TexasCHLforum.com

austinrealtor wrote:

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.

thanks, that clears it up quite a bit, and i agree that i'd rather avoid any action that would give a jury reason to question question my actions. i was hoping to go to Charles' latest seminar in my area but it was a week night and i wasn't able to make it, hopefully there'll be another in the Houston area sometime soon.

another point that i'd like to make is that if i were placed in a similar situation, i would NOT post anything about the incident on a public message board until all the dust has settled (i.e. no charges pressed, or charges dropped/dismissed)

rmr1923 wrote:

PC §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.

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.

nevermind, found my answer a little further down the page...

(b) The use of force against another is not justified:
...
(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

PC §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.

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.

Rebel wrote:

Beiruty wrote:Note, the report would says he said, she said, no harm, no witnesses ....

Well except for the fact he admitted it online.

i was thinking the same thing

i don't understand where the "homicide" investigation comes into play here unless there was a recent shooting somewhere close by, and they thought you may have been a "person of interest" due to the fact that shortly after the shooting the police get a 911 call about a guy in the general vicinity pulling a gun on someone. though if this was the case i don't imagine they would have just let you go, with or without your gun. sounds like a scare tactic and i doubt any charges will come of it. if there are no other witnesses that can testify that they saw you draw your gun, it becomes a case of your word against his, unless a security camera somehow got a good enough shot inside your car.

i really don't see what they can charge you with that would hold up in court and lead to a conviction though, so i doubt they'll pursue it unless the other guy wants to press charges. i will agree with the other posts in that you escalated this and provoked him, but i understand that you had no idea what he was going to do when he started coming toward you. for all you knew, he could have pulled a weapon and unloaded a few rounds through your window before you even had a chance to draw yours. i'm not sure if you've ever considered this scenario before (i know i've run it through my mind a couple times), but depending on where your holster is on your body, it's probably better to have the gun somewhere else inside your car where it's concealed but readily accessible (i.e. a place where you can put your hand on or near it incase you have to draw, but still keep it concealed).