Force to deadly force when displaying a firearm

[Steven6702]

I've been doing a lot of thinking about carrying regularly and have some questions that keep coming up for me that I'd appreciate any insight into.

The main one is about what would happen if I had to brandish a gun in various circumstances. My understanding in Texas is that one can lawfully display a firearm whenever the use of force would otherwise be authorized; in other words, that brandishing a firearm is simply a use of force until you pull the trigger, at which point it becomes deadly force. So if someone is harassing me or my family and starts to get physical, for example, I could display or draw a gun to create apprehension against that further illegal use of force against me, right?

Where it gets sticky for me is this: if someone is using some non-deadly force against me, and I display or draw a gun to create that apprehension, I still can't really do anything with the gun if that behavior continues, right? e.g. someone is following me and trying to beat me up; probably not trying to kill me, but I don't want to get beaten up either, especially when I'm carrying and could be at risk for having this person disarm me and potentially use my gun. So let's say I draw a gun on this person who keeps following me around and throwing punches, and tell them to back off. If they then continue in an effort to throw more punches, the brandishing of the gun is for naught, right?

Seems like it would kind of defeat the point of drawing a firearm unless you are absolutely ready and willing to use it - with seems consistent with common sense - but I just want to make sure I'm thinking about this correctly.

[K.Mooneyham]

Just to make one point clear: to the best of my knowledge, Texas law does not assign meaning to the word "brandish" the way the laws in some states do. Others on here can quote the law much better than I could. Generally speaking, I wouldn't draw my firearm until there was a dire need to do so, however, I might place my hand upon it in the holster so that I am ready if the situation were to require doing so, and that action might create the apprehension of which you wrote.

[hovercat]

Someone trying to beat me up, is deadly force to me. Unless, of course, they can provide beforehand proof that they are experienced enough to ensure that long term harm will not occur. And a person we both agree is qualified to ensure that nobody is seriously hurt is allowed to superintend the fight. And the attacker allows me to search him for weapons first. And a sufficient bond is posted to cover any medical costs, loss of work, whatever.

[Soccerdad1995]

Don't brandish your gun. Uncover it, display it, draw it. But don't "brandish" it. Brandish is a legal term that carries very negative connotations.

Personally, I use a mix of CC and OC. If I am CC'ing, the first time that a threat will see my gun is likely to be moments prior to their hearing a loud noise and (hopefully) feeling an impact that causes them to no longer be a threat. I don't plan to ever draw my gun unless it is in the act of shooting.

If I am OC'ing, then hopefully a rational person would be more inclined to avoid undue escalation of their disagreement with me. If someone continues to escalate a confrontation while in full view of my gun and with full knowledge of the fact that I am armed, that would make me somewhat more likely to conclude that they pose a potential deadly threat to me or my family. Either because they are mentally unbalanced, or because they themselves are armed.

In any event, I will always seek to de-escalate the situation first. The simple phrase "I'm sorry about that" delivered in a calm and sincere manner, works wonders.

[oohrah]

Steven, what you are proposing is reckless and illegal.

[flechero]

Steven, what you are proposing is reckless and illegal.

not necessarily, it sounds more like he's unsure of the terminology or process... He used the term non deadly force but sounds like he doesn't understand that fisticuffs can indeed be deadly force. Like many of us he needs a little [more] training.

If someone is following (pursuit) him, "throwing punches and trying to beat him up" you most certainly can draw your weapon. That is squarely in the middle of an assault. At that point some would shoot upon draw and some would hesitate hoping the attack stops. And he'd be justified either way. (the law allows but does not mandate shots be fired)

I do see you point, oohrah, if he produces a gun in the wrong circumstances, (like for someone just verbally harassing without threatening) he could be the one escalating the encounter. The OP references verbal but both examples it turned physical.

[Abraham]

Steven6702,

If I understand your post, generally speaking, you're (I think) wanting to know if it's lawful to un-holster and have your gun in hand when confronted by hostility, even when such hostility may not necessarily put you in fear for your or a loved one's life, but have it hand to force an other/others into reconsidering their frightening actions towards you.

In other words, while not in fear for your life, you've used your gun to get them to comply.

If I'm correct in my general scenario description, the answer is no.

You can't simply pull your gun if you're somewhat concerned, annoyed, angry, confused or just plain old uncertain.

Carrying a gun doesn't provide you with a means to persuade others you find in some manner obnoxious.

It's there for you as a last means of resort to protect life that is in immediate danger of being lost...

[The Annoyed Man]

I don't have time to research the relevant code to post here, although I've done it before.........but you don't have to absorb a punch before you can pull the trigger. If someone charges at you with a piece of lead pipe in his hands, he is using deadly force even if he hasn't actually connected with it. You are justified in shooting him. A single punch to the head CAN kill. There's another recent thread on this forum about just such a case. I'm a 64 year old man with physical health issues. If you bum-rush me, I'ma hafta shoot you.

You are NOT obligated to take a beating, on the assumption that the aggressor doesn't want to kill you.....just mess you up a little bit.

Oh heck with it.......here's the relevant code:

http://www.statutes.legis.state.tx.us/S ... m/PE.9.htm

Sec. 9.01. DEFINITIONS. In this chapter:

• (3) "Deadly force" means force that is intended or known by the actor to cause, or in the manner of its use or intended use is capable of causing, death or serious bodily injury.

Note the "is capable of causing". That doesn't mean that it DID cause, it is just capable of causing.....

Sec. 9.02. JUSTIFICATION AS A DEFENSE. It is a defense to prosecution that the conduct in question is justified under this chapter.

9.03 deals with justification for confinement of the other person.

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.

Sec. 9.22. NECESSITY. Conduct is justified if:

• (1) the actor reasonably believes the conduct is immediately necessary to avoid imminent harm;
  (2) the desirability and urgency of avoiding the harm clearly outweigh, according to ordinary standards of reasonableness, the harm sought to be prevented by the law proscribing the conduct; and
  (3) a legislative purpose to exclude the justification claimed for the conduct does not otherwise plainly appear.

SUBCHAPTER C. PROTECTION OF PERSONS

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.

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
      (B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.
  (b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
  • (1) knew or had reason to believe that the person against whom the deadly 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 an offense described by Subsection (a)(2)(B);
    (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.
  (c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.
  (d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.

Sec. 9.33. DEFENSE OF THIRD PERSON. A person is justified in using force or deadly force against another to protect a third person if:

• (1) under the circumstances as the actor reasonably believes them to be, the actor would be justified under Section 9.31 or 9.32 in using force or deadly force to protect himself against the unlawful force or unlawful deadly force he reasonably believes to be threatening the third person he seeks to protect; and
  (2) the actor reasonably believes that his intervention is immediately necessary to protect the third person.

Note that the law is chock FULL of terms like "reasonably believed". You don't have to KNOW that the other person is intending to kill. You only have to REASONABLY BELIEVE that there is a chance he could kill you if he successfuly presses forward the attack. So you can shoot to stop the attack. Your attacker doesn't have to have a weapon in his hands. You just have to reasonably believe that he could kill you if he got his hands on you.

Remember what you were taught in your CHL/LTC class: you are NOT shooting to kill. You ARE shooting to stop the attack. That carries a fairly broad meaning. The law makes allowance for the reasonable belief that something bad of a physical nature at someone else's hands is about to happen to you, and it agrees that you have a right to protect yourself against it if you can.

[TexasJohnBoy]

Remember as well, you have to make 12 others believe you reasonably feared seriously bodily injury or death as well. Every situation is going to be different and a answer in black and white on a forum isn't going to be the end all, just a guide.

I read these sections probably once every six weeks to make sure I've got it down, and to remind myself of the nuances within them.

While not directly related to Texas statutes, see http://www.foxnews.com/us/2017/03/10/ju ... -case.html
He may have truly felt in danger in the heat of the moment (I'm not intending to start a debate on his actions here) but in court it's not looking so good for him.

In my humble opinion, drawing my weapon is going to be as close to the last option as I can make it in any of my situations that arise.

[ScottDLS]

Remember as well, you have to make 12 others believe you reasonably feared seriously bodily injury or death as well. Every situation is going to be different and a answer in black and white on a forum isn't going to be the end all, just a guide.
....

No the State has to make ALL 12 other people believe BEYOND A REASONABLE DOUBT that you DIDN'T reasonably fear serious injury or death....if you raise the 9.22/23 defense at trial.

[ScottDLS]

Don't brandish your gun. Uncover it, display it, draw it. But don't "brandish" it. Brandish is a legal term that carries very negative connotations.

...

As mentioned by K.Mooneyham "brandish" isn't a legal term in Texas. Therefore in the OP context doesn't necessarily carry any legal connotations, that display, or produce, etc. would or wouldn't....in Texas.

[Beiruty]

De-escalations is the first option, Yelling Stop do not get closer, or back off....etc.

[bigtek]

Escalations is the first option

Or you could try to de-escalate first.

[bigtek]

Brandish is a legal term that carries very negative connotations.

I can't find that in the penal code. A little help?

[Soccerdad1995]

Brandish is a legal term that carries very negative connotations.

I can't find that in the penal code. A little help?

You won't find it there. At least not in Texas. It is a term that only has meaning to people from other states where it is generally a bad thing to do, legally speaking.

Which all begs the question of why the OP is using that term. I'm guessing they have either been exposed to some anti propaganda somewhere, or they had a really bad LTC instructor.