Drawing weapon vs. firing

[Tahoe132]

I don't have any legal text to back this up, but according to my CHL instructor if I understood correctly (because I asked this question too) you should only draw if you fully intend to fire. Now you don't necessarily have to fire, for example, if you draw and suddenly the perpetrator decides that he/she doesn't want to mess with you after all and backs off, it is ok not to fire. But I would only draw in a situation that I was planning on firing in, and nothing less.

[Excaliber]

I can sum this up real simple.... If I have to draw my gun then I will use it. No more no less. I am waiting on my license to carry, but I do carry in my car and at my business that I own. I tell my partners the same carry but if you pull it better be to use it not to show. I am new to this whole thing of owning a gun but I have no issue using it. D

I don't have any legal text to back this up, but according to my CHL instructor if I understood correctly (because I asked this question too) you should only draw if you fully intend to fire. Now you don't necessarily have to fire, for example, if you draw and suddenly the perpetrator decides that he/she doesn't want to mess with you after all and backs off, it is ok not to fire. But I would only draw in a situation that I was planning on firing in, and nothing less.

The "bright line" stance of drawing only when intending to fire works fine in a clear cut case where an armed person announces a robbery, or a home invader charges you in your home. It gets a little dicier when you try to apply it to real street situations. In the interests of furthering discussion, let me pose one:

You are the only customer at an ATM at 9PM. Street traffic is very light, and pedestrian traffic is nonexistent. While you are conducting your transaction, the hairs on the back of your neck stand up and you look over your shoulder to see 3 young males of mixed ethnicity in their late teens wearing the very loose clothing favored by the criminal element. They have appeared from around the corner and are walking toward you. They are all clearly larger and stronger than you, and when they see you at the ATM their visual focus locks on you. As they come closer, they spread out and all three are now approaching you from different angles at a range of about 25 feet. Their cold gazes are fixed on you, and their expressions show grim determination. You verbally challenge them to stop at 15 feet and state their business. They ignore you and continue to approach. The ATM is just starting to spit out the cash you requested.

At what point can / would you draw your handgun?

At what point is deadly force justified?

Are they the same?

If you wait for clear deadly force justification before drawing, will that leave you with a reasonable chance of going home that night?

Food for thought......

[dwhitley]

I hear you and yes at that point you have to make a call I would draw my weapon and chances are they would flee if they draw a weapon I then will be fearing for my life and will take the shot or shots if need be. I do also believe though I would not be out getting money at 9PM or allow myself to be in that situation if at all possible. I think one knows when something bad is about to happen and you have to be the judge of that, but at the end of the day if I get to go home and get to be with my family then I am justified in pulling my weapon and using it if need be. I can tell you anyone that says I want it to happen to me just to get a chance to shoot someone is ignorant. That is not something I would not want on my hands, but at the same time a bad guy or girl makes that choice and I will make my choice to save my life or my family. My father taught me to always watch your enviroment and dont put yourself in a place that could or would have bad elements if you can help it. I do believe people who carry are more aware of whats going on around them more so then the average person.

[Broge5]

This is a good discussion. I appreciate all the input. When starting this thread, my assumption has always been that I would only draw when intending to shoot unless the draw itself de-escalated the situation. The post about the ATM leaves me wondering what I would do. We can all say we would not be at an ATM at 9pm........ but sometimes less favorable circumstances are unavoidable and we do need to always be aware. When forced into those situations, we can be super alert and thinking defensively because although we may not be able to avoid the situation, we can recognize the danger before we go into that situation and begin formulating a game plan or exit strategy to the best of our ability.

I'll just keep playing what if in my head and hope it never goes further than that.

[Excaliber]

This is a good discussion. I appreciate all the input. When starting this thread, my assumption has always been that I would only draw when intending to shoot unless the draw itself de-escalated the situation. The post about the ATM leaves me wondering what I would do. We can all say we would not be at an ATM at 9pm........ but sometimes less favorable circumstances are unavoidable and we do need to always be aware. When forced into those situations, we can be super alert and thinking defensively because although we may not be able to avoid the situation, we can recognize the danger before we go into that situation and begin formulating a game plan or exit strategy to the best of our ability.

I'll just keep playing what if in my head and hope it never goes further than that.

You're on the right track. Playing "what if" is very important because it gives you the opportunity to think of alternatives, review the law, get input from others, and formulate a solid plan with lots of issues considered and addressed ahead of time.

While we all try to avoid potentially dangerous situations, unforeseen ones develop easily and very quickly, as a number of the experiences posted on this forum confirm. If you find yourself in a developing situation, you will ususally have only a few seconds to evaluate, decide, and act. If you have an internal "library" of plans already thought out, you can quickly draw on the one that fits best and probably handle it well. You'll do even better if you've physically acted through training simulations of similar events, because this tends to flush out unforeseen hiccups in the plan. The perception of folks who have taken this approach and survived real events afterwards is that they stayed relatively calm and acted in accordance with their training because it was as if they'd "been there before." If you haven't done that thinking and training ahead of time, it's highly likely that a person will either not act in time or take the wrong action in the stress of the moment with less than favorable results.

[dwhitley]

I have played out many situations in my home with both my wife and daughter... just so we are ready if need be. D

[bryang]

Steve, I really appreciate you and Excalber's post.

You have definitely help me in many ways to understand the law and how it pertains to CHL. I have printed off many of your post in order that I can go over them several times so as to get my mind around all of this.

Thanks,
-geo

[mr.72]

snip They ignore you and continue to approach. The ATM is just starting to spit out the cash you requested.

At what point can / would you draw your handgun?

At what point is deadly force justified?

Well the threat of deadly force is justified when the use of force is justified, right?

So at what point is the use of force justified?

You see, in this scenario, I think that point is either the same, or so close to the same that it is nearly indistinguishable.

In the case that you are engaging in protecting of your property, I don't see any definition of the justification for the use of force, as distinct from the use of deadly force, when reading the statute. How can you tell, in the moment, whether the thugs are going to employ unlawful force, or unlawful deadly force?

I know Liko already smacked me down on my assertion that the threat of force is justified by the same thing that justifies the use of force, and technically he is right. However I still can't quite understand the practical difference. Kind of splitting hairs? Again this is why I read this with great interest.

I guess I am looking for clear lines in the law where there are none to be found.

[Liko81]

The "bright line" stance of drawing only when intending to fire works fine in a clear cut case where an armed person announces a robbery, or a home invader charges you in your home. It gets a little dicier when you try to apply it to real street situations. In the interests of furthering discussion, let me pose one:

[Snip]

A nightmare scenario to be sure. Justification in Texas, news stories to the contrary, is pretty broad:

* You are justified in using force to the degree you reasonably feel is necessary to end, repel or prevent someone else's use of unlawful force. (9.31)
* You are justified in using deadly force in response to an attempted robbery, regardless of whether the other person was armed. (9.32)
* It is a defense to prosecution, though not complete, that you were mistaken in your perception of the situation. However, the letter of the law states that your perception must negate the culpable mental state required for commission of the act. For aggravated assault, the act must be performed both voluntarily and either intentionally or knowingly. I do not have much knowledge of Texas case law as it applies to interpreting these terms, but as defined in TPC chapter 6, the fact that the three guys looked like robbers does not prove you were not acting intentionally or knowingly. You might argue that it was not voluntary, but unless you've been in the Special Forces or on the police gang unit for 10 years, it's hard to call it a reflex, and the three guys certainly didn't physically force you to draw, aim and fire.

Now, Texas case law to my knowledge seems to adopt the broader "if it looks like a duck" form of mistake of fact; if the circumstances as you believed them to be are (a) credible to the trier of fact such that they would have thought the same, and (b) indicate that your use of force was justified, for all legal purposes that's the way it was. Not quite "he just needed killin'", but a bit more than the circumstances. IANAL and have absolutely no evidence that this is really the way things have been done or will be done. Chas might be able to shed more light on how mistake of fact actually meshes with presumed justification in such situations.

To mr.72: In a practical sense, yes, being justified in drawing but not firing is a very thin band between being justified in firing and not even being justified in drawing. In virtually all self-defense cases, the person who shot in self-defense would not have been justified even in drawing a split second before they could have first shot. Suspicious man turns into robber with the flick of a knife; you can't even draw on a suspicious man but you can shoot a robber and a jury will thank you.

In short, I think you're wrong; there are clear lines in the law regarding when you can use force and/or deadly force, however the lines are crossed so quickly in the real world that you may be lucky to have, at most, two seconds where you are justified in pulling the trigger to actually do so. Draw and shoot early, you're going to jail for manslaughter. Draw late, or not at all, and you're robbed, raped, or dead. Texas police, courts and juries largely know that. "He jus' needed killin'" is fading out, but in its place is "if I'd waited till I saw the knife I wouldn't be discussing it with you". 'Course, never say that to the officer.

[Excaliber]

The "bright line" stance of drawing only when intending to fire works fine in a clear cut case where an armed person announces a robbery, or a home invader charges you in your home. It gets a little dicier when you try to apply it to real street situations. In the interests of furthering discussion, let me pose one:

[Snip]

A nightmare scenario to be sure. Justification in Texas, news stories to the contrary, is pretty broad:

* You are justified in using force to the degree you reasonably feel is necessary to end, repel or prevent someone else's use of unlawful force. (9.31)
* You are justified in using deadly force in response to an attempted robbery, regardless of whether the other person was armed. (9.32)
* It is a defense to prosecution, though not complete, that you were mistaken in your perception of the situation. However, the letter of the law states that your perception must negate the culpable mental state required for commission of the act. For aggravated assault, the act must be performed both voluntarily and either intentionally or knowingly. I do not have much knowledge of Texas case law as it applies to interpreting these terms, but as defined in TPC chapter 6, the fact that the three guys looked like robbers does not prove you were not acting intentionally or knowingly. You might argue that it was not voluntary, but unless you've been in the Special Forces or on the police gang unit for 10 years, it's hard to call it a reflex, and the three guys certainly didn't physically force you to draw, aim and fire.

Now, Texas case law to my knowledge seems to adopt the broader "if it looks like a duck" form of mistake of fact; if the circumstances as you believed them to be are (a) credible to the trier of fact such that they would have thought the same, and (b) indicate that your use of force was justified, for all legal purposes that's the way it was. Not quite "he just needed killin'", but a bit more than the circumstances. IANAL and have absolutely no evidence that this is really the way things have been done or will be done. Chas might be able to shed more light on how mistake of fact actually meshes with presumed justification in such situations.

To mr.72: In a practical sense, yes, being justified in drawing but not firing is a very thin band between being justified in firing and not even being justified in drawing. In virtually all self-defense cases, the person who shot in self-defense would not have been justified even in drawing a split second before they could have first shot. Suspicious man turns into robber with the flick of a knife; you can't even draw on a suspicious man but you can shoot a robber and a jury will thank you.

In short, I think you're wrong; there are clear lines in the law regarding when you can use force and/or deadly force, however the lines are crossed so quickly in the real world that you may be lucky to have, at most, two seconds where you are justified in pulling the trigger to actually do so. Draw and shoot early, you're going to jail for manslaughter. Draw late, or not at all, and you're robbed, raped, or dead. Texas police, courts and juries largely know that. "He jus' needed killin'" is fading out, but in its place is "if I'd waited till I saw the knife I wouldn't be discussing it with you". 'Course, never say that to the officer.

I was in the process of writing a similar response, but Liko81 beat me to it and hit nearly all the points I was going to make. The last one is especially important.

Thanks, Liko81 - very well said.

To carry the discussion on the ATM scenario I posed a bit further in an attempt to apply the law to a street situation, I would argue that at the point when the good guy's verbal challenge was ignored and the three individuals continued to purposefully advance without verbal interaction, in view of my knowledge of the behavior of robbery teams, they had demonstrated ability, intent and jeopardy sufficient to justify use of force to include drawing a firearm and threatening to use it. I would also argue that if the threat of deadly force was then ignored and they continued to close, the good guy would have no viable opportunity for escape and no reasonable option for dealing with a life threatening situation other than using deadly force. The time span between these two points would be only a second or two at most, and the individual investigating officers, prosecutor, and grand jury / trial jury in a given case may or may not agree with my analysis. The reality is that the intended victim doesn't always walk away without consequences even in situations where use of deadly force is much more clearly justified than in the murky situation I created to stimulate thought.

The good guy's prior knowledge of the behavioral characteristics of robbery teams would almost certainly come into play in the aftermath, as would his ability to describe the fact pattern, his thought process, and his justification for the actions he took. How the information is presented in a case like this can be as important as the information itself. Consultation with a good attorney would be very helpful in a situation like this before any statements were made.

[Greybeard]

Quote: "Playing "what if" is very important because it gives you the opportunity to think of alternatives, review the law, get input from others, and formulate a solid plan with lots of issues considered and addressed ahead of time."

A possible "Plan A", for those in physical shape to do so, might very well be to run like a deer.

[casingpoint]

In The Gravest Extreme by Massad Ayoob has a chapter entitled "The Dangerous Myth Of Citizen's Arrest." Basically, don't do it.

Not even with a Concealed Carry Badge

[Excaliber]

Quote: "Playing "what if" is very important because it gives you the opportunity to think of alternatives, review the law, get input from others, and formulate a solid plan with lots of issues considered and addressed ahead of time."

A possible "Plan A", for those in physical shape to do so, might very well be to run like a deer.

I agree.

Avoidance, evasion and flight (the deer imitation) are far preferable to engagement. They're much safer because the outcome is much more sure and in your favor, and they're a lot less expensive. In order to take advantage of these, you need to see problems a long ways off and take action so early that you never enter the actual attack zone and exit from the BG's operational area before coming under his control. Being fit gives more dimensions to the evasion option.

Unfortunately, even with good situational awareness, street situations often develop so quickly and at such short distances or in physical circumstances that take the flight option effectively out of the picture. Being less than fit expands the circumstances where this option is not available.

The wise man will think through his plan for all of the options and be prepared for any circumstance he may find himself in.

[dwhitley]

So my question to all is what would you do in the ATM situation and please no more if the law states this or that, what would you do?

Thanks DW

[Keith B]

So my question to all is what would you do in the ATM situation and please no more if the law states this or that, what would you do?

Thanks DW

The problem is you can run these scenario's through your head a million times, but you never know just what you will do until faced with the actual situation. Every element at the time plays into the initial response and action, and each subsequent action by all parties involved and the surroundings leads to a different reaction.

But, that is what running those 'what if' scenarios through your head helps you with; being able to make those quick responses and reactions.