Legal definition of provocation

[seamusTX]

I don't think this conversation has gone in a productive direction.

- Jim

[tbrown]

I don't think this conversation has gone in a productive direction.

- Jim

OK. How about this?

The CHL class is required to cover four subjects. One of those subjects is "nonviolent dispute resolution" but it doesn't get a lot of air time in my experience and from what I hear from other CHLers. Maybe DPS should encourage instructors to focus more on that subject, even if that means DPS needs to focus more on that subject when teaching the instructor classes.

[seamusTX]

The CHL class is required to cover four subjects. One of those subjects is "nonviolent dispute resolution" but it doesn't get a lot of air time in my experience and from what I hear from other CHLers.

I agree that aspect should be emphasized. It was in the course I took, along with less-than-lethal means.

Probably the whole chain of awareness, avoidance, evasion, deterrence, non-violent dispute resolution, and spectrum of force could be covered better. It's difficult to do it all in 10 hours, but IMHO those subjects are a lot more important than the size of lettering on 30.06 signs and similar perennial topics on this forum.

All I'm saying is I don't want to put myself into a situation where I can only cower, run, or shoot. I don't care for cowering. I couldn't run very fast on my best day 40 years ago. Shooting is noisy and messy. There are many options in between.

- Jim

[Jumping Frog]

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.

I have seen the argument advanced that a CHL (unlike law enforcement), could be at a legal disadvantage by carrying a variety of non-lethal alternatives.

After all, say I am a mid-50's man getting robbed by a 20 year-old where I do not see a visible weapon, but he could just as easily have a knife. There is obvious disparity of force. For argument's sake, assume I am in legitimate fear of death or serious bodily injury. If all I have is a gun, it is harder to find fault with me legitimately using it for self defense.

However, if I also had non-lethal alternatives available to me, then I am opening myself up to second guessing and additional scrutiny. "Why didn't you just pepper spray him instead of shooting?"

Although I see some merit to that line of argument, I'll also note that I personally choose to carry pepper spray as well. I did have one road rage encounter where I pepper sprayed the other driver who was trying to beat on my window and was glad I didn't have to shoot him.

[seamusTX]

Preventing robbery is a justification for the use of deadly force in Texas. Period. The robber does not have to be armed with a visible weapon.

As a practical matter, usually they pretend to have a weapon if they do not actually have one.

When you see claims about excessive force, they often are civil rights cases or lawsuits against a police officer. The police attract lawsuits mainly because they have deep pockets.

The bottom line is I can explain why I do what I do to a certain extent, but I can't give definitive advice that is right for everyone or could cover every possibility.

- Jim

[03Lightningrocks]

Lately I have seen the issue of provocation mentioned quite a few times.

This message is an attempt to clarify the issue. I am not a lawyer, don't play one on TV, didn't sleep at a Holiday Inn Express last night, etc.

Provocation comes up in a legal context related to Penal Code 9.31, which is the justification for use of force—not deadly force: "(b) The use of force against another is not justified: (1) in response to verbal provocation alone;..."

This section of the law is the foundation for other uses of force or deadly force, which refer to it as a prerequisite.

There are very clear examples of provocation. The typical "Who you lookin' at" or "Yo mama" jibe is a verbal provocation. The finger is not verbal, but is in the same category.

It is never provocation to tell someone to stop doing something illegal. If it was, the cops could only hand out little cards asking people to kindly refrain from robbery, rape, theft, vandalism, etc.

This pertains to personal assaults, theft, trespassing, or any other crime. Also you have the right to tell a person to leave your property for any reason. You can even tell your mother-in-law to leave, if you want to deal with the consequences.

The gray area, as I see it, is when another person starts to escalate a situation without actually committing an offense. For example, if you accidentally bump someone, and he goes off like a firecracker. I have had this happen. My solution is to apologize profusely, far more than etiquette requires. This has always worked. These people have a fragile ego that needs to be reinforced.

Your comments are welcome (as if I needed to say that ).

- Jim

Ruh Roh... I am not as patient as you. I bump into someone and always say excuse me and apologize. If they were to act like a dousch, I would come back like the wrath of an arch angel. Thing is, I have never had anyone act like a jerk after I say excuse me and apologize. I think I have a look that maybe causes one to wonder if I am a contract killer...LOL. Maybe there is some kind of energy field that keeps me from running into other people like me.

[Oldgringo]

IMO, the legal "definition" of provocation is likely to be determined on a case by case basis and heavily dependent on case law rather than statute.

Not being a legal guru, my view of "provocation" is any verbal or physical act carried out with the intent to insult, injure, or incite a hostile response. I avoid those actions and am a firm believer that cooler heads prevail.

I've never met Texas Dan Mosely but he must be pretty smart if I keep agreeing with him.

seamusTX and 03Lightningrocks are pretty smart too.

[03Lightningrocks]

Preventing robbery is a justification for the use of deadly force in Texas. Period. The robber does not have to be armed with a visible weapon.

As a practical matter, usually they pretend to have a weapon if they do not actually have one.

When you see claims about excessive force, they often are civil rights cases or lawsuits against a police officer. The police attract lawsuits mainly because they have deep pockets.

The bottom line is I can explain why I do what I do to a certain extent, but I can't give definitive advice that is right for everyone or could cover every possibility.

- Jim

Funny you mentioned that. When my son attended UofH, there were several "armed robberries", of mostly freshman goofballs, on campus. Typically the students were wondering around late at night after getting drunk in their dorms or at parties. Funny thing though, nobody ever saw a weapon. The robbers would say, "I have a gun", and the student would hand over the wallet. The reports always said, "armed robbery". I suppose just claiming to have a weapon makes it armed robbery, even if you don't actually have a weapon?

[03Lightningrocks]

03Lightningrocks are pretty smart too.

I like this part of your post best.

[The Annoyed Man]

I wished the the TX Penal Code, included the word, physical (not simple) assault next to robbery.

Unfortunately, this would allow someone who was losing a fistfight that he willing engaged in to shoot or stab the other guy and then claim self defense. This actually happens now. People who try it usually are convicted of something.

I'm sure no member of this forum would willing pick a fight, but for many men it is just another item on their agenda for a fun Friday or Saturday night.

- Jim

EDITED AFTER READING OLDER THREAD:

Okay, I get it...if the bad guy doesn't have a weapon, and he wants to cause trouble and tries to beat me into a pulp EVEN IF I DID NOTHING TO PROVOKE THE SITUATION, run away because the law prefers him doing that sort of stuff to law-abiding citizens. Got it...sorry to sound this way, I know its not your fault or anyone on here's fault, but it sure does NOT seem right.

It isn't right. Here's my take on it........

Any prosecutor or defense attorney worth their salt is going to take "disparity of force" into account, either in the decision of whether or not to charge someone who responded with deadly force of their own, or in the strategy of defending the accused. The absolute, incontrovertible truth is that millions of people throughout human history have been beaten to death with nothing more than naked fists. It is also true that a 5 shot .38 special snubbie makes a 70 year old grandmother the physical equal of a college football linebacker.

The laws of the state of Texas are not perfect in this regard, but they are actually pretty good. All other things being equal between the attacker and the victim of the attack, use of force is not justified against words. "I'm fixin' to whup your butt," is not a good reason to shoot somebody, let alone a reason to strike them with either your hand or a hand-held object. "I'm fixin' to whup your butt," is a good reason to defend yourself physically against someone if their words are accompanied by an attempt to hit you first—whether or not they actually connect. But "I'm fixin' to whup your butt" accompanied by rapid movement in your direction from a baseball bat wielding assailant certainly justifies drawing your gun AND shooting if the assailant presses the attack.

The thing that is so charming to me about Texas law is the repeated use of the words "reasonable" and "reasonably." THIS is the reason an old grandmother can legally shoot a 6'4" 240 lb linebacker who pimp-slaps...... or tries to pimp-slap her. The law assumes that, unless she has demonstrated otherwise, she is a reasonable person. And a reasonable person of her description might reasonably believe that deadly force was called for in response to an assault from a younger, larger, stronger assailant.......whereas she couldn't claim that she reasonably believed that deadly force was called for if her 80 year old sister in law tried to slap her.

Deadly force is justified if the actor reasonably believes that the assault will result in his/her death or serious bodily injury. "Serious bodily injury" is defined as: "bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ;" TPC 1.07 (a)(46). If somebody hits you with a bat, it doesn't have to be in the head to be fatal. A hard enough blow from a fist or foot to the upper left quadrant of the abdomen just under your short ribs will fracture your liver and you'll bleed to death. A strong enough punch to the abdomen can rupture an artery in the omentum, and you'll bleed to death absent emergency surgery. A strong kick to the left abdomen can fracture your spleen, and you'll bleed to death absent emergency surgery. A kick to the ribs can collapse your lung. I could go on and on. A thumb stuck in your eye will blind you, causing "protracted loss or impairment of the function of [a] bodily member or organ." ALL of those things justify a response with deadly force. Furthermore, the law doesn't specify that the injury must occur before the deadly force response can be justified. The law only says that the actor must reasonably believe that deadly force is justified.

I'm not saying all of this stuff to encourage people to shoot someone at the slightest provocation. In fact, I counsel people to generally avoid placing themselves into situations where the likelihood of having to defend one's self go up exponentially. Nothing good happens after 10 pm, and all that stuff.... BUT, and I believe that I speak for pretty much everybody who is remotely in the same boat as I am, my own physical capacity to respond to physical force with physical force in return is severely diminished. I have fewer alternatives available to me today than I had 30 years ago. And yet, the law does not say that my right to self defense is any less diminished simply because my capacities are diminished. I'm not going to pick a fight with someone. I will deescalate at almost any opportunity. But I'm simply not going to let somebody beat on me first before I respond, most likely with deadly force..............because at that point, I reasonably believe that the attacker intends to either A) kill me, or B) cause me "protracted loss or impairment of the function of any bodily member or organ;' and either A or B justifies my use of deadly force.

As Crossfire once posted a couple of years ago, "never pick a fight with an old man. If he's too tired, he'll just have to shoot you."

[seamusTX]

Thing is, I have never had anyone act like a jerk after I say excuse me and apologize. I think I have a look that maybe causes one to wonder if I am a contract killer...

Probably I acquired this look around age 40. Before then it seemed like some men thought I would be a push-over, but even then they were looking in the wrong place.

When my son attended UofH, there were several "armed robberries" ... Funny thing though, nobody ever saw a weapon.

There is no crime of armed robbery in Texas, though the police may report it that way (similar to rape, which also is not a defined crime).

Robbery with a deadly weapon is aggravated robbery.

Most bank robberies involve unarmed threats. Probably they could go like the episode that I mentioned, where the good guy conked the robber on the head with a can of corn. I read about one where the robber had a water pistol that was dripping. The intended victim literally laughed him out of the place.

- Jim