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Liberty wrote:

Keith B wrote: One thing everyone here (including me) has been doing to this point is assuming. Without the details, statements from the parties involved, witnesses, etc. we really know NOTHING. We also do not know how the legal/court system will play this out with any testimonies at the hearing and/or trial.

Best thing we can do now is sit back and wait for more information and see how this turns out for all parties involved.

Perhaps but there just might be a lot to learn from all of this and there are some fascinating facts that actually have come out of this discussion. Which is why its been such an active thread.

One interesting fact that came out of this discussion is that Drawing a weapon is force. Not Deadly Force.

A slightly different perspective changes things considerably.

A legally justified shooting isn't always a morally just shooting.

deescalation can prevent a situation from turning into a nightmare.

Excellent points.

I wish this event had not happened. However, it has become a great learning tool for all of us and it may prevent some of us from suffering similar problems in the future. Right or wrong, legal or illegal, moral or immoral, the bottom line is two guys are facing criminal charges over a soccer game.

Chas.

mr.72 wrote:

Charles L. Cotton wrote: The thing that's wrong is your analysis of both events and the forum members response to both. Your generalization is both inaccurate and unfair.

Chas.

Sorry to disagree, Charles.

I think in both cases, it was on the margin of being legal, and in both cases the action of the shooter or would-be shooter were unwise even if barely justified.

My disagreement with your statement applies to your statement that "For example, as a group, we seem to think . . ." The opinions of TexasCHLforum members could be found on both sides of both of the two issues. Some people thought Joe Horn was a hero, some thought he should have been prosecuted and some thought what he did was legal, but his 911 tape was foolish.

As for this incident, opinions are all over the board again with most people thinking we don't yet have enough information.

Chas.

mr.72 wrote:

poppo wrote:But making blanket statements like you are doing without all of the facts is the 'scary thing'. I for one will wait for all of the facts before making any character judgments.

I think this is kind of an interesting psychology study.

For example, as a group, we seem to think that it's acceptable to leave your own house even after you have called 911, confront two unknown men whom you suspect may have been committing robbery on your neighbor's property, and shoot both of them dead right there. That makes you a hero.

But on the other hand, if some guy gets into a shouting match with his kid's soccer coach and then gets assaulted by a third party, then as a group, we think that he is a fool to even draw his weapon without even firing it in defense of his own life or well-being.

Something is wrong with this.

The thing that's wrong is your analysis of both events and the forum members response to both. Your generalization is both inaccurate and unfair.

Chas.

srothstein wrote:There is a difference between legal and right. . . . But the legal analysis is separate from the right or wrong analysis. We all do the right/wrong analysis and sometimes we confuse it for the legal one.

This is absolutely correct! This is an over-simplification, but juries tend to choose who they like and don't like, then try to answer the questions to get the result they want. In criminal trials that's much easier to do than in civil trials.

The prosecutor and judge are going to look at the case with an eye to determining whether the elements of the crime exist. The jury is going to decide whether the CHL needed his rear end kicked for cursing a woman. If they decide the answer is "yes," then they will reject his self-defense defense and he's likely to get convicted. As Stephen said, this analysis has nothing to do with the law, but it's important to the 12 folks who will determine the CHL's fate in court. Again, this is an over-simplification and it may not occur in this case, but this is the unfortunate reality of the jury system.

Chas.

mr.72 wrote:The thing is, yelling at the coach does not justify an assault response from a third party, even if that third party is the coach's husband. The third party intervened and used force to stop someone yelling at his wife.

IMHO, and it is just that, an opinion, the husband did the escalating.

The coach's husband probably used unlawful force when he pushed the CHL. I say probably, because we don't know all of the details. He has been charged with assault and he may be convicted. However, this doesn't mean the CHL didn't also violate a Penal Code provision. It could well be that both parties will be convicted of a criminal offense.

The issue of provocation Keith brought up will certainly be at issue. If the CHL was cursing the man's wife, then it will be interesting to see if that's sufficient provocation to remove his ability to respond to the husband's unlawful use of force. (There is no indication he abandoned the encounter, as would be required by TPC §9.31(b)(4)(a) or (B).) If he is determined to have provoked the encounter, then he cannot respond with force even if he would otherwise be justified. This is critical to understand folks -- your actions can take away your legal ability to respond to another's use of unlawful force against you! But again, I don't have an answer to this particular situation as I don't have anywhere enough information.

mr.72 wrote:Also IMHO, the threat of deadly force in this case quickly de-escalated the situation that was obviously headed in a violent direction.

Arguably it did, but some would contend that the CHL being tacked and disarmed is what brought the incident to a close. (I hope I remember this correctly. ) But either way, it's not the end result that will determine the legality of the CHL's conduct. The controlling issue is whether his act of pulling a gun under those circumstances was a reasonable "degree" of response, in complaince with TPC §9.31(a).

I didn't realize until I read XtremeDuty45's post that this altercation occurred in the stands. That could be very significant. If the CHL was reasonably fearful of being shoved down the bleachers, then that adds a new twist to the story. Falling down bleachers certainly could result in death or "serious bodily injury" as defined in TPC §1.07(a)(46) which reads, "(46) "Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ."

This is an excellent discussion and I'm going to incorporate this incident into my seminar. The only thing that is certain is this, we don't know enough about this case at this point. But it's a great catalyst for discussion.

Chas.

mr.72 wrote:And BTW I don't think that McDermott case is similar at all, since there was no actual physical assault.

Yes, McDermott did not involve an assault, but that is not the controlling issue. The importance of McDermott to CHL holders is that it wrongly held there is no defense to a charge of intentionally failing to conceal in violation of TPC §46.035(a) unless the CHL could have actually used deadly force at the time they pulled their pistol. In other words, McDermott ignores TPC §9.04, but I cannot tell of §9.04 was even argued by the defense. It's a shame that case was not appealed to the Texas Court of Criminal Appeals (the highest appellate court for criminal cases in Texas).

Chas.

Keith B wrote:Charles,

Since we are discussing this, how big a factor do you feel the provocation aspect in § 9.31 and 9.32 play into it?

I honestly don't know. So much will depend upon who said what, the "outlook" of the community, and other factors that have absolutely nothing to do with Penal Code. Unfortunately, a full discussion of this issue would be way too long for a post!

I'm giving a seminar at PSC on Nov. 14th but it's already full. I wasn't going to announce this for another few days, but the organization I first discussed in May is about to become active. Depending upon the support it receives, the Texas Self-Defense & Deadly Force Laws Seminar, along with several other seminars on various topics, may well be available in many locations throughout the State. Since I've let the cat out of the bag early, I'll post something in another thread.

Chas.

Keith B wrote:Found another video from KLBK that was good information, including an interview with a DPS officer.
http://everythinglubbock.com/media_play ... a_id=34371" onclick="window.open(this.href);return false; on this. The reporter even makes a good statement on use of deadly force at the end.

This is getting more interesting. The DPS Trooper's statement leads one to believe the only reason the man pulled a gun was because he was being cursed. However, the reporter indicated he was shoved.

This gets squarely into TPC §9.04. Under that code section, you can threaten deadly force if you are justified in using force, even if you would not be justified in using deadly force. However, being justified in using some force is only one element of the test. According to TPC §9.31, one can only use force (including the threat of force) "when and to the decree [you] reasonably believe the force is immediately necessary to protect" you from the other person's unlawful use of force.

So the question of whether he was justified in pulling his gun has two prongs. First, was he justified in using any force under TPC §9.04 in response to being shoved (I believe he was); and secondly, was the degree of force used by the CHL "reasonable." In my view, the second prong of the test is open to question, which is why he was arrested and charged.

The rationale behind TPC §9.04 allowing people to threaten deadly force even before they would be justified in actually using deadly force is the desire to empower people to diffuse a situation before someone gets killed. This can be seen in the language of TPC §9.04, where it reads, "as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary . . ." Implicit in this phrase is a reasonable belief that the confrontation could escalate to the point where deadly force would be justified if allowed to continue. Whether the CHL reasonably believed this will be based upon all of the factors we've discussed in numerous threads and concerning which we have no information at this point.

Please note, it is critical in this analysis to understand that, under the Texas Penal Code, threatening force is not merely a threat to act in the future, is the actual use of force even though no physical contact occurs.

The reporters and the Trooper said that you can only pull a gun if you were in fear for your life, which implies that one must believe that the use of deadly force is justified at that point. This is not what DPS teaches CHL Instructors. It is a conservative approach intended to keep people from being in this man's shoes. I disagree with not being fully candid about Texas law, but I certainly understand the desire to keep CHLs from having problems. This is why I sometimes cringe when teaching TPC §9.42(2)(A) that deals with criminal mischief at night being justification for the use of deadly force. I teach the law as it is, but we also discuss the ramifications of relying upon that justification.

Chas.

TPC §9.31 wrote:§ 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.

TPC §9.04 wrote:§ 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.

Acts 1973, 63rd Leg., p. 883, ch. 399, § 1, eff. Jan. 1, 1974.
Amended by Acts 1993, 73rd Leg., ch. 900, § 1.01, eff. Sept. 1,
1994.

Russell wrote:I thought it was a good scenario to talk about.

I'm sorry you don't agree

There's nothing wrong with your hypothetical, but please start it as a separate thread. We should keep this thread narrowly on this incident as we will probably have more updates as this case either progresses through the system, or gets dismissed.

Chas.

mr.72 wrote:If I am justified to defend myself with my fists, then I am justified to use the threat of deadly force, right?

I guess the CHL holder should have just put his hands in his pockets and let the coach's husband beat him to a pulp?

A complete answer is not possible in a post, but under the right circumstances a person can threaten deadly force even if they would not yet have justification to use deadly force. I cover this part of TPC §9.04 in the Texas Self-Defense & Deadly Force Laws Seminar and it takes a good bit of time. There is also a wrongly-decided case that's a problem for CHLs; i.e. McDermott. It ignores TPC §9.04, but that may not have been argued.

Chas.