Threatening Deadly Force/Use of Deadly Force

[The Annoyed Man]

...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...

Ok, I think I understand what you're getting at. I think there's kind of a gray are there. On the one hand, you're right.....if you tell me that you're going to pimp-slap me, that may not rise to the level of justifying a use or threat of use of deadly force response.....but the way 9.04 is written, it does seem to justify it. On the other hand, if I'm in a wheelchair and I'm recovering from brain surgery in which part of my skull was removed, then a threat to pimp-slap me is in fact a threat to use deadly force against me......in which case my responding with my own threat to use deadly force in self-defense is entirely justified. As Running Arrow Bill said, a lot of it has to do with the relative health and physical capacities of both the aggressor and the victim.

The problem isn't so much in the wording of the law, I think. The problem is more in the nearly infinite number of possible circumstances in which a threat of deadly force could be justifiable or not justifiable. It's hard to write language that works for all of them. Fortunately, we have other areas of the code (PC 46.035 for instance) to help guide us. Isn't there a general principle of the law which says something along the lines of "wherever a thing is not specifically proscribed by the law, then we must use the most liberal (as in libertarian) interpretation of the law in administering that thing?"

[speedsix]

...I don't know about that...but it seems reasonable...

...what I think that 9.04 should say is : if the use of force is justified by this chapter, the threat to use force is justified...
if the use of deadly force is justified by this chapter, the threat (including producing a weapon) to use deadly force is justified.

...if it was worded that way...it'd be fair...the way it is worded, it conflicts with the expressed intent of the legislature as expressed in 46.035 (h)...and making the force/deadly force distinction so clear in 9.31 and 9.32, and in 46.035(h), and yet muddling it together in 9.04...doesn't seem right and it sets off all sorts of alarms...

...as to the tangents on when is use of deadly force justified, 9.32 covers it well...it's 9.04 that is suspect...

[Jumping Frog]

The only way I can see using Sec. 9.04, ("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...") .to without violating 46.035 (h) (failure to conceal) is to either make verbal/non-verbal threats, or produce a weapon other than a handgun. For example, producing a shotgun on someone does not violate 46.035 (h), nor would producing a handgun on someone on your own property.

[smoothoperator]

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...

If a cop can pull a gun on someone who isn't displaying a weapon, any reasonable society would also allow an elderly woman (or any other innocent without body armor, baton, backup, etc.) to display a firearm to prevent some dirtbag thug from putting them in the hospital (serious bodily injury) or the morgue (death) by illegally beating the innocent.

My message to thugs is simple. Don't start none and there won't be none.

[Beiruty]

If you feel that someone is acting weird, you can NOT draw. If someone after a verbal warning did not back off and kept charging or approaching within hands strike, retreat to safety. If I see a weapon or an aggravated assault in progress, I am drawing.

[rwg3]

The law is unclear and speedsix you are correct that it could be worded to better clarify the issue. It is I believe however at least an attempt to explain when showing your weapon without the need to shoot, is a defense to a claim of threatening behavior. As always, unless there is video of the incident or several witnesses it becomes a he said/they said issue.
This grey area was discussed at some length in the CHL class I took. The instructor, a LEO went through all the various view points espressed here, dwelling on the relative disparity in size issue for some time. In summation he said it was essentially a gamble that one took when one decides to carry, when they decide to produce their weapon and when or if they decide to shoot. The gamble being that "reasonable" people will see the situation in the same light as the person who has taken action to defend themselves. The instructor wished he could present a clear black and white set of criteria but said there were too many variables to have a simple test of justifiable action. His message was to call 911 if possible, do what was necessary to stop the aggression and no more (in your own judgement) then call 911 as fast as you can if you could do so before hand and hope for the best.
The laws are an imperfect set of society's guideline for living together. Fortunately the founding fathers recoginzed that several levels of adjudication may be necessary before an issue can be resolved. Our system of checks and balances is the best around even if it seems maddening at times.
For myself, the decision to produce my weapon is one I hope I do not have to make, let alone actually needing to pull the trigger. I practice doing both at the range and take instruction when I can, in the event that someday I may be forced to take the extreme route. If things come to that point I hope that I can resolve the situation utilizing the least level of force that I can, but if things go badly I will deal with results as best I can within the system. Like many others I ANAL but sure would use one if I had to do this.

[Heartland Patriot]

Okay, lets try this. Some folks think the words "separation of church and state" are in the Constitution. They aren't, that is an interpretation of what is in there. (BTW, this is NOT intended to be a discussion on that topic, pro or con, only providing an example.) The penal code says what it says until someone (a judge) says it means something different.

[smoothoperator]

For example, producing a shotgun on someone does not violate 46.035 (h), nor would producing a handgun on someone on your own property.

Great examples.

[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...

If a cop can pull a gun on someone who isn't displaying a weapon, any reasonable society would also allow an elderly woman (or any other innocent without body armor, baton, backup, etc.) to display a firearm to prevent some dirtbag thug from putting them in the hospital (serious bodily injury) or the morgue (death) by illegally beating the innocent.

My message to thugs is simple. Don't start none and there won't be none.

...I share that philosophy completely...I don't have faith that PC9.04 will save our bacon...

[speedsix]

The law is unclear and speedsix you are correct that it could be worded to better clarify the issue. It is I believe however at least an attempt to explain when showing your weapon without the need to shoot, is a defense to a claim of threatening behavior. As always, unless there is video of the incident or several witnesses it becomes a he said/they said issue.
This grey area was discussed at some length in the CHL class I took. The instructor, a LEO went through all the various view points espressed here, dwelling on the relative disparity in size issue for some time. In summation he said it was essentially a gamble that one took when one decides to carry, when they decide to produce their weapon and when or if they decide to shoot. The gamble being that "reasonable" people will see the situation in the same light as the person who has taken action to defend themselves. The instructor wished he could present a clear black and white set of criteria but said there were too many variables to have a simple test of justifiable action. His message was to call 911 if possible, do what was necessary to stop the aggression and no more (in your own judgement) then call 911 as fast as you can if you could do so before hand and hope for the best.
The laws are an imperfect set of society's guideline for living together. Fortunately the founding fathers recoginzed that several levels of adjudication may be necessary before an issue can be resolved. Our system of checks and balances is the best around even if it seems maddening at times.
For myself, the decision to produce my weapon is one I hope I do not have to make, let alone actually needing to pull the trigger. I practice doing both at the range and take instruction when I can, in the event that someday I may be forced to take the extreme route. If things come to that point I hope that I can resolve the situation utilizing the least level of force that I can, but if things go badly I will deal with results as best I can within the system. Like many others I ANAL but sure would use one if I had to do this.

...you're right, of course...we just do what we have to do, having tried to line up with the laws as best we can...and let the chips fall where they will...this one is for sure imperfect...and could be trouble...we'll have to wait till it happens to someone...

[A-R]

A few points:

46.035 (h) ONLY applies to those carrying a handgun under authority of a CHL while in public (the "while in public" part is implied because you do not NEED a CHL at all to carry a gun legally on your own property, or in vehicle under MPA, etc - certainly I'm not violating 46.035 (a) when I intentionally unconceal my firearm to store it or clean it in my own home).

9.04 applies to ANYONE using ANY firearm in ANY possible situation in which the firearm is possessed legally

This is a BIG distinction that to me basically means that IN PUBLIC, the state DOES NOT want you using the display of a handgun as a justifiable use of force (but not deadly force), but leaves the right to do so elsewhere - basically when you are in YOUR property or YOUR vehicle (a continuation of the thought process of the "Castle Doctrine" perhaps?)

The example I always relate is the old farmer holding the double-barrel shotgun and telling the trespassers to "get off my land" (insert Clint Eastwood "Gran Torino" clip here if you like) ... you're justified in using force, but not deadly force, to make trespassers leave your land (remember we're just talking about "land" right now, they haven't crossed the threshhold yet to enter your "home" or "habitation"). However, many don't have the ability to use such force unless it's backed up by the muzzle of a firearm. When this is done ON YOUR PROPERTY and not in public, the state seems to be saying doing so is lawful (though I'd argue possible still not necessarily always ADVISABLE).

Of course, the other way to look at this is that anyone who was illegally using force, was stopped by the muzzle of a gun being pointed at him, and THEN CONTINUED TO USE/ATTEMPT TO USE FORCE is arguably taking an action that is aggressive enough to qualify as a unlawful use of deadly force (someone charging forward toward a man with a gun ain't exactly sane and would certainly put me in reasonable fear of an imminent danger of serious bodily harm from the person who charges TOWARD a loaded gun). Thus the initial use of the gun as force only WORKED, and as soon as it stopped working the incident was no longer merely the unlawful use (attempted use) of force but has escalated to an unlawful use (attempted use) of deadly force.

I understand and agree that using a gun as a threat deadly force that equals only force if it stops there is a highly provocative act and certainly flies in the face of de-escalation, but I can see limited benefit to such tactics. And - if nothing else - it both protects the conscientious gun owner who truly does mean ONLY to use the threat of a gun to repel an unlawful use of force while also giving the quick-to-draw folks a blueprint on how NOT to shoot if they don't absolutely have to

[barstoolguru]

I am new to this site but I am active on others but I like to pitch in my 2 cents. In Texas you can make a threat and brandish a firearm... but.... a little pepper spray.... will make a great deterrent. Like your home there are levels of personal protection, just because you have a gun does not mean it is the only method of self defense

[apostate]

A few points:

46.035 (h) ONLY applies to those carrying a handgun under authority of a CHL while in public (the "while in public" part is implied because you do not NEED a CHL at all to carry a gun legally on your own property, or in vehicle under MPA, etc - certainly I'm not violating 46.035 (a) when I intentionally unconceal my firearm to store it or clean it in my own home).

If the handgun is in plain view, MPA no longer applies.

9.04 applies to ANYONE using ANY firearm in ANY possible situation in which the firearm is possessed legally

More broadly, it could be any weapon or other credible threats of deadly force. Creating the apprehension you will beat them with a baseball bat, run over them with your car, or throw them out a window would also be justified if the criteria are met.

[A-R]

A few points:

46.035 (h) ONLY applies to those carrying a handgun under authority of a CHL while in public (the "while in public" part is implied because you do not NEED a CHL at all to carry a gun legally on your own property, or in vehicle under MPA, etc - certainly I'm not violating 46.035 (a) when I intentionally unconceal my firearm to store it or clean it in my own home).

If the handgun is in plain view, MPA no longer applies.

Not understanding your point. If I can NEVER have my gun in plain view under MPA, then what is point of carrying it under MPA? Only reason to carry it is in case you ever need to use it for self defense and you can't do that without putting it in "plain view" - 9.04 (and other sections of PC Chapter 9) justify using gun for self defense and thus implies the justification to use them in "plain view" or to "unconceal" - otherwise, again, what's the point of MPA if you'd just get busted for violating PC 46.02 (a-1) (1) "plain view" any time you justifiably use it?

[apostate]

A few points:

46.035 (h) ONLY applies to those carrying a handgun under authority of a CHL while in public (the "while in public" part is implied because you do not NEED a CHL at all to carry a gun legally on your own property, or in vehicle under MPA, etc - certainly I'm not violating 46.035 (a) when I intentionally unconceal my firearm to store it or clean it in my own home).

If the handgun is in plain view, MPA no longer applies.

Not understanding your point. If I can NEVER have my gun in plain view under MPA, then what is point of carrying it under MPA? Only reason to carry it is in case you ever need to use it for self defense and you can't do that without putting it in "plain view" - 9.04 (and other sections of PC Chapter 9) justify using gun for self defense and thus implies the justification to use them in "plain view" or to "unconceal" - otherwise, again, what's the point of MPA if you'd just get busted for violating PC 46.02 (a-1) (1) "plain view" any time you justifiably use it?

You could argue necessity or some other justification but 46.02 seems pretty clear on that point.

Sec. 46.02. UNLAWFUL CARRYING WEAPONS.
(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:
(1) the handgun is in plain view