Here's how
I see it...
PC 9.32
ALSO says:
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:
Let's unpack that...
You cannot really discuss 9.32 without referring to 9.31.
9.31 says:
Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 190, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 2, eff. September 1, 2007.
Now, the subjects were committing a verbal provocation by cussing loudly and offensively, but 9.31(b)(1) prevents the OP from responding with use of force. Instead, OP very reasonably asks the offenders to tone it down. I have done this myself on a number of occasions, and in every single one, the offender was apologetic and did tone it down. Asking the offenders to tone it down is not an escalation, and I don't believe any court is going to view it as such. The OP is very reasonable, and he
asks, not
orders, the offenders to tone it down. No court will interpret the offenders' initial behavior, or their response to a reasonable request, as anything but belligerent and confrontational.
The next step is the offender placing his hand on the OP's shopping cart and "mad-dogging" him.
THAT is an escalation of the confrontation. That was also an unlawful act because it borders on physically detaining the OP during the commission of the offender's aggression. At that point, the OP may
reasonably believe [9.31(a)] that the situation is about to become violent. That does not give him permission to escalate
into violence, but it certainly doesn't forbid him from preparing for what might be possibly coming by getting his hand near his gun. He cannot yet
draw the gun, as at this point that would be considered aggravated assault, but he can certainly prepare himself up to that point. Please note that the OP did not verbally respond to the offender's aggression, so he did
not escalate the situation.
Now, 9.32 covers a LOT of ground in the opening phrases:
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....
OK, so the offender's actions up to this point have not justified the use of force, and the OP's actions up to this point have attempted to defuse the situation by A)
asking, not
ordering, the offender to pipe down; and B) refusing to further engage the offender verbally; and C) not
snatching his cart back out of the offender's grasp (which I might have actually done, myself... I'm an old poop, and I'm not inclined to take that kind of crap off of people). The ball is very much in the offender's court at this point. The OP is not doing anything provocative, and the offender has the choice at this point to back down, or to escalate.
Fortunately, the aggressor backed down. Had he instead chosen to escalate, 9.31 authorizes the OP's use of force to defend himself
and his young son. If the other three bad actors even
threatened to get involved, then I believe that the OP's response with deadly force would be covered by 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d).
Now, all of that applies to a reasonably young, reasonably fit father with a 12 year old son to defend. The phrase "reasonably believes" in 9.31 and 9.32 leaves - in my view - a certain amount of leeway in favor of the actor (as defined in the statutes) and his/her threshold at which use of deadly force is a lawful reaction. I am not physically able to defend myself against a
single younger and aggressive assailant. I would therefore
reasonably believe that 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d) were justification for the use of deadly force if the aggressor escalated beyond grabbing the shopping cart. If he tried to come around the cart at me, I might reasonably believe that drawing my gun was necessary, and if he did not stop, I might reasonably believe that dropping him is called for because he is now actively engaged in physically attacking. If he
did stop upon seeing the gun, then I don't have to shoot, and I have met aggressive force with a reasonable response, and drawing the gun (depending on the cops and prosecutors involved) should not be seen as an aggravated assaut.
ALL of that is to say that I would prefer to abandon my purchases at the register and just walk away if I could. But if the aggressor is not going to let me do that, then I have no choice but to react according to the authorization provided by 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d)... ...because I am
not going to passively submit to a potentially fatal beating; and I
am going to go home to my family and live to see another day.
Both the outcome
and the consequences are in the aggressor's hands, but I am under no legal obligation to accept a beating and/or death simply because I am physically incapable of fighting off an unarmed attack. Furthermore, as anyone who has ever taken Charles L. Cotton's use of force in Texas seminar can tell you, Texas is a "true man" state, and you are under no legal obligation to retreat or to accept
anything less than walking away from the encounter in the same physical condition as you were before it started.
That is eminently
reasonable.
I actually really appreciate the inclusion of that phrase "reasonable belief" in both 9.31 and 9.32 because it is the exact opposite of stupid "zero tolerance" laws. It credits the citizen who is behaving lawfully with being smart enough and having wisdom enough to know when they are actually in fear for their life. That is a determination that no cop who shows up after the fact, or that any prosecutor who tries to indict you can challenge because
they weren't there. Not even a hostile witness can challenge it. The law presumes that you are an upstanding citizen who was behaving lawfully and was confronted by a violent thug, and you
reasonably believed that use of force and/or deadly force was a
reasonable response. There are plenty of states in the union where "reasonable belief" is not the standard against which a law-abiding citizen is going to be judged. I am not a violent man. I have
never been arrested for
anything, let alone charged and convicted of anything. I know myself to be a reasonable man and not a trouble-maker. Those who know me also know me to be a reasonable man and not a trouble-maker.
IANAL, YMMV, and all that stuff. This is just how I see it. If any lawyers or LEOs in the bunch want to correct my interpretation of the statutes, I'm open to correction from a
qualified source, but I can tell you that Charles' seminar was a eye-opener for me, and I heartily recommend it to anyone if you ever get the chance to hear it.
)