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Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 8:14 pm
by boomerang
The Annoyed Man wrote:Furthermore, paraphrasing Section 9.32, "I am justified in using deadly force against mongo if I would be justified in using [any kind of] force against mongo under Section 9.31."
How does that sound?
It sounds like you missed an "
and" in 9.32. You're justified in using deadly force if you're justified in using force
and one or more additional conditions apply.
For example, I think you're justified in using force, but not deadly force, to stop a two year old from kicking you in the shins.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 8:25 pm
by driver8
I would sure like to hear Charles' opinion on this.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 8:35 pm
by boomerang
driver8 wrote:I would sure like to hear Charles' opinion on this.
He gives one heck of a presentation on the subject, occasionally.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 8:55 pm
by driver8
Am I understanding this correctly? I can only defend myself/my family with a gun if I am being asaulted by someone with a gun? Mywife or daughter cannot protect themselves from being raped or murdered unless the perp has a weapon?
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:01 pm
by Beiruty
driver8 wrote:Am I understanding this correctly? I can only defend myself/my family with a gun if I am being asaulted by someone with a gun? Mywife or daughter cannot protect themselves from being raped or murdered unless the perp has a weapon?
we are talking about fist fight, or some throw a punch or jab at an armed CHler.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:07 pm
by driver8
And there is no difference between Mike Tyson being attacked with fists and Don Knotts being attacked by fists?
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:17 pm
by glbedd53
I understand we are talking about shortcomings of the way the law is written but I think I'll take my chances with a Texas jury. I have been a juror a few times and I know how this would have played out.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:25 pm
by G26ster
The Annoyed Man wrote:[
Furthermore, paraphrasing Section 9.32, "I am justified in using deadly force against mongo if I would be justified in using [any kind of] force against mongo under Section 9.31."
How does that sound?
TAM. With great respect for your opinion, I agree with boomerang. I think you missed the "
and." The way I read 9.32, you can only use deadly force if the conditions of 9.31 apply
and one of the crimes in 9.32(a)(2)(B) are occurring or imminent.
driver8 - Rape and murder are covered under 9.32(a)(2)(B) and deadly force is specifically authorized to protect against such.
Please understand folks that I am not addressing what you are I "would" do. I'm sure we would all do whatever was necessary. I am addressing what the law allows we "can" do. If the perp is committing, or imminently about to commit, one of the offenses in 9.32(a)(2)(B), then I doubt any DA would attempt prosecution if deadly force was used to stop or prevent it. The law is clear. However, if the offense is not covered there, then any over zealous DA may well push for prosecution and we would have to depend on a jury's opinion on whether deadly force was justified. Frankly, I'd much rather have it written in the law. BTW, I would love Charles' opinion on this.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:28 pm
by driver8
You can't find where a kick or a punch is deadly force? That's where the part about having the right lawyer comes in. Maybe the law doesn't know the difference between Don Knotts punching Mike Tyson and Mike Tyson punching Don Knotts but the jury does.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:42 pm
by srothstein
G26ster wrote:srothstein: Can't say I think it's quite that simple, IF we consider the use of my weapon as deadly force (which I believe it would be), and based on 9.32 and the big and:
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.
In the situation I described, the attacker fits in neither (A) or (B). He is unarmed, so proving his attempted use of deadly force with his fists is left to a jury, and he is not attempting to commit any of the offenses listed in (B). I just find it odd that I have to "hope" a jury would agree that someone half my age and twice my size attempted the use of deadly force with his fists. Simply adding a few words to (B), like "assault," would require no other justification or defense on my part. If we can have the term "robbery" in (B), why not have "assault" or more specifically "assault on an elderly person." Seems a reasonable law to me.
Perhaps I was not clear enough in this, but I really do think it is that simple. Remember that force is any force, up to and including deadly force. When you look at 9.32, you have the immediately justifiable uses for deadly force. But there is nothing in the law that restricts deadly force to just those times. This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.
My understanding of the law is that the basic rule is when you can use force at all. Then there are some limits and some extensions to it. 9.32 gives times where you can jump immediately to deadly force instead of having to justify the upgrading from lesser levels of force.
And we always have 9.22 as a further example of this logic. This is the defense of necessity. It says you can do anything that is necessary as long as the harm you are trying to prevent outweighs the harm you are doing and there is no law expressly forbidding what you did. So, if I am a 72 year old and am being attacked by a 27 year old athlete, I can use force to the degree necessary to protect myself. This includes shooting him if it is necessary to save my life. this matches well with my interpretation of 9.31.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 9:57 pm
by G26ster
srothstein wrote:
Perhaps I was not clear enough in this, but I really do think it is that simple. Remember that force is any force, up to and including deadly force. When you look at 9.32, you have the immediately justifiable uses for deadly force. But there is nothing in the law that restricts deadly force to just those times. This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.
My understanding of the law is that the basic rule is when you can use force at all. Then there are some limits and some extensions to it. 9.32 gives times where you can jump immediately to deadly force instead of having to justify the upgrading from lesser levels of force.
And we always have 9.22 as a further example of this logic. This is the defense of necessity. It says you can do anything that is necessary as long as the harm you are trying to prevent outweighs the harm you are doing and there is no law expressly forbidding what you did. So, if I am a 72 year old and am being attacked by a 27 year old athlete, I can use force to the degree necessary to protect myself. This includes shooting him if it is necessary to save my life. this matches well with my interpretation of 9.31.
OK Steve, I'll take your explanation of the law and allay my critisism of the law. Obviously, you know more than I do based on your background and experience.Thanks.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 10:02 pm
by rthillusa
My .02- I am too old to take another whipping. I no longer posses any of my former super powers - too many years and too much kryptonite. If someone twice my size and half may age is coming to "take me apart" and I cannot evade him, I am going to respond with deadly force, if I am able, and if he closes within striking distance and I believe he is going to strike (rather than just shoot his mouth off). I am not going to try and parse the law out in that split second. I got a CHL in order to defend my family and myself and I am going to defend myself and my family and will let the lawyers and DAs sort it out. That's their job. My job is to be able to provide for and protect my family. Like an old west Texas cop said to me once, "If there's a fight, I intend to be the one eating breakfast the next morning".
I've lived in Texas all my life and I am also puzzled by Texas law, as are most lawyers I know.
Re: I'm Puzzled by TX Law
Posted: Sun May 09, 2010 10:22 pm
by G26ster
srothstein wrote: This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.
Steve, if the above is so, can you explain to me why 9.31 says, "The use of deadly force is not justified under this subchapter except as provided in Sections 9.32,9.33, and 9.34?" This why I keep going back to 9.32(a)(2)(B). Seems like 9.31 is saying one can use force to the degree necessary, but
not deadly force, unless the conditions of 9.32 are met. I am not challenging your opinion, but I am genuinely confused.
Re: I'm Puzzled by TX Law
Posted: Mon May 10, 2010 3:08 am
by chabouk
Here's where I think the disconnect falls in this thread:
Some folks are focusing on a single punch or single kick, either out of the blue or after multiple credible threats.
I've never once heard of an attacker threatening, "I'm going to punch you exactly one time! And them I'm going to turn and walk away!"
The logical and legal presumption is that if someone is willing to walk up and punch/kick me, he is willing to do so more than once, and that the victim may assume the attacker doesn't intend to stop.
Not to mention, any blows to the head are potentially "deadly force". Many people have been killed by a single blow to the head.
The first Texas CHL to use deadly force was Gordon Hale. He shot and killed Kenny Tavai, who punched him in the head. Hale was cleared by the grand jury.
That's a pretty good precedent.
Re: I'm Puzzled by TX Law
Posted: Mon May 10, 2010 6:37 am
by KD5NRH
driver8 wrote:Maybe the law doesn't know the difference between Don Knotts punching Mike Tyson and Mike Tyson punching Don Knotts but the jury does.
Actually, punching Don Knotts would be covered under PC42.08. It's not a justification for deadly force, though.