TexasCHLforum.com

Rebel wrote:

austinrealtor wrote: Rebel I hope I too am not taking your statements out of context, because of the most part I agree with you. I just don't agree with leaving out there any idea that merely "a few punches thrown" could never be enough to justify a deadly force response. A single punch can and has killed people, even someone of roughly the same size/age etc as the puncher. It happens. Now the caveat to all of this is usually it happens in response to other provocation, argument etc. that could make the person who uses deadly force look like the bad guy. As you alluded to, it will likely cost you plenty to get free and clear of shooting somoene who was punching or attempting to punch you. All gets back to reasonableness as almost any discussion of force/deadly force will do.

But just as it's not reasonable to say "a punch alone is enough to justify shooting someone" it's also not reasonable to say "a punch alone is NOT enough to justify shooting someone"

If someone walks up to me, unprovoked, and attempts to land a haymaker on my head, I WILL pull my weapon (if I'm capable of doing so) and if they don't immediately back off I WILL shoot them. I will also be justified. I am justified because a single punch to the head is "capable of causing death or serious bodily injury" [quote directly from PC 9.01(3) definition of deadly force]. My justification is found PC 9.32(a)(2)(A) "to protect against unlawful use or attempted use of deadly force". You are right that I do not get the "presumed reasonableness" I would have with more obvious justifications to prevent murder, rape, aggravated kidnapping etc, but I will take my chances that either the police, the prosecutor, or the jury will find my reaction to stop this unprovoked assault reasonable to an immediate and unproked threat to my life.

And that's all I'm saying. If I "get into a fight" with someone, then I've lost my justifiation to use deadly force. I've willingly entered a fist fight. That's different.

I just don't like the idea floating around out there that as long as an attacker only use his fists, he has no fear of a legally justified deadly force response to his attack. It just isn't so.

We're on the same page, I just didn't state it clearly enough, especially when conversing with BaldEagle. I was talking in context to the OP's(now gone) post. If you are attacked without provocation, even by a smaller individual, I believe you have the right to defend yourself, and stop the threat.

I too read the article Speedsix is talking about earlier this week, and I am quite aware that a single punch can be deadly.

I hope we all agree that having a CHL should hold us to a higher standard, and it's our duty to avoid and deescalate confrontational situations. Beyond that it's up to each individual to decide when and if they unfortunately have to use their weapon. I just want everyone to be aware that not all incidents require it.

I know under Texas law you can use force to protect your property, but I'm not the type of person who is going to shoot someone for stealing my hubcaps. I'm not talking about breaking into my house, at that point you are putting my family's life in immediate danger, and that is a whole different situation. So please don't think I'm some pacifist, I just have a personal opinion of what does require force.

I didn't believe the OP's post required him to draw his weapon, and has been pointed out even here on a clearly pro 2A/CCW site, many believe he was in the wrong, so how would that of held up if things had gone too far with "regular" people on a jury.

Yes, we are certainly on the same page. Great post. Especially the "higher standard" points.

Rebel wrote:If you read my other post I state that there are always exception, but I'm fairly sure he didn't give some guy who was a foot taller and outweighed him by 100 lbs. the bird, unless he felt having a CHL gave him some "bravado".

The point of that comment was that if you do get into some scuffle(I'm not talking a beating, just a few punches thrown), I don't believe it justifies drawing of a weapon. I think some people have forgotten that sometimes a sore jaw or black eye and bruised ego are things you can live with.

Like was stated earlier, the only reason I would ever draw was if I felt my or someones life was in immediate danger.

These are my own opinions, so take that for what its worth, but do yourself a favor and read the article I posted a link to. Even if you think you are justified, it may not always be so black and white to others, and any dealings with the law are going to cost you more than you think.

Rebel I hope I too am not taking your statements out of context, because of the most part I agree with you. I just don't agree with leaving out there any idea that merely "a few punches thrown" could never be enough to justify a deadly force response. A single punch can and has killed people, even someone of roughly the same size/age etc as the puncher. It happens. Now the caveat to all of this is usually it happens in response to other provocation, argument etc. that could make the person who uses deadly force look like the bad guy. As you alluded to, it will likely cost you plenty to get free and clear of shooting somoene who was punching or attempting to punch you. All gets back to reasonableness as almost any discussion of force/deadly force will do.

But just as it's not reasonable to say "a punch alone is enough to justify shooting someone" it's also not reasonable to say "a punch alone is NOT enough to justify shooting someone"

If someone walks up to me, unprovoked, and attempts to land a haymaker on my head, I WILL pull my weapon (if I'm capable of doing so) and if they don't immediately back off I WILL shoot them. I will also be justified. I am justified because a single punch to the head is "capable of causing death or serious bodily injury" [quote directly from PC 9.01(3) definition of deadly force]. My justification is found PC 9.32(a)(2)(A) "to protect against unlawful use or attempted use of deadly force". You are right that I do not get the "presumed reasonableness" I would have with more obvious justifications to prevent murder, rape, aggravated kidnapping etc, but I will take my chances that either the police, the prosecutor, or the jury will find my reaction to stop this unprovoked assault reasonable to an immediate and unproked threat to my life.

And that's all I'm saying. If I "get into a fight" with someone, then I've lost my justifiation to use deadly force. I've willingly entered a fist fight. That's different.

I just don't like the idea floating around out there that as long as an attacker only use his fists, he has no fear of a legally justified deadly force response to his attack. It just isn't so.

rmr1923 wrote:

PC §9.31. SELF-DEFENSE. The actor's belief that the force was immediately
necessary as described by this subsection is presumed to be reasonable
if the actor:

...

(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.

on the one hand, the OP likely had reason to believe that the man might unlawfully (and with force) enter his vehicle. but on the other hand, he did provoke him by flipping the bird. so i guess my question is, if the man did attempt to enter the OP's vehicle and assault him, would the OP not be justified in using force because he provoked the attacker?


Edit: the above post isn't intended to condemn or justify the OP's actions, i pose this question solely for the sake of better understanding the CHL laws.

As always, I'm not a lawyer ....

Great question. And one covered extremely well in Charles' deadly force seminar (sorry to keep tooting his horn, but it really is VERY good).

Notice the portion above that I have highlighted in green about presumed reasonableness. If you provoke an action, you lose the PRESUMPTION of reasonableness you would've otherwise had to use force. And reasonable is one of three keys words to justification - other being imminent and immediate. So by provoking the action with the middle finger, the PRESUMPTION of reasonableness was likely lost.

Important also to highlight that in 9.31 Self Defense we're ONLY discussing use of FORCE, not DEADLY FORCE. There are slightly different conditions placed on use of deadly force in 9.32

But in direct answer to your question, the provocation alone does not cause the OP to lose his right to or justification of self defense, but it certainly opens it up as a question of fact for a judge/jury to possibly decide. The whole point being, why do something that leaves questions as to the reasonableness of your use of force? If a guy walks up unprovoked, breaks your window, and tries to pull you from your car by law you are PRESUMED reasonable to use appropriate force/deadly force to resist. It's no longer a question of fact.

Anyway, as repeated often I'm not a lawyer. Hope I've explained this at least reasonably as well as Charles does.

couzin wrote:

austinrealtor wrote:

Oldgringo wrote:Everybody read through this {thread} again and then ask each other, "is it any wonder that there are those who want tighter gun control laws'?

A bit broad and a little harsh, maybe. But a darn good point nonetheless.

Broad by necessity - but not harsh. I have seen way too many individuals posting here occasionally (I think most post a couple times then leave the forum), and many others on other gun forums, that make it clear that they now have a gun and are not going to hesitate to use it on ANYBODY that messes with them... Frankly - they scare me - short fuzes, HE, and an indescribable mental state out looking for a fight -- nope, Oldgringo is correct - chickens are coming home!!!

Couzin, I agree with both you and Oldgringo. My "a little harsh" reference was to the "we've met the enemy and he is us" quote .... harsh only in the sense that not all of "us" are the enemy because most of "us" don't react/think/do these kinds of things. But I definitely see yours and Oldgringo's points very clearly and agree with them. "one bad apples spoils the bunch" is my preferred catchphrase. This is why it's so encouraging to see so many who instantly recognize when someone else's use of a gun is in the wrong. I sometimes think perhaps prosecutors have it wrong if they try to weed out gun owners/chl holders from a jury in a case involving unlawful use of a weapon - seems many of us, for very good reason, can be just as "harsh" or more so than an anti when it comes to condemning unlawful use of a firearm. And that ... is a good thing to be sure. Unlawful use of weapons should be universally condemned.

I AM NO A LAWYER

A few points:

1. BOTH men were wrong. Both men had ample opportunity to de-escalate, ignore, or just walk away.

2. The OP made three critical mistakes beyond the over-riding mistake of not de-escalating the situation:

a) middle finger – childish, immature response (we’ve all done it, and most of us have regretted it at some point, and hopefully we’ve all learned NOT to do it while carrying)

b) unconcealing a firearm – does NOT matter that you didn’t point it, didn’t intend for other guy to see it. By unconcealing your weapon you very likely violated PC 46.035(a) “intentionally fails to conceal handgun” or – if claming that you are carrying under MPA and not CHL because you’re in your car – then you violated PC 46.02. Regardless, the burden of proof is now on YOU to prove your action of unconcealing your firearm was justified under the law.

c) You didn’t call 911 first - you unconcealed your gun in reaction to the aggressive nature of another individual; but the other guy called the police. Guess who looks guilty from the start?

3. Everyone here on this board most likely owns a gun, carries a gun and yet MOST of us are telling you what you did was wrong. What do you think a jury of your real world peers will tell you? Why put your future freedom on the line in this manner over a jerk in line in front of you? I'm sure you were fearful at some point - you'd provoked someone with enough temper to become very aggressive toward you. But every justification for use of force/deadly force under Texas law comes with the caveat that you cannot PROVOKE the aggression you seek to stop with your own use of force/deadly force. At some point, you have to at least APPEAR to be the VICTIM/potential victim if you want to be justified under the law in using deadly force. When were you the victim?

At each point in this quick escalation, you or the other guy were increasing the provocation. THE OTHER GUY played the victim as soon as he saw your gun! He was the first to back down. See how this works? Each of you escalated and re-escalated until the other guy said "whoa!" and decided the conflict was no longer worth it. The fact that he backed down first does not define the entire situation; the fact that you never backed down is more damaging toward you. And this is not to say that pulling a gun to stop an attack is always wrong by any means. It's also not to say that the other guy was justified to walk up to your car in a threatening manner. It's to say that YOU contributed to his walking up and threatening you. If you had NOT flipped him off and he had walked up to your car in an obviously aggressive and threatening manner, then you at least APPEAR much more like a victim. Even after you flipped him off, if you had kept your window up when he approached you look more like the victim.

Again BOTH men took it too far. The other guy probably broke the law when he approached in an aggressive manner. The OP broke it when he pulled his gun without legal justification. Remember: 1. you can't provoke the action you seek to stop by pulling your gun 2. to be legally justified in pulling your gun, doing so must be a reasonable response to an imminent threat of immediate serious harm.

4. Just an educated guess: the police easily could’ve arrest BOTH men, but I’m guessing they talked to both and allowed cooler heads to prevail. They probably told the other man – the initiating caller – that he could press charges against the OP for pulling the gun, but may have also advised him that the OP could easily press charges against him also. Perhaps the “waiting for the detectives” bit from the police is their way of telling you that you got lucky, but you may not be out of the woods yet. I’m guessing when the patrol officers file their report, it could be picked up by a detective for follow up OR the other guy could decide to press charges.

Regardless, as GigAg pointed out in his post, you are EXTREMELY lucky you were not arrested.

5. There is almost never a simple Point A to Point B linear path from “threat” to “pull gun”. If there is, then you’re not paying attention (staying in condition Yellow) and you were caught off guard. Or, as with OP, you may have contributed to escalating a conflict to the point of pulling a gun.

As has been mentioned, a much deeper understanding of force/deadly force laws is needed. Charles Cotton’s seminar is a perfect place to learn this. His “threat assessment checklist” idea alone is worth the time and effort of attending his free seminar.

Arguments over whether “a punch alone” or “I’m gonna knock you out” is enough to justify a deadly force response miss the point. NOTHING – alone – is likely enough to justify deadly force, short of a guy walking up to you unprovoked, weapon in hand, with the obvious intent to do you serious harm. Unless you’re a bank teller or convenience store clerk, how likely is that scenario?

But in a life or death situation, you can’t keep all these fluctuating scenarios straight in your head. Which is why something like a threat assessment checklist is so vital – it gives you a mental step-by-step pre-planned set of actions/reactions.

As each of us is developing our own mental checklist, always keep in mind the key words for legal justification:

Are you taking a REASONABLE action to stop an IMMINNENT threat of IMMEDIATE death or serious bodily injury?

I AM NOT A LAWYER

Oldgringo wrote:Everybody read through this {thread} again and then ask each other, "is it any wonder that there are those who want tighter gun control laws'?

In the immortal words of Pogo, "We have met the enemy and he is us".

A bit broad and a little harsh, maybe. But a darn good point nonetheless.