Threshold for legal justification of displaying/drawing

[VeeTee]

Gentlemen,

This is my first post to this forum. I hope this is the appropriate group for this.

This post, and my specific inquiry, is based on, and arises from, certain responses to a thread that occurred in another forum site. Here is the background, which I hope you will consider to be sufficient.

BACKGROUND.
The Original Poster was a CHL holder who experienced the following scenario. During early evening hours, he drove to an ATM with his school age (small) daughter.

He parked his mini-van few feet away from the ATM. He got out alone and locked her inside. Immediately upon commencing his transaction he was startled by two men who walked out from beside the building. They walked behind him in a sweeping arc, actively watching him, while he watched them (in mid-ATM transaction). As he watched them, they stopped.

Then, they turned toward him and began to approach. As they closed the distance, one kept his gaze fixed on the OP while the other continued looking every which way, his head constantly swiveling. They immediately drifted apart in a pincer movement.

Upon seeing this, the OP, still in the middle of his transaction, turned to face them. He took one step forward with his offside leg, swiveled his strong side hip 180 degrees from them, and placed his hand on his weapon, but did not draw nor display the weapon to their view. Luckily, the OP's stance and steely resolve sufficiently communicated that he would not go down without a fight, and they departed.

As to the OP, that was the "end of the story". However, boys being boys, we began to "armchair quarterback" what the OP could/should have done HAD THEY KEPT ADVANCING.

From that base line, there were divergent views as to the appropriate point in time and space to properly set the "trip wire" and either draw and display a weapon, or even draw and fire. Because, after all, they COULD have been there (or could have so alleged) that they were there simply to make an ATM withdrawal of their own.

So, during that ongoing discussion, I made the following comment: Quote: "In Texas, as I understand it, I have to "reasonably be in fear for my life".

To this, another participant, (also a Texan and a CHL holder) replied:

Quote: "Yes, but in Texas, it is legal to use force to stop or prevent an unlawful use of force against you. In Texas, the threat of deadly force is not considered to be a use of deadly force, but is considered to be a use of force. So, if you are unlawfully threatened with force, deadly or not, you may threaten deadly force to stop it, which means you can draw and point your weapon. Now, this is where it gets tricky. It has been explained to me that if the threat of deadly force does not stop the unlawful threat or use of force, then the threat becomes deadly as your weapon may be taken and used against you. At that point, you may be "reasonably in fear for your life." I am not a lawyer. This is not legal advice. You should consult with an attorney for a legal guidance." END QUOTE.

Now, although I am not an attorney, as the result of a 30 year career as a professional court interpreter, I have a better understanding of the law, and the civil and criminal judicial systems than most laymen.

My first question to you all, is this: DOES THAT SOUND CORRECT? Here, I wish to underscore that I am not seeking "legal advice". I'm not even seeking a "definitive" correct answer. Rather, I seek only your informed, thoughtful opinions.

Assuming that you place credence in the quoted comment and that you therefore hold the position that the OP was "reasonably" in fear of death or great bodily harm, and that it was, therefore "reasonable" to draw, then I would ask two subsidiary questions:

a) What should a "reasonably prudent" person have done next? And,

b) Would the OP have been justified to draw and/or fire on them at any point shy of they themselves having produced a "deadly" weapon?

In other words, in your opinions, does current Texas law support the quoted assertion?

If this is not the appropriate section for this thread then I apologize to the moderator.

Sincerely,

Vee Tee

[Beiruty]

Welcome aboard!
1) The OP was being cased for potemtial robbery or aggravated robbery. A classic example and good "stage" in a IDPA/IPSD matches. I had one such stage in a match.

The quoted statement is correct. After displaying your firearm which is consider a force, if the 2 not-up-to-good subjects, kept advancing and tried to assault/rob or disarm the CHLer, then deadly force is justified.

The original poster does not have to be in fear of his life, but simply reacting or responding to robbery/aggravated robbery or attempt of said robbery in the making.

A) What should I do? How about yelling commands. "STOP, do not come close, BACK off, NOW!, Keep distance and switch to "red condition" i.e. ready to draw and display your firearm if needed.
B) if the 2 aggressive characters initiated a robbery by demanding money or tried to assault the CHLer to rob the CHLer, then deadly force is justified whether a weapon was displayed and threats where made or not.

Finally, It is the right place to ask and I am NOT your lawyer or any lawyer for that matter.

[Scott in Houston]

I'm no expert, but I'm 99% sure that I would have acted just like him. I would draw as soon as they cross a certain line of proximity. I would have at least drawn to where it's no longer holstered (the low ready). Their response to seeing my gun would tell me everything about their intentions. If they keep coming, it's likely going to get very ugly. Nobody approaches an armed person at an ATM unless they have bad intentions.

The law that backs up what you wrote above is here:

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.


I'm not lawyer, and I'm not expert other than 1) I read this forum a lot and 2) I stayed at a Holiday Inn Express last night.

[srothstein]

I believe that the statement on use of force sounds reasonably accurate. There may be other factors to be considered. One factor to consider is a court ruling that said it is illegal to threaten deadly force if deadly force is not justified.

But, Fromt he description, I think a robbery was about to be committed. And you may use deadly force to prevent a robbery. This makes the question of the threat moot.

a) What should a "reasonably prudent" person have done next?

Well, I think I am a reasonably prudent person. I would take the one on the left first since the recoil will help me move my aim towards the one on the right. I have to admit that I would try the recommended shouting first, but if they did not stop, the one on the left goes first.

[VeeTee]

Guys,

Thanks for your points of view. Several things about the scenario worry me, but especially:

"(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."

both A and B refer to the unlawful use of DEADLY force; and/or AGGRAVATED kidnapping or AGGRAVATED robbery, i.e. the criminals use a deadly weapon.

For me, the most worrisome and confusing part, and really, the reason for the inquiry, is: What if they keep approaching but do NOT display a weapon notwithstanding having shouted the proper warnings? I hope this makes sense.

I've read numerous posts by people who drew or brandished in situations that, in my mind, were, while not totally innocuous, still did not appear to me to be justified. About the only scenarios in which I would be able to go on "auto pilot" would be if an assailant drew a deadly weapon, or entered my dwelling forcibly, at night. During my first CHL training more than 10 years ago, an instructor mentioned that one could reasonably be in fear, if: a) the unarmed assailant is hugely bigger than I am; or, b) if their are multiple assailants. For me, the line between "too soon" and "too late" is a very fine, fast, and fleeting one.

As both a philosophical and a financial consideration I don't think I'd attempt to thwart theft of my property with a firearm. Regardless of one's philosophical leanings about the sanctity of life (even a BG's) there is still the financial cost of a legal defense, possibly in both the criminal and civil venues.

So, really, with the scenario at hand, my overriding objective would not to prevent them from taking my money. It would be to prevent them from overpowering me, leaving me defenseless to protect my child. To me, in the OP's scenario, the presence of his daughter nearby, enormously complicated his options.

VT

[apostate]

Guys,

Thanks for your points of view. Several things about the scenario worry me, but especially:

"(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."

both A and B refer to the unlawful use of DEADLY force; and/or AGGRAVATED kidnapping or AGGRAVATED robbery, i.e. the criminals use a deadly weapon.

Robbery or aggravated robbery.

[VeeTee]

Quote: "Robbery or aggravated robbery.

Apostate. Thanks, buddy. I must need new glasses!

I feel better already.

V

[G26ster]

But, From he description, I think a robbery was about to be committed. And you may use deadly force to prevent a robbery. This makes the question of the threat moot.

As I respect your views I have to ask, in the scenario presented and based on the law below, when did the robbery become imminent? I would think they would have to display some more specific behavior other than walking towards you, such as either producing a weapon or saying "give me your money," or words to that effect, or other aggressive action. I'm not sure about the use of deadly force based on what I think is going to happen based on this scenario.

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

[Beiruty]

It is a fine line and smart bad guys who work in a team, like a wolf pack would "sniff their prey" before the attack. Everyone in the world knows that at ATM you keep distance until others finish their business at the ATM.

I am afraid, the same could happen in a bank while waiting in line for a real teller. Awareness and having a head that acts like that of an owl is not a bad thing.

[speedsix]

I believe that the statement on use of force sounds reasonably accurate. There may be other factors to be considered. One factor to consider is a court ruling that said it is illegal to threaten deadly force if deadly force is not justified.

But, Fromt he description, I think a robbery was about to be committed. And you may use deadly force to prevent a robbery. This makes the question of the threat moot.

a) What should a "reasonably prudent" person have done next?

Well, I think I am a reasonably prudent person. I would take the one on the left first since the recoil will help me move my aim towards the one on the right. I have to admit that I would try the recommended shouting first, but if they did not stop, the one on the left goes first.

...could you possibly link to that court ruling??? I've argued that in the past since that law's wording seems to contradict the intent of other laws but never saw a court decision about it...

[Diesel42]

FWIW, I'm not interested in the letter of the law.
It's early evening, my daughter is locked up in the car, the only people nearby are the "maybe" bad guys. There's two of them and one of me. I can't retreat because the ATM machine has my card. These conditions determine I must stand my ground.

Therefore, I would have my hand on my weapon or draw it pointing to the ground (depending on how close they are). In a commanding tone I would tell them to stop and back off. My words and body language would make it clear that I feel endangered and I'm prepared to defend myself and child.

If they leave (as any resonable person would do) my final act is to call 911 and report the incident. If I get a problem from the police I will use a lawyer.

My two cents,
Nick

[kjolly]

This would have freaked me out too. Looks like a pincer movement and two of them being there would rapidly become disparity of force. Would have held up one arm and yelled stop while reaching for gun with the other. If these people were within 21 feet there would be little time to respond. If they didn't mend their behavior soon as you didn't look like a victim I would have gone ahead and drawn. Still would not shoot until their intent was obvious. Let the law sort it out and be the one to walk away. Hopefully they walk away also. Call and report incident as they may just go and look for another victim.

[jmra]

FWIW, I'm not interested in the letter of the law.
It's early evening, my daughter is locked up in the car, the only people nearby are the "maybe" bad guys. There's two of them and one of me. I can't retreat because the ATM machine has my card. These conditions determine I must stand my ground.

Therefore, I would have my hand on my weapon or draw it pointing to the ground (depending on how close they are). In a commanding tone I would tell them to stop and back off. My words and body language would make it clear that I feel endangered and I'm prepared to defend myself and child.

If they leave (as any resonable person would do) my final act is to call 911 and report the incident. If I get a problem from the police I will use a lawyer.

My two cents,
Nick

[jmra]

"why should I by a 1911?"

Buy a Glock it is so much more reliable!