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e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 6:42 pm
by Greybeard
A cut and paste below of e-mail received today by "Ron" (not his real name).
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Sent: Tue, May 14, 2013 21:47:27 GMT+00:00
Subject: Had to Draw my Gun Today
I had a motorcyclist chase me down and bang on my car window while screaming at me while I sat at a light. I had no idea what his problem was.
Then he continued to “chase” me screaming and weaving all over the road. As I entered the street where I’m currently working he followed and I had one choice.
Bring his risk to the work place or stop it there. I stopped my car in the road and he crashed into the back of it. He gets off the road and proceeds to scream and bang on the window. 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.
He backed off and I called 911 and explained.
The cops came, had me step out with my hands up. I explained all to them and they told the guy he was completely at fault; warned him not to chase people and follow so close. They did not bill it as a traffic accident. They returned my firearm and I went on my way.
It was interesting that the cop told the guy that this was Texas as the explanation as to why I pulled a gun on a guy half my age threatening me with violence.
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"He tries to open the door." I believe is the key verbiage in this one for 9.04 to apply. Sounds like the Irving PD also knew about that one.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 7:50 pm
by alvins
technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 7:57 pm
by E.Marquez
alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
Technically I can only assume you read a different post than I did, and responded to that other post
Because based on what I read, and IMHO, for what was described, no arrest of the victim was warranted (the local LEO in this reported event seems to agree as well)
Based on the OPs post, please describe the cause for arrest you see and the PC you believe justifies an arrest in your opinion .
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 8:18 pm
by poppo
alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
I tend to agree with this. Given the scenario, he could have just driven away while calling 911. Where is the imminent threat with car vs motorcycle (while they are in motion)?
If you pull a gun, you better be getting ready to use it. And have a good reason for doing so.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 8:38 pm
by Charles L. Cotton
alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
You need to review the two Penal Code provisions below.
Chas.
Tex. Penal Code §9.04 wrote:Sec. 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.
Tex. Penal Code §9.32(b) wrote:(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:
- (1) knew or had reason to believe that the person against whom the deadly force was used:
- (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; . .
.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 8:54 pm
by suthdj
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.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 9:01 pm
by OldCannon
suthdj wrote: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.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 9:13 pm
by Chemist45
Many, many, years ago I was in a similar situation. This was in a state without concealed carry for average Joes and it was long before cellphones.
I too, was being pursued by an irate motorcyclist. I have no idea why he was so angry.
I did not want him to follow me home.
When it became obvious that he was not going to go away, I changed course and drove to the local police department.
When I pulled into their parking lot, he continued on - flipping me off as he went.
I sat there for almost an hour before I went on my way. Never saw him again.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 9:37 pm
by The Annoyed Man
Charles L. Cotton wrote:alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
You need to review the two Penal Code provisions below.
Chas.
Tex. Penal Code §9.04 wrote:Sec. 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.
Tex. Penal Code §9.32(b) wrote:(b)
The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision
is presumed to be reasonable if the actor:
- (1) knew or had reason to believe that the person against whom the deadly force was used:
- (A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; . .
.
^^ This. There is a difference between "intentional failure to conceal," and drawing your gun to defend yourself against what you
reasonably believe is an attempt to get to you in the car for the purpose of causing you serious bodily harm or death.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 10:02 pm
by JKTex
Chas may remember a case in Houston (I think on SW Fwy) on April 17, 2002 that was very much like this one, although went a different way. Hopefully both guys in this situation know how lucky they are that it went the way it did. In the case 11 years ago, although not a bike, a Mercedes stopped/blocked another car in traffic after some kind of "situation" that set the guy off in a rage, he got out and commenced to beating on (and I think may have broken) the drivers window. Subsequently he was shot killed by the driver of that other vehicle. If I remember, his family really wanted charges to be brought, and I think tried for a couple years but there were none to bring.
Ironically about 3 days ago I was reviewing, again, a presentation in memoriam of way too many old High School friends who have passed. Not only is he in the presentation but he's one of the hardest ones to think about every time I run through it. Without saying too much, he was a great guy (had a wicked '77 blue 2 tone dually in HS
) but I'm not sure too many people that knew him would disagree that other driver was likely in danger of serious bodily injury or worse. The case seemed to have gone the right way, which is really hard to say. An absolute waste over something stupid.
The point is, my life is not worth gambling away what could be my only chance. If I'm wrong I don't get another one. As the shooter, you're still left with pain you'll live with the rest of your life; but you have life. Simply, the law recognizes that.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 10:09 pm
by baldeagle
alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
I feel like I'm ganging up on you, but seriously. You need to learn the law before posting legal opinions here. The reason why is explained by several people below. Please do not spread false information about the law. It's hard enough to keep all of it straight without having to sort through posts that completely misrepresent what the law says.
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 10:51 pm
by JP171
alvins wrote:technically what happened you can be arrested for it. you cannot just pull your gun out to scare someone.that "brandishing" can get you put in jail. And their is no such thing as brandishing; its called aggravated assault which is a felony.
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
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 11:03 pm
by srothstein
Let me jump in with one minor point for you all to consider. I will preface this by saying that I agree with the OP on what he did and with Charles' summary of the law. I would have handled it almost exactly like the officer involved did, though I might also have arrested the biker.
But Alvins is also technically correct. And he did say technically. It is aggravated assault and/or deadly conduct to point a pistol at someone. This is illegal and you can be arrested for it. All of the justifications under chapter 9 are "defenses" to the charge, which does not affect the legality of an arrest. It means you should win the court case but you could be arrested. With any reasonable officer, a justified use of your firearm will mean you will not be arrested, but we should all remember that the possibility does still exist.
As a side note, the OP was also lucky not to get an accident on his driving record. Even with all of the rest going on, when the bike rear-ended the car, it was still a crash that belongs on a report. The report should have shown the OP not at fault, but do you trust the insurance companies to agree?
Re: e-mail from student about road raging motorcyclist
Posted: Tue May 14, 2013 11:29 pm
by baldeagle
Sec. 22.05. DEADLY CONDUCT. (a) A person commits an offense if he recklessly engages in conduct that places another in imminent danger of serious bodily injury.
(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:
(1) one or more individuals; or
(2) a habitation, building, or vehicle and is reckless as to whether the habitation, building, or vehicle is occupied.
(c) Recklessness and danger are presumed if the actor knowingly pointed a firearm at or in the direction of another whether or not the actor believed the firearm to be loaded.
(d) For purposes of this section, "building," "habitation," and "vehicle" have the meanings assigned those terms by Section 30.01.
(e) An offense under Subsection (a) is a Class A misdemeanor. An offense under Subsection (b) is a felony of the third degree.
So this would be a class A misdemeanor at best.
Sec. 22.02. AGGRAVATED ASSAULT. (a) A person commits an offense if the person commits assault as defined in Sec. 22.01 and the person:
(1) causes serious bodily injury to another, including the person's spouse; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
(b) An offense under this section is a felony of the second degree, except that the offense is a felony of the first degree if:
(1) the actor uses a deadly weapon during the commission of the assault and causes serious bodily injury to a person whose relationship to or association with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code;
(2) regardless of whether the offense is committed under Subsection (a)(1) or (a)(2), the offense is committed:
(A) by a public servant acting under color of the servant's office or employment;
(B) against a person the actor knows is a public servant while the public servant is lawfully discharging an official duty, or in retaliation or on account of an exercise of official power or performance of an official duty as a public servant;
(C) in retaliation against or on account of the service of another as a witness, prospective witness, informant, or person who has reported the occurrence of a crime; or
(D) against a person the actor knows is a security officer while the officer is performing a duty as a security officer; or
(3) the actor is in a motor vehicle, as defined by Section 501.002, Transportation Code, and:
(A) knowingly discharges a firearm at or in the direction of a habitation, building, or vehicle;
(B) is reckless as to whether the habitation, building, or vehicle is occupied; and
(C) in discharging the firearm, causes serious bodily injury to any person.
So you have to go to assault to find out what an offense would be.
Sec. 22.01. ASSAULT. (a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse; or
(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.
(b) An offense under Subsection (a)(1) is a Class A misdemeanor, except that the offense is a felony of the third degree if the offense is committed against:
This seems a bit of a stretch to me. You get to assault by saying the actor threatened the other party and then you elevate it to aggravated by saying the actor used a gun to do the threatening? So the act itself is used to justify elevating the offense? Wouldn't that be known as piling on?
The threat of force is justified in 9:04. It does not say a defense to prosecution. It says justified. Therefore the offense of assault does not exist and the offense of aggravated assault then cannot exist because it fails the first prong which is that an assault must occur for an aggravated assault to occur. I also do not see how deadly conduct would exist since the use of force is justified.
The only thing I can see is that an officer could use their discretion to arrest the actor and charge deadly conduct and the courts would have to sort it out. 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.
Re: e-mail from student about road raging motorcyclist
Posted: Wed May 15, 2013 8:04 am
by SQLGeek
poppo wrote:
If you pull a gun, you better be getting ready to use it. And have a good reason for doing so.
How do you know he wasn't? Pulling a gun doesn't mean you have to shoot.
And by the law he did have a good reason to shoot.
Could "Ron" have descalated the situation? Maybe, maybe not. What it came down to though is the aggressor escalated the situation by attempting to commit a violent felony, "Ron" used an appropriate amount of force to prevent unlawful force from being used against him and everybody went home with the same amount of holes that they left with. Maybe things could have gone better but given the circumstances they could have been a lot worse.