My first CHL-related incident with HPD

[rmr1923]

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

[Rebel]

. How was your life in danger? What would you have done if he had taken a swing at you? You know getting into a scuffle with an individual and being punched doesn't justify drawing of your weapon.

It doesn't? It depends on who's swinging the punch. It is possible to be killed by a single punch. If I were to get into a scuffle with one of the rather large gentlemen that works out at at my gym, I don't think I'd fare well. They'd crunch me up like an empty beer can.

It depends on if you felt your life or limb is in danger.

I'm not defending the OP here. He shouldn't have escalated the situation with the middle finger, and drawing the firearm was a further escalation. He should be able to get witnesses of the workers at the car wash for the OP's and the other guys demeanor. From what was described, that would be enough for me (acting as DA) to drop any change (if any) and perhaps have a private talk with both actors.

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.

[A-R]

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.

[A-R]

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.

[speedsix]

...read this week of a brother going to the pen because he had words with his brother and came up and hit him in the face one time with his fist...it killed his brother...no doubt the hands are capable of great harm...unless connected to a reasoning mind...

[rmr1923]

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)

[Rebel]

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.

[A-R]

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.

[Ameer]

It's better to call 911 first and keep the gun concealed. If he tries to break the window, I think the Castle Doctrine applies.

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;

But you only get that if you didn't provoke him, so keep your rude gestures and comments to yourself.

[sugar land dave]

Other people on the planet are going to do and say things that I do not like. I cannot control that, but I can allow my intellect to govern my emotions rather than the reverse. I think it is best to remember that to whatever extent that you injure someone, you also injure your own inner self.

You can disregard these words, but in real life you will not be able to disregard this truth. Be good to others; it will be good for you, and by forgiving others, you forgive yourself.

For the OP: You need to control yourself, not give it over to others manipulations. You choose how to react. Try to do so with graciousness and grace.

Wow dude - excellent - I really like this post! Give it up for "sugar land dave"!!!

Thank you for the recognition. I am new here and do not yet know nearly all that I should, but with the help of all of you who have been here before me, I hope to learn.

Much appreciation!

[brandrum]

someone in this thread said that we(even though I don't have my license yet) are held to a higher standard and I completely agree...we must show the utmost restraint and humility....humility is best understood when compared to someones strength. It is your responsibility as the stronger individual (i.e. the one that is armed) to diffuse the situation...taking the narrow path and showing true humility.

[longtooth]

OP deleated his original post so this one is locked.