TexasCHLforum.com

wil wrote: ↑Sun Nov 28, 2021 6:31 pm

wil wrote: ↑Sun Nov 28, 2021 6:16 pm

oljames3 wrote: ↑Sun Nov 28, 2021 3:03 pmWil, these links go to Texas Government Code chapters 311 and 312.
https://statutes.capitol.texas.gov/docs ... GV.311.htm
https://statutes.capitol.texas.gov/docs ... GV.312.htm

This article, by Texas lawyers, explains that deadly force is not justified against trespassers.

Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.

https://www.uslawshield.com/defend-property-texas/

I read the article and it does not answer some questions.

1. what constitutes 'force' under 9.41? It is not defined, only stated.

2. if it's non-lethal, what is that? Physical restraint via hands-on? Physically forcing whatever party off the property via the same? 9.41 does not define what constitutes force.

3. what is the recourse under 9.41 if that is not a viable option. Such as disparity of physical strength, outnumbered, etc.

4. the article doesn't really address a situation such as Lubbock. The individual is told to leave, doesn't and advances in a hostile and threatening manner. Are we forced to go hands-on with the genuine potential risks involved with that?
Trespass means someone has been told to leave, they refuse to do so and display hostile and aggressive intent, what is the force allowed to make them leave under 9.41?

If it is physical force only, We have no way of knowing whether or not that individual has training in unarmed combat such that they are far overmatched to ourselves.
An 60 year old individual is generally not a physical match for someone 20 or more years younger in terms of strength, speed, etc.
9.41 does not address any of these questions and it's why I brought up the fallacy of "are you going to shoot a 9 year old kid for tresspassing?' No, there is no likely physical disparity where that childs physical abilities present a danger to oneself if physical force is what is covered in 9.41. A 19 year old is a different story is a different story in terms of physical ability.

9.42 addresses these questions in terms of physical risk to oneself.

these are reasons why I tend to think 9.41 works in conjunction with 9.42 and the article doesn't specify if they are non-related and if so, why.
Also 9.41 not defining what constitutes force leaves the question as to how it applies to 9.42, which specifically mentions if force is legal under 9.41, then it seems 9.42 applies. The article does not address this or 9.42.

still the same question.

Edit: here is 9.42 in it's entirety.

Sec. 9.42. DEADLY FORCE TO PROTECT PROPERTY. A person is justified in using deadly force against another to protect land or tangible, movable property:

(1) if he would be justified in using force against the other under Section 9.41; and

(2) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to prevent the other's imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime, or criminal mischief during the nighttime; or

(B) to prevent the other who is fleeing immediately after committing burglary, robbery, aggravated robbery, or theft during the nighttime from escaping with the property; and

(3) he reasonably believes that:

(A) the land or property cannot be protected or recovered by any other means; or

(B) the use of force other than deadly force to protect or recover the land or property would expose the actor or another to a substantial risk of death or serious bodily injury.

the things that stand out in this:

part 1. if force is justified under 9.41. Tresspass and they refuse to leave.

item B under part three, to protect land and if doing so would expose the actor to a substantial risk of death or serious bodily injury.

Perhaps it does beg the question, do we have to have every single element of that entire section of the code in place to use lethal force under 9.41? or are those sections attempting to address individual situations?

9.41 allows for force, depending on what that actually is, if it's non-lethal, then what happens if that's not a viable option for the individual? Such as the examples I gave? And it exposes someone to grave risk of injury or death?

Then my thinking is 9.42 covers that in part (A) cant be done by any other means, or part (B) places oneself in grave physical risk.

I could be wrong however that seems to be a reasonable line of thinking.

Sec. 9.01. DEFINITIONS. In this chapter:
...
(3) "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.
,,,

One would think that the difference between deadly and non-deadly force is self-apparent. One results in death, while the other doesn't. But in practice things are a bit more complicated. Legally speaking, deadly force is any force that can cause death or grave bodily harm. Grave bodily harm includes permanent disfigurement, long-term damage to a part of the body (such as a broken bone), rape, and even kidnapping.

Non-deadly force, by contrast, is any force less than that capable of causing death or grave bodily harm.

wil wrote: ↑Sun Nov 28, 2021 11:34 am

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amI agree that the ambiguity with which most laws are written is one of the worst things about the law.

where they placed that word "and" changes the relationship between both of those codes. Had they put it at the beginning of 9.42 it would read far more clearly. It is a damnable thing the way so much of the law is written.

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amYou can get some clues on reading them by checking Government Code Chapters 311 and 312 on Code Construction as general guidelines to the interpretation of the laws. I am not a lawyer either, so any reading I give may be as wrong as anyone else's. My training in this taught me to use the terms "and" and "or" like logic requires instead of what may occur in normal speaking or writing. "And" requires the terms on both sides of the word to be met, while "or" says either side or both can be met. So, I read this as saying in 9.42 that to use deadly force, subsections 1, 2, and 3 must all be true.

it is a question owing to the grammer, the words 'and' & 'or' can be synonyms depending on the grammatical usage.

'This' and ''this' meaning it covers both. 'This' or 'this', meaning it covers both. Now we get into splitting hairs, does 'or' mean the two are separate yet covered the same? whereas 'and' means they are connected and have to have both? It gets to be a real rabbit hole.

Also where do I find chapters 311 & 312?

the penal code I wrote came from this:

https://statutes.capitol.texas.gov/

are those chapters in there? I looked but didn't find them. if they're somewhere else let me know & I will read them.

srothstein wrote: ↑Fri Nov 26, 2021 11:05 amWe can agree to disagree on this. I freely admit that I could be wrong and you could be correct. However, I do strongly suggest that you ask a lawyer (preferably the one you would hire if you ever need a defense attorney) for his interpretation before you rely on either of our interpretations.
And I also agree that proposing ridiculous theoretical cases helps no one in an understanding of the law.

I dont consider it a disagreement, more so an attempt to answer a question. Both of us could be entirely wrong or one of us has a correct understanding.
I would absolutely agree consulting an attorney for a clarification is the best course of action. One of the dangers of perhaps reading the law from a standpoint of essentially common sense or understanding is that is not how the law is written.
We don't have qualified immunity and can't stand behind the claim that we genuinely believed this is what the law says owing to how it is written.
Neither can we claim the law is written in such confusing fashion that there's no genuine way for us to have a clear understanding of it and hence abide by it.
It is another damnable aspect of the law, LE can claim they were acting in good faith yet we are held to an entirely different standard, yet both face the same in terms of reading & understanding the law.

Texas Penal Code Section 9.41 explains that a person is allowed to use force, but not deadly force, to terminate a mere trespass or interference with property.

Chad Read Shooting: Evidence Supports Manslaughter, Not Justification

I have a confession: self-defense law is simple. There, I said it—my expertise is simple.

I know what you’re thinking—sure, maybe self-defense law is simple for a self-defense law scholar and lawyer, who reads legalese like a native language, but what about normal not-crazy people?

In fact, self-defense law is simple for everyone.

That said, there is a catch: You have to be taught self-defense law by someone who understands the subject well enough to effectively translate all the legalese into plain English, to distill that legal knowledge from the theoretical to the actionable.

Find that person and you’re well on your way to understanding the law of self-defense because it's not actually that complicated.

The simple truth is that you don’t have to know 500 legal concepts to really understand self-defense law. Not even 50.

In fact, there are at most 5 elements to any self-defense case (and often not even that many). That’s it—just 5. And that’s true in every one of the 50 states, and all US territories.

And it all begins with the first element:

Innocence
You can’t start the fight.

That’s the first element—you can’t have been the initial aggressor, and then justify your use of force as self-defense. Pretty simple, huh? What could be more obvious than that, right? You got this.

Often, however, whether you, in fact, started the confrontation can easily be a fact in dispute. Naturally, you’ll say the other guy was the initial aggressor. But that other guy—or his buddies—could say that you were. That kind of uncertainty is the “messy” part of this “simple” element.

Bottom line, if a prosecutor reviews your case and sees evidence that suggests you might have started the fight, you’ve just made yourself way more likely to be brought to trial on criminal charges, because now you look like a vulnerable target for conviction.

But starting (or appearing as if you started) the fight isn’t the only thing you must avoid, there’s also the second element:

Imminence
The law allows you to defend yourself from an attack that’s either happening or about to happen very soon, meaning within seconds. It’s not intended to justify vengeance for some past act of violence, nor to “stop” a speculative future attack that you have time to avoid by other means.

You can think of the element of imminence as a window that opens and closes. Before the window of imminence is open—before the threat is actually occurring or imminently about to occur—you can’t use defensive force. After the window of imminence has closed —after the threat is over—you again cannot use defensive force.

It’s only while that window of imminence is open that you can lawfully use defensive force.

Imminence has to do with when you can use defensive force, but what about how much defensive force you can use? That has to do with the third element:

Proportionality
The law puts any use of force into one of two buckets: the non-deadly force bucket, or the deadly force bucket.

What qualifies as deadly force? Legally, deadly force is more broadly defined than only force that kills. Force that can cause death is part of the definition, but deadly force also includes force that causes serious bodily injury, like maiming injuries, as well as rape.

What qualifies as non-deadly force? Non-deadly force is essentially all lesser degrees of force that cannot readily cause death or serious bodily injury.

If the threat you’re facing is non-deadly, then you’re only allowed to use non-deadly force in response. If the force you’re facing is deadly in nature, then you’re entitled to use deadly force OR non-deadly force to defend yourself.

If you respond with deadly force to an attacker using only non-deadly force, you’re using disproportional force, you’ve “lost the element of proportionality,” and you are not acting lawfully.

It’s essential to make sure you limit yourself to only the degree of defensive force that’s proportional to the threat you’re defending against.

But what about running rather than fighting? Does the law require you to resort to flight before you can resort to fight? That brings us to the fourth element of self-defense law:

Avoidance
Could you have safely avoided the fight? That’s the question the fourth element addresses.

A minority of about 13 states impose a legal duty to run away, when you can do so safely, rather than fight. These are called “duty-to-retreat” states.

The large majority of states do not impose such a legal duty to retreat, even if you could have done so with complete safety. These are the “stand-your-ground” states.

In the minority 13 states that do impose a legal duty to retreat, however, failing to run when you safely could have is not lawful, loses you the required element of avoidance, and therefore loses you self-defense.

Even the duty-to-retreat states only impose that legal duty when retreat is possible with complete safety. That begs the question, however—was a completely safe avenue of retreat actually available under the circumstances facing that specific defender?

To put it another way, would a reasonable defender under attack have been aware that a safe avenue of retreat was available? This leads us to the last of the five elements of self-defense law:

Reasonableness
I like to call this the “umbrella” element because it overlays the other four.

Everything that you perceive, decide, and do in defense of yourself or others must be reasonable and prudent, given the circumstances you faced, the information you knew, and your abilities (or disabilities).

Mistakes in self-defense are allowed, and a mistaken use of defensive force can still qualify as lawful self-defense. The bad guy’s “gun” turned out to be a toy? That’s not a problem for your defensive use of force against the apparent gun if perceiving it as a real gun was a reasonable belief under the circumstances.

Bottom line: We’re not required to make perfect decisions in self-defense, just reasonable ones.

What’s reasonable to one person may not be reasonable to another, however. This element of reasonableness is partly a reflection of the particular defender under the specific circumstances. The reasonable perception of, and defensive options for, a defender who is young, healthy, and fit may well differ from the reasonable perceptions and defensive options of an elderly, ill, or disabled defender.

The 5 Elements Are Easy … But Real Life is Complicated
And that’s it, folks—the 5 MUST KNOW elements of self-defense law. Easy-peasy, right? How hard can applying just five elements be?

Well, maybe more complicated than one might think. While the elements themselves are relatively simple, applying them to a real-world case can be complicated.

Why? Because the real world is not simple. It is messy and involves real people, real victims, real violence, and so forth. So, applying these elements to the real-world takes practice. Applying them quickly enough in real-time to respond correctly in the critical moment of an attack takes even more practice.

And that’s precisely why we do what we do at Law of Self Defense: We help you understand the law of self-defense so that you can not only make yourself hard to kill, you can also make yourself hard to convict.

Interested in Learning More and Becoming Your Own Self-Defense Law Expert?
Of course you are!

Where can you find the kind of training and experience that I’m talking about? A lot of it is right here, at Law of Self Defense, where it’s our mission to help you make better informed, more confident, and more decisive decisions in self-defense.

The Texas Attorney General's Office is reviewing the shooting after Lubbock police officials turned over their files on their investigation.

As of this writing, no charges have been filed in the case.

wil wrote: ↑Fri Nov 26, 2021 10:37 am I don't see this as coming out well for the shooter no matter what. There was no property being taken or threatened (according to the news article) and no person being threatened until he brought the gun out. That makes criminal trespass the only crime the deceased committed. Unfortunately, Texas law does not recognize stopping criminal trespass as justifying deadly force.

It will be interesting to see how the AG handles it. Who provoked the initial confrontation and who escalated it will be critical points, as in most self-defense cases.

Tx law specifically mentions trespass as grounds for lethal force.

Penal code 9.41 section a.

fool in the aqua shirt was told to leave from the beginning, didn't go.

Going back to the example above, if you grab your firearm, go outside and fire a shot at the trespasser or someone merely creeping around your yard, you will likely find yourself facing a serious felony. In these circumstances, Texas Law only permits the use of force, not deadly force.