Legal definition of provocation

[seamusTX]

But you see, that was not what I was getting at. I'm NOT talking about a "friendly Saturday night fistfight" between two good-ol-boys in the local C&W bar parking lot. I'm talking about being JUMPED, SET UPON, WAYLAID by someone I do not know, have no connection to, etc. that I didn't even say BOO to...once again, am I supposed to run away or let him punch me senseless because he has no weapon in his hand?

Not in my book.

But I have pointed out many real-life cases where people were prosecuted for defending themselves against aggravated assault. (All men, BTW. I don't know of a woman CHL holder being prosecuted under similar circumstances.)

The problem is that prosecutors generally approach these cases with a presumption of wrongdoing, not a presumption of innocence. That is because they spend most of their days dealing with the real scum of the earth, who assault and kill each other over drug deals, gang garbage, or just testosterone poisoning.

Probably you would have an advantage with favorable witness accounts, or if the attacker or multiple attackers have a criminal history or are intoxicated at the time.

Still, it is not a place where I ever want to be. I try to keep options, including avoidance, "verbal judo," and non-lethal measures.

- Jim

[Heartland Patriot]

But you see, that was not what I was getting at. I'm NOT talking about a "friendly Saturday night fistfight" between two good-ol-boys in the local C&W bar parking lot. I'm talking about being JUMPED, SET UPON, WAYLAID by someone I do not know, have no connection to, etc. that I didn't even say BOO to...once again, am I supposed to run away or let him punch me senseless because he has no weapon in his hand?

Not in my book.

But I have pointed out many real-life cases where people were prosecuted for defending themselves against aggravated assault. (All men, BTW. I don't know of a woman CHL holder being prosecuted under similar circumstances.)

The problem is that prosecutors generally approach these cases with a presumption of wrongdoing, not a presumption of innocence. That is because they spend most of their days dealing with the real scum of the earth, who assault and kill each other over drug deals, gang garbage, or just testosterone poisoning.

Probably you would have an advantage with favorable witness accounts, or if the attacker or multiple attackers have a criminal history or are intoxicated at the time.

Still, it is not a place where I ever want to be. I try to keep options, including avoidance, "verbal judo," and non-lethal measures.

- Jim

You will see that I edited my earlier posting. After reading your much earlier thread, it became what I edited it to, for that seems to be the attitude of "the law". I very well understand that folks just can't run around putting lead into others for looking at them wrong, but like I said, it sure doesn't seem right the way it is now, either. Why should the bad guys have ANY upper hand? It would seem that the burden should lie upon those who INITIATED physical violence for gain or pleasure, so to speak.

[ELB]

...
It appears to me that people are reversing the sense of the word "provocation" as cited in that specific section of the statute.

People seem to be addressing whether the CHL is provoking the BG via words.

...

I believe Jim (SeamusTX) was addressing some comments in another recent thread or two that seemed to indicate that the writer did indeed think this was that case --- that verbally intervening in some event, say by telling an actor to stop beating someone, could be construed as provocation by the intervenor. He was countering this by pointing out that telling someone to obey the law is not provocation.

You are correct tho that the law does mean you can't plug somebody just for calling you names or otherwise being merely verbally obnoxious.

[seamusTX]

I very well understand that folks just can't run around putting lead into others for looking at them wrong, but like I said, it sure doesn't seem right the way it is now, either. Why should the bad guys have ANY upper hand? It would seem that the burden should lie upon those who INITIATED physical violence for gain or pleasure, so to speak.

Morally and ethically you are right.

However, look at it from the point of view of a police officer: He sees a dead or bleeding guy who can't tell a story, and another guy with a gun who shot him. The guy with the gun has a decent story, but so does every real criminal with an IQ above 95.

Most of the time, when the cops run into this kind of situation, it is a criminal murder or aggravated assault.

Also if the "shootee" is able to answer questions, he will swear he was on his way from visiting his sick grandma to Bible study when you jumped out of the bushes and shot him. Worse, if he has a girlfriend or buddies, they will back him up.

That is the place where I said I do not want to be.

ELB's synopsis of what I intended is correct. It has not been a couple of threads, but a frequent pattern of people thinking that any verbal reproach of a criminal is some kind of provocation.

- Jim

[knljr]

...good thread...

So, with these 'fighting' scenarios...what if there's a ruckus going on that people are trying to clear up and then one of the two that were fighting pulls a knife/gun.

Do you have to fear for YOUR life or is the fact that you are in proximity of said weapon and it COULD be used against you enough justification to use deadly force?

I think of an example where you're sitting at a fast food restaraunt and a guy comes in and robs the place - pulls a gun and points it at the cashier.

He's not pointing it at you - his back is to you - but you're in a seat where you could easily draw your weapon and place a round wherever you wanted to.

Does the guy have to turn around and point the gun at you or start walking the dining area asking for wallets or something to get to a point where you would use deadly force or does the mere fact that he has or is in the process or robbing at gunpoint enough justification to pull the trigger?

Also curious - in the latter scenario...would anyone attempt to talk to the guy...get him to drop the weapon or what not or do you just pull the trigger?

[Beiruty]

...good thread...

So, with these 'fighting' scenarios...what if there's a ruckus going on that people are trying to clear up and then one of the two that were fighting pulls a knife/gun.

Do you have to fear for YOUR life or is the fact that you are in proximity of said weapon and it COULD be used against you enough justification to use deadly force?

I think of an example where you're sitting at a fast food restaraunt and a guy comes in and robs the place - pulls a gun and points it at the cashier.

He's not pointing it at you - his back is to you - but you're in a seat where you could easily draw your weapon and place a round wherever you wanted to.

Does the guy have to turn around and point the gun at you or start walking the dining area asking for wallets or something to get to a point where you would use deadly force or does the mere fact that he has or is in the process or robbing at gunpoint enough justification to pull the trigger?

Also curious - in the latter scenario...would anyone attempt to talk to the guy...get him to drop the weapon or what not or do you just pull the trigger?

Totally different scenario.

Let us see:
1) Aggravated Robbery in progress, ... Justification to use deadly force, cleared.
2) Defense of others subjected to deadly force threat, ... Justification to use deadly force, cleared.
3) You cleared to draw and.
a) Order if the BG to drop his weapon, ( Risk being shot at by the BG) or
b) Engage to terminate the threat.

a) or b) is how much are you willing to risk being subjected to return fire by BG and how confident that you can react if the BG start with aggressive moves ( attack, fire at your etc,) or start fleeing the scene.

Those scenarios should have been discussed in your CHL course.

[seamusTX]

So, with these 'fighting' scenarios...what if there's a ruckus going on that people are trying to clear up and then one of the two that were fighting pulls a knife/gun.

Beiruty listed the strictly legal aspects.

A guy I knew stopped a robbery at a convenience store. He picked up a can (I think he said corn, but it doesn't matter) and hit the robber on the head with it. The robber staggered way, and the cops found him nearby.

This was before CHL was permitted in Texas.

All I'm trying to say is that there are avenues somewhere between running like a scared rabbit and shooting. It could be difficult to think of these alternatives and make use of them quickly enough to end a situation. But it would be a big relief not to end up like Harold Fish.

- Jim

[knljr]

thanks for the answers...as you can see by my signature...I haven't taken the course yet.

[seamusTX]

Thanks.

I hope you enjoy the course. The whole process now is pretty much under control except for a small number of people who have something complicated in their past.

I see you joined the forum recently. There several thousand threads about scenarios—some practical and some far-fetched. You can search for them with the Advanced Search link at the top of the page.

- Jim

[speedsix]

...seamusTX keeps quietly sayin' the solution to the "provocation" thing...be nice and choose your battles...I've taken more guff and insults from loudmouths since I got my CHL than ever in my life...without feeling that I have to win the verbal argument...and I've only had to even hint that thunderstorms were in their forecast if they didn't move on one time...and didn't say the word gun then...it's much easier to verbally defuse something than spend hours and dollars explaining what we did when we kept on tradin' insults...when we know better...
...that bein' said, the law protects us against having to break and run from an attack where we're within our rights to be and doin' no wrong...you don't have to flee from the bully or go hide...but the story'd better be clearly reasonable for the grand jury if you end up shootin' someone...you don't want them to smell a hint of "Macho" cologne on your neck...or they might read it as you were lookin' for a fight...

[Heartland Patriot]

So, with these 'fighting' scenarios...what if there's a ruckus going on that people are trying to clear up and then one of the two that were fighting pulls a knife/gun.

Beiruty listed the strictly legal aspects.

A guy I knew stopped a robbery at a convenience store. He picked up a can (I think he said corn, but it doesn't matter) and hit the robber on the head with it. The robber staggered way, and the cops found him nearby.

This was before CHL was permitted in Texas.

All I'm trying to say is that there are avenues somewhere between running like a scared rabbit and shooting. It could be difficult to think of these alternatives and make use of them quickly enough to end a situation. But it would be a big relief not to end up like Harold Fish.

- Jim

I would like to hope that it wouldn't end up like Harold Fish...that was a bad case from the beginning (and was later appealed and won, and I believe the conviction was thrown out, too). The prosecutor was just trying to get a "notch on the belt" for that one, though I understand those kinds of low-down dirty blah blah blahs can be anywhere. If we follow that line of reasoning (the 10mm thing), then we should carry .357 Sigs because DPS does. And why does DPS carry .357 Sig? To replicate the performance of .357 Magnum, in an autopistol, against vehicles. And, BTW, Mr. Fish's legal team stunk (though mine would too, as I'm just a working-class guy)...why didn't they bring up the fact that NYC switched AWAY from FMJ rounds to hollowpoints because the FMJs had the tendency to shoot THROUGH people and hit others, or to ricochet more and hit others? Oh, and Mr. Fish was psychic, he KNEW that other guy was going to be out there with dogs that day when he set out on his hike....yeah, right. Like I said, bad case and dirty prosecutor.

[seamusTX]

The Harold Fish case was awful. But as I have said every time it comes up, if Harold Fish had been carrying pepper spray, we never would have heard of him.

Fish might have walked anyway, but this bizarre group of people in the community started complaining that he had "got away with murder." That is why the DA prosecuted the case. Also, as you said, he had a terrible defense attorney; and the jury had the collective IQ of a rack of billiard balls.

- Jim

[Heartland Patriot]

The Harold Fish case was awful. But as I have said every time it comes up, if Harold Fish had been carrying pepper spray, we never would have heard of him.

Fish might have walked anyway, but this bizarre group of people in the community started complaining that he had "got away with murder." That is why the DA prosecuted the case. Also, as you said, he had a terrible defense attorney; and the jury had the collective IQ of a rack of billiard balls.

- Jim

See, I learn something on here all the time...it just popped into my head, the term "defense in depth". I've read about the concept in regards to a large military operation, but I guess it would apply in the micro-scale as well. So it might consist of something like: training and engaging your mind, phone, pepper spray, knife, handgun...now I feel like I've been going out half armed, and maybe I indeed have...thanks, seriously.

[seamusTX]

You're welcome. I hope it helps.

As I have said, I grew up in a place where no one could legally carry a firearm, and my family was not one to advocate it in any case.

We had weapons that were legal to possess, be they hammers, baseball bats, chains, or a length of steel-reinforced hydraulic hose (this is nasty stuff). Key rings with a bunch of useless keys and socks full of coins also were popular.

The cops knew what was going on.

You're just better off with options.

- Jim

[tbrown]

The Harold Fish case was awful. But as I have said every time it comes up, if Harold Fish had been carrying pepper spray, we never would have heard of him.

Probably true. If Fish pepper sprayed the dogs and the violent nutjob beat Fish to death, it would never have made national news. Almost nobody would have heard about Fish being killed except locals, family and friends.