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AustinBoy wrote:Sorry G26ster, did mean to take your topic in another direction.

I know what I would do.

I don't think age should have anything to do with it. That was my point.

If ANYONE is in fear for their life, they should be able to take any means necessary to preserve their life.

It only takes one hit no matter how old you are.

Didnt mean to hi-jack.

Ty

If I implied "hijack", sorry I did not mean that. I just knew it would probably turn to "What would I do" after I re-read my initial post some hours later. I agree with you, and perhaps I'm just being unfair in singling out seniors and disabled persons, because the TX law allows for greater penalties for crimes against those groups, and I am a member of one of those groups. I still think assault and aggravated assault are far more violent and dangerous crimes than simple robbery and should be listed in that paragraph. Your point is well taken.

Thanks Steve. I posted my last post BEFORE I read yours. I think we are in complete agreement.

It's been a lively discussion, but the thread took the turn I thought it might ("What would I do")

The question was never "what would I do?" I was hoping I made it clear by saying "I know what I WILL do, but I always wondered where in these statutes I would be covered, if at all?"

I'm sorry if I wasn't clear in my OP. I agree with the action most stated they would take if at or near my age or disabled in any way. I am NOT taking the beating. But the real question I was seeking an answer for was where I was covered under the law. TAM and Steve Rothstein have the view that I am covered by both 9.31 and 9.32. The only reason I had doubts about this is the wording of those two statutes.

9.31 covers the use of force. Both TAM and Steve feel that includes deadly force if "reasonable." I can accept that, except I am troubled by the statement in 9.31 that says, "The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34." The situation I described is covered by law as "assault." If I follow the the sentence in 9.31 I just quoted, there is only one place in 9.32 that "implies" I can use deadly force to stop or prevent assault. That is (A) below.

(A) to protect the actor against the other's use or attempted use of unlawful deadly force;

In other words, I have to hope a DA, Grand Jury, good lawyer, etc. believe that a attempted "whuppun" by big Bubba on a person over 65 is deadly force and my reason for me to use deadly force in return. So that leaves open the possibility of trial, etc. if they don't agree, for whatever reason, it could have severe consequences.

My whole point was that it would be better if "aggravated assault," especially on a Senior or disabled person, was added to (B) below, because frankly I believe aggravated assault provides a much greater degree of harm to those individuals than does simple "robbery."

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

If "aggravated assault on a person over 65, or disabled person" were added to (B), there would be no way a jury could find otherwise, as it's right there in black and white. Well, I guess juries can always do what they want, but in this case very doubtful.

So, hopefully to end this thread, I appreciate all the responses, and will rely on the good people of Texas to have my back if this, hopefully unlikely, scenario ever plays out. I'm quite sure most of you think I am concerned over nothing, and you may be absolutely correct

Oh, and TAM, I'm in Bedford and get to Grapevine quite often. I'd like to buy you a beer (or soft drink of your choice) sometime

My problem is that I agree with most every comment made here, but that single sentence in 9.31, "The use of deadly force is not justified under this subchapter except as provided in Sections 9.32,9.33, and 9.34" causes me concern. Nothing more.

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.

srothstein wrote:
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.

OK Steve, I'll take your explanation of the law and allay my critisism of the law. Obviously, you know more than I do based on your background and experience.Thanks.

The Annoyed Man wrote:[
Furthermore, paraphrasing Section 9.32, "I am justified in using deadly force against mongo if I would be justified in using [any kind of] force against mongo under Section 9.31."

How does that sound?

TAM. With great respect for your opinion, I agree with boomerang. I think you missed the "and." The way I read 9.32, you can only use deadly force if the conditions of 9.31 apply and one of the crimes in 9.32(a)(2)(B) are occurring or imminent.

driver8 - Rape and murder are covered under 9.32(a)(2)(B) and deadly force is specifically authorized to protect against such.

Please understand folks that I am not addressing what you are I "would" do. I'm sure we would all do whatever was necessary. I am addressing what the law allows we "can" do. If the perp is committing, or imminently about to commit, one of the offenses in 9.32(a)(2)(B), then I doubt any DA would attempt prosecution if deadly force was used to stop or prevent it. The law is clear. However, if the offense is not covered there, then any over zealous DA may well push for prosecution and we would have to depend on a jury's opinion on whether deadly force was justified. Frankly, I'd much rather have it written in the law. BTW, I would love Charles' opinion on this.

The Annoyed Man wrote:

G26ster wrote:If the legislators thought enough to be specific about the justifications in 9.32(a)(2)(B), they could have easily added assault on an elderly person.

I sympathize with your point, I really do, because the elderly are too often victimized. But I think my reply would be, "why should an assault on an elderly person be any more egregious than an assault on a 57 year old man with limiting injuries (me), or assault on a 5 year old child, or assault on a 23 year old man in perfect health?" Assault is assault, and I don't think that the victim's age should make for special circumstances, because any argument you could make in favor of codifying special circumstances for the elderly would apply equally on a moral level to victims of any age.

Plus, there is a danger in the law, any law about anything, when you allege special status for someone based on their age, gender, ethnicity, religion, etc. Here's why: whenever you allege some special status for one group of citizens, lawmakers and enforcers tend to interpret that as being exclusionary to citizens belonging to other groups. They do this because there is a common misunderstanding among people that a law is what makes something legal, and that anything which is not "permitted" by law is illegal. That is not the truth. The truth is the opposite notion — which is that ALL things are legal unless a specific law specifically forbids it. Thus, if you codify an exception to the law which grants a special "protected" status to seniors vis-a-vis self-defense, lawmakers (and law enforcers) will then tend to act on the notion that citizens who fall outside of that age group do not have the right to defend themselves against assault.

Am I making sense to you?

Yes you make sense, except I don't necessarily agree 100%. Here's why. You (perhaps) and I already have "special status" under the law. Here is just one example:

Sec. 29.03. AGGRAVATED ROBBERY. (a) A person commits an offense if he commits robbery as defined in Section 29.02, and he:

(1) causes serious bodily injury to another;
(2) uses or exhibits a deadly weapon; or
(3) causes bodily injury to another person or threatens or places another person in fear of imminent bodily injury or death, if the other person is:
(A) 65 years of age or older; or
(B) a disabled person.
(b) An offense under this section is a felony of the first degree.
(c) In this section, "disabled person" means an individual with a mental, physical, or developmental disability who is substantially unable to protect himself from harm.

So, an actor commits robbery on a 30 year old, for example, he must cause bodily injury to cause it to be aggravated robbery. In my case, and perhaps yours, all the actor has to do is threaten or place us "in fear" of imminent bodily injury or death. So, if special status can be added to this, and other statutes, I don't see why it can't be added to PC 9.32 as it applies to use of deadly force in self-defense.

Am I making any sense?

The Annoyed Man wrote: I don't think you are reading the law correctly. There would be no point in a CHL law, if self-defense were not the primary motivation for it. I had a longer answer prepared, but that says it about as simply as I can.

TAM. Perhaps, but to me, any use of a handgun by anyone is "deadly force." Reading the law that justifies the use of deadly force, is very specific in it's conditions combining PC 9.31 and 9.32. The SELF-DEFENSE statute 9.31 is very clear that the use of deadly force is not justified "except as provided in 9.32, 9.33, or 9.34.
The situation I outlined is not covered IMHO in any of those paragraphs. If the legislators thought enough to be specific about the justifications in 9.32(a)(2)(B), they could have easily added assault on an elderly person.

In the end, I know and you know what we will do in this event. But it sure would be nice to be covered specifically under the law, rather than hope for a sympathetic jury. This was the reason I titled my post "puzzled."

I think Vic is correct, but it would be nice to have it stated in the statute.

Getting off track here. I proposed a "specific" personal situation in which a person over 65 (elderly person in the eyes of TX law) is being attacked by someone twice their size and half their age. I think there's more than just a size difference here. And yes, a single punch or kick can be deadly to that person. When you're pushing 70, bones break easier, and your body is far less tolerant to punishment. Hope that's not bad news for you "young'uns."

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.

I think we all know, or have a pretty good idea what we would do in a case like this, and I appreciate all the responses. I still find it odd that the law is specific in allowing defense against simple robbery, but I could find nothing specific as to assault or aggravated assault. Seems to me it would be simple to add those to PC9.32.

The Annoyed Man wrote:READ THIS POST ON THE SAME TOPIC IN ANOTHER THREAD. It will explain very clearly what you may and may not do.

TAM, yes it clearly backs up my point. The situation involved a "robbery" or imminent robbery in the eyes of the law, because physical force was used an property was demanded. Use of deadly force is then justified under the law. I probably won't die from a robbery (at least I hope not), but I might die or be seriously injured from an "aggravated assault," which is not mentioned under PC9.32. I find it strange, in the law as written, that I can use my weapon to defend my property but not my physical self or life. Correct me if I'm wrong.

I am always puzzled when I read PC 9.31 SELF DEFENSE, and PC 9.32 DEADLY FORCE IN DEFENSE OF A PERSON. What does one do if you are cornered and being threatened by someone half your age and twice your size who is coming at you threatening to "tear you apart?" As someone over 65, do I just wait to get the beating of my life (if I have no safe retreat), perhaps die of injuries, or do I defend my self with my firearm? I know what I WILL do, but I always wondered where in these statutes I would be covered, if at all? I have found nothing that allows the use of force or deadly force (and use of a firearm is always deadly force) that covers this all to common situation. I'm not talking about in my home, car or place of business or employment. Just "out and about" so to speak. It appears from PC 9.32 I could defend my self from being robbed (or in my case, over 65, it becomes aggravated robbery), but not from being beaten to death. Can someone knowledgeable please tell me where I am wrong, and perhaps set me straight? Any law or case law?