Brother needs advice about near altercation...

[pdubyoo]

You can legally display your handgun when the use of deadly force is justified.

You cannot display it in response to rudeness or even verbal threats to kick your butt.

Code: Select all

PC s9.04. 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.

The way that I am understanding it "threats to kick your butt" equal "a threat to cause death or serious bodily injury". what am I missing here?

I carry at 8 oclock (I'm a lefty) so I would be "brandishing" to someone, however, if someone where to start threatening me or sometihng (and this would include what the OP described), I dont see the problem with stepping back, putting one hand up, and putting my hand (exposing the gun essentially) on my gun at the same time trying to convince the person that he/she really doesnt want to do this.

When I read a number of the responses, its like you wait until the person hits you before you would pull your gun.

I had a friend of mine (CHL) who pulled over with a bunch of kids who were swerving to hit him, etc. (the kids essentially forced him to pull over). They get out of their cars saying they are going to kick his but. my friend put his hand up, put his hand on his gun(thereby brandishing) and asked the guy if he was sure that he wanted to kick his butt. After a few moments, the kids got back into their car and left.

From what I am understanding here, he would be guilty????

I would consider someone running me off the road "use of deadly force". Brandishing would be justified in that situation without question...IMO. IANAL...etc, etc.

[LarryH]

You can legally display your handgun when the use of deadly force is justified.

You cannot display it in response to rudeness or even verbal threats to kick your butt.

Code: Select all

PC s9.04. 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.

The way that I am understanding it "threats to kick your butt" equal "a threat to cause death or serious bodily injury". what am I missing here?

I carry at 8 oclock (I'm a lefty) so I would be "brandishing" to someone, however, if someone where to start threatening me or sometihng (and this would include what the OP described), I dont see the problem with stepping back, putting one hand up, and putting my hand (exposing the gun essentially) on my gun at the same time trying to convince the person that he/she really doesnt want to do this.

When I read a number of the responses, its like you wait until the person hits you before you would pull your gun.

I had a friend of mine (CHL) who pulled over with a bunch of kids who were swerving to hit him, etc. (the kids essentially forced him to pull over). They get out of their cars saying they are going to kick his but. my friend put his hand up, put his hand on his gun(thereby brandishing) and asked the guy if he was sure that he wanted to kick his butt. After a few moments, the kids got back into their car and left.

From what I am understanding here, he would be guilty????

"threats to kick your butt" is what the bad guy (offender -- the other guy)is doing.

"a threat to cause death or serious bodily injury" as referenced in the code is what the good guy (defender -- you or your friend) is doing.

If you think of those two phrases in those terms, does that help?

I am not a lawyer, either.

[dewayneward]

I would consider someone running me off the road "use of deadly force". Brandishing would be justified in that situation without question...IMO. IANAL...etc, etc.

good point.

[seamusTX]

what am I missing here?

You are overlooking

PC 9.31 (b) The use of force against another is not justified: (1) in response to verbal provocation alone;...

Whether we like it or not, the law requires us to wait until the assailant throws a punch, produces a weapon, or otherwise indicates by some means other than words alone that he intends to do harm.

The problem with verbal threats is that they evaporate into thin air the instant they are uttered. You draw on a tough guy in the checkout line at Wal-Mart, and he suddenly will become an innocent lamb who was just minding his business when this maniac (you) threatened him, and a dozen people will be on the phone to 911 with conflicting accounts of what happened. None of them will remember it accurately.

All of the prosecutions of CHL holders in Texas involved unarmed assailants, even though in one case it was three on one.

- Jim

[dewayneward]

SeamusTX, thanks for the reply. I looked at more of the code and it is talking about using force, not "brandishing". When I read this, I am not saying that the drunk guy says "what cha gonna do about it", the OP's brother pulls and blows the guy away. I am saying that all of the events unfold, the OP's brother steps back and says "halt" or something and the guy (moving forward) says he is going to kick his butt. then at least "brandishing" would be justified.

I mean if what you are saying is correct, the only time I could pull is if I am being robbed (not having been robbed...unless it was at night) or are in the process of being hit, because after I have been hit the danger is over...until I get hit again. I get the responsibility thing, but that really puts CHL holders at a REAL disadvantage. It isnt the way I understood it from my class.

I agree that if something were to happen, everyone will remember a slightly different version and I know that Mr Brady himself will be witness to the time that I will have to use my weapon.

Can you link to that 3 on 1 case? That just blows my mind that a CHL could lose on a 3 on 1 case.

§ 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 he reasonably believes the force is
immediately necessary to protect himself against the other's use or
attempted use of unlawful force.
(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

[seamusTX]

SeamusTX, thanks for the reply. I looked at more of the code and it is talking about using force, not "brandishing". When I read this, I am not saying that the drunk guy says "what cha gonna do about it", the OP's brother pulls and blows the guy away. I am saying that all of the events unfold, the OP's brother steps back and says "halt" or something and the guy (moving forward) says he is going to kick his butt. then at least "brandishing" would be justified.

You have to understand PC 46.035:

(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun....
(h) It is a defense to prosecution under Subsection (a) that the actor, at the time of the commission of the offense, displayed the handgun under circumstances in which the actor would have been justified in the use of deadly force under Chapter 9.

"Butt-kicking" is aggravated assault, and aggravated assault is not a justification for the use of deadly force.

The legislative intent of this law is that a CHL holder cannot use a handgun as a substitute for a dirty look or non-lethal force. That's why we need to be tough enough to make a thug think twice, or carry pepper spray.

Can you link to that 3 on 1 case? That just blows my mind that a CHL could lose on a 3 on 1 case.

http://www.texasshooting.com/TexasCHL_F ... 8&p=151260" onclick="window.open(this.href);return false;

The guy was arrested, indicted, and found not guilty after a jury trial. I can't say he "won" when his legal bills were $75,000.

- Jim

[The Sarge]

As I carry ...I am much more easy going and friendly...I also would have changed check out lines myself versus confronting an obviously intoxicated individual if it bothered me that much. Simple solution with no confrontation with anybody. Showing your weapon is not what you want to do.

[dewayneward]

You are making it sound like the only time I could show my weapon is if I plan on using it and the only time I can use it is when I am actively being robbed, raped, or murdered.

that just doesnt make sense. Basically, the guy has to have a DEADLY weapon on me(gun or arguably a knife) or is pummeling me. From reading what you have written, it sounds like those are the only times I have a decent defense. This is NOT what I learned when taking my CHL course.

I am going to need to break out the entire handbook and review it. I have been putting off getting the asoob books (can never find them at the library or 1/2 price books), but it may be time to.

[The Sarge]

Verbal abuse is not a threat to your life or property. So if I call you a butt monkey and you shoot me you got a big problem...

[fm2]

"Butt-kicking" is aggravated assault, and aggravated assault is not a justification for the use of deadly force.
That's why we need to be tough enough to make a thug think twice, or carry pepper spray.- Jim

Yep, just because you are armed doesn't immune you from getting thumped.

If you get an ffg on your pistol at your waist, or maybe in pocket, everyone that's looking knows there's a handgun in play. So you open up the possibility of fighting over the gun earlier because it is discovered earlier.

[seamusTX]

You are making it sound like the only time I could show my weapon is if I plan on using it and the only time I can use it is when I am actively being robbed, raped, or murdered.

The McDermott decision confirmed the plain words of PC 46.035(h), which says that you can display a weapon only when you would be justified in using deadly force.

That doesn't mean you have to be already in the middle of attempted murder of yourself or robbery, etc., with a knife to your throat. It means that after the fact, you must be able to prove that you reasonably believed that you were the intended victim of a crime.

Again, that's the problem with unarmed assailants. It can be very difficult to prove that you were in danger of death or serious bodily injury.

I've read several of Massad Ayoob's books and articles. He is even more conservative than I about this issue, because he started his career in New York City. However, he probably is not up on the specifics of Texas law.

I do not know if this article is authentic, but it sounds like Ayoob:
http://forum.pafoa.org/concealed-open-c ... ts-cc.html" onclick="window.open(this.href);return false;

Think about this from another point of view, the cops responding to multiple "man with a gun" calls from Wal-Mart. They find an unarmed drunk and a CHL holder. They can't get a straight account of what happened. You know they're going to arrest, take the names of witnesses, and let the detectives and lawyers sort it out.

- Jim

[DONT TREAD ON ME]

But if you threaten to kick my you know what thats a threat of serious bodily injury. As soon as you push me thats intent to carry out that threat. Therefore I am justified in stopping the threat.

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.

IIRC, I am justified in "brandishing" so long as I inform him that I will use deadly force if I have to.


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.

Now, I understand that it also says that you cannot do this due to verbal probvocation alone. So, it seems to me that there is a HUGE discrepancy in the law. On one hand I am justified in using force to stop a threat. On the other hand I am not.

[seamusTX]

PC 9.04 simply relieves you from a charge of aggravated assault or deadly conduct if you produce a weapon when force is justified. It does not negate 46.035(a).

I don't know how long PC 9.04 has been law. I'm willing to bet that it has been law since the first draft of the Texas statutes in 1836 or whenever they were put together.

The CHL law is much more recent, and is not always consistent with older laws. Ironing out that inconsistency is the job of the appeals courts, and one of them has confirmed 46.035(a), as I wrote earlier.

You need another way to deal with non-deadly force, as I also wrote earlier.

- Jim

[Oldgringo]

On one hand I am justified in using force to stop a threat. On the other hand I am not.

Now come the lawyers and now go your savings/kid's education/house, etc., etc.. See karder's post above.

[casingpoint]

As soon as you push me thats intent to carry out that threat. Therefore I am justified in stopping the threat

'Nuff said.