Threshold for legal justification of displaying/drawing

[speedsix]

§ 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.

....<snip>....

(h) It is a defense to prosecution under Subsection (a) that
the actor, at the time of the commission of the offense, displayed
the handgun under circumstances in which the actor would have been
justified in the use of deadly force under Chapter 9.

§ 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.

...yup, them's the ones...they seem to be at odds with each other to me...one says I'm defensible for displaying my pistol IF I would have been justified by Ch9 in USING DEADLY FORCE...


...the other says I am justified in threatening with deadly force even though I'm not justified in using deadly force...that burns my "not fair" buzzer slap off the wall...but I know it doesn't have to be fair to be legal...

[Jim Beaux]

Love this scenario.

The guy's pincer maneuver is the key that an attack is beyond imminent; it is commencing. There is no other reason for two guys to spread out. They are invading my comfort space & are positioning for the attack.

I would be proactive & take control by assertive verbal & body language. BG's are opportunistic bully's & accustomed to their intended victims having to react to them. As I remember, 57% of incarcerated muggers have admitted to backing off attacks because they suspected the intended victims may have been armed. Im hoping I can help those odds without having to draw or worse.

I would say something along the lines of: "Howdy guys, please excuse me for being kinda jumpy, but I had to shoot someone at this very ATM a couple of years ago." (I just gave them a whole lot of things to consider) Being aware that there are cameras recording me I would raise my weak side hand in a "stop" command & smiling, assertively say, "Please stand back, I will be through in a minute." As I say this I would start slightly shifting into a semblance of a combat ready posture.

If they didnt back off I would then start rearranging my shirt tail in the area of my 4 oclock & start moving in a direction that would ensure that my child is not going to be down range.

During this entire time I havent threatened or flashed a weapon. Hopefully these guys would move on & this would be the end of my "VeeTee's ATM Saga"

Thanks I learned a few things & I enjoyed this mental exercise. I gotta go lay down now!

[tomtexan]

This has been a very interesting scenario and I have enjoyed every post within, and learned a thing or two in the process.

[VeeTee]

Quote:
"During this entire time I havent threatened or flashed a weapon. Hopefully these guys would move on & this would be the end of my "VeeTee's ATM Saga"

Thanks I learned a few things & I enjoyed this mental exercise. I gotta go lay down now!"

Jim Beaux,

I enjoyed your post immensely. You're obviously a very bright guy. I base this on the fact that you came to the exact same conclusions I did. ha ha..

But to clarify one more time: This was NOT "VeeTee's ATM Saga". This was VeeTee hijacking a post by another OP in another forum.

Now it's time for MY nap! You see? We are both geniuses of identical mind!

Your twin.

V

[sugar land dave]

This response will be specific to your scenario of guys forming a pincer formation, but may apply to others.

One thing that will help everyone in their decision making is to determine ahead of time, if you are a "reasonable man" as seen by the public in your day to day life. Be honest with yourself as to how your livelihood is seen by law enforcement and the public; think about the friends you hang out with and their reputation in the community. "Birds of a feather flock together" can either help or hurt you.

If you find in your own mind that you are a reasonable man, then your defensive line, and your instinct for imminent danger will extend a greater distance.

Personally, if potential BGs are between 25 to 30 feet and tripping my spider sense, I have the .45 out of the holster, still obscured from the potential BGs view and 14 self defense friends are available to protect me starting at low ready. If the potential BGs are within 21 feet when they clear the corner, I will have my BUG slipped out of my holster, still out of view, within my pocket. I can fire from within my pocket if I need to speed my defense. I will begin extending my offside hand and cautioning them once I have cleared my holster, and I am prepared to take action from low ready. If they ignore my warnings and continue, or if they charge before my warning, at those distances, I will not miss an open shot. That is why I go to the shooting range and respect the opportunity to train at real life encounter distances.

Awareness, knowledge, and confidence within yourself will project to make most BGs avoid you for a softer target. If they don't, you will be as prepared as you can be to defend yourself and others as needed. They may get you, but they will quickly realize that you intend to take them with you.

[Ameer]

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.

Once they do those, the aggravated robbery is not imminent, it's already in progress.

[Jim Beaux]

Quote:

I enjoyed your post immensely. You're obviously a very bright guy.

But to clarify one more time: This was NOT "VeeTee's ATM Saga". This was VeeTee hijacking a post by another OP in another forum.

V

Bright guy, doh yeah sure... doh...yeah,right, yeah, bright guy

And for the purpose of reference in this neighborhood, I so move that the default title shall forever be "VeeTee's ATM Saga".

Seriously, it was a nice contribution & I hope to read more from you. You set the bar high friend. Deal with it the best way you can!

[KingofChaos]

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.

Once they do those, the aggravated robbery is not imminent, it's already in progress.

Actually, if all they did was produce a weapon, it, robbery, would still be imminent. At that point, all you know is that an aggravated assault may be occurring. You'd still be justified to shoot, but it's not the same. While it may seem like splitting hairs, there is a difference. Especially if you consider if there is no weapon present. Two guys walking in a semi circle around me is strange, but it's not robbery or a crime. So I don't think you could legally use deadly force. I'd probably already have my hand on my weapon or have it drawn. But I definitely don't think I'd be legal in firing. Even if I told them to get lost, I don't think I'd have the right to shoot until one of them did something overtly aggressive. Like deciding it's a good idea to walk towards a man with a gun after he's told you he feels threatened and would like you to step away. It'd have to be something though, because like a G26ster said, I don't think it's right or legal for me or anyone else to shoot someone just because they didn't listen to a command given to them by a total stranger. Just handing around and making me uncomfortable isn't a crime.

[srothstein]

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."

One of the more interesting theories that are used in our legal system is that the threat is int he eye of the beholder. The law would look at the question of whether or not a reasonable person, in the victim's position, would have believed that the robbery was imminent. This is an important, possibly even critical point, because it means that a robbery itself does not have to be imminent, just that a reasonable person would have believed it was. This is very similar to probable cause, which is when an officer believes that it is more likely than not that a crime was being committed. The officer can be wrong, as can the potential victim/shooter, but that does not change the legality.

Based on my experience, the actions of the two show a robbery is about to be committed. The key point being the separation into a V-formation around the potential victim. A V is used for an attack, but is not normal for other everyday people walking. One person watching the victim while the other concentrates on looking around makes it look like they are checking if there are any witnesses, reinforcing the belief that a robbery was about to be committed.

If they did not stop when asked after all of that, I find it hard to believe anyone would not think a robbery is about to be committed.

[Jumping Frog]

§ 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) A license holder commits an offense if . . . intentionally fails to conceal the handgun.

§ 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.

...yup, them's the ones...they seem to be at odds with each other to me...

Well, threat of deadly force can be done in ways other than intentionally failing to conceal the handgun.

Fixin' the squinty ol' gimlet eye on 'em, and rasping out, "If y'all don't start heading south, I'm a gonna have ta' pull this hogleg and send some hot lead in your immediate direction" is the threat of deadly force without the display of the handgun.

[speedsix]

...you could do that...but based on the facts as the OP states them...my thought as I read this whole thread is "no time...no time"...they're too close and it's happening too fast...and while you're talking...they're closing in and pulling their weapons...in a lot of scenarios, you can talk or act but not both...this one says it's time to act...fast...or you could be overpowered even if they have no weapons...

[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."

One of the more interesting theories that are used in our legal system is that the threat is int he eye of the beholder. The law would look at the question of whether or not a reasonable person, in the victim's position, would have believed that the robbery was imminent. This is an important, possibly even critical point, because it means that a robbery itself does not have to be imminent, just that a reasonable person would have believed it was. This is very similar to probable cause, which is when an officer believes that it is more likely than not that a crime was being committed. The officer can be wrong, as can the potential victim/shooter, but that does not change the legality.

Based on my experience, the actions of the two show a robbery is about to be committed. The key point being the separation into a V-formation around the potential victim. A V is used for an attack, but is not normal for other everyday people walking. One person watching the victim while the other concentrates on looking around makes it look like they are checking if there are any witnesses, reinforcing the belief that a robbery was about to be committed.

If they did not stop when asked after all of that, I find it hard to believe anyone would not think a robbery is about to be committed.

Thanks for your insight.

[Kyle Brown]

I rarely answer these types of questions, but the scenario presented is pretty clear. To an experienced eye, this was clearly a robbery in the making and the OP's action appeared reasonable in response to this threat. I think the case Steve was talking about is McDermott that erroneously held that the only defense to intentional failure to conceal by a CHL (TPC §46.035(a)) is the ability to actually use deadly force. McDermott was wrongly held and thankfully it only applies to that particular appellate jurisdiction, although it is "persuasive authority" all over Texas. (It was a Court of Appeals case, not a Texas Court of Criminal Appeals case.)

McDermott ignored TPC §9.04 that allows the threat of force to defuse a potentially deadly confrontation. Unless I'm mistaken, there still is no Texas appellate decision dealing directly with the scope of §9.04. It was taken from the Model Penal Code, the comments to which state that one can threaten the use of deadly force, even if only non-lethal force could be used. The rationale is to allow people to make the aggressor aware that the intended victim can and will use deadly force if it becomes necessary. During my last in-person CHL Instructor course in Austin, a now-retired DPS Lt. gave an example of this precise use of the threat of deadly force in a scenario where deadly force would not yet be justified. He noted this was authorized by TPC §9.04. Again, I haven't researched §9.04 in a good while, so the Lt. and I may be mistaken.

As Diesel42 noted, the presence of a young child in the van is a factor, a major factor in my view. As to what I would physically do, it's hard to say, but I think the OP's actions were reasonable, but I would have added an element of verbal compliance. Since I use and teach a draw stroke that makes a retention or "break away" shot easy, I probably wouldn't have drawn my handgun, but I certainly would have had my hand on it ready to respond quickly.

Chas.

BTW: I am an attorney, but I'm not yours so this isn't legal advice, just my opinion.

Hey Charles, if I recall correctly, self defense was not plead in McDermott. If that is true (I just cannot remember at the moment), then TPC §9.04 was not ignored; it just wasn't relevant in that particular case.

[Charles L. Cotton]

§ 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.
(a) A license holder commits an offense if the license
holder carries a handgun on or about the license holder's person
under the authority of Subchapter H, Chapter 411, Government Code,
and intentionally fails to conceal the handgun.

....<snip>....

(h) It is a defense to prosecution under Subsection (a) that
the actor, at the time of the commission of the offense, displayed
the handgun under circumstances in which the actor would have been
justified in the use of deadly force under Chapter 9.

§ 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.

...yup, them's the ones...they seem to be at odds with each other to me...one says I'm defensible for displaying my pistol IF I would have been justified by Ch9 in USING DEADLY FORCE...


...the other says I am justified in threatening with deadly force even though I'm not justified in using deadly force...that burns my "not fair" buzzer slap off the wall...but I know it doesn't have to be fair to be legal...

The McDermott decision was wrong because it ignored §9.04. One defense to a charge of intentional failure to conceal found in TPC §46.035(h), but the McDermott court expressly stated it was the only defense. In fairness to the court, the trial evidence may not have shown any justification under §9.04 because the defendant would not have been justified in using any level of force. However, the court should have at least addressed the application of §9.04 under a different fact pattern so the decision would not be erroneously offered for the premise that §46.035(h) is the only defense to intentional failure to conceal.

Chas.