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by WildRose
Mon Apr 22, 2019 9:42 pm
Forum: New to CHL?
Topic: "Brandishing" law or prior cases?
Replies: 27
Views: 3614

Re: "Brandishing" law or prior cases?

bblhd672 wrote:
Mon Apr 22, 2019 9:35 pm
WildRose wrote:
Mon Apr 22, 2019 9:12 pm
RottenApple wrote:
Mon Apr 22, 2019 10:11 am
WildRose wrote:
Mon Apr 22, 2019 2:17 am
It's really pretty simple. If you have a lawful use of force but not deadly force drawing your weapon would be a crime.
As noted by rob777 above, this is not entirely correct.

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 (which is what drawing your firearm would be), 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 if you are in a situation where you are legally authorized to use force, but not necessarily deadly force, then drawing your firearm is only use of force if your intent in doing so is to create apprehension in your assailant that you will use deadly force if necessary.
While they are not always up to date and perfectly correct on matters of law what the DPS instructors taught us on this subject is that the line is crossed when you actually draw the firearm and point it in the direction of another.

IF you feel significantly threatened and put your hand on your gun or just reveal it to the actor in a situation where force but not deadly force would be lawful in order to deescalate or prevent escalation you would be justified in taking that action but if it would not be lawful under the circumstances and you draw the weapon and point it, then you are crossing into the realm of aggravated assault and certainly risk escalating the situation with your display.

As always it boils down to the "reasonable person" defense. First you're going to have to articulate to the police (if they are called or observe the interaction) what justified your actions, then likely to the DA who decides if it goes to the GJ.

If the GJ doesn't feel you were justified then you will go to trial and have to try to convince 12 people not very happy about being on jury duty that your actions were justified.

Personally I don't want to take that risk nor will I advise my students to do so.

If the mere display is not enough to diffuse the situation and get the actor to back off you have a real problem. If you though introduce the gun into the situation by drawing it when you do not have a lawful use of deadly force and things go bad you've just signed your own pass to to the TDC.
You are entitled to your opinion, I will stick with what Texas law says.
Run with that at your own risk. I'd rather keep people out of handcuffs and out of prison.
by WildRose
Mon Apr 22, 2019 9:12 pm
Forum: New to CHL?
Topic: "Brandishing" law or prior cases?
Replies: 27
Views: 3614

Re: "Brandishing" law or prior cases?

RottenApple wrote:
Mon Apr 22, 2019 10:11 am
WildRose wrote:
Mon Apr 22, 2019 2:17 am
It's really pretty simple. If you have a lawful use of force but not deadly force drawing your weapon would be a crime.
As noted by rob777 above, this is not entirely correct.

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 (which is what drawing your firearm would be), 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 if you are in a situation where you are legally authorized to use force, but not necessarily deadly force, then drawing your firearm is only use of force if your intent in doing so is to create apprehension in your assailant that you will use deadly force if necessary.
While they are not always up to date and perfectly correct on matters of law what the DPS instructors taught us on this subject is that the line is crossed when you actually draw the firearm and point it in the direction of another.

IF you feel significantly threatened and put your hand on your gun or just reveal it to the actor in a situation where force but not deadly force would be lawful in order to deescalate or prevent escalation you would be justified in taking that action but if it would not be lawful under the circumstances and you draw the weapon and point it, then you are crossing into the realm of aggravated assault and certainly risk escalating the situation with your display.

As always it boils down to the "reasonable person" defense. First you're going to have to articulate to the police (if they are called or observe the interaction) what justified your actions, then likely to the DA who decides if it goes to the GJ.

If the GJ doesn't feel you were justified then you will go to trial and have to try to convince 12 people not very happy about being on jury duty that your actions were justified.

Personally I don't want to take that risk nor will I advise my students to do so.

If the mere display is not enough to diffuse the situation and get the actor to back off you have a real problem. If you though introduce the gun into the situation by drawing it when you do not have a lawful use of deadly force and things go bad you've just signed your own pass to to the TDC.
by WildRose
Mon Apr 22, 2019 2:17 am
Forum: New to CHL?
Topic: "Brandishing" law or prior cases?
Replies: 27
Views: 3614

Re: "Brandishing" law or prior cases?

02stampede wrote:
Fri Nov 30, 2018 1:18 am
I apologize if this is in the wrong location. I'm sure this question has been asked before. I am looking for legal cases.

My question is very simple. If you draw on a situation that would be 100% legal to shoot, but don't pull the trigger, is there a negative impact on not pulling said trigger?

I'm talking from a de-escalation standpoint. The scenario being a life or death situation or serious bodily harm. If an individual backs down, I'm not shooting. Plain and simple. I have a military combat history and never fired at an anyone that didn't deserve it. Even after being cleared hot to do so in one instance. An individual I served with, came to me with thoughts of suicide because he thought he may have shot a non-combatant. It was a real eye opener for me and I'm glad I never had to live with that thought.

Not trying to sound like a patsy. I understand my surroundings. I am curious if there have been any legal cases that impacted the carrier negatively in a situation by not shooting that would have otherwise been a positive outcome?
It's really pretty simple. If you have a lawful use of force but not deadly force drawing your weapon would be a crime.

If you have a lawful use of deadly force and draw your weapon but are able to then deescalate the situation without firing there is no crime. Sommewhere north of 90% (depending on who's numbers used) of DGU's do not require a firearm to ever be fired

Never however fire a "warning shot" because at that moment you give up the claim that the threat was imminent.

The relevant statutes are here.

https://statutes.capitol.texas.gov/docs/PE/htm/PE.9.htm

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