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by Skiprr
Thu Sep 15, 2016 8:32 am
Forum: Never Again!!
Topic: Close call almost had to draw
Replies: 63
Views: 6260

Re: Close call almost had to draw

TexasTornado wrote:
Skiprr wrote:Well, I don't know Wyoming's laws, but there could have been an issue in Texas. Refer to PC §9.31 item 2: "...Did not provoke the person against whom the force was used...."
I'm still not seeing provocation.

1. Appologizes
2. Moves vehicle
3. Tells the aggressor to (paraphrasing again) 'mind their own business'

What in that suggests the OP was pressing for a fight?
[Edited to add: I was typing while many others posted, but I'm gonna delete the time spent even if I'm repeating stuff. :mrgreen: ]

Well, first up, you're bringing your own psychological set into perception of the situation (as we all do) as well as doing a bit of paraphrasing. ;-) And provocation doesn't necessarily infer the extreme of "pressing for a fight."

There's a reason that few of us here respond in any detail to what-would-you-do scenario questions like this unless they're presented in such a facts-only manner that even Sgt. Friday from Dragnet would consider them dry, and unless there is a pretty clear interpretation of the law that applies.

After a bunch of years formally dealing with dispute resolution in one form or another, I can say unequivocally that a first-person description by an actor involved in the encounter is going to contain inaccuracies and/or omissions--whether unintentional or not--upwards of 99% of the time.

There are a couple of elements of the OP's description that don't pass the smell test for me. But let's leave those to the side.

Seems highly likely to me, since another moderator had to delete abbreviated profanity from the OP's post, that the OP's response to the first words of the second encounter were not simply, "Leave us alone," or "Mind your own business." Spicier phrasing was probably used.

We don't see PC §42.01(a)(1) enforced often (though I think it was at an Astros game vs. the Rangers just this week) because it has a qualifier about breach of the peace: "A person commits an offense if he intentionally or knowingly uses abusive, indecent, profane, or vulgar language in a public place, and the language by its very utterance tends to incite an immediate breach of the peace...."

There is no definition in the Texas statues of "provoke," but Mr. Oxford says it is to: "Stimulate or incite (someone) to do or feel something, especially by arousing anger in them; deliberately make (someone) annoyed or angry." If you're the first to hurl profanity in a verbal encounter, I don't think it's too much of a stretch to consider that as provocation...especially if the one doing the hurling subsequently attempts the higher standard of use-of-force justification under PC §9. And, interestingly, there was nothing in the description that indicated the boater responded in kind with profanity or invectives of his own.

The OP stated that the boater pursued him and his wife. But that looks like first-person conjecture to me. There is zero evidence in the description of the event that would substantiate that. I can more easily envision a lake ringed by a narrow, two lane road that is the only means of ingress/egress; and a local boater who probably frequents the spot on a regular basis; and who is prepping his early-morning boat launch for a day on the lake; and, after putting the boat in the water and anchoring it, is driving back to pick up family members, supplies, etc.

Likewise, we don't know where the OP chose to park the second time. Did the boater purposely pull off the road and into a designated parking lot to confront the OP, or did the OP park on the grass right by the road and in a manner that wouldn't endear him to locals who prefer their grassy lakeshore undamaged by tire tracks, who prefer that people stick to designated parking areas? We don't know.

After the verbal exchange probably punctuated with profanity by the OP, the boater moves as if reaching for something. He may be reaching for a cell phone to take a photo of the illegally parked car; he may be reaching to turn off the radio; he may be reaching to calm the Chihuahua on the floormat; he may be reaching for a pamphlet describing the proper use of the lake recreational area because he's a volunteer community park board member. We don't know.

But after the probable use of personally-directed profanity (which, in Texas, and if there were a witness after the shooting who came forward and described it--presumably not the OP's wife--would very likely become a factor in determining provocation under PC §§9.31 and .32), the OP now implies, arguably threatens, his intent to use deadly force: "You won't get the chance to sit up straight." I somewhat doubt a statement like that didn't also come with some shift in body position, however subtle, conscious or not.

In fact, I've been trained for a long time to make that shift early in a possible use-of-force encounter: you never say anything threatening that could escalate the situation; you have an ingrained verbal loop like, "I'm sorry. I can't help you. Keep your distance"; you hold up your off-hand palm-out, not far from your chest in a "stay back" gesture that would also allow you to bring it into defensive use if necessary; you put your head on a swivel looking for possible additional threats, available cover, and bystanders; and you blade the dominant side of your body away, hand down for the shortest path to your gun. You never verbally threaten or imply use of force.

PC §9.04: "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."

In the OP's description, there was nothing that indicated use of force was justified under Texas law, the primary qualifier being that "...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."

Playing devil's advocate in a hypothetical, let's say you live by a lovely lake in Texas and volunteer on the park's community board. We don't know what was said in the initial encounter, but let's pretend it wasn't all lovey-dovey and apologetic. Let's assume the new visitors, when informed they were parked against the rules, offered no comment but a neutral, "We'll move."

It's just after sunrise, and you finish the job of anchoring your boat while the family has been getting ready and packing lunch for a day on the water. You get in your pickup to go get them, and find the new visitors now parked, again against the rules, off on the grassy bank of the lake.

You stop to let them know that that, too, was a no-parking zone. You see the out-of-state license plate. Maybe you make a snarky remark; maybe you don't. If you do, maybe you intend it to be a joke since you'd just had to shoo them off minutes before from also parking against the rules.

The out-of-towner tells you that you can go do something improprietous to yourself. You reach over to get one of the park rules pamphlets you keep in your truck. The out-of-towner, likely accompanied by some change in body position, says, "You try it, and you won't get the chance to sit up straight."

Of course you do exactly what the boater was described as doing: without another word, you drive out of there, now worrying about bringing your family back to the boat, deciding you'll come back using the long way around the lake...and maybe deciding to call the sheriff's department about the threatening visitors.

But if, at that point, things had escalated to shots fired, who do you think the DA would prosecute, and who would likely be no-billed?

Of course, IANAL.
by Skiprr
Wed Sep 14, 2016 9:20 pm
Forum: Never Again!!
Topic: Close call almost had to draw
Replies: 63
Views: 6260

Re: Close call almost had to draw

Well, I don't know Wyoming's laws, but there could have been an issue in Texas. Refer to PC §9.31 item 2: "...Did not provoke the person against whom the force was used...."

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