displaying a gun vs. brandishing, etc.

[mr.72]

Question flows from the topic about the street number painting scam.

Someone suggested that displaying a gun to a trespasser on your property, while not aiming it at him, would be legal, while to aim the gun would be illegal.

Is this really the case?

For example let's say there is an unwelcome guest that comes to your house and you tell them to leave, right now. They refuse to leave. You take your gun from the holster and keep it at your side. Is this brandishing? Is this the "threat of deadly force"? or is this just openly carrying a gun legally on your own property?

[seamusTX]

Texas does not have a crime called brandishing (some states do).

You can carry or display a weapon on property that you control. The law does not positively state this; it simply is not an offense.

Displaying a firearm in the course of a confrontation where you are in the right does not constitute use of deadly force (PC §9.04). (Again, this is an offense in some states.)

Pointing a weapon at a person is always an offense, regardless of whether the weapon is loaded. You must have one of the justifications from chapter 9 to do so. If it's not a justification for the use of deadly force, you could spend a lot on legal bills.

Removing trespassers from open land is not a justification for the use of deadly force.

All this applies to your own property. If you are not on your property, you can run afoul of PC 46.035(a) - intentional failure to conceal. I know of four cases where this happened.

Now, there are still potential problems with all of this. If the police show up, they may decide to take everyone to the station to sort it out. The miscreant or miscreants may concoct a story and call it in to 911 -- though it is not likely to stand up to questioning.

- Jim

[surprise_i'm_armed]

Along these lines, I have a further question.

Say you are at a gas station and some potential robber
approaches you. You, as the CHL holder, draw your gun
and tell him "You don't want to do this. Turn around and
leave." He goes away and nothing further happens.

I don't believe the CHL statutes require the CHL holder to
report such an incident to LE.

But if the bad guy wants to try his luck, he could call 911 and
report this first, claiming that he was threatened with a gun when
he just wanted to ask for directions.

Thoughts on this scenario?

[boomerang]

It sounds like the simple solution is to head him off at the pass and call 911 first to report his attempted robbery.

[Beiruty]

I remember that there is tolerance to the use of "threat of deadly force" to terminate a criminal trespassing. Where is the Penal Code ?

[The Annoyed Man]

Along these lines, I have a further question.

Say you are at a gas station and some potential robber approaches you. You, as the CHL holder, draw your gun and tell him "You don't want to do this. Turn around and leave." He goes away and nothing further happens.

I don't believe the CHL statutes require the CHL holder to report such an incident to LE.

But if the bad guy wants to try his luck, he could call 911 and report this first, claiming that he was threatened with a gun when he just wanted to ask for directions.

Thoughts on this scenario?

Absent any verbal or physical communications from the other party to the effect that you are actually under attack, drawing your gun on a "potential robber" doesn't seem like a good idea to me. What if all he really wanted was to ask for directions? In your scenario, everyone who walks toward you in a gas station is a "potential" robber, but the truth is that most aren't. It would seem far wiser to me to pay attention to your spidey sense. If it tingles, then simply stepping back on your strong side, placing hand on gun (but not drawing it), raising weak side hand in a palm out gesture, and saying in your best "command" voice something like "THAT'S CLOSE ENOUGH!" would warn off those whose intentions are not sinister, without all the attendant unpleasantries of waving a gun in someone's face, and while still placing you in a good defensive posture. It has a further effect: If there are any witnesses, they will have heard you issue the verbal warning first, drawing their attention to the fact that you are not the aggressor, most particularly if there is a gas-station video recording of the event.

The sad fact is that you cannot preempt a "potential" aggressor by conspicuously displaying your weapon because doing so makes you the aggressor if the other guy really is innocent of any bad intent. Therefore, as the good guy, you're always going to be reacting to, not initiating the event. The best you can do is be aware of your surroundings and have a plan for what your perceive to be developing.

Lastly, and this is just my opinion, but if you have drawn your gun in self defense, you really should report it, regardless of whether or not you had to fire it. The police might very much like to know the description of the bad guy if he got away without shots fired, because you have to remember that he's still out there with a predisposition to attack/rob someone else; and he needs to be scooped up by the law.

[stevie_d_64]

Along these lines, I have a further question.

Say you are at a gas station and some potential robber approaches you. You, as the CHL holder, draw your gun and tell him "You don't want to do this. Turn around and leave." He goes away and nothing further happens.

I don't believe the CHL statutes require the CHL holder to report such an incident to LE.

But if the bad guy wants to try his luck, he could call 911 and report this first, claiming that he was threatened with a gun when he just wanted to ask for directions.

Thoughts on this scenario?

Absent any verbal or physical communications from the other party to the effect that you are actually under attack, drawing your gun on a "potential robber" doesn't seem like a good idea to me. What if all he really wanted was to ask for directions? In your scenario, everyone who walks toward you in a gas station is a "potential" robber, but the truth is that most aren't. It would seem far wiser to me to pay attention to your spidey sense. If it tingles, then simply stepping back on your strong side, placing hand on gun (but not drawing it), raising weak side hand in a palm out gesture, and saying in your best "command" voice something like "THAT'S CLOSE ENOUGH!" would warn off those whose intentions are not sinister, without all the attendant unpleasantries of waving a gun in someone's face, and while still placing you in a good defensive posture. It has a further effect: If there are any witnesses, they will have heard you issue the verbal warning first, drawing their attention to the fact that you are not the aggressor, most particularly if there is a gas-station video recording of the event.

The sad fact is that you cannot preempt a "potential" aggressor by conspicuously displaying your weapon because doing so makes you the aggressor if the other guy really is innocent of any bad intent. Therefore, as the good guy, you're always going to be reacting to, not initiating the event. The best you can do is be aware of your surroundings and have a plan for what your perceive to be developing.

Lastly, and this is just my opinion, but if you have drawn your gun in self defense, you really should report it, regardless of whether or not you had to fire it. The police might very much like to know the description of the bad guy if he got away without shots fired, because you have to remember that he's still out there with a predisposition to attack/rob someone else; and he needs to be scooped up by the law.

A wise ole sage has spoken!

[seamusTX]

I remember that there is tolerance to the use of "threat of deadly force" to terminate a criminal trespassing. Where is the Penal Code ?

You are thinking of PC §9.41. It says force, not deadly force.

A lot of property owners have gotten into a world of grief by misunderstanding this.

- Jim

[FlynJay]

The "Threat of Deadly Force" is not deadly force it is the "Threat of Force", and can be used anywhere where the use of force is justified.

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.

[Fangs]

What about:

§ 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.

I realize that it says "threat of force" not "threat of deadly force", but then it goes on to say what I underlined about "a threat to cause death or serious bodily injury (I read: threatening deadly force) by the production of a weapon or otherwise... does not constitute the use of deadly force"

[mr.72]

Right:

I my read of the statute is that whenever "force" is justified, then the display of a firearm is also justified.

But I dunno if "force" is justified to remove a trespasser. Guess I can search for that.

[joe817]

I totally agree with TAM's post.

[bdickens]

Along these lines, I have a further question.

Say you are at a gas station and some potential robber
approaches you. You, as the CHL holder, draw your gun
and tell him "You don't want to do this. Turn around and
leave." He goes away and nothing further happens.

I don't believe the CHL statutes require the CHL holder to
report such an incident to LE.

But if the bad guy wants to try his luck, he could call 911 and
report this first, claiming that he was threatened with a gun when
he just wanted to ask for directions.

Thoughts on this scenario?

That is the main reason I finally broke down and got a cell phone.

[TrueFlog]

You guys are absolutely right that the threat (but not use) of deadly force is justified whenever the use of force is justified. There was a story on this board not long ago where this scenario played out. A CHL holder was at his kid's soccer game and was complaining to the coach about his kid's playing time. The coach's husband intervened and an argument ensued. At some point, the husband shoved the parent, and the parent drew his weapon. He didn't just display it, he stuck it in the husband's face. He was arrested but never charged. Because he was shoved, he was justified in using force, and because he never pulled the trigger, his response amounted to force but not deadly force.

As to the OP's question, I don't believe the use of force is justified to remove a trespasser unless he poses an immediate threat to your safety or property. In that case, it would be an offense to threaten to shoot him. The question then becomes "Where do you (or the DA) draw the line between OC'ing and threatening someone?" Some might argue that displaying your weapon is OK because you're OC'ing in your home and you didn't verbally threaten him. Others would say that the mere display of a weapon implies the threat to use it, even without a verbal threat. After all, that is why you showed it, right? To scare him off?

I think I remember hearing someone say that it is illegal to display a firearm in a manner that is calculated or intended to create fear, or something similar. Can anyone clarify that? Also keep in mind that over-zealous police and DA's have plenty of other ways to charge you if they want. If they can't get you on the weapons charge, they may still charge you with disorderly conduct, disturbing the peace, etc. They may also use it as a pretext to search your home and look for evidence of other "crimes". I'm not suggesting they're all out to get us, I'm just saying it happens sometimes. This is precisely why I open carry inside my house, but cover up as soon as I step outside where others can see. Yeah, it's legal to OC in my front yard, but I don't want to risk a trip downtown if my neighbors call the cops. (I've thought about writing the Plano police chief and/or DA to ask if they have a policy regarding the matter.)

[seamusTX]

As to the OP's question, I don't believe the use of force is justified to remove a trespasser unless he poses an immediate threat to your safety or property.

I already said PC §9.41 justifies the use of force to remove a trespasser.*

Think about it: If you weren't justified in using force to remove a trespasser, bums could set up housekeeping on your property, and all you could do was ask them to leave.

I think I remember hearing someone say that it is illegal to display a firearm in a manner that is calculated or intended to create fear, or something similar. Can anyone clarify that?

That is in a public place.

They may also use it as a pretext to search your home and look for evidence of other "crimes".

The need a search warrant unless there is an obvious, urgent need to go in, like someone screaming Help.

*This applies only to criminal trespass, someone who has no right to be on your property, or someone who you may have invited but tell to leave.

Force cannot be use in land ownership disputes or landlord-tenant disputes. They have to be settled in court. Anyone who threaten or uses force in such a dispute is committing assault.

- Jim