Legal definition of provocation

[seamusTX]

Lately I have seen the issue of provocation mentioned quite a few times.

This message is an attempt to clarify the issue. I am not a lawyer, don't play one on TV, didn't sleep at a Holiday Inn Express last night, etc.

Provocation comes up in a legal context related to Penal Code 9.31, which is the justification for use of force—not deadly force: "(b) The use of force against another is not justified: (1) in response to verbal provocation alone;..."

This section of the law is the foundation for other uses of force or deadly force, which refer to it as a prerequisite.

There are very clear examples of provocation. The typical "Who you lookin' at" or "Yo mama" jibe is a verbal provocation. The finger is not verbal, but is in the same category.

It is never provocation to tell someone to stop doing something illegal. If it was, the cops could only hand out little cards asking people to kindly refrain from robbery, rape, theft, vandalism, etc.

This pertains to personal assaults, theft, trespassing, or any other crime. Also you have the right to tell a person to leave your property for any reason. You can even tell your mother-in-law to leave, if you want to deal with the consequences.

The gray area, as I see it, is when another person starts to escalate a situation without actually committing an offense. For example, if you accidentally bump someone, and he goes off like a firecracker. I have had this happen. My solution is to apologize profusely, far more than etiquette requires. This has always worked. These people have a fragile ego that needs to be reinforced.

Your comments are welcome (as if I needed to say that ).

- Jim

[Beiruty]

Not only verbal provocation is not a justification for use of deadly force, assault an and simple physical assault are not justification for deadly force, unless aggravating factors are introduced, like disparity of force, or the actor (CHLer) reasonable believes that his life is in danger. Some other members here disagree with my position and they would take their chances.

[seamusTX]

Not only verbal provocation is not a justification for use of deadly force, assault an and simple physical assault are not justification for deadly force,...

I agree. As I have pointed out in other threads, every CHL holder in Texas who has been prosecuted used a firearm against an unarmed assailant or one who had some improvised weapon like a bat.

However, I am talking about the issue of provocation. If you tell someone to stop watering your bushes (which I actually have done) that is not provocation. It is your right to do so. (Also it's funny to see a guy running around trying to squeeze it out and zip up his pants.)

- Jim

[johnson0317]

I take a little exception. A bat can most definitely be considered a deadly weapon in the hands of an aggressor. If you have a guy saying he is going to bust your melon, you have clearly been confronted with a threat of deadly force and can deal with it. I believe, and IANAL, if he comes towards you with a bat, aggressively, but silently, he is still displaying deadly force.

Heck, they say don't bring a knife to a gun fight, but I would sure not mind bring a bat to a knife fight.

RJ

[Texas Dan Mosby]

IMO, the legal "definition" of provocation is likely to be determined on a case by case basis and heavily dependent on case law rather than statute.

Not being a legal guru, my view of "provocation" is any verbal or physical act carried out with the intent to insult, injure, or incite a hostile response. I avoid those actions and am a firm believer that cooler heads prevail.

[seamusTX]

A bat can most definitely be considered a deadly weapon ...

I agree. Plenty of people have gone to prison for something that they did with a club that was otherwise legal to possess. If someone assaults you with a baseball bat, golf club, etc., you do what you have to do to defend yourself. Generally prosecutors will agree.

However, I am trying to focus on the idea that telling someone to stop beating his wife, for example, is a provocation. It is not in the reality that I inhabit.

BTW, in Chicago, people who tried to obey the law often carried baseball bats, hammers, and other such things in their cars. I was in the hammer school. I also carried a box of nails in case I had to fix my mother-in-law's windows or something.

- Jim

[kimberwolf]

It is never provocation to tell someone to stop doing something illegal. If it was, the cops could only hand out little cards asking people to kindly refrain from robbery, rape, theft, vandalism, etc.

Even if it was provocation, the use of force against another is not justified: in response to verbal provocation alone.

[seamusTX]

Right.

Maybe I should have tied in the concept of escalation. It looks bad when someone engages in an escalating argument that ends up with someone being carried out feet-first.

I would much rather give a profuse apology that I didn't really mean and was not ethically required to give, than get my hands dirty and fill out all that paperwork.

- Jim

[Heartland Patriot]

Not only verbal provocation is not a justification for use of deadly force, assault an and simple physical assault are not justification for deadly force,...

I agree. As I have pointed out in other threads, every CHL holder in Texas who has been prosecuted used a firearm against an unarmed assailant or one who had some improvised weapon like a bat.

However, I am talking about the issue of provocation. If you tell someone to stop watering your bushes (which I actually have done) that is not provocation. It is your right to do so. (Also it's funny to see a guy running around trying to squeeze it out and zip up his pants.)

- Jim

Alright, I've got one for you...so I'm 5'8" and about 155/160 lbs. I'm a mechanic so I'm not a complete weakling, but as you can see by the numbers, I'm not a big guy. I am also not a former Golden Gloves, etc. Many criminals spend their time behind bars "pushing weight"; that is, they work out with weightlifting. Those guys can come out a lot bigger than they went in. So, are you meaning to tell me, that even though we live in Texas, I am supposed to either run away from a place I have legal right to be, or to stand there and let someone bigger than me beat me to a pulp if I can't get out of the place, EVEN IF I did nothing to provoke said BG? You NEVER know what will set someone off, especially someone who has already shown a disregard for getting along in society. Just because someone doesn't have a weapon in their hands does NOT mean they cannot kill you, or seriously injure you. Many women, for instance, have found that out the hard way, sadly and unfortunately. To caveat what I said, I'm not saying it would not make sense from a tactical viewpoint to retreat...I'm talking about from a legal standpoint that I either get myself beaten or run away simply because the other, aggressive individual has decided to take out those aggressions on me with his hands. I have real trouble squaring that with a self-defense, stand-your-ground mindset, which I thought that our "Castle Doctrine" was about here in Texas. I don't want to have to shoot anyone but on the other hand, trying to figure out whether a thug just wants to punch me a couple of times or really wants to beat me into oblivion doesn't seem like fun or a good idea to me.

[seamusTX]

So, are you meaning to tell me, that even though we live in Texas, I am supposed to either run away from a place I have legal right to be, or to stand there and let someone bigger than me beat me to a pulp if I can't get out of the place, EVEN IF I did nothing to provoke said BG?

Are you asking me or Beiruty?

I never said such a thing. The statutes clearly allow the use of deadly force in cases of robbery, sexual assault, burglary, and several other crimes. There is no requirement that the criminal is armed or capable of doing grievous bodily injury bare-handed.

However, this long-buried thread raises some interesting points: viewtopic.php?f=7&t=13128" onclick="window.open(this.href);return false;

What I am trying to say is that confronting a criminal who is committing a crime is not provocation that would invalidate self-defense. That is true whether you are the direct victim of the crime or it is a crime involving other parties (though these are dangerous for reasons discussed many times).

- Jim

[Beiruty]

In the Texas Penal code there is no clear justification for the use of deadly force just because of "fist fighting" or shoving. However, if someone is geting a real beating by 1 or more aggressor and the CHLer feared for his life, than deadly force could be justified under, the actor reasonably believe that the use of deadly force is needed.

I wished the the TX Penal Code, included the word, physical (not simple) assault next to robbery.

[seamusTX]

I wished the the TX Penal Code, included the word, physical (not simple) assault next to robbery.

Unfortunately, this would allow someone who was losing a fistfight that he willing engaged in to shoot or stab the other guy and then claim self defense. This actually happens now. People who try it usually are convicted of something.

I'm sure no member of this forum would willing pick a fight, but for many men it is just another item on their agenda for a fun Friday or Saturday night.

- Jim

[Jumping Frog]

Provocation comes up in a legal context related to Penal Code 9.31, which is the justification for use of force—not deadly force: "(b) The use of force against another is not justified: (1) in response to verbal provocation alone;..."

This section of the law is the foundation for other uses of force or deadly force, which refer to it as a prerequisite.

There are very clear examples of provocation. The typical "Who you lookin' at" or "Yo mama" jibe is a verbal provocation. The finger is not verbal, but is in the same category.

It is never provocation to tell someone to stop doing something illegal. If it was, the cops could only hand out little cards asking people to kindly refrain from robbery, rape, theft, vandalism, etc.

This pertains to personal assaults, theft, trespassing, or any other crime. Also you have the right to tell a person to leave your property for any reason. You can even tell your mother-in-law to leave, if you want to deal with the consequences.

The gray area, as I see it, is when another person starts to escalate a situation without actually committing an offense. For example, if you accidentally bump someone, and he goes off like a firecracker. I have had this happen. My solution is to apologize profusely, far more than etiquette requires. This has always worked. These people have a fragile ego that needs to be reinforced.

It appears to me that people are reversing the sense of the word "provocation" as cited in that specific section of the statute.

People seem to be addressing whether the CHL is provoking the BG via words.

Actually, as I read that specific section of the statute, they are using the word provocation in the opposite sense. They are addressing the case where the bad guy is using verbal provocation, such as calling the CHL foul names. The statute is merely stating that a CHL cannot justifiably use force as a response to a BG doing only verbal provocation.

It is a different part of the statute that warns us that the CHL cannot be the person doing the provoking:

PC §9.31. SELF-DEFENSE. (a) . . .The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) . . . .
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity . . .

Of course,if we do take some action that escalates the situation for whatever reason, in addition to apologizing (as mentioned), it is useful to explicitly state we are abandoning the encounter or attempting to do so. That way, we can regain the legal justification for force if the other person continues to push the situation.

. . . (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

[seamusTX]

I agree with all of the above.

There used to be a doctrine called fighting words. It pretty much is obsolete. You can't legally punch out someone's lights for a "Yo mama" type of jibe.

The point I am trying to make is that telling a criminal to stop what he is doing is never provocation of the criminal that could justify the use of further force by the criminal. The whole concept of escalation or de-escalation is about situations that are misunderstandings or rudeness.

- Jim

[Heartland Patriot]

I wished the the TX Penal Code, included the word, physical (not simple) assault next to robbery.

Unfortunately, this would allow someone who was losing a fistfight that he willing engaged in to shoot or stab the other guy and then claim self defense. This actually happens now. People who try it usually are convicted of something.

I'm sure no member of this forum would willing pick a fight, but for many men it is just another item on their agenda for a fun Friday or Saturday night.

- Jim

EDITED AFTER READING OLDER THREAD:

Okay, I get it...if the bad guy doesn't have a weapon, and he wants to cause trouble and tries to beat me into a pulp EVEN IF I DID NOTHING TO PROVOKE THE SITUATION, run away because the law prefers him doing that sort of stuff to law-abiding citizens. Got it...sorry to sound this way, I know its not your fault or anyone on here's fault, but it sure does NOT seem right.