Necessity

[LSUTiger]

IANAL

I am not encouraging anyone to break the law, but the question was raised in another thread about the LEO response of carrying past 30.06/7, perhaps if the signage was not legal (that's the way I understood it).

This led me to wonder what if the sign was legal and you concealed carried past 30.06/7 and a situation arose in which you were legally justified in defending yourself?

So unless I am misinterpreting, if you are not carrying an illegal weapon and not committing a crime other than a Class C misdemeanor (which is what carrying past 30.06 with CHL/LTC is) would 9.22 NECESSITY negate 30.06/7 if you would be justified in defending your self????


IANAL, some one please educate me.




http://www.statutes.legis.state.tx.us/S ... m/PE.9.htm

Sec. 9.22. NECESSITY. Conduct is justified if:

(1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;

(2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and

(3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.



SUBCHAPTER C. PROTECTION OF PERSONS

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), 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. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the force was used:

(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;

(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or

(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(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; and

(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.



Sec. 46.02. UNLAWFUL CARRYING WEAPONS. (a) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun, illegal knife, or club if the person is not:

(1) on the person's own premises or premises under the person's control; or

(2) inside of or directly en route to a motor vehicle or watercraft that is owned by the person or under the person's control.


Text of subsection effective until January 01, 2016


(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which:

(1) the handgun is in plain view; or

(2) the person is:

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

(B) prohibited by law from possessing a firearm; or

(C) a member of a criminal street gang, as defined by Section 71.01.


Sec. 46.05. PROHIBITED WEAPONS. (a) A person commits an offense if the person intentionally or knowingly possesses, manufactures, transports, repairs, or sells:

(1) any of the following items, unless the item is registered in the National Firearms Registration and Transfer Record maintained by the Bureau of Alcohol, Tobacco, Firearms and Explosives or classified as a curio or relic by the United States Department of Justice:

(A) an explosive weapon;

(B) a machine gun;

(C) a short-barrel firearm; or

(D) a firearm silencer;

(2) knuckles;

(3) armor-piercing ammunition;

(4) a chemical dispensing device;

(5) a zip gun; or

(6) a tire deflation device.

(b) It is a defense to prosecution under this section that the actor's conduct was incidental to the performance of official duty by the armed forces or national guard, a governmental law enforcement agency, or a correctional facility.

(c) Repealed by Acts 2015, 84th Leg., R.S., Ch. 69 , Sec. 2, eff. September 1, 2015.

(d) It is an affirmative defense to prosecution under this section that the actor's conduct:

(1) was incidental to dealing with a short-barrel firearm or tire deflation device solely as an antique or curio;

(2) was incidental to dealing with armor-piercing ammunition solely for the purpose of making the ammunition available to an organization, agency, or institution listed in Subsection (b); or

(3) was incidental to dealing with a tire deflation device solely for the purpose of making the device available to an organization, agency, or institution listed in Subsection (b).

(e) An offense under Subsection (a)(1), (3), (4), or (5) is a felony of the third degree. An offense under Subsection (a)(6) is a state jail felony. An offense under Subsection (a)(2) is a Class A misdemeanor.

(f) It is a defense to prosecution under this section for the possession of a chemical dispensing device that the actor is a security officer and has received training on the use of the chemical dispensing device by a training program that is:

(1) provided by the Texas Commission on Law Enforcement; or

(2) approved for the purposes described by this subsection by the Texas Private Security Board of the Department of Public Safety.

(g) In Subsection (f), "security officer" means a commissioned security officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code.

[Rmartinez37]

If you're defending yourself, like running into a place that has a 30.06/30.07 for the sake of protectio, or cover from a bad guy, I can't see anyone putting charges in you. I don't imagine a situation where a bulding owner/person in control would deny you shelter from harm.

Even running into a courthouse per say, I don't see charges being filed, because you're in fear of your life, just be clear with Lee enforcment that you did not enter to be mischevious , but solely for the sake of protection.

I believe communication in these type of situations is key.

[LSUTiger]

The question as I meant it is not that it was an emergency in progress and you had to enter past a 30.06 but rather you entered past a 30.06 and then an emergency took place.

[E.Marquez]

So you violate the law, later something transpires which is or would allow for an exception to the law, would you get a pass for the earlier transgression or be charged?

The answer I feel is an unequivocal maybe.


Ask your self in the jurisdiction you find yourself in this jackpot.
What is the political, position, power, media gain for charging and seeking a conviction, or choosing not to charge ... to those with the authority to charge you or anyone that influences them?
If you can figure that out you'll know if you will be charged with the violation which at the time the act was committed, was not covered under an exception to the law.

I think you'll find case law (or lack of it due to no charges) for both sides... ie man with a gun in an off limits area , place or in unlawful possession.. who is charged as such after using the gun to stop a threat.. or not charged in the same type scenario .. I can think of a few for both deals.. Most recently, the Navy choose not to charge a LTJG with possession of a weapon in a prohibited place after he used said weapon to stop a threat.

[karder]

If you carry past a legal 30.06 sign and then find yourself in a situation where you have to use your weapon, I would presume that the penalty for carrying past the 30.06 would be less serious than the penalty for keeping your weapon concealed.

[locke_n_load]

It's just a class C misdemeanor after January 1, so I wouldn't think it would be a big deal either way.
However, the better question, is if you carried into a bar and had to use your weapon, would you get prosecuted for the felony carrying charge?

Seeing your text that you posted, I would think that you are still breaking the law, regardless of if you needed to use your weapon after entering.

Probably depends on the DA as to if you would get prosecuted or not.

[casp625]

I think you only highlighted half of what was necessary. ..

(A) engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic or boating;

Sounds to me that Class C is referring to traffic laws and not all Class C misdemeanors

[Bitter Clinger]

[Distinguished Rick]

Exactly my sentiments.

[Glockster]

Hat patch? We should have a thread for our favorites!

[The Annoyed Man]

If you're defending yourself, like running into a place that has a 30.06/30.07 for the sake of protectio, or cover from a bad guy, I can't see anyone putting charges in you.

IN? I don't think so. I'll take my chances outside!

[TexasCajun]

I'd guess the locals would have bigger issues to resolve than a simple trespass.

[tms119]

Similar things happened in Chicago during the handgun ban. Some people ignored the law and the only reason police found out is because they defended their home or business. Even in Chicago, charges were generally not brought up solely because of the bad publicity of the headlines that would come out.