"Brandishing" law or prior cases?

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02stampede
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"Brandishing" law or prior cases?

#1

Post by 02stampede » 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?

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Re: "Brandishing" law or prior cases?

#2

Post by bbhack » Fri Nov 30, 2018 1:57 am

The answer is no. But you answered it yourself. Texas law does not use the word "brandish", thankfully, because it's a ridiculous word.
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Re: "Brandishing" law or prior cases?

#3

Post by 02stampede » Fri Nov 30, 2018 1:59 am

bbhack wrote:
Fri Nov 30, 2018 1:57 am
The answer is no. But you answered it yourself. Texas law does not use the word "brandish", thankfully, because it's a ridiculous word.
Thank you.

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Re: "Brandishing" law or prior cases?

#4

Post by bbhack » Fri Nov 30, 2018 2:03 am

I think you have a valid question, but the set up may be confusing.

I think it goes something like - if you present lethal force, and do not use it, was it justified in the first place? And you asked for cases. I can't help there, but I do believe that many to most cases of DGU where no shots are fired are not reported.
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Re: "Brandishing" law or prior cases?

#5

Post by 02stampede » Fri Nov 30, 2018 2:33 am

"Was it justified in the first place"? That argument could get someone in big trouble even if they are trying to do the right thing. Conversely, a dead man tells no tales.

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Re: "Brandishing" law or prior cases?

#6

Post by rob777 » Fri Nov 30, 2018 7:40 am

then there's this...

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, 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.
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Re: "Brandishing" law or prior cases?

#7

Post by RPBrown » Fri Nov 30, 2018 8:20 am

I think that the key to this is to be the first to call LEO's
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Re: "Brandishing" law or prior cases?

#8

Post by chasfm11 » Fri Nov 30, 2018 8:34 am

There is an interesting area that was highlighted in a recent event described on this forum. It was an attempted carjacking where an LTC responded by pointing a gun at a man who turned out to have his finger inside of his jacket pocket.

My concern about an armed response has always be about whether it was a real or perceived deadly threat. The finger in the pocket is one. Some sort of a gun looking item that wasn't really a gun is another. I believe that if such a case got to a court room situation, a LEO might be given more deference when it wasn't a real deadly threat than a LTC holder might be. In the split seconds leading up to what may or may not be a true lethal threat, things might not be a clear as they are after the fact. I'm not anxious to shoot someone who isn't a real threat but the window of response time can be awfully small if it is a deadly threat. If producing a gun de-escalates as it has in at least some of the citizen self-defense stories, it is certainly a good choice.

We travel in an RV and visit many other States. Trying to study self-defense guidelines across them is mind-numbing. While there is no brandishing law in Texas, that isn't necessarily that case elsewhere. I don't want to get into an "analysis paralysis" if I am faced with I think is a deadly threat by over-thinking the limitations. I've been very fortunate in being able to perceive and respond to non-gun related incidents which could have had deadly consequences. I pray that my perception will extend to a lethal force one if it ever happens. We've had a couple of close calls in gas stations during our travels.
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Re: "Brandishing" law or prior cases?

#9

Post by oohrah » Fri Nov 30, 2018 9:23 am

RPBrown wrote:
Fri Nov 30, 2018 8:20 am
I think that the key to this is to be the first to call LEO's
^^^
This. There is a perception that the first person to call 911 is the victim.
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Re: "Brandishing" law or prior cases?

#10

Post by 02stampede » Fri Nov 30, 2018 12:02 pm

rob777 wrote:
Fri Nov 30, 2018 7:40 am
then there's this...

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, 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.
Thanks for that. That's exactly what I was looking for.

My mentality has always been, if the bad guy runs off, don't pursue and immediately call the police. I think most, if not all, LEO's would appreciate this and write a favorable report. I guess the latest example (and comical one) would be the story out of Midlothian.


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Re: "Brandishing" law or prior cases?

#11

Post by WildRose » Mon Apr 22, 2019 2:17 am

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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Re: "Brandishing" law or prior cases?

#12

Post by RottenApple » 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.

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Re: "Brandishing" law or prior cases?

#13

Post by mojo84 » Mon Apr 22, 2019 10:19 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 already noted, this is incorrect.
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Re: "Brandishing" law or prior cases?

#14

Post by Tex1961 » Mon Apr 22, 2019 12:11 pm

Jason Todd wrote:
Mon Apr 22, 2019 12:01 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.
:iagree:

I never understood why some people need to bump an old thread to add false information.
posting.php?mode=quote&f=53&p=1247389

Sec. 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.
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Re: "Brandishing" law or prior cases?

#15

Post by mojo84 » Mon Apr 22, 2019 12:32 pm

Jason Todd wrote:
Mon Apr 22, 2019 12:26 pm
Tex1961 wrote:
Mon Apr 22, 2019 12:11 pm
Jason Todd wrote:
Mon Apr 22, 2019 12:01 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.
:iagree:

I never understood why some people need to bump an old thread to add false information.
posting.php?mode=quote&f=53&p=1247389

Sec. 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.
Sec. 9.04 was cited back in November and I agree that's the correct answer.

The thread was dormant until bumped today with incorrect information. :tiphat:
:roll:
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