TexasCHLforum.com

gigag04

Embalmo wrote:There's a lot of posts that I haven't read here, but am I the first one to notice that the topic, "finally had to draw" implies an inevitability in drawing? I don't believe that having to draw is inevitable for the CHL holder.

Embalmo

Nope it was mentioned in previous pages.

gigag04

Dragonfighter wrote:I now know that Gigag was correct in saying an aggravated assault occurred; but now I understand that the justification statutes supersede the criminality. I was under the impression, and now believe I was wrong, that if justification exists the crime did not occur. Thanks guys.

Yup - and it's up to a jury to see if the defense applies or not...or really the justification. Defenses/Affirmative defenses are a whole different animal. A justification is a legally acceptable "excuse" if you will.

gigag04

I'd write it up as incident - and let someone else deal with it if they wanted to prosecute.

gigag04

Another thought, can deaf people get issued CHL's?

gigag04

Yeah I'm not sure where the line of thought that "I'm not pulling it without using it" came from.

I think there are many instances where I would draw and move to low ready as an intermediate escalation between "stop" and "bang"

I think if I decide that I need to shoot someone right NOW and my weapon is still concealed I might end up behind the 8 ball. Hopefully I have developed the situational awareness to see a potential threat and respond accordingly on the use of force continuum.

Like this:

--->

(here is where gun may be drawn --->

or

And then,

or

gigag04

Hehe - what we are also seeing here is the difference in opinion between an LEO (who has never been an attorney) and a defense attorney with an LEO background. :)

Again, I think OP would've been fine with presenting a weapon and getting ready to use it, however I think the line was pushed with aiming a loaded gun with laser sight at the two subjects chest because they turned towards me about 30ft away. I could be slightly biased because in my agency we have to fill out a use of force for aiming a weapon at someone, but not presenting it at the low ready. Like I said I'm glad OP was armed and did something...I don't disagree with the officers decision to treat it as an incident.

Another good thing this provides is an example of the level of scrutiny that one's actions will take on after the fact.

gigag04

This is a great dialogue sir, I take no offense and read no sarcasm :)

Dragonfighter wrote:we can conclude that others did not use force but we are unable to conclude they were not attempting to use force within any standard of certainty

I (my opinion...I'll own it) do not see walking towards someone as a use of force - and verbal exchanges do not play into the assaultive offenses of Texas Penal Code. Is it suspicious...ABSOLUTELY. Wierd? YES. Dangerous? MIGHT VERY WELL BE. It might even be aggressive, but it is not a use of force or attempted use of force.

THUS,

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 he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

As I read that, it must be necessary at that very moment to defend against a use or attempted use of force, which IMO we do not have.

Where things went bad w/OP's action IMO was not presenting a weapon to get ready to defend himself, it was when he pointed it, laser activated, at the subjects' chests.

I don't think I'd make an onsite arrest. I'd actually probably write it up as an incident report, and if someone with a gold badge, or a tie decides that they want to the incident tab to an offense such as agg asslt then they are free to do so.

gigag04

I in turn will bold some wording :)

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 he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.
(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

Dragonfighter wrote:OP produced his weapon and activated the installed laser sight with the intent of letting the approaching men know he was armed and had a solution on their person

Dragonfighter wrote: Now as I read PC Chapter 22 a simple assault can occur with the "intentional" or knowing threat of imminent bodily harm but for an Aggravated Assault to occur:
Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Section 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
He didn't "intentionally or knowingly" seek to harm these guys and he didn't "intentionally or knowingly" set out to threaten them.

Dragonfighter wrote:OP produced his weapon and activated the installed laser sight with the intent of letting the approaching men know he was armed and had a solution on their person

Sounds like a threat, intentionally :)

Dragonfighter wrote: It was their encroachment and other exigent circumstances that provoked the OP. Given the "reasonableness" standard and justification under PC 9.04 how you can assert he committed aggravated assault, your inclination to detain him aside. Had he been detained then ultimately the judge, grand jury or trial jury would decide his guilt. I think the conclusion in this case was so obvious the LEOs on location did not see the need.

Threatening deadly force is a use of force. Using force against another is Assault. Displaying a firearm aggravates assault. I agree the cops made the right determination - however, I do think that OP lacks justification for his use of force, per the explicit text of the penal code.

On paper, the actions of the two subjects don't warrant the use of force exhibited by the OP. Now, I as well as anybody, can attest to that hair on the back of your neck feeling....it's just hard to admit that in court.

gigag04

Cosmo 9 wrote:Let me put a little less arrogant. The only one in this group of four people that broke the law was "Jtran987"

Agreed the law was broken - I haven't seen any post a justification from the PC that I think would fly. That said I don't think 12 would convict him.

juggernaut wrote:
Cosmo 9 wrote:Let me put a little less arrogant. The only one in this group of four people that broke the law was "Jtran987"
When do you think he'll get arrested for "breaking the law"? It was reported to the cops.

All law violators reported are not arrested and charged. Just because the officer chose not to file it as a Agg Asslt does not mean that OP was fully legal per Texas Penal Code.

Dragonfighter wrote:
Cosmo 9 wrote:Let me put a little less arrogant. The only one in this group of four people that broke the law was "Jtran987"
Did you read the PC citations I pasted?

I didn't see any when I just skimmed the thread - what did you post? I think I'm missing something.

gigag04

I think blowing them out with a flashlight is a reasonable first move. Just keep your head swinging so you see your sides and rear too. Thats what my response is when I'm on a scene and I see someone approaching (at night). I blind the heck out of them with either my SL-20 (big flashlight) or my Strion LED (small, painfully bright). I also keep a TLR-1 on my duty weapon just for surprises.

This solves the issue of not seeing their hands and communicates to that individual that you are perceiving their actions as a POSSIBLE threat. Even to someone with a hearing impairment or a mental handicap (many of the homeless fall in this category) would realize something is going on when they are lit up with a light.

I can't say that I carry a light everywhere I go, but I also have some other defenses than just a gun (not afraid to go hands on, instinctual hand checking, verbal commands come naturally etc). I am in the process of having a holster made that will accommodate a G30sf plus my TLR-3. This will help.

As far as OP's incident I think you are VERY lucky the LEO didn't take any action. Because I'm newer, I would've had to check with the higher ups and it would be at their mercy as to whether write it up as an incident (most likely) or as an offense report. I don't fault the OP for doing SOMETHING...he did not get stuck in the OODA loop, and chose to act, and did so decisively - fixing the issue. I also feel that some more training may be in order to have a bit better plan when stress piles on, you're feeling threatened, and want to act - the gun presentation was probably premature -- however, at least you did something. Freezing in that situation is not an option.

Maybe we can all learn from this (self included).

gigag04

There is however a law against aggravated assault:

Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
...
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse
...

Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:
(2) uses or exhibits a deadly weapon during the commission of the assault.

So - by the PC you have committed Agg Assault. You can be prosecuted for it, as you don't meet any exceptions...however...you might have a listed justification.

Here are some relevant justifications in the PC which may concern you:

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.
(note the AND here means 1,2, and 3 must be met before the PC views conduct as "justified"

And the long one:

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.
.....

We don't have to discuss this, but I think this is a great example of issues that CHL holders worry about. What defenses would you claim, and how would you defend their relevance to your actions at trial? Go.

TexasCHLforum.com

Search found 11 matches

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw

Re: finally had to draw