finally had to draw

[jtran987]

well its over and done with, im here my gfs here, no one was charged with anything, no ones shot so if i did break the law, my bads i should read the PC more carefully and get more acquainted with it, so yeah,

but personally i still feel i was in the right so HA!

[Dragonfighter]

Just a suggestion. If you think someone is making a path to you, change your direction. if they follow...OK it is on.... if not... no need in whipping out a gun.

IF I can do it without exposing myself to further danger.

Gigag04,

Okay you win, your boldface is bigger than my boldface.

We may be talking past each other. Bear with me a moment while I post the justification package again with my lay person's commentary inserted.

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 ( a standard of reasonableness is what would an ordinary person BELIEVEin a similar circumstance ) the force is immediately necessary (immediately, right now) to protect himself against the other's use or attempted use of unlawful force. (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)

So, working on what we "know" from the OP's post and using color to display how I interpret the alert levels:

• *OP and GF are heading to their car parked remotely from the crowded area at night.
  *OP spots two males, for whatever reason, skulking in the shadows, and is alerted. Reasonable
  *The two males see the OP and GF and head directly towards them as a team. Highly Suspicious
  *He shouts the challenge, "What do you want?" (could've been less ambiguous). The two do not acknowledge but continue closing on the OP and GF. Agression
  *The OP produces his weapon, engages the laser, the two stop and show their hands finally altering their course and leaving. De-escalating
  *The OP immediately calls PD and waits for their arrival. They take the statement and do not detain the OP. Every body goes home. Resolution

We will never know their intent nor would the OP until they engaged and then it would be too late, were they attempting to use force? I dunno, but the question should be was the OP reasonable in his belief that they were "attempting" to use force.
IMHO yes, you obviously disagree.

If he was reasonable in his belief that he was fixin' to be robbed, then was he "justified" in using force in self defense? PC 9.31 states that he would be. You presume he was not reasonable and so is not justified.

If he was justified under PC 9.31 then would his production of the weapon be "deadly force" and unlawful? PC 9.04 seems to deny this. But if I understand you correctly, you do not believe he was reasonable and therefore not justified making PC 9.04 moot. I don't foresee changing your mind on this, but perhaps we understand one another more.

The problem for both of us is that we were not there. We cannot see all that he saw nor can we feel his fear. We have to proceed from the limited information available and as such, our prejudices are going to give us different approaches. Different premises (assumptions) with the same logic will reach different conclusions.

A question about your response concerning the Assault issue. Is not "knowingly and intentionally" addressing the criminal mindset in the relevant passages? He did intend to draw the weapon and intentionally activated the laser as a "threat", but I believe and you seem to disagree that this differs from a criminally intent threat.

What standard would YOU use to determine an impending attack could be reasonably inferred? This isn't meant as sarcastic commentary, I would truly like to know what is reasonable from your perspective.

At any rate should I find myself in the same situation in your jurisdiction and you respond, I will fully expect a personalized tour of the city while relaxing in the opulent surrounds of your cruiser.

[Dragonfighter]

well its over and done with, im here my gfs here, no one was charged with anything, no ones shot so if i did break the law, my bads i should read the PC more carefully and get more acquainted with it, so yeah,

but personally i still feel i was in the right so HA!

I was typing when this was posted. Great last words.

[Fangs]

well its over and done with, im here my gfs here, no one was charged with anything, no ones shot so if i did break the law, my bads i should read the PC more carefully and get more acquainted with it, so yeah,

but personally i still feel i was in the right so HA!

[gigag04]

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

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.

[03Lightningrocks]

Where this all get's tricky is in cases of a person waving a gun to scare off what they percieve as a potential threat. I am not a lawyer but I can tell you that saying I showed them my gun so they would back off is a good way to get arrested for AA. To me it seemed confusing until I made the rationalization that my gun was for shooting a bad guy, not warning him away. My solution is to make sure they don't see the gun until it is being fired at them and I make sure I don't pull the gun unless I have made the decision to fire on them. I do not carry a gun so I can right a personal insult or protect my space. I carry a gun so I can defend myself if I am under attack physically. I don't see the law saying we can get the jump on a bad guy because of what we think he may do. He has to be actually doing it. Maybe the officer will or will not haul you to jail for it, but if you pull your weapon to scare someone away, you just commited AA.

[Carry-a-Kimber]

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

I'm sure he'd rather be judged by 12, than carried by 6.

Unless he drew down on another CHL, then he could well have been the one being hauled off by 6.

[jtran987]

i take great pride in it as well

[Rex B]

I think I'd palm the gun by my side and turn on the laser so they could see the spot on the ground beside me.
They might realize there is a pistol at the end of that beam and make the correct decision.
Might be an interim step short of a full draw.

[zbordas]

With my little exercise I tried to point out that if there was a 3rd party witness who did not pay attention what the 2 would be attackers were doing but saw the OP pulling a gun and pointing it this whole thing could have easily lead to an arrest and serious charges against the OP. And guess what. Even if they detained the two would be attackers and questioned them it is very unlikely that they would make a statement that “yeah, we were about to rob this guy and his GF”.

In this particular case if law enforcement and court would have been involved the OP could have easily lost his CHL and his right to possess firearms for life.

(But I’m not a lawyer nor know much about law, this is only my opinion.)

*The OP produces his weapon, engages the laser, the two stop and show their hands finally altering their course and leaving. De-escalating

I cannot 100% agree with this statement.


Not long ago:

http://www.fortbendnow.com/2010/03/17/44589" onclick="window.open(this.href);return false;

Rosenberg Police have arrested a local man on aggravated assault and unlawfully carrying a firearm charges following a road rage incident.
Officers arrested Theodore Baines, 49 of Rosenberg, after he reportedly waved a gun at motorists along U.S. Hwy. 59.
Police received a call that a man waived a handgun at other drivers while driving along Hwy 59 northbound, and then exited at FM 2218. Officer Cliff Bauder was able to quickly locate the vehicle and conducted a traffic stop at a gas station in the 26100 block of Hwy. 59.
A search of Baines’ brown Ford F-150 pickup truck revealed two open bottles of alcohol and two loaded firearms.
When asked about his reported waving of a gun at motorists, Baines told officers that he did not wave a firearm but did wave his hand with its thumb and forefinger in an “L” shape to signal other drivers not to cut him off.
Bauder, along with officers Stephen Clarke and John Delgado, took Baines into custody and charged him with aggravated assault with a deadly weapon and unlawful carrying a firearm.

We don’t know how aggressive the other driver was and what name calling went on but the one who got charged is the man who pulled a gun.

(This is not a good example since the guy had other things to hide but...)

[zbordas]

And BTW: jtran987, I'm glad you're ok. This is a very difficult situation to deal with and not easy to balance your fear of being suddenly attacked and keep your head cool. The important thing is that you got out of the situtaion without trouble.

If I witnessed something like that I would always try side the CHL holder even if he unintentionally broke the law by trying to get out of the situation on a non-violent way. However a CHL holder who is cocky, looking for trouble to finally show "look what I have" would certainly not get my simpathy.

[srothstein]

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.

Just curious, but isn't the 12 not convicting the definition of a justification that would fly?


In this case, I think the law was broken and an aggravated assault was committed. But I do think it was legally justified. the justification must be looked at from the point of view of the mythical reasonable man based on the facts and circumstances known to the actor at the time. No Monday morning facts added in.

The justification of necessity would meet the legal use. Remember that we just need to justify force, not deadly force. Was the threat of imminent harm reasonable? I think we all agree that there are a lot of possible innocent reasons for the suspects to have behaved the way they did, but the average person is going to take it as threatening. That is the definition of the reasonable belief of imminent harm. Was the use of force less than the harm it prevented? Robbery most likely was prevented, possibly assault or rape. The minimal force used was less than any of these. And finally, no legislative purpose to exclude this defense for this reason appears.

You can also use the same arguments under self-defense. Was the belief of imminent use of force against him reasonable? If so, then the threat was justified.


What this case really demonstrates is two things. first, not everyone here has the same standards for when to use force. This is good BUT we must use the law when looking at another person's use of force. We cannot judge another person based on our tactical and moral choices, just the law. Many of us felt the draw was too early and wanted to see some other more overt hostile act. The law requires only that the belief of the imminent harm be reasonable, not that it be conclusive. How many of us honestly would say that this belief was not reasonable when the OP drew?

Secondly, this case demonstrates the need for all of us to be able to read and understand the laws. We MUST be able to articulate exactly why we did what we did. This is drilled into police officers in their initial training and continued from there. When you write a report, tell exactly why you felt what you felt and why you did what you did.

So, here is my rewritten statement of what happened, written as if I were a police officer making a report and it had happened to me. I understand the grammar changes would be necessary in talking with the police but not on this forum, so that is not intended to be any comment on the original poster.

My girlfriend (gf) and I were at The Fish in midtown 309 gray Houston, TX. We were out just hanging out with a few friends. Finally my gf and I decided it was time to head on home, so we said our goodbyes and took our leave. We had parked about a block away on the side of one of the restaurants there. The lighting wasn't as good as I would have normally wished for but this parking areas were packed and we had to park where ever we could find the room. As we approached my car I noticed 2 people just hanging out in the shadow of the building. This is not a normal place for two people to be hanging out so it instantly put me on alert. I then shifted my gf to my opposite side, farthest away from the 2 people, putting myself in the middle, so that I could better protect her if we were attacked. The 2 guys started walking towards us. At this point everything in me was screaming that something was wrong. I believed that the two men were going to attack us so I reached into my pocket and put my hand on my Keltec p32, which has an arma laser attachment on it. I then asked very loudly what they needed, which they completely ignored. Since most people would have some reaction to a question like this, either an answer or an indignant reaction, this confirmed my belief that the two men were intent on criminal activity. At this point, they were about 10 yards away and I believed that if they got any closer, they would attack us and I would not be able to defend myself or my gf. I pulled my gun and turned the laser on them, going slowly up and down the torso of the closest attacker and asked them again what they needed. Both men stopped dead in their tracks looked down at the laser raised both hands and retreated into the shadows and took off running the opposite direction. I then had my gf call the police and reported the incident and then went home.

In my opinion, a few minor changes in wording and a couple explanations makes this seem much more reasonable and provides the necessity and self-defense justifications. Do you know how to word your response to the police when something like this happens to you? Do you intend to be the first to call the police when something does happen? Obviously, we all know to get a lawyer and shut up when we actually pull the trigger, but even the initial statement to the police or 911 operator can make a difference. I doubt any of us would call a lawyer to handle this police report, even if it was explaining to the cops why I drew when the BGs called in first. This is why we need to truly undertsand the law and practice articulating exactly why we do things.

[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.

[Dragonfighter]

In this case, I think the law was broken and an aggravated assault was committed. But I do think it was legally justified. the justification must be looked at from the point of view of the mythical reasonable man based on the facts and circumstances known to the actor at the time. No Monday morning facts added in.

Steve,

Let me ask this. An aggravated assault (threat of harm while producing a deadly weapon) occurred but the criminality is nullified by justification? IOW the laws concerning assault were violated but the justification outweighs that? Is this possibly like the illegal carry violation being outweighed by justification under deadly force laws?

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. :)

Like I said, different premises will necessarily lead to different conclusions.

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.

I think I understand now, the draw was not the problem but the solution on the approaching guys was. I agree a low ready with the dancing dot on the ground may well have accomplished what he needed, a lesson for another time. As much as I want one, my carry weapon does not have a laser, so maybe a low ready with an unambiguous, "Stop, that's close enough!"? Opinions?

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

Amen brother. Better here than in the DA's office.

[Cosmo 9]

Amen brother. Better here than in the DA's office.

Now let's look at this from the vantage point of the guy with the red dot on his chest.

Police report filed to HPD from guy w/red dot on chest.
My friend and I were on our way to the Fish to meet some friends and hang out. We had to park just up the street here because we couldn't find a closer place. When we got out of the car we saw a sign on the wall of that building and thought it may be a no parking sign. Since it was in the shadows we had to walk over for a closer look. When we started walking down the street towards the Fish we see this guy and he's yelling "WHAT DO YOU WANT" "WHAT DO YOU WANT" and he has this girl by the arm. The next thing I know I've got a red laser dot on my chest and he has a gun in his hand. I react as quick as I can duck behind this mail box draw and shoot him twice in the chest.

This story also posted on this forum after Grand Jury clears guy with red dot on chest. OP not able to post due to sudden death.