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G26ster wrote:

srothstein wrote: This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.

Steve, if the above is so, can you explain to me why 9.31 says, "The use of deadly force is not justified under this subchapter except as provided in Sections 9.32,9.33, and 9.34?" This why I keep going back to 9.32(a)(2)(B). Seems like 9.31 is saying one can use force to the degree necessary, but not deadly force, unless the conditions of 9.32 are met. I am not challenging your opinion, but I am genuinely confused.

Actually, you are correct and I am the one who misread the law. I really am sorry. I did not read down far enough and forgot that section. I have to retract my statement about to the degree necessary. That is what I get for going on my memory and only checking the wording of what i thought I needed to check.

But after rereading all of 9.31 and 9.32, you do need the justifications under 9.32 to use known deadly force. But the logic still applies, mostly. The secret is to know what constitutes the other person's unlawful use of deadly force to be justified under 9.32 also. The disparity of force argument still applies. If the pro football player is coming at the 72 year old retiree, just using fists might be deadly force. We need to remember that deadly force is not always lethal, but includes anything that causes serious bodily injury. Serious bodily injury is defined as serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or substantial risk of death. While each DA will interpret this differently, a good rule of thumb I have been taught is any broken bone or any injury requiring hospitalization are examples of serious bodily injury. I did have one rural DA in Caldwell county who accepted a small scar on the lip as permanent disfigurement, but I thought that was pushing it.

So, if the person attacking, even with just his hands, is going to be big and/or strong enough to put you in a hospital, he is using deadly force. Some things that would go into this decision include the attitude, statements, size, physical condition, and number of opponents. All of this is a judgment call, but in most cases, you are reasonable and the cops are reasonable. You will both agree on the justification (especially if you talk to your attorney first and can articulate your reasoning). Obviously, there are cases in the gray area where the police may disagree with you (especially if the media plays it differently).

But in all honesty, I think most of the cases out there will be clear cut on the disparity of force and the justification will be clear. And there is still the necessity defense to supplement the defense laws.

G26ster wrote:srothstein: Can't say I think it's quite that simple, IF we consider the use of my weapon as deadly force (which I believe it would be), and based on 9.32 and the big and:

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.

In the situation I described, the attacker fits in neither (A) or (B). He is unarmed, so proving his attempted use of deadly force with his fists is left to a jury, and he is not attempting to commit any of the offenses listed in (B). I just find it odd that I have to "hope" a jury would agree that someone half my age and twice my size attempted the use of deadly force with his fists. Simply adding a few words to (B), like "assault," would require no other justification or defense on my part. If we can have the term "robbery" in (B), why not have "assault" or more specifically "assault on an elderly person." Seems a reasonable law to me.

Perhaps I was not clear enough in this, but I really do think it is that simple. Remember that force is any force, up to and including deadly force. When you look at 9.32, you have the immediately justifiable uses for deadly force. But there is nothing in the law that restricts deadly force to just those times. This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.

My understanding of the law is that the basic rule is when you can use force at all. Then there are some limits and some extensions to it. 9.32 gives times where you can jump immediately to deadly force instead of having to justify the upgrading from lesser levels of force.

And we always have 9.22 as a further example of this logic. This is the defense of necessity. It says you can do anything that is necessary as long as the harm you are trying to prevent outweighs the harm you are doing and there is no law expressly forbidding what you did. So, if I am a 72 year old and am being attacked by a 27 year old athlete, I can use force to the degree necessary to protect myself. This includes shooting him if it is necessary to save my life. this matches well with my interpretation of 9.31.

I think many of you are misreading the law on self-defense. It has many specific examples in it and explanations, but the first sentence of Section 9.31 covers all you really need to know.
[quote](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. [/unquote]

An assault or an aggravated assault is an unlawful use of force against you. You are justified in using the amount of force necessary to defend yourself. If the person is half my size and unarmed, I could not use as much force as if he were twice my size and wearing a karate gi with a black belt. This goes with what I was saying in the shooting by the LEo during the custody turnover.

You need to be able to articulate exactly what you felt and why you did what you did. If you reasonable believed your life was in immediate danger, you can use the force necessary to save your life. If your belief was reasonable will be decided in court. But most of us are reasonable people and if we can say why we felt what we did, we will be found reasonable.