Deadly Force in REsponse to Assualt

[Cipher]

We've been having a ongoing lunch debate about using DF when someone threatens to "woop you". Having a CHL and military training I have no doubt that I am prepared to pull the trigger, and I'm all for the use of DF in most instances.

However, I have a hard time trusting the law to "protect" me if I shoot someone who is threatening only "simple" assault. I will admit I do not know what the outcome would be, and I do not know the other person's "true" intentions, but going with the information at hand I would have to say I would not draw and I would not shoot.

Saying this, I will say that the other person's clothes and behavior would change my mind. If it's just a good ol boy who wants to go a few rounds, I'm game. However, if the guy is dressed in baggy pants, chains, raggedy clothing, etc I would probably draw on him.

What does the law say in those types of situations? I know there is a clause in there about "unlawful" force, but I do not think that falls under the civil-immunity umbrella, and that has a tremendous impact on what I decide to do since I'm gambling on my family's livelihood.

Is "he could've grabbed my weapon from my holster and shot me" a reasonable defense?

Inquiring minds want to know.

[seamusTX]

You cannot legally use deadly force to prevent assault or in response to a purely verbal threat. You might want to review Penal Code §9.32.

- Jim

[Cipher]

I agree, and that's the point I've been trying to get across. However, the argument has been made that the BG could grab your weapon and shoot you during the scuffle.

The only thing I've found supporting the claim made by my peers that DF is appropriate is PC 9.22, but I don't see that being a clear law defining DF.

PC 9.22 states conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.

[Charles L. Cotton]

A complete answer to your question is far too long for a post. What part of Texas do you call home? If you are in or close to Houston, you may want to consider coming to my next Deadly Force Seminar. We go over this issue in detail.

Chas.

[Venus Pax]

Also, consider that using the mode of dress/appearance, especially onces that are adopted by racial minorities, could bring in the whole "hate crime" debacle.
Be careful what you say if you are ever involved in a DF scenario.

[AFJailor]

Saying this, I will say that the other person's clothes and behavior would change my mind. If it's just a good ol boy who wants to go a few rounds, I'm game. However, if the guy is dressed in baggy pants, chains, raggedy clothing, etc I would probably draw on him.

So if its a guy wearing overalls and a John Deer hat you'll fight him? But if its a guy wearing a chain wallet/necklace and some Hammer pants you'll shoot him?

I would probably not use that defense in court.

[txinvestigator]

I agree, and that's the point I've been trying to get across. However, the argument has been made that the BG could grab your weapon and shoot you during the scuffle.

The only thing I've found supporting the claim made by my peers that DF is appropriate is PC 9.22, but I don't see that being a clear law defining DF.

PC 9.22 states conduct is justified if the actor reasonably believes the conduct is immediately necessary to avoid imminent harm.

9.22 is for situations where 9.31 and 9.32 would not apply.

[seamusTX]

However, the argument has been made that the BG could grab your weapon and shoot you during the scuffle.

You can't use deadly force because of something that someone might do. They have to indicate that they have the intention and means of attempting murder or one of the other crimes that is a justification for the use of deadly force.

Here's what the water-cooler guy has to understand:

In a trial, the prosecution will present all the evidence against you. It will be a given that you intentionally used deadly force on the other person.

Then your defense will have to discredit the evidence against you (which is impossible in this case), or offer a justifiation.

Then the prosecution gets to rebut the defense. The phrase "when and to the degree the actor reasonably believes the deadly force is immediately necessary ..." is going to come into play.

This kind of defense is often attempted, and usually fails.

Deadly force is not immediately necessary to prevent the commission of murder when the other guy says he is going to whip your donkey. That's why we have de-escalation and non-lethal means of defense.

A fool (and I don't hesitate to use the word) who got himself into this situation would at least be bankrupted by legal bills and most likely spend some time in prison.

- Jim

[age_ranger]

Great reason to carry a less lether means of self defense. OC can be a great deterrent as can calling 911. I guess if I didnt have time to respond, I could at least try to deter him by stating I would deploy OC. A taser wouldn't be a bad idea but if you carry these things, be prepared to possibly have them taken and used on YOU. Fight is fight.......match force with force and attempt to de-escalate the situation. If all else fails, pee youself. I have yet to see a guy want to roll around on the ground with a guy who just pee'd his pants. (I'd probably shoot him before I did that, personally but it's an option)

[Cipher]

9.22 is for situations where 9.31 and 9.32 would not apply.

And, in an assault situation, neither of those would apply, which would have me to believe that 9.22 would come into play since I would be in danger of "imminent harm".

I think a few of you may be thinking that using DF against an simple assault is my idea of a good thing. I want to reiterate that I believe that DF is not a viable option when faced with as butt whoopin, I'm just trying to see if I can find ANY validity to the arguments some of my friends are making.

9.22 would be the only thing I can find.

[seamusTX]

Here's something else to consider: PC § 22.06 makes it a defense to prosecution that parties consented to fight (commit assault on each other). If someone says, "Let's take it out in back," and you go along, you will have a hard time pressing an assault charge later.

(This varies by jurisdiction, of course.)

If you fight voluntarily, it's even more difficult to claim self-defense in the use of deadly force in response to assault.

As I said in different words earlier, this happens all the time. Someone brings a brick to a fistfight and ends up in prison.

But, hey, if water-cooler guy wants to ruin his life, that's his business.

- Jim

[txinvestigator]

9.22 is for situations where 9.31 and 9.32 would not apply.

And, in an assault situation, neither of those would apply, which would have me to believe that 9.22 would come into play since I would be in danger of "imminent harm".

WRONG

Texas Penal Code
§ 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.

That is your justification to use force to protect yourself from an assault.

[atxgun]

Cipher,

If you are military did you get any hand to hand combat training? You might be able to defend yourself with out the use of a firearm and save yourself much of the legal headaches described above. It seems to me if you have another means to get out of the situation or other means to defend yourself you might not want to take all the other options off the table.

Of course you never know what someone will really do or if someone really has a weapon themselves and it would be futile to enumerate all scenarios and factors involved, its really going to come down to your best assessment when the time comes.

[frankie_the_yankee]

So suppose in spite of your best efforts to de-escalate and even back away from the situation, the other party presses forward and commences to assault you.

For my own part, I have some serious medical issues that would make it almost impossible to mount any sort of effective hand-to-hand defense. Sad to say but I'm not what I used to be, and most any 15 year old kid could lay a good whuppin' on me these days.

Right off the bat there is disparity of force between me and almost any potential assailant. Where I once might only have feared getting smacked around, these days the outcome could be much worse.

So as the guy is assaulting me, and I'm doing my best (which is not much) to fight him off, it becomes evident to me that he will soon "find" my gun. I am also aware that I do not have the strength to keep him from wrestling it away from me if he tries to.

In my mind, knowing what I know at that time, I am in imminent danger of serious harm and/or death at that point.

Do I have to let him grab the gun and shoot me with it? Or is there a point where I can draw and stop the attack with whatever amount of force is necessary?

Remember, I am not physically able as a "normal" person is. My medical ordeal has sapped much of my strength, such that I have trouble racking the slide on a 1911.

What does the law have to say about that?

[stroo]

If all you are confronted with is threats, then it is unlikely you are justified. Having said that though, remember the guy on the bus in Houston earlier this year who bumped into someone getting on the bus, the guy then came after him, the GG pulled a knife and retreated, the BG continued after him making threats. At that time, the GG pulled his gun and shot the BG. No actual assault took place, just a very credible threat. The GG was no billed.

I think the lesson is that if someone with apparent ability to beat you up, threatens you, comes after you and you retreat until you can't go any further, then you may be justified in shooting in response to the threats alone. It probably also would help if the BG has a long criminal history of assault including if you can arrange it assault on a LEO. Of course that is likely to be just the luck of the draw, not something you would know just looking at someone.

On the other hand, shooting a short thin little old lady in a walker who threatens you probably is going to land you in jail.

There are a lot of scenarios in between and facts are going to be all important. Disparity of force between you and the assailant, your actions to avoid a fight and other factors you may not know or be able to control may all come into play.