Charles L. Cotton wrote:txinvestigator wrote:I got in on this late, and I did not read every post, so forgive me if I repeat something.
I disagree that the law ONLY allows CHL holders to display their weapon if they would be justified in using deadly force. That is but ONE justification.
9.04 is clear, and from a former LEO's perspective I can tell you this. AS a cop I drew my weapon MANY people I was not justified in using deadly force against at the time. My doing so was not deadly force. It was force, and it was used to effect an arrest.
I can think of several scenarios where I might draw my weapon and point it at a person, or simply produce the weapon towards someone who I was not justified in shooting at the time.
We aren't talking about LEO's as they are not subject to TPC 46.035(a), only CHL’s.
TPC 46.035(a) makes it illegal for a CHL to intentionally fail to conceal his handgun. The only exception to this is found in TPC 46.035(h) which states:
(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.
The
McDermott case quoted in full held precisely this, in spite of the defendant's attempt to rely upon TPC 9.04.
Also, as to LEO's using the threat of deadly force to effect an arrest, this authority comes not from TPC 9.04 alone, but from TPC 9.51 which states in part:
SUBCHAPTER E. LAW ENFORCEMENT
§ 9.51. ARREST AND SEARCH. (a) A peace officer, or a
person acting in a peace officer's presence and at his direction, is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
make or assist in making an arrest or search, or to prevent or
assist in preventing escape after arrest, if:
(1) the actor reasonably believes the arrest or search
is lawful or, if the arrest or search is made under a warrant, he
reasonably believes the warrant is valid; and
(2) before using force, the actor manifests his
purpose to arrest or search and identifies himself as a peace
officer or as one acting at a peace officer's direction, unless he
reasonably believes his purpose and identity are already known by
or cannot reasonably be made known to the person to be arrested.
9.51 has many other provisions, but those quoted above are the authority for a LEO to use or threaten deadly force to make an arrest, or prevent an escape.
Regards,
Chas.
I agree with some of your points Charles, but I disagree that 46.035 is the ONLY justification. I believe that 9.04 DOES allow justufucation.
Scenario;
I am leaving the movies with my wife at dusk. We are walking to the car in an area of the parking lot where there are no other people. Because I am a member of Texas CHL forums ;) I am in condition yellow. I am carrying on a conversation with my wife, but also paying attention to my surroundings.
Across the lot I observe 3 older teenage boys, all wearing trench coats (its 90 degrees in Dallas) heading directly for us. They are intently looking at us. I lok around and decide that we cannot get back to the building or where there is a crowd before the teens can be on top of us.
I have us change direction to move from the teens path. They change course to keep bearing down upon us. At this time I am in condition orange. I tell my wife of my concerns and tell her to get her cell phone and dial 911, but not hit send yet.
I have us walk faster and again the teens bear down. So I suddenly wheel towards them, stop and put my left hand out towards them and state firmly and clearly, "you boys stop right there, do not come any closer. I feel threatened and you need to stay back and move around".
Verbal Commands are very low on the force continuum. If the kids mean no harm, they may mouth off, but they will not approach closer. By giving verbal commands, it becomes reasonable for me to believe that harm is imminent if they approach closer.
Rather than walk away, one of the boys begins to threaten us verbally and all three continue to aproach.
Considering the number of potential attackers, the possibility of them possessing weapons (remember the trench coats?) and them esclating the situation after my verbal commands to back away, my belief that harm is imminent has now increased.
At this point I still desire to defuse the situation without resorting to deadly force, so I pull my vest back, allowing my handgun to be visible, while I loudly instruct my wife to dial 911. I tell the teens that if they approach further I believe that they intend to assault us, that we are outnumbered and I intend to defend us completely.
From that point what happens depends on them.
I believe that my display of my frearm in that situation meets 9.04, and was justified.
The case law presented here all involve people behaving like [abbreviated profanity deleted.] and using their gun to intimidate, not for actual safety.
Again, all of this is my just humble opinion.
