e-mail from student about road raging motorcyclist

[AKC322]

We don't have enough facts to determine whether the driver's actions were justified. He could have been texting, chatting on the phone, eating, fiddling with his GPS or radio, reading a newspaper or book, shaving, having sex, putting out a burning bit of weed in his crotch (I've seen them all). He could have driven the cyclist off the road without knowing it. As a motorcycle commuter, I am "assaulted" on a near-daily basis by inattentive drivers. Cops are not lawyers, and these kinds of situations are very difficult to determine on the scene. Although the cop probably handled this situation appropriately, he could have arrested the driver and let the courts sort it out. And in a lot of places the cop would have had no choice but to arrest the driver. This driver was lucky to have a cop who had some common sense, but there are plenty out there who are sorely wanting in that regard. The driver could easily have been taken to jail over this.

My takeaway from this story is to never, ever draw my weapon until I am absolutely certain there is no other alternative but the use of deadly force.

[RoyGBiv]

He tries to open the door. He takes off his gear and I expect him to try and break the glass so brandished my firearm and tell him to leave me alone.

This....... If I believe someone is going to attempt to gain entry to my vehicle after all that I would do the same.

The moment he tried to enter my car by grabbing the handle, it's Code Black. I'd have perforated him severely until he was no longer a threat to me or my family.

Imagine firing your gun inside your closed-up car without hearing protection.
Unless I saw the would-be intruder had a gun or until he actually breached the vehicle, I would probably not fire.

[E.Marquez]

We don't have enough facts to determine whether the driver's actions were justified. He could have been texting, chatting on the phone, eating, fiddling with his GPS or radio, reading a newspaper or book, shaving, having sex, putting out a burning bit of weed in his crotch (I've seen them all). He could have driven the cyclist off the road without knowing it. As a motorcycle commuter, I am "assaulted" on a near-daily basis by inattentive drivers. Cops are not lawyers, and these kinds of situations are very difficult to determine on the scene. Although the cop probably handled this situation appropriately, he could have arrested the driver and let the courts sort it out. And in a lot of places the cop would have had no choice but to arrest the driver. This driver was lucky to have a cop who had some common sense, but there are plenty out there who are sorely wanting in that regard. The driver could easily have been taken to jail over this.

My takeaway from this story is to never, ever draw my weapon until I am absolutely certain there is no other alternative but the use of deadly force.

May i suggest you re read the statutes posted earlier.

I believe you have a misunderstanding of the law.

Deadly force is not forever unjustified, just because the shooter had an active part in the provocation of the event. If the shooter separated or stops the provocation and / or interaction and the aggressor continued the assault, pursues.. stops at the car when he could have ridden on, called the police .. the shooter has justification.

At least the way I read the law..

I ride a bike, many thousands of miles a year.. hardly a day goes by my wife (who also rides) or I do not get "assaulted" by a cage driver. Cut off, brake checked, tailgated, merged into.. most times with a wave of the hand and mouthing of "sorry" . If I chased down and dealt with every one... the state of Texas would have a very prolific serial killer to hunt.

[cmwoodruff]

We don't have enough facts to determine whether the driver's actions were justified. He could have been texting, chatting on the phone, eating, fiddling with his GPS or radio, reading a newspaper or book, shaving, having sex, putting out a burning bit of weed in his crotch (I've seen them all). He could have driven the cyclist off the road without knowing it. As a motorcycle commuter, I am "assaulted" on a near-daily basis by inattentive drivers. Cops are not lawyers, and these kinds of situations are very difficult to determine on the scene. Although the cop probably handled this situation appropriately, he could have arrested the driver and let the courts sort it out. And in a lot of places the cop would have had no choice but to arrest the driver. This driver was lucky to have a cop who had some common sense, but there are plenty out there who are sorely wanting in that regard. The driver could easily have been taken to jail over this.

My takeaway from this story is to never, ever draw my weapon until I am absolutely certain there is no other alternative but the use of deadly force.

It doesnt matter what the driver was doing. The person in/on the other vehicle has no authority to chase someone and attempt to enter their vehicle or take them out of their vehicle. None. ...call the police.

Yes, you could be arrested for pulling out your gun in this situation.. but it would most likely be thrown out in court. Who would want to put themself through all that trouble though..? Anyone that feared for their physical safety. You don't know what that other person is capable of..

[baldeagle]

We don't have enough facts to determine whether the driver's actions were justified. He could have been texting, chatting on the phone, eating, fiddling with his GPS or radio, reading a newspaper or book, shaving, having sex, putting out a burning bit of weed in his crotch (I've seen them all). He could have driven the cyclist off the road without knowing it. As a motorcycle commuter, I am "assaulted" on a near-daily basis by inattentive drivers. Cops are not lawyers, and these kinds of situations are very difficult to determine on the scene. Although the cop probably handled this situation appropriately, he could have arrested the driver and let the courts sort it out. And in a lot of places the cop would have had no choice but to arrest the driver. This driver was lucky to have a cop who had some common sense, but there are plenty out there who are sorely wanting in that regard. The driver could easily have been taken to jail over this.

My takeaway from this story is to never, ever draw my weapon until I am absolutely certain there is no other alternative but the use of deadly force.

NONE of this excuses the motorcyclist assaulting him.

[E.Marquez]

To illustrate my point. I JUST now got this txt from my wife, who rode to work this morning....

Had a guy in a white 300c try to wipe me out when he got on 190 at clear creek

He came across all three lanes right at me. Had to completely get in the left break down lane to avoid him

Even though she was attacked with a deadly weapon (ignorance, not intentionally most likely) She has no right to chase the guy down and assault him, damage his car, or out right shoot him...

[SQLGeek]

My takeaway from this story is to never, ever draw my weapon until I am absolutely certain there is no other alternative but the use of deadly force.

I'm not certain if you mean that you won't draw until you actually have to fire but if that is what you mean, that may be too late.

[AlaskanInTexas]

actually yes you can in fact produce your weapon as a deterrent to further hostility and go home smoke cigarettes and drink coffee, and the other guy can have 3 weeks in jail. I know I just went thru it a month ago for the 4th or 5th time in the last 4 years

I don't know your situation, but if you have had to produce your weapon 4-5 times in the last four years, it might be time to evaluate how you go about things.

[AlaskanInTexas]

I ride a bike, many thousands of miles a year.. hardly a day goes by my wife (who also rides) or I do not get "assaulted" by a cage driver. Cut off, brake checked, tailgated, merged into.. most times with a wave of the hand and mouthing of "sorry" . If I chased down and dealt with every one... the state of Texas would have a very prolific serial killer to hunt.

Me too, but on the other side of the equation. Not a day goes by that I don't see MULTIPLE bikes weaving in and out of traffic with no signals and with no space, flying in between stopped cars, flying down the shoulder, doing wheelies, racing each other at 120+, and generally being menaces to us cage drivers. In my experience (based largely on US 75 in Dallas), this is the rule, and respectable bikers are the exception. Fortunately for them, my old Hyundai is not capable of chasing down even a semi...

[ELB]

The threat of force is justified in 9:04. It does not say a defense to prosecution. It says justified.
... Personally, if an officer did that to me, I would sue the department for false arrest as soon as the case is settled in my favor. And I'm pretty sure I would win. And retire.

A little forum lawyering here:

It was pointed out in a thread over on Texas Gun Talk (discussing Matefro's arrest at the Capitol building for carrying a long knife while CHL'ing), that in the Texas Penal Code, unless a "get out of jail free card" is labeled an "exception" with very specific language, then it is treated as a defense to prosecution, regardless of how it is labeled (non-applicable, justification, etc). I don't have it at my fingers, tho, I will try to look it up later. Very important thing to know when reading the law, I think.

Thus you can be lawfully arrested for the general offense, make your case in court that it doesn't really apply to you, and if you convince the court...try to sue the officer if you want because everyone can sue, but very unlikey it will go anywhere. It has to be pretty egregious for an officer to be successfull sued for false arrest, and I don't thing "defense to prosecution" will make it.


A point of view from one of the four-wheel vehicle community on the eternal war between motorcycles and muliple-wheelers:
While it is entirely possible that the OP forgot to include that he was dealing with an accidental crotch fire because he dropped his match while trying to light his stogie while texting his vote into American Idol that he was watching on his iPhone and failed to notice that he veered across six lanes of traffic occupied by motorcycles, I think it is just as likely that the motorcyclist in this case was simply outraged that someone was in the way of his faster, more agile, less protective conveyance when he tried to execute some maneuver that seemed like a good idea to him but perhaps un-noticed by the OP. (Man that's a heckuva sentence).

I tend the think the mind set that says it is a good idea to pound on people's windows at a stop light and throw off all your gear for fight might be the same mindset that says it is a good idea to exceed speed limits by a wide margin, thread-the-needle between vehicles, accelerate and slow at rates unmatched by autos, ride the bumper so one can suddenly pass on the inside of a double-yellow curve, etc. Just my prejudice, perhaps.

I rode a bike myself when younger, and I know people in cars often simply don't see motorcycles (or don't care). But I also know that some motorcyclists, while enjoying the quickness and agility of their machines, put themselves in positions to be "assaulted" by cars, trucks, curb, guardrails, trees, telephone poles, or long pieces of road and berm (I did that once. Once). As a firefighter/medical first responder, I have treated a few biker accidents, and none of them were "cut off" by anyone, they just allowed their bikes to exceed their capabilities as drivers.



As to the actual incident itself -- it might have been tactically wiser to simply drive away when Mr. Motorcycle went into fight-mode, I think the OP was overall justified in handling it the way he did, and glad it came out well for him.

The suggestion to drive to a police station when some knothead is harrassing you is a good one. My Garmin GPS will guide me to the nearest police, fire, or hospital with a couple touches, if you have a GPS that is function you may wish to learn how to use quickly.

[fickman]

And their is no such thing as brandishing; its called aggravated assault which is a felony.

There is such a thing as brandishing.

1bran·dish
transitive verb \ˈbran-dish\
Definition of BRANDISH
1: to shake or wave (as a weapon) menacingly
2: to exhibit in an ostentatious or aggressive manner

If this action is done with a weapon, illegally, then you are right, it is covered under state law by the aggravated assault statutes.

Similarly, rape is a real thing, but for the purposes of the Texas Penal Code, it is covered under the sexual assault and aggravated sexual assault statutes.

Sorry. This is a pet peeve of mine. In the context of the story, "brandish" was used correctly.

[MeMelYup]

There was an accident, you don't drive away from an accident you are involved in. That would be hit n run. That makes you in the wrong.

[ELB]

I think this is it. In all the forum-lawyering that goes on here, I have never seen this brought out (possibly I just missed it), so for the general education of all:

Penal Code Chapter 2, Burden of Proof

Sec. 2.02. EXCEPTION. (a) An exception to an offense in this code is so labeled by the phrase: "It is an exception to the application of . . . ."(b) The prosecuting attorney must negate the existence of an exception in the accusation charging commission of the offense and prove beyond a reasonable doubt that the defendant or defendant's conduct does not fall within the exception.(c) This section does not affect exceptions applicable to offenses enacted prior to the effective date of this code.
Acts 1973, 63rd Leg., p. 883, ch. 399, Sec. 1, eff. Jan. 1, 1974. Amended by Acts 1993, 73rd Leg., ch. 900, Sec. 1.01, eff. Sept. 1, 1994.

Sec. 2.03. DEFENSE. (a) A defense to prosecution for an offense in this code is so labeled by the phrase: "It is a defense to prosecution . . . ."(b) The prosecuting attorney is not required to negate the existence of a defense in the accusation charging commission of the offense.(c) The issue of the existence of a defense is not submitted to the jury unless evidence is admitted supporting the defense.(d) If the issue of the existence of a defense is submitted to the jury, the court shall charge that a reasonable doubt on the issue requires that the defendant be acquitted.(e) A ground of defense in a penal law that is not plainly labeled in accordance with this chapter has the procedural and evidentiary consequences of a defense.

[ELB]

There was an accident, you don't drive away from an accident you are involved in. That would be hit n run. That makes you in the wrong.

I would disagree. This was also a violent altercation, which takes precedence over the accident. Drive away 'til safe, and be sure to call 911.

[AKC322]

I don't know your situation, but if you have had to produce your weapon 4-5 times in the last four years, it might be time to evaluate how you go about things.

Truer words never written.