big guy versus big guy ...

[OverEasy]

I'm glad I posted to this one. CHL/LEO and Liko81 you got me to reviewing things. PC 9.04 Threats as Justifiable Force.
I've gone to the classes 3 times over the years. All that "non violent conflict resolution", "bald fear vs. fear for your life" stuff. Force as opposed to Deadly Force, etc.
I understand you can't USE Deadly Force unless you are in fear for your life. Ie. you can't shoot somebody who threatens you only verbally or who pushes you, shoves you or slaps you. I said "you can't draw until you are threatened with Deadly Force". OK, now I understand that statement was wrong.(see PC 9.04, right?)
I'm going to need some retraining of mindset on my part. I wouldn't even draw my weapon unless I felt justified to use it.( I thought that was the criteria.) For me, Draw-Shoot is like one motion. Now I'll have to figure out how to handle Draw-Don't Shoot.
Like I said I'm glad I found out there was someting I didn't understand.
Regards, OE
PS. I went back and found a thread started by Charles Cotton 12/12/05 "If you can't shoot it, don't show it!" I need to read it again, all 5 pages.

[Liko81]

Also, drawing a weapon is considered use of force other than deadly force in the state of Texas. It is therefore justified whenever such force would otherwise be justified; ...

I don't think that's true when it comes to CHLs not on their own property.

Please consider this law:

PC §46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

I know of two cases where CHL holders have been prosecuted under this law. One was a road-rage incident where the other driver had not threatened the life of the CHL holder. The other involved kids who were banging on the CHL holder's vehicle while the CHL holder was inside.

- Jim

Well, there's also this one:

§ 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.

So by drawing, you are threatening the use of deadly force, which is justified whenever you would be justified under Chapter 9 in using force other than deadly force. My read, given Sec 9.02 ("It is a defense to prosecution that the conduct in question is justified under this chapter") is that even though there is a specific justification under 46.035 for this case, 9.04 also applies in general and does not become unavailable because something else is mentioned as a defense, even if the something else is similar but more restrictive. The law as read would have to specifically exclude other justifications under Chapter 9 for them not to apply. Any other reading makes having a CHL no different than being unlicensed; either way, if you draw on someone without justification for use of deadly force, you are guilty of a Class A misdemeanor.

The question which probably led to prosecution, which would be totally reasonable to ask in both of your cases, is whether use of force was justified. Was the road-rager advancing on the shooter in a way that put the shooter in fear of bodily injury (which justifies the threeat of force by necessity, but not deadly force)? Were the kids attempting to deprive the person of his car by stealing or destroying it (and thus makes defense of property legal)?

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person
in lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.

The question would be if "unlawful interference with property" includes criminal mischief (my read is yes), and if the kids' banging on the car did in fact damage the car or cause "substantial inconvenience" to the owner which would be criminal mischief in the first place (a question of fact for a jury; to trial we go). And of course, if there were provocation by the defendant in either case, justification is probably not going to be successful as a defense. Another question of fact for a jury. Thus I think the reason the crimes were prosecuted were not because the actor was not justified under Sec 46.035, but because the actor MAY be justified under Ch 9, but must assert the defense and present the evidence of same to the jury. The actor or his lawyer MAY have tried to convince the DA not to prosecute, but if the DA thinks he's got a case, or is being leaned on to prosecute, he'll give it to the jury.

[tarkus]

Hi,
Sorry to be cluttering up your forums with questions that have probably been answered before, but I've had toothache for a week now, and can't sleep, so since it's six am here in France, here's another one for you.

I'm 6'4", probably 85 kg (185 lbs), so no seven stone weakling.

What happens if I'm walking along the street (I know: no one walks in Texas! I'll recount the story of what happened when I walked to the Synagogue in Amarillo last month, if you'd like), and a guy say 6'2", 180 lbs comes towards you. Twenty yards away, he demands money or worse, informs me that he's going to use violence against me, whilst continuing to walk towards me.

Now we're roughly the same size, so there's not the 'disparity of size' criterion that I recall seeing on the DPS website as justifying the use or the threat of deadly force, but I'm not a fighter. One - on - one, I suppose I could 'defend' myself, but what if this guy's a trained fighter? What if he gets closer and produces a weapon?

In such a situation, would I be justified in unholstering my weapon and either threatening to shoot, or even shooting if he does not desist?

If you're that big and he keeps advancing on you maybe he has a weapon or accomplices.

[tarkus]

not everybody will have the ability to become the next Gabe Suarez.

Worker's comp and all.

[The Annoyed Man]

not everybody will have the ability to become the next Gabe Suarez.

Worker's comp and all.

Unfortunately (or not, depending on your POV), that charge against him might be bunk after all. Equally unfortunately, we'll never know for sure because he copped a misdemeanor plea to avoid a felony conviction he no longer had the funds to fight. True or not, it doesn't take away from the man's skills, or as a yardstick against which we can measure our own. I despise Mike Tyson, but I sure wish I could box like he used to box.

[seamusTX]

This is a response to Liko81.

As I see it, PC §9.04 and §46.035 have nothing to do with each other.

PC §9.04 is intended to protect people from charges of "brandishing" (which doesn't exist in Texas) or deadly conduct if they produce a weapon in a situation where deadly force is not justified.

For example, if trespassers are on your property, you are perfectly justified in taking a shotgun when you tell them to leave. The trespassers cannot make a criminal complaint. That is not the case in some states.

The law would be equally effective if you were in any place you had the right to be with a long gun (which does not have to be concealed) and the use of force was justified.

PC §46.035 was part of the CHL bill and allows prosecution of a CHL holder in situations where the use of deadly force was not justified.

I don't know the specific details of either case that I mentioned, though there is a long thread about the road rage incident on this forum (sorry, I can't find it). It resulted in a conviction.

In the case of the guy who had teenagers beating on his car, you can damage most modern vehicles with your bare hands or shoes, so the use of force was probably justified. It was also at night, so arguably the use of deadly force was justified (to prevent the commission of criminal mischief in the night time). I think the police arrested the guy so they could sort things out at the station, and I don't know if charges were dropped or prosecuted.

The take-away lesson for me is to be very careful about drawing when the threat is not imminent. You can certainly call me overly cautious. Everyone has to decide these matters for himself.

- Jim

[sar]

The Dog Brothers are pretty cool. I practiced filipino martial arts, focusing a lot on knives, for about 10 years (out of 30 total years practing MA).
There is, however, a logic disconnect in that video. Most of the folks walking around are not actually highly trained knife fighters who understand flow, direction change, angles, footwork, etc. Additionally most folks carry dull knives (stupid stupid stupid)
I'm a trauma surgeon, and I can tell you that one option for managing stab wounds to the abdomen is to just admit them and watch them. This is because the rated of operating and FINDING NO INJURY is quite high. 85% or so of stab wounds to the chest can be treated with a chest tube. Even stab wounds to the neck are usually worked up radiographically rather than operatively. (in the past there were criteria for mandatory exploration-but these are quite outdated)

Anyway, the point (no pun) is that it's absolutely ludicrous to feel a knife in most hands is more dangerous than a gun. The mortality of a gunshot wound far exceeds that of a knife. For you bowhunters who also shoot animals with guns, I would guess this is experientially obvious. The medical literature certainly confirms it in humans.

Bad luck if you happen to find someone who actually knows what they're doing with a knife though...

Incidentally, this may seem obvious, but if you carry a knife for self defense, don't use it to open boxes, envelopes etc. Once, during a martial arts demonstration talking about knifes (I was in street clothes in winter in Boston) I invited an audience member up who had a folder and asked him to open and brandish it. I took it out of his hand by the blade wearing my leather gloves (again, winter in boston). For some reason, folks don't keep their knives sharp. (incidentally I did this when I was young and stupid...wouldn't do it again)