TexasCHLforum.com

My question is about this part of the CHL penal code:

(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;
(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.

So I'm sure if you fought back, all kinds of trouble would be brought down on you. But if you were within your rights, could you WIN a court case? Or is the system so biased that you stand no chance (also, his word against yours if you have no video evidence)? Thoughts?

Sorry if this is posted elsewhere I couldn't find it.

With the right lawyer and the wrong cop, maybe. I'm real curious to see if any case law is out there on this one. Tagging this post so I can keep track of i.

Honestly, no one can really tell you everything is going to be OK if you have to shoot or hurt anyone.

The system is not perfect, innocent people are charged, and guilty people get by. It happens.

Understand what the laws are to avoid things that might SEEM like you are entitled to but you are not.

And IMO most importantly remember risk vs reward. A black eye and a night in jail are no big deal from an abusive cop. Get them later in court after you get out if its even still worth it to you. Now if that cop or anyone else is beating your loved one to death, snatch the life out of him. Deal with the rest later.

Thats just how I see it, not sure if it helps any.

Yeah, I agree it's down to risk-reward analysis of the situation. Only problem, in the heat of the moment that will probably be the last thing on my mind, and will probably react instinctively.

There are a lot of "weasel words" in that statute. Things like "greater force than necessary" and "reasonably believes" and "to the degree" and "has not provoked". Those are all eye of the beholder things. Not a lot of black and white to go on.

SlickTX wrote:There are a lot of "weasel words" in that statute. hings like "greater force than necessary" and "reasonably believes" and "to the degree" and "has not provoked". Those are all eye of the beholder things. Not a lot of black and white to go on.

I have often thought that but I haven't been able to come up with better words.

CJD wrote:So I'm sure if you fought back, all kinds of trouble would be brought down on you. But if you were within your rights, could you WIN a court case? Or is the system so biased that you stand no chance (also, his word against yours if you have no video evidence)? Thoughts?

Trying to prove that you lawfully resisted arrest is probably one of the hardest things to prove in court. Without an HD video with stereo Dolby sound and a dozen witnesses who are members of the clergy, it's not going to be easy.

There's this one.

viewtopic.php?f=15&t=38594&hilit=troope ... exas+force" onclick="window.open(this.href);return false;

C-dub wrote:There's this one.

viewtopic.php?f=15&t=38594&hilit=troope ... exas+force" onclick="window.open(this.href);return false;

The grand jury dismissed the oppression charge against Perez, but the next day the DA's office charged him with misdemeanor assault.

http://www.myfoxdfw.com/dpp/news/100610 ... Fs-actions#" onclick="window.open(this.href);return false;

I haven't found any links about the misdemeanor assault trial, but I wouldn't be surprised if he copped a plea.

People can jam themselves up pretty good if they misinterpret this statute. I have had people resist that said the arrest was unlawful because they swear they paid that warrant and it wasn't valid. It doesn't work like that.

IMO the odds of legitimately being in this situation are so negligible that having a plan based on non-expert readings of the penal code is a waste. IMO the statute was authored to protect citizens against people engaging in outright criminal conduct that happen to meet definition of "peace officer."

gigag04 wrote:People can jam themselves up pretty good if they misinterpret this statute. I have had people resist that said the arrest was unlawful because they swear they paid that warrant and it wasn't valid. It doesn't work like that.

IMO the odds of legitimately being in this situation are so negligible that having a plan based on non-expert readings of the penal code is a waste. IMO the statute was authored to protect citizens against people engaging in outright criminal conduct that happen to meet definition of "peace officer."

Agreed. The main situation I was envisioning involved the rare occasions when you see an LEO beating someone unnecessarily; so in a hypothetical situation: whether it be myself or someone else, whether it would be wise to intervene.

CJD wrote:

gigag04 wrote:People can jam themselves up pretty good if they misinterpret this statute. I have had people resist that said the arrest was unlawful because they swear they paid that warrant and it wasn't valid. It doesn't work like that.

IMO the odds of legitimately being in this situation are so negligible that having a plan based on non-expert readings of the penal code is a waste. IMO the statute was authored to protect citizens against people engaging in outright criminal conduct that happen to meet definition of "peace officer."

Agreed. The main situation I was envisioning involved the rare occasions when you see an LEO beating someone unnecessarily; so in a hypothetical situation: whether it be myself or someone else, whether it would be wise to intervene.

Rather than being a hero, you would more likely get charged with interfering with a peace officer.

§ 38.15. INTERFERENCE WITH PUBLIC DUTIES. (a) A person commits an offense if the person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with: (1) a peace officer while the peace officer is performing a duty or exercising authority imposed or granted by law;

CJD wrote:The main situation I was envisioning involved the rare occasions when you see an LEO beating someone unnecessarily

It depends on how you determine necessity. The subject may have a deadly weapon clutched in his palm, not visible to the casual bystander. This is a scenario you are much more likely to encounter as a 3rd party. Enter the foray at your own risk, and most likely to your detriment.

I doubt you will find any case law directly on this type of situation. It is possible, and if I were to search for it, I would look at the claims of self-defense made in trials for shooting police officers.

What normally happens in the US is that the officer's force was upheld or, if it is so bad that it is ruled excessive force, the original charges against the suspect are dismissed and the officer is charged, usually with either assault or civil rights violations. The example that jumps to mind is Rodney King, but the politics of that one really muddy the issues in the case.

srothstein wrote:The example that jumps to mind is Rodney King, but the politics of that one really muddy the issues in the case.

srothstein wrote:I doubt you will find any case law directly on this type of situation. It is possible, and if I were to search for it, I would look at the claims of self-defense made in trials for shooting police officers.

What normally happens in the US is that the officer's force was upheld or, if it is so bad that it is ruled excessive force, the original charges against the suspect are dismissed and the officer is charged, usually with either assault or civil rights violations. The example that jumps to mind is Rodney King, but the politics of that one really muddy the issues in the case.

Rodney King had just led police on a chase, and was hopped up on crack at the time.
Doesn't excuse the beating.
But I think the muddy water here is for us average citizens who don't get hopped up on crack and lead police on chases. As rare as real bad cops are, they are out there. Sexual assaults, bribery, robbery, and beatings for citizens who've done nothing serious.

I'm with gigag, though, I think the statute is written for those real bad cops who've gone over the edge.



Just to hijack the thread further, I wonder if this statute could be applied to the police kicking in the wrong door on a no-knock raid?