TexasCHLforum.com

03Lightningrocks wrote:
Heck... I am not even sure I like...the guys...and completely...argue some ridiculous counterpoint...you see...I...complain too.

OOPS..I...post...one sentence...to argue with.

NcongruNt wrote:

srothstein wrote:Apparently, when Gigag04 posted that some of us need to review our Penal Code, he was correct. There seem to be differing opinions on what is legally required to use force, what is required to use deadly force, the definition of each, and how criminal liability versus civil immunity works. And then we have to get into the main sections of the Penal Code to know which crime is being committed.

Seriously, these are all things we need to know if we are going to be armed. And with the way things are all interrelated, we need to know them all.

For example, most of us are aware that if we are involved in a justified shooting, we are immune from liability. But that still means we can be sued, because it is the civil trial that determines if we are justified, not the criminal actions. The grand jury could refuse to prosecute for many reasons, not the least of which is justification. They could refuse to charge because of a lack of evidence or they feel your rights were violated during police questioning. Even if a jury finds you not guilty and the only defense you presented was self-defense as justification (a la Billy Shaver), the victim can sue you. The civil jury would get to decide the justification issue again (a la O.J. Simpson).

A very commonly confusing area for police officers is the difference between theft, theft from person, robbery, and aggravated robbery. When you add in burglary, it can get even more confusing. Taking someone's property without their permission is theft. Taking it from a human being is theft from person (a special case of theft with an upgraded penalty). Using force or the threat of force to take the property is robbery. Think of a pick pocket. He does not use force to steal from a person and could not be charged with robbery. Aggravated robbery is a robbery with certain upgraded elements, such as a deadly weapon is used, or serious bodily injury is suffered.

In the case under discussion, when the man placed his hand on the victim's arm and demanded the phone, it was a robbery. The use of the hand and the demanding voice is enough force to make it a robbery. The demand, as opposed to a request is one of the determining factor. Consider if a person just asks you if you can give him a dollar. This is begging and not robbery.

As was posted, robbery is all it takes to justify the use of deadly force. Fortunately, it also justifies the use of force, which is what the robbery victim used. The robbery victim would have been justified in shooting him at that point, as I read the laws.

One important difference we must all keep in mind is our personal morals versus the law. As one person said, I may hate to explain to a jury that I shot to stop the person from taking a cell phone but I would be fully justified, legally, in doing so even if it is not in my personal standards. There is no minimum value required in the law. I may have my morals, which probably will differ from yours, but the law is pretty clear cut on what society will accept.

Well said, srothstein. What the law allows and what we find moral are two different playing fields. The former is quite static, the latter is up to us.

To expound on this, I posted something about this kind of situation in a thread back in 2008. I apologize if I missed it in this discussion, but drawing (Threat of Deadly Force) is not always considered the use of Deadly Force in all situations. If a criminal escalates or continues illegal force against the threat of deadly force, we can generally conclude that deadly force can be reasonably justified. What is considered reasonable is ultimately up to a jury, so careful forethought needs to be taken to all options in such a situation so that we can make better sound judgment. This is the kind of situation being discussed in another thread called "finally had to draw" ( http://www.texaschlforum.com/viewtopic.php?f=23&t=33940" onclick="window.open(this.href);return false; ). In that situation, the police seem to agree that the threat of deadly force was justified, and I believe they were right, as I read the TPC. Others in that thread disagree, but I'm not sure they're taking into account all of the Use of Force laws in the Code but rather simply Use of Deadly Force.

I wrote up a post back then citing some specific sections of the code that haven't been cited here yet, from what I've seen. In specific, PC 9.04 outlines that the Threat of Deadly Force can be considered simple Use of Force when presented in response to unlawful force or threats and is proportionate to stop the illegal force or threat of force made against the defender. Those situations are the common ones we see further down in Chapter 9, specifically Self Defense, Defense of a Person, Protection of a Third Person, Protection of Life or Health, as well as several sections involving Protection of Property. I'll quote it all below from my previous post, and put a link to that discussion (called "Drawing weapon vs. firing"). There is a discernible distinction that constitutes Threat of Deadly Force (drawing a gun or otherwise) as simple Force when used against immediate illegal Force or Threats of Force against one's person or property.

NcongruNt wrote:Here is the section in the TPC regarding Threat Of Deadly force. It is in TPC 9.04.

PC § 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter. For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, as
long as the actor's purpose is limited to creating an apprehension
that he will use deadly force if necessary, does not constitute the
use of deadly force.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

Necessity of Force

PC 9.22. NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is immediately nec-
essary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm clearly out-
weigh, according to ordinary standards of reasonableness, the harm
sought to be prevented by the law proscribing the conduct; and
(3) a legislative purpose to exclude the justification claimed for the
conduct does not otherwise plainly appear.

Protection of Persons

PC 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 neces-
sary 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 reason-
able 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, vehi-
cle, 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 kid-
napping, 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 regu-
lating traffic at the time the force was used.
(b) The use of force against another is not justified:
(I) 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
(6) 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 of-
ficer'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.
(9 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.

PC 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, rob-
bery, or aggravated robbery.
(b) The actor's belief under Subsection (a)(2) that the deadly force
was immediately necessary as described by that subdivision is
presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom
the deadly force was used:
(A) unlawfully and with force entered, or was attempting to
enter unlawfully and with force, the actor's occupied habitation, vehi-
cle, 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 an offense
described by Subsection (a)(2)(B);
(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 regu-
lating traffic at the time the force was used.
(c) A person who has a right to be present at the location where the
deadly force is used, who has not provoked the person against whom
the deadly force is used, and who is not engaged in criminal activity at
the time the deadly force is used is not required to retreat before using
deadly force as described by this section.
(d) For purposes of Subsection (a)(2), in determining whether an
actor described by Subsection (c) reasonably believed that the use of
deadly force was necessary, a finder of fact may not consider whether
the actor failed to retreat.

PC 9.33. DEFENSE OF THIRD PERSON. A person is justified in
using force or deadly force against another to protect a third person if:
( I ) under the circumstances as the actor reasonably believes
them to be, the actor would be justified under Section 9.31 or 9.32 in
using force or deadly force to protect himself against the unlawful force
or unlawful deadly force he reasonably believes to be threatening the
third person he seeks to protect; and
(2) the actor reasonably believes that his intervention is immedi-
ately necessary to protect the third person.

PC 9.34. PROTECTION OF LIFE OR HEALTH. (a) A person is
justified in using force, but not deadly force, against another when and
to the degree he reasonably believes the force is immediately neces-
sary to prevent the other from committing suicide or inflicting serious
bodily injury to himself.
(b) A person is justified in using both force and deadly force against
another when and to the degree he reasonably believes the force or
deadly force is immediately necessary to preserve the otheh l i e in an
emergency.

Protection of Property

PC 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person
in lawful possessionof land or tangible, movable property is justified in
using force against another when and to the degree the actor reason-
ably believes the force is immediately necessary to prevent or termi-
nate the othets trespass on the land or unlawful interference with the
property.
(b) A person unlawfully dispossessed of land or tangible, movable
property by another is justified in using force against the other when
and to the degree the actor reasonably believes the force is immedi-
ately necessary to reenter the land or recover the property if the actor
uses the force immediately or in fresh pursuit after the dispossession
and:
( I ) the actor reasonably believes the other had no claim of right
when he dispossessed the actor; or
(2) the other accomplished the dispossession by using force,
threat, or fraud against the actor.

PC 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is
justified in using deadly force against another to protect land or tangi-
ble, movable property:
(1) if he would be justified in using force against the other under
Section 9.41 ; and
(2) when and to the degree he reasonably believes the deadly
force is immediately necessary:
(A) to prevent the other imminent commission of arson, bur-
glary, robbery, aggravated robbery, theft during the nighttime, or crimi-
nal mischief during the nighttime; or
(B) to prevent the other who is fleeing immediately after com-
mitting burglary, robbery, aggravated robbery, or theft during the night-
time from escaping with the property; and
(3) he reasonably believes that:
(A) the land or property cannot be protected or recovered by
any other means; or
(B) the use of force other than deadly force to protect or recover
the land or property would expose the actor or another to a substantial
risk of death or serious bodily injury.

PC 9.43. PROTECTION OF THIRD PERSON'S PROPERTY. A per-
son is justified in using force or deadly force against another to protect
land or tangible, movable property of a third person if, under the cir-
cumstances as he reasonably believes them to be, the actor would be
justified under Section 9.41 or 9.42 in using force or deadly force to
protect his own land or property and:
(1) the actor reasonably believes the unlawful interference consti-
tutes attempted or consummated theft of or criminal mischief to the
tangible
movable property; or
(2) the actor reasonably believes that:
(A) the third person has requested his protection of the land or
property;
(6) he has a legal duty to protect the third person's land or prop
erty; or
(C) the third person whose land or property he uses force or
deadly force to protect is the actoh spouse, parent, or child, resides
with the actor, or is under the actor's care.

PC 9.44. USE OF DEVICE TO PROTECT PROPERTY. The justifi-
cation afforded by Sections 9.41 and 9.43 applies to the use of a de-
vice to protect land or tangible, movable property if:
(1) the device is not designed to cause, or known by the actor to
create a substantial risk of causing, death or serious bodily injury; and
(2) use of the device is reasonable under all the circumstances as
the actor reasonably believes them to be when he installs the device.

For police officers, there is a myriad of conditions on specific conduct involving deadly for or threat of deadly force:


Deadly Force

PC 9.51. ARREST AND SEARCH. (a) A peace officer, or a person
acting in a peace officer's presence and at h direction, is justified in
using force against another when and to the degree the actor reason-
ably believes the force is immediately necessary to make or assist in
making an arrest or search, or to prevent or assist in preventing
escape after arrest, if:
(1) the actor reasonably believes the arrest or search is lawful or,
if the arrest or search is made under a warrant, he reasonably believes
the warrant is valid; and
(2) before using force, the actor manifests his purpose to arrest or
search and identifies himself as a peace officer or as one acting at a
peace officer's direction, unless he reasonably believes his purpose
and identity are already known by or cannot reasonably be made
known to the person to be arrested.
(b) A person other than a peace officer (or one acting at his direc-
tion) is justified in using force against another when and to the degree
the actor reasonably believes the force is immediately necessary to
make or assist in making a lawful arrest, or to prevent or assist in
preventing escape after lawful arrest if, before using force, the actor
manifests his purpose to and the reason for the arrest or reasonably
believes his purpose and the reason are already known by or cannot
reasonably be made known to the person to be arrested.
(c) A peace officer is justified in using deadly force against another
when and to the degree the peace officer reasonably believes the
deadly force is immediately necessary to make an arrest, or to prevent
escape after arrest, if the use of force would have been justified under
Subsection (a) and:
(1) the actor reasonably believes the conduct for which arrest is
authorized included the use or attempted use of deadly force; or
(2) the actor reasonably believes there is a substantial risk that
the person to be arrested will cause death or serious bodily injury to
the actor or another if the arrest is delayed.
(d) A person other than a peace officer acting in a peace officer's
presence and at his direction is justified in using deadly force against
another when and to the degree the person reasonably believes the
deadly force is immediately necessary to make a lawful arrest, or to
prevent escape after a lawful arrest, if the use of force would have
been justified under Subsection (b) and:
(1) the actor reasonably believes the felony or offense against the
public peace for which arrest is authorized included the use or at-
tempted use of deadly force; or
(2) the actor reasonably believes there is a substantial risk that
the person to be arrested will cause death or serious bodily injury to
another if the arrest is delayed.
(e) There is no duty to retreat before using deadly force justified by
Subsection (c) or (d).
(f) Nothing in this section relating to the actor's manifestation of
purpose or identity shall be construed as conflicting with any other law
relating to the issuance, service, and execution of an arrest or search
warrant either under the laws of this state or the United States.
(g) Deadly force may only be used under the circumstances
enumerated in Subsections (c) and (d).

PC 9.52. PREVENTION OF ESCAPE FROM CUSTODY. The use
of force to prevent the escape of an arrested person from custody is
justifiable when the force could have been employed to effect the ar-
rest under which the person is in custody, except that a guard em-
ployed by a correctional facility or a peace officer is justified in using
any force, including deadly force, that he reasonably believes to be im-
mediately necessary to prevent the escape of a person from the cor-
rectional facility.

PC 9.53. MAINTAINING SECURITY IN CORRECTIONAL FACIL-
ITY. An officer or employee of a correctional facility is justified in using
force against a person in custody when and to the degree the officer or
employee reasonably believes the force is necessary to maintain the
security of the correctional facility, the safety or security of other per-
sons in custody or employed by the correctional facility, or his own
safety or security.

Also, general justification for various forms of force for public servants:

PC 9.21. PUBLIC DUTY. (a) Except as qualified by Subsections (b)
and (c), conduct is justified if the actor reasonably believes the conduct
is required or authorized by law, by the judgment or order of a compe-
tent court or other governmental tribunal, or in the execution of legal
process.
(b) The other sections of this chapter control when force is used
against a person to protect persons (Subchapter C), to protect prop-
erty (Subchapter D), for law enforcement (Subchapter E), or by virtue
of a special relationship (Subchapter F).
(c) The use of deadly force is not justified under this section unless
the actor reasonably believes the deadly force is specifically required
by statute or unless it occurs in the lawful conduct of war. If deadly
force is so justified, there is no duty to retreat before using it.
(d) The justification afforded by this section is available if the actor
reasonably believes:
(1) the court or governmental tribunal has jurisdiction or the pro-
cess is lawful, even though the court or governmental tribunal lacks ju-
risdiction or the process is unlawful; or
(2) his conduct is required or authorized to assist a public servant
in the performance of his official duty, even though the servant ex-
ceeds his lawful authority.

[Edited to make formatting more clear.]

http://www.texaschlforum.com/viewtopic.php?f=7&t=19249" onclick="window.open(this.href);return false;

03Lightningrocks wrote:

NcongruNt wrote: Because the quoted post is 2 years old, and it relates to the discussion? I could go through and copy/paste the same information from the TPC and not make it a repost, but the only difference in the end result is that it's more work for me.

There can be things learned and repetition avoided from the posterity of discussions of the past. Ask anyone who has been around for the dozen or more many-paged Open Carry threads that have plagued the forum.

Dude!!!! Are you telling me you sat at your computer and read all that???? WOW!!!! I would have to get up and kick something half way through it. I like reading books... just not on a forum on the interweb. I am working on Glenn Becks "Arguing With Idiots". Owners manuals for legalese that 98% of the people posting here have no way of interpreting is humorous to me. Now if most of y'all are lawyers I must apologize.

NcongruNt wrote:

03Lightningrocks wrote:

NcongruNt wrote: Because the quoted post is 2 years old, and it relates to the discussion? I could go through and copy/paste the same information from the TPC and not make it a repost, but the only difference in the end result is that it's more work for me.

There can be things learned and repetition avoided from the posterity of discussions of the past. Ask anyone who has been around for the dozen or more many-paged Open Carry threads that have plagued the forum.

Dude!!!! Are you telling me you sat at your computer and read all that???? WOW!!!! I would have to get up and kick something half way through it. I like reading books... just not on a forum on the interweb. I am working on Glenn Becks "Arguing With Idiots". Owners manuals for legalese that 98% of the people posting here have no way of interpreting is humorous to me. Now if most of y'all are lawyers I must apologize.

Yes, I did.

Y'know, it's funny. If we are going to claim to follow the law, we need to understand it. What I posted was *THE LAW* regarding justification for Use of Force. It is critical that we understand the law in its complete context in order to make an informed and proper decisions *before* an emergency comes along where we might employ our carry weapons. It was obvious to me that pieces of the law were being cherry-picked, so I posted all of the sections pertinent to the topic at hand. It just so happened that I'd previously done so in response to another post along the same general subject, 2 years ago.

And I'm sorry, but I give our members more credit. I think more than 2% of us can understand the laws that I posted. Since that law is what we MUST be accountable to, I think it is critical that we all read it and know what it means. FWIW, everything I posted came from the CHL Handbook, which I read cover-to-cover prior to getting my CHL. I'm not posting this stuff to take up space and blow a thread up. I simply think that if we're arguing about the application of the law in a situation, we need to read and apply it, rather than basing our opinions solely on someone else's interpretation with the citing of a single piece of Chapter 9, rather than all applicable portions of it so that proper context can be had.

And no, I'm not a lawyer. I'm a UNIX Systems Administrator. I do, however, keep a copy of the Texas Penal Code (as well as the CHL Handbook) on my laptop so that I can look up the law myself if I have a question about it. It's much more preferable to flying blind on the here-say of others.

Keith B wrote:Back on topic guys.

handog wrote:I agree that you will know if and when it is time to draw and shoot because you will be in fear for your life. However I would not knock anyone who studies the law regarding lethal force. Regardless of weather you were justified or not your life will be turned upside down. The wheels of justice will begin to turn and the more you know about the law the better off you will be.

handog wrote:Regardless of weather you were justified or not your life will be turned upside down.

tacticool wrote:

handog wrote:Regardless of weather you were justified or not your life will be turned upside down.

Sometimes it's pretty obvious what happened. There are people who shoot criminals and don't get arrested, don't make the front page of the newspaper, and don't have Quanell Ralph Evans marching in their neighborhood.

handog wrote:Perhaps you’re right. I'm no expert but I think at close range with my .45 the BG would be nearly decapitated.

apostate wrote:

handog wrote:Perhaps you’re right. I'm no expert but I think at close range with my .45 the BG would be nearly decapitated.

That seems rather unlikely, unless the BG is a rabbit raiding your garden.