When does 'verbal provoication' cross the line?

[KD5NRH]

P.C.9.31(b) The use of force against another is not justified: (1) in response to verbal provocation alone;

Assume that ability and opportunity are apparent, at what point would a person's words cross the line to being sufficient to justify force? What about justifying the threat of force? Is it when a clear threat is stated? Does one have to wait for action to begin, and only then start to react?

For example, let's assume a big guy with his hands in his pockets, well within point shooting range says he's going to kill you. If you wait until you can see if he has a weapon before you even start your draw, you're going to be way behind in the fight.

Let's take it another step farther: assume he's standing there with his shotgun over his shoulder. (somewhere that's not too out-of-place, outside the range, near a public hunting area, etc.) Now you can clearly see that he has a weapon. Do you have to wait until you're looking into the muzzle of his Remington before you can pull your gun?

Is there any case law out there to help clear this up?

[longtooth]

The examples used above are not verbal provocation. They are illegal threats against you.
2nd one is not only threat but ability to carry it out.

[txflyer]

IANAL, but from my own experience both of the scenarios are not yet there for use of force against the other guy.

My experience:

I had a neighbor's 19 year old kid make a verbal threat against me that he was going to beat me to a pulp because I asked him to turn down his car stereo. At the time he was seated in the car and never left the car while I was there. I responded that I would defend myself if he felt compelled to carry out his threat. He had ability (younger, faster, bigger, stronger) and opportunity.

I then left and called the police to find out about pressing charges. They responded that since he never stood up, there was no crime. If he had stood up after saying it, that would have shown intent to make the threat real. At that point I was within my rights to defend myself and not have to wait for a swing from him.

Now the good part was that his mother beat him when I relayed the story to her. That was fun to watch.

So in these scenarios, I see a lack of intent on the part of the big guy to follow through with his actions. Personally, I would back away letting him know I will defend myself and wait for movement that shows he was intending to follow through on the threat. The movement may include advancing towards me, quickly removing his hands from his pockets, moving the shotgun from his shoulder, etc.

[Originalist]

O M G, please tell me you are joking!!!! That was a lazy LEO, plain and simple

Sec. 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
(1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
(2) place any person in fear of imminent serious bodily injury;
(3) prevent or interrupt the occupation or use of a building, room, place of assembly, place to which the public has access, place of employment or occupation, aircraft, automobile, or other form of conveyance, or other public place;
(4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service;
(5) place the public or a substantial group of the public in fear of serious bodily injury; or
(6) influence the conduct or activities of a branch or agency of the federal government, the state, or a political subdivision of the state.
(b) An offense under Subsection (a)(1) is a Class B misdemeanor.
(c) An offense under Subsection (a)(2) is a Class B misdemeanor, except that the offense is a Class A misdemeanor if the offense:
(1) is committed against a member of the person's family or household or otherwise constitutes family violence; or
(2) is committed against a public servant.
(d) An offense under Subsection (a)(3) is a Class A misdemeanor, unless the actor causes pecuniary loss of $1,500 or more to the owner of the building, room, place, or conveyance, in which event the offense is a state jail felony.
(e) An offense under Subsection (a)(4), (a)(5), or (a)(6) is a felony of the third degree.
(f) In this section:
(1) "Family" has the meaning assigned by Section 71.003, Family Code.
(2) "Family violence" has the meaning assigned by Section 71.004, Family Code.
(3) "Household" has the meaning assigned by Section 71.005, Family Code.
(g) For purposes of Subsection (d), the amount of pecuniary loss is the amount of economic loss suffered by the owner of the building, room, place, or conveyance as a result of the prevention or interruption of the occupation or use of the building, room, place, or conveyance.



Him being there makes it imminent, nothing about standing up... Again, lazy LEO!

ADD: Terroristic Threats is not one of those justifications for force (IANAL) so I would tread lightly and be reasonably certain your life is in danger.

[DONT TREAD ON ME]

but I will also say that he was probably an ignorant LEO. IT is sad to say but there are many LEOs out there that are ignorant of a lot of the laws.

[Morgan]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws. But SOME laws should be a bit more rote in their memory, like the ones that involve people doing great physical harm to each other, and the finer points of property ownership, since murder, assault, and theft are some of their bigger businesses outside of traffic laws, IMNSHO.

[Originalist]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws. But SOME laws should be a bit more rote in their memory, like the ones that involve people doing great physical harm to each other, and the finer points of property ownership, since murder, assault, and theft are some of their bigger businesses outside of traffic laws, IMNSHO.

I wholeheartedly disagree. Yes, there are lots of laws out there and I do not know them all nor do I expect any LEO to, in fact every day I find myself researching and looking when any question arises. I didn't remember the exact wording of the Terroristic Threat section but you know what, it only took me 30 seconds to find it. That is what I expect any LEO to know.... where to find the information, find the information and act on correct information!!!!!

[KD5NRH]

I wholeheartedly disagree. Yes, there are lots of laws out there and I do not know them all nor do I expect any LEO to, in fact every day I find myself researching and looking when any question arises. I didn't remember the exact wording of the Terroristic Threat section but you know what, it only took me 30 seconds to find it. That is what I expect any LEO to know.... where to find the information, find the information and act on correct information!!!!!

And with searchable electronic storage costing about the same or less than a P3AT these days, they don't need a footlocker full of books to look it up. Three clicks and a 'find in page' would have them reading the exact text in less time than they'd spend waiting for the sergeant to respond to a question.

(Though, somewhat amusingly, the most throughly addicted gadget-freak cop I know actually has a footlocker of books that he stuffs in his cruiser every shift in case somebody challenges the copy on his phone...I guess it's kinda like me carrying a slide rule in case the $100 calculator's answer doesn't look right.)

[DONT TREAD ON ME]

AFCop,
I agree wih you. You dont need to know all the information, just where to find it. Instead of giving out bad/wrong information take the time and look it up. There are so many tools out there to help you find the answers today its ridiculous.

[txflyer]

Yup, true story. Happened several years ago and I had no CHL at the time. In any case I wouldn't have changed a thing about how I acted in the situation.

The terroristic threat was something I hadn't considered and wonder if the LEO simply wanted me off the phone. So what it sounds like to me is that the original poster has a terroristic threat and no justification for the use of force in the scenarios he's presented.

[Morgan]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws. But SOME laws should be a bit more rote in their memory, like the ones that involve people doing great physical harm to each other, and the finer points of property ownership, since murder, assault, and theft are some of their bigger businesses outside of traffic laws, IMNSHO.

I wholeheartedly disagree. Yes, there are lots of laws out there and I do not know them all nor do I expect any LEO to, in fact every day I find myself researching and looking when any question arises. I didn't remember the exact wording of the Terroristic Threat section but you know what, it only took me 30 seconds to find it. That is what I expect any LEO to know.... where to find the information, find the information and act on correct information!!!!!

I don't see how you're wholeheartedly disagreeing with me.

1) I said that since there are too many laws, it's not the LEO's fault that they can't quote chapter and verse out of memory. You SEEM to agree with that.
2) I said some laws should be MORE rote from memory, not that they should be able to quote chapter and verse... in particular the laws that they more commonly take action in regards to which. That's human nature on-the-job unless the individual is incompetent. Anything one does more often, one should be better at.

So where are you disagreeing?

One thing I will say... and this is for anyone, not just LEO's. I detest it when "an expert" is asked a question and they just spout off with some *stuff* instead of taking the minuscule amount of time it takes to look it up and give good info instead of *stuff* info.

[stevie_d_64]

It never has and never will be...

If I have offended someone (pick anyone here ) and they have a problem with me and let me know in a colorful way (verbally), I have been known to have the ability to genuinely smile, look that person in the face and state to them that if I have offended them in anyway that I apologize for my transgression, whether it (transgression) was of my actual doing or not...

And then turn around and walk away...

What may or may not happen next is something that I do not have any control over...

[Originalist]

It's not the LEO's fault that they're ignorant of some laws. There are too many laws.

This is the part I specifically disagree with. A LEO is by authority supposed to enforce the laws of this state, if he doesn't know them, he needs to make every attempt to know as much about them as possible. Case in point: When I read the situation presented by Txflyer I wasn't 100% sure which law had been violated so I went to the penal code and looked at Harassment and Terroristic Threats because I knew enough to know some crime had been committed and I haven't even been to a full fledge police academy (Took supplemental course for my TCLEOSE). It took me an internet connection and 5 minutes to figure out which violation of law took place. This should always be the route LEO take, not misquoting law.

There are a lot of building codes out their, how would you like it if the contractor you hired to build your house didn't "know the codes" and after your house was built and payed for some housing inspector said you couldn't move in because of several "violations". No one would except that excuse in that situation nor would you use the same excuse for an inept attorney no matter which side of the isle your where on.

Does it happen, yes. Should it be excepted, no.

[apostate]

P.C.9.31(b) The use of force against another is not justified: (1) in response to verbal provocation alone;

Assume that ability and opportunity are apparent, at what point would a person's words cross the line to being sufficient to justify force?

If the use of force is not justified in response to verbal provovation alone, then words can never "cross the line" to justify force. There must be elements in addition to the verbal provocation. The seminar presented by Charles last night covered the "verbal plus" question with some examples. I suggest going to the Texas Self-Defense & Deadly Force Law Seminar if possible.

But let's take a step back and look at another part of 9.31: "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." Now we know verbal provocation alone is not enough, so what other factors make you think you need to take immediate action? The answer is likely to be different for a stereotypical "little old lady" than for a 23 year old who competes in mixed martial arts.

What about justifying the threat of force?

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter.

Does one have to wait for action to begin, and only then start to react?

In general, I believe the answer is yes... but I also believe action is a very broad term.

For example, let's assume a big guy with his hands in his pockets, well within point shooting range says he's going to kill you. If you wait until you can see if he has a weapon before you even start your draw, you're going to be way behind in the fight.

Who is he and what is he doing? Is it some stranger who was following you for several zig-zag blocks and verbally threatens you when he isolates you? Is it your buddy sitting across the table saying he'll figuratively kill you at chess?

What's the totality of the situation? Can you (your laywer) explain why you reasonably believed your actions were immediately necessary to protect yourself from him using or trying to use unlawful force?

P.S. IANAL

[WildBill]

Apostate - You listened pretty good last night.

I just wanted to put in my two cents about a couple of factors that can contribute to the totality of the situation: Disparity in size, gender, numbers, age, training, health and proximity.