pulls a gun against an unarmed man who may have threatened to hit or has hit him already will be in deep trouble...and we don't have case history to show us that the law will be enforced word-for-word as it is clearly written...and the other like situation law conflicts with it...PC46.035 (h)...and was written later...we often hear that the later law trumps the earlier law...I'm saying there needs to be a legal clarification or amendment to 9.04 before some poor citizen takes a rap for acting as though it means literally what it says...

[MoJoeWrkn]

Just how much of a beating must you endure before you can respond by drawing? If someone takes a swing at me I would be in fear of my life because even if their first punch doesn't kill me, it may knock me senseless enought that I could not defend myself from further attacks. Am I wrong?

[speedsix]

...than if you told me you're going to punch me in the nose, you draw back and swing, and I pull my gun on you and point it at you...I'm threatening deadly force against you where SOME force would be justified, but not DEADLY force...and I believe I'd go to jail for waving a gun when I was not justified in using it...like stated in 46.035 (h)

...I think 9.04 got passed saying something it doesn't mean...

Why wouldn't deadly force be justified? How many people have been killed by a single punch to the head. Should you wait until the punch hits before you are justified to pull your gun? You might be dead then.

Saying they are going to punch you is not justified. Once they take a swing at you, that is a different story. IMO IANAL

...it could be as you say...or you could be forced to show why you were justified in threatening deadly force when you couldn't use deadly force...going back again to not being allowed to display your weapon if you wouldn't have been justified in using it...PC46.035(h)
...there's too much hanging on it for them to leave it as it is written...

[speedsix]

Just how much of a beating must you endure before you can respond by drawing? If someone takes a swing at me I would be in fear of my life because even if their first punch doesn't kill me, it may knock me senseless enought that I could not defend myself from further attacks. Am I wrong?

...I don't believe you are, but the law as written in PC 9.32 would have to be met point for point...first, you'd have to meet 9.31, then (a) (2) (A) would have to apply "...to protect the actor against the other's use or attempted use of unlawful deadly force; or..."

...so here the law is on one hand telling you you have to show that you were defending against "...use or attempted use of unlawful deadly force; or"...and on the other hand, telling you you can pull a gun and/or threaten to use it against someone who you may NOT be justified in using it against, because they don't meet 9.32...that's a double standard...and it's too likely that if you threaten or produce the weapon, you could be forced into using it...and then they could say you weren't justified under 9.32...

I'm surprised there's no cases on record where this has happened...it would be so easy to change it to protect the citizen who gets into that situation...and I don't trust the literal enforcement of 9.04...I'm not arguing how much you have to take before using your weapon to defend yourself at all...

[Running Arrow Bill]

Deciding to use deadly force depends a lot on WHERE you are and the State or City you are in...

For example, I'm 73 years old, 120 lbs and not in very good physical condition, etc. If, for example, even a high school freshman lineback football player decided to do a physical number on me I would definitely lose or end up dead. A lot depends on the intended victim's physical ability and the perpetrator's ability, etc. I don't think anyone would stand much of a chance against (even an equal sized opponent) who was hopped up on adrenalin due to drugs, bad attitude, etc. I not at all saying what I would do in a bad situation; however, I hopefully do not intend to get maimed or mortally wounded from an attacker. (I also stay away from bad places and hopefully bad people).

JMO...

[speedsix]

Deciding to use deadly force depends a lot on WHERE you are and the State or City you are in...

For example, I'm 73 years old, 120 lbs and not in very good physical condition, etc. If, for example, even a high school freshman lineback football player decided to do a physical number on me I would definitely lose or end up dead. A lot depends on the intended victim's physical ability and the perpetrator's ability, etc. I don't think anyone would stand much of a chance against (even an equal sized opponent) who was hopped up on adrenalin due to drugs, bad attitude, etc. I not at all saying what I would do in a bad situation; however, I hopefully do not intend to get maimed or mortally wounded from an attacker. (I also stay away from bad places and hopefully bad people).

JMO...

...agreed...I'm ten years younger and couldn't stand up against the linebacker, either...this wasn't my purpose in what I posted...

...my problem is not with when someone defends against another...it's with the wording of the laws...one strictly defining when you can use force...one strictly defining when you can use deadly force...and another saying you can threaten to use deadly force when you can't use it...it seems like a mousetrap...