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by Mike S
Thu Sep 15, 2016 6:32 pm
Forum: Never Again!!
Topic: Close call almost had to draw
Replies: 63
Views: 5511

Re: Close call almost had to draw

parabelum wrote:It is good to see an open minded person. :thumbs2:

We all have made mistakes and still do, but with open dialog and receptive mind, those mistakes will provide a valuable learning opportunities for all.
Amen to that!
by Mike S
Thu Sep 15, 2016 7:26 am
Forum: Never Again!!
Topic: Close call almost had to draw
Replies: 63
Views: 5511

Re: Close call almost had to draw

Texas Tornado,
I'm not intending to jump at you, so please don't take it wrong. Perhaps the OPs post had already been edited before you saw it, but his response was "[four-letter expletive] off", not "shut your mouth & leave us alone". Both may have a similar context, however I believe the point many are trying to make is that (under Tx law, I have no idea what Wyoming law says; remember, under reciprocity we must follow local law) the 'presumtion' of reasonableness is lost if we provoke the attacker. This doesn't mean the OP couldn't have used force/deadly force if immediately necessarily to protect himself/wife, just that the 'presumtion' that his belief was reasonable wouldn't be there. I'm also not saying that any certain DA &/or jury would/wouldn't see it as provocation in this situation.

Taking the totality of the circumstances (boater guy's reapproachiing them; boater guy's verbal aggression towards him; appeared to be reaching under the seat) a reasonable person may have reached the same conclusion that he was reaching for a weapon. And most certainly if a weapon had been produced from under the seat there would have been a reasonable belief that they were in jeopardy (in my opinion).

However, from the boater's/DA's perspective, it may have been a totally different optic: boater asked a couple who were on the launch to move, pointing out the sign that area was for boat launch/recovery only; boater parked his truck in parking lot after launching boat, & saw the OP had only moved 75 yds & parked along the road before proceeding to walk back to continue taking photos; words were exchanged; OP provoked situation by choice of words; OP made obtuse comment threatening to use deadly force if needed. Since I wasn't there & in both parties shoes I won't pretend to know how it actually played out, but the reality is oftentimes somewhere in the middle (and this is one of the key takeaways from the Nonviolent Dispute Resolution block of instruction, finding ways to meet in the middle).

Another thing to consider is that (under Tx law) force is never justified in response to verbal provocation alone. The boater can say whatever ugliness he wants to about Texans, but until he actually (or perceivably) puts us at risk of death/serious bodily injury there's no justification under Chapter 9 to use deadly force in self defense. Likewise, Mr Boater wouldn't have justification under Chapter 9 to use force against the OP for his choice of words either. Even the protection of TPC 9.04 (Threats as Justifiable Force) requires that force be justified already.

So, in the end, I can agree with both viewpoints in the OP's original question (husband's vs wife's perspective) to an extent. The OP could definitely have chosen better words than the expletive (and I agree that this may constitute provocation), but if the Boater had pulled out a gun there would have been a decent claim (minus the presumption of reasonableness) of self defense.

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