encounter at wallyworld - calling all armchair QB's

[dewayneward]

thanks for the posts. I do appreciate the discussion. I have read and reread the information and I am just shocked at what is covered and what isnt. I am surprised that assault is not covered. I passed the test, listened to the instructor. I know that I cant (and shouldnt) pull my gun on a loudmouth. I know that I should de-escalate, but I see a glaring hole in the law.

Forgive the crudeness here(doing it for effect), but I can whack a punk for stealing my stereo (at night), but I cant shoot a guy that is getting ready to punch me? that just makes no sense to me. Why isnt assault not one of the things you can defend against?

[G26ster]

thanks for the posts. I do appreciate the discussion. I have read and reread the information and I am just shocked at what is covered and what isnt. I am surprised that assault is not covered. I passed the test, listened to the instructor. I know that I cant (and shouldnt) pull my gun on a loudmouth. I know that I should de-escalate, but I see a glaring hole in the law.

Forgive the crudeness here(doing it for effect), but I can whack a punk for stealing my stereo (at night), but I cant shoot a guy that is getting ready to punch me? that just makes no sense to me. Why isnt assault not one of the things you can defend against?

I asked the very same question a while back on the forum. I believe that assault (in my case of a senior citizen) beats, say robbery, any day of the week, and should be in PC 9.32. My main point was to remind you of the law as currently written, and hopefully prevent a good guy from ruining his life.

[dewayneward]

thanks for the posts. I do appreciate the discussion. I have read and reread the information and I am just shocked at what is covered and what isnt. I am surprised that assault is not covered. I passed the test, listened to the instructor. I know that I cant (and shouldnt) pull my gun on a loudmouth. I know that I should de-escalate, but I see a glaring hole in the law.

Forgive the crudeness here(doing it for effect), but I can whack a punk for stealing my stereo (at night), but I cant shoot a guy that is getting ready to punch me? that just makes no sense to me. Why isnt assault not one of the things you can defend against?

I asked the very same question a while back on the forum. I believe that assault (in my case of a senior citizen) beats, say robbery, any day of the week, and should be in PC 9.32. My main point was to remind you of the law as currently written, and hopefully prevent a good guy from ruining his life.

Ok, so what needs to be done in order to change this?? I mean, I am getting nutty just thinking about it. I cant for the life of me think that whoever was writing the law didnt go "d-uh, assault should be in there".

Really though, I hope that Mr Cotton drops in and provides a quick link or something to tell me how to get assault added to the list of things I can defend against. It has made me rethink a few things. I am not a hothead and looking for trouble. Even if I was standing there minding my own business and all this went down, I would still be in the wrong if I drew my weapon. This guy could whack on me and I still, legally, couldnt shoot him. It makes no sense and I really think that the law needs to be updated.

[G26ster]

I'm not saying you can't defend yourself against assault (actually, Battery is the more correct term I believe) . I'm just saying that the lack of clearly stating "battery" in PC9.32 is a mistake in my opinion. It's just that the scenario you described when you said if he moved the cart or raised his hands you would have "stopped him"(meaning shot?) that gave me pause. I don't think that would rise to the level necessary to use your weapon against him. I'm not saying you should take a beating either. There are many on this forum that would agree more with you than with me. They will link PC 9.32 with 9.31 and 9.22 to justify their actions, even though battery is not one of the conditions in 9.32. I just didn't think your supposition of what you might do IF he moved the cart or raised his hands, and you "stopped him" would be seen by a jury as justified on your part. I am not a lawyer, and this is just MHO.

[Beiruty]

The case of threat of use or actutal use of deadly force against threat of assult or actual assult (fist fight) came up many times. With current laws on the book, I conclude that a CHLer is adivised to carry:
A) Non leathl wrapon such as pepper blaster or teaser gun
B) Your every day carry.

I prefer pepper blaaster since it can be deployed up to 14ft away and cost just $40. Not sure if there are similarly sized teaser guns that can fired at distance

[JNMAR]

I may have missed it but I don't think I saw anyone mention the fact that your "calling him out" especially considering that the obnoxious language was not directed at you, could very well be considered a provocation on your part. If you did threaten to use or use deadly force after provoking the confrontation a cop, DA, Judge and jury could very well see you having provoked the confrontation. Skeered is NOT a justifiable reason to threaten or use deadly force in my opinion, nor should it be...especially considering that you chose to interject yourself into the situation. If you're gonna try to teach a jerk some manners you probably ought to plan on using your fists or the management or the cops, and not your weapon.

[KD5NRH]

Condition Two: A round chambered, full magazine in place, hammer down.

I guess I carry in condition 10 then; all five chambers loaded, hammer down, and a speedloader ready.

[KD5NRH]

I asked the very same question a while back on the forum. I believe that assault (in my case of a senior citizen) beats, say robbery, any day of the week, and should be in PC 9.32. My main point was to remind you of the law as currently written, and hopefully prevent a good guy from ruining his life.

IMO, it's not nearly clear enough, but force reasonably expected to cause death or serious bodily injury to the victim is deadly force, and you can use deadly force to defend against it. This should really be spelled out better, though.

What will cause serious bodily injury can vary a lot based on the victim, though; a punch that would just bruise me could kill my wife. By the same token, an attack aimed at a leg that might only leave her with a bad bruise could cause me another dislocation and several more months on crutches and/or a cane.

To me, the simple solution is that if you don't want to get shot, don't threaten anyone with unnecessary violence. Can't we just get that put in the penal code?

[E.Marquez]

Disarm the situation.. DONE;;; CHECK
Aggression continues, Warn actor.. "Sir, you need to back off, I will not fight with you, but I will defend myself". Simultaneously backing off, creating more reaction space, and .. honestly.. a defense for your trial if it comes to it.. " I said leave me alone and did not want to fight, warned him i would defend myself and tried to get away.. he came at me and continued to threaten me"

Actor continues to threaten or be aggressive, call for help, warn actor and draw weapon,,,, if he aggressively moves to you, shot to stop the threat.

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

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

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

Deadly force against you is NOT just a gun or knife, it can be a chair, lamp, or fist... DID the OP BELIEVE at the time of the event, the person aggression him was capable of striking him, or otherwise which could result in the OP or his sons death? The actor was a Marine by his own admission, so a trained killer, a fighting force of one(thats what the TV ads say anyway), humans have been killing each other with just fists or blunt objects at hand for many years.. YES an unarmed person can be a deadly threat against your person. Every case? NOPE...But reality is, its not that hard to stun an opponent and then then deal a deadly blow.
http://www.independent.co.ug/index.php/ ... shillings-
http://www.palmbeachpost.com/news/crime ... 73775.html
http://www.timesonline.co.uk/tol/news/u ... 118931.ece
http://www.thegrio.com/news/four-arrest ... -party.php
http://www.wpbf.com/r/24728676/detail.html

[Smallestbodyman]

IMO. I feel that if I'm going to be assalted then I will also be robbed witch in turn will take it to an agrivated robbery. My ? Is what is provoking a situation? I was at walmart not to long ago and had to kick a car for backing up while me and my three year old daughter were directly behind her. If it would have been a punk kid that got irrate because I kicked the car did I provoke it? He took the first act in deadly force, even if it was unintentional! Or say I'm driving to slow or to fast or accedently move over and almost hit their car and they became irrate and came at me, did I provoke it? Also the other person with deadly force, is a guy bigger then me, able to do very sever dammage and posibly kill me? Or even a smaller guy, u never know what training they have. I'm 5'7" and 140 lbs. Never been in a fight so to me that's a good reason to fear for my life.

[lonewolf]

Kicking a car that is backing out and about to hit you is perfectly reasonable, IMHO. Done it before myself, while gathering my young one up in my arms. Some of the drivers in parking lots are simply oblivious to pedestrians. Some in little cars have no visibility if a pick up or SUV is parked next to them. I tend to walk in the center of the lane unless a car is approaching to avoid that. I will graciously move out of the way as they approach.

For the OP, I will say that you have brought up a most interesting topic, and I am truly impressed with the quality mature interaction/discussion of everyone involved.

Your children will grow up to fine people, I'm sure. I'm also sure they will sooner or later hear all the words and see all the things you may not want them to see right now. I had the best of intentions with my kids, but found that they brought words home from school that didn't appear on their vocabulary list. I also had to explain to them that while all their little buddies were playing graphic shoot 'em up games why I didn't feel it was appropriate for them.

It's a little silly old saying, but it kept me out of many fights: Sticks and stones may break my bones, but words will never hurt me.

It's true and I still use it today. I have a neighbor that screams at every driver he believes is speeding down our street, but hasn't taught his child to look well before crossing. One day it will cause a problem for him, someone is going to stop and ruin his day even more. I explained to him once that our local PD will respond. At a meeting, the liason officer told us that he would be more than happy, if we get a plate number, to pay them a visit and discuss it with them.

I'm not sure that entering into an unnecessary physical altercation, lethal or nonlethal, over words is the example I would have liked to set in front of my children. The next thing I know, I would have been getting calls from school saying my boy beat someone up for calling him a name or using a bad word. Not worth it, and in my opinion a little counter productive.

You have done a great thing by posting this here and asking for armchair quarterbacking. You've given yourself and the rest of us food for thought and reasoned discussion. Many kudos for that! It is a sign of a great person, being able to have a constructive conversation and maintain an open and fair mind, when there is a possibility of hearing some things that may run counter to your thoughts. This is how we learn. Gather information, evaluate information, act on said information as we see fit.

[The Annoyed Man]

Here's how I see it...

PC 9.32 ALSO says:

Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

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

Let's unpack that...

You cannot really discuss 9.32 without referring to 9.31.

9.31 says:

Sec. 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.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(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; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(c) The use of force to resist an arrest or search is justified:
(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and
(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.
(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994; Acts 1995, 74th Leg., ch. 190, Sec. 1, eff. Sept. 1, 1995.
Amended by:
Acts 2007, 80th Leg., R.S., Ch. 1, Sec. 2, eff. September 1, 2007.

Now, the subjects were committing a verbal provocation by cussing loudly and offensively, but 9.31(b)(1) prevents the OP from responding with use of force. Instead, OP very reasonably asks the offenders to tone it down. I have done this myself on a number of occasions, and in every single one, the offender was apologetic and did tone it down. Asking the offenders to tone it down is not an escalation, and I don't believe any court is going to view it as such. The OP is very reasonable, and he asks, not orders, the offenders to tone it down. No court will interpret the offenders' initial behavior, or their response to a reasonable request, as anything but belligerent and confrontational.

The next step is the offender placing his hand on the OP's shopping cart and "mad-dogging" him. THAT is an escalation of the confrontation. That was also an unlawful act because it borders on physically detaining the OP during the commission of the offender's aggression. At that point, the OP may reasonably believe [9.31(a)] that the situation is about to become violent. That does not give him permission to escalate into violence, but it certainly doesn't forbid him from preparing for what might be possibly coming by getting his hand near his gun. He cannot yet draw the gun, as at this point that would be considered aggravated assault, but he can certainly prepare himself up to that point. Please note that the OP did not verbally respond to the offender's aggression, so he did not escalate the situation.

Now, 9.32 covers a LOT of ground in the opening phrases:

9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:
(1) if the actor would be justified in using force against the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:
(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or....

OK, so the offender's actions up to this point have not justified the use of force, and the OP's actions up to this point have attempted to defuse the situation by A) asking, not ordering, the offender to pipe down; and B) refusing to further engage the offender verbally; and C) not snatching his cart back out of the offender's grasp (which I might have actually done, myself... I'm an old poop, and I'm not inclined to take that kind of crap off of people). The ball is very much in the offender's court at this point. The OP is not doing anything provocative, and the offender has the choice at this point to back down, or to escalate.

Fortunately, the aggressor backed down. Had he instead chosen to escalate, 9.31 authorizes the OP's use of force to defend himself and his young son. If the other three bad actors even threatened to get involved, then I believe that the OP's response with deadly force would be covered by 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d).

Now, all of that applies to a reasonably young, reasonably fit father with a 12 year old son to defend. The phrase "reasonably believes" in 9.31 and 9.32 leaves - in my view - a certain amount of leeway in favor of the actor (as defined in the statutes) and his/her threshold at which use of deadly force is a lawful reaction. I am not physically able to defend myself against a single younger and aggressive assailant. I would therefore reasonably believe that 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d) were justification for the use of deadly force if the aggressor escalated beyond grabbing the shopping cart. If he tried to come around the cart at me, I might reasonably believe that drawing my gun was necessary, and if he did not stop, I might reasonably believe that dropping him is called for because he is now actively engaged in physically attacking. If he did stop upon seeing the gun, then I don't have to shoot, and I have met aggressive force with a reasonable response, and drawing the gun (depending on the cops and prosecutors involved) should not be seen as an aggravated assaut.

ALL of that is to say that I would prefer to abandon my purchases at the register and just walk away if I could. But if the aggressor is not going to let me do that, then I have no choice but to react according to the authorization provided by 9.32(a)(1), 9.32(a)(2)(A), 9.32(b)(2), 9.32(c), and 9.32(d)... ...because I am not going to passively submit to a potentially fatal beating; and I am going to go home to my family and live to see another day.

Both the outcome and the consequences are in the aggressor's hands, but I am under no legal obligation to accept a beating and/or death simply because I am physically incapable of fighting off an unarmed attack. Furthermore, as anyone who has ever taken Charles L. Cotton's use of force in Texas seminar can tell you, Texas is a "true man" state, and you are under no legal obligation to retreat or to accept anything less than walking away from the encounter in the same physical condition as you were before it started. That is eminently reasonable.

I actually really appreciate the inclusion of that phrase "reasonable belief" in both 9.31 and 9.32 because it is the exact opposite of stupid "zero tolerance" laws. It credits the citizen who is behaving lawfully with being smart enough and having wisdom enough to know when they are actually in fear for their life. That is a determination that no cop who shows up after the fact, or that any prosecutor who tries to indict you can challenge because they weren't there. Not even a hostile witness can challenge it. The law presumes that you are an upstanding citizen who was behaving lawfully and was confronted by a violent thug, and you reasonably believed that use of force and/or deadly force was a reasonable response. There are plenty of states in the union where "reasonable belief" is not the standard against which a law-abiding citizen is going to be judged. I am not a violent man. I have never been arrested for anything, let alone charged and convicted of anything. I know myself to be a reasonable man and not a trouble-maker. Those who know me also know me to be a reasonable man and not a trouble-maker.

IANAL, YMMV, and all that stuff. This is just how I see it. If any lawyers or LEOs in the bunch want to correct my interpretation of the statutes, I'm open to correction from a qualified source, but I can tell you that Charles' seminar was a eye-opener for me, and I heartily recommend it to anyone if you ever get the chance to hear it.

[Abraham]

Attempting to command/correct obnoxious people encountered in public brings with it the great possibility of being found at fault in a court of law if violence occurs because you decided to act.

Do I sympathize with the ugly scenario you encountered - absolutely.

Do I also think you could have simply walked on - same answer...

One other possibility, away from the cretins, would be to have asked for the store manager, explain he situation and let him/her handle it.

Is that cowardly?

Not in the litigious environment we live in.

[OldSchool]

...IANAL, YMMV, and all that stuff. This is just how I see it. If any lawyers or LEOs in the bunch want to correct my interpretation of the statutes, I'm open to correction from a qualified source, but I can tell you that Charles' seminar was a eye-opener for me, and I heartily recommend it to anyone if you ever get the chance to hear it.

Absolutely agree. (We need to put Charles on a bus to go on tour.... )

I recommend that everyone, hard as it is, go through a large selection of the different situations in their mind, "visualizing" what their responses might and should be. I suggest a good way to do this is to look around at various times of the day when surrounded by people or at home, considering what might be done were someone to start a confrontation of some sort. Include the aftermath.

[Beiruty]

I hate to watch a 6:00 PM news flash, that says "The Annoyed Man' shot and killed a Marines soldier whom he had had a verbal argument with. The marines was not armed.

Surely, enough the news would not elaborate nor indicated that the deceased was verbally and physically aggressive.
It does not sound good no matter the way you look at it. It would cost tons of money to exonerate Mr. The Annoyed Man.