Deadly Force if you "ARE IN FEAR OF YOUR LIFE"

[txinvestigator]

I hear students, both CHL and Security, and posters on message boards speak of using deadly force if "they are in fear of their life", or "afraid for their life".

Before I proceed, the Texas Use of Deadly Force to protect persons law;


Texas Penal Code
§9.32. Deadly force in defense of person.

(a) A person is justified in using deadly force against another:

(1) if he would be justified in using force against the other
under Section 9.31;

(2) if a reasonable person in the actor's situation would not
have retreated; and

(3) when and to the degree he reasonably believes the deadly
force is immediately necessary:

(A) to protect himself 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.

(b) The requirement imposed by Subsection (a)(2) does not
apply to an actor who uses force against a person who is at the time
of the use of force committing an offense of unlawful entry in the
habitation of the actor.


No where is being in fear listed. Being afraid for your life may describe your emotions when someone is using or attempting to use deadly force against you, or is in the imminent commission of one of those crimes against you, but it is not your justification.

Imagine that you live in a very bad part of town. In your neighborhood lives Bubba, who is known to be a dangerous and violent person. He has been to prison for aggravated assault twice. He is known to be a drug addict, and a meth head. He has assaulted people for little provication, and people are afraid of him.

You have some disagreement with Bubba and he says, "tomorrow I am going to kill you, mark my words" Most people would, at that time, be afraid for their life. But there is no justification to use deadly force against Bubba based simply on that statement, regardless of how you "felt" or if you were in fear.

His actions must amount to more than creating fear on your part. It must create a reasonable belief in you that it is immediately necessary for you to use deadly force against him to protect yourself against his use or attempted use of unlawful deadly force against you, or to prevent the imminent commission of one of the listed crimes.

I realize that if someone is doing that, or attempting to do that to you that you WILL be in fear of your life, but being in fear is not your legal justification for using deadly force. There are times when you could be in fear of your life (as described above) that the justification to use deadly force would not exist.


Fire suit on, let er rip.......................

[gigag04]

This was covered in depth in my clause with the example you used.

I walked away with a good understanding of the law for how long I was there (I think).

Good post.

-nick

[KBCraig]

You have some disagreement with Bubba and he says, "tomorrow I am going to kill you, mark my words" Most people would, at that time, be afraid for their life. But there is no justification to use deadly force against Bubba based simply on that statement, regardless of how you "felt" or if you were in fear.

As you pointed out, when you see Bubba tomorrow, and he's advancing toward you with a deadly implement in his hand, then 9.32(a)(3)(A) kicks in, based on his previous threats and your knowledge of his history.

(Just for assumption's sake, let's assume you're in a position from which a reasonable person would not retreat.)

Kevin

[DustinB]

I know this is probably covered in a CHL class but I was a little curious about it. What happens if 'Bubba' or 'Bubba and his friends' are about to assault you with or without the intent to kill? Since you have a weapon on you, there is a likelihood they could find the weapon and use it against you seeing as most people couldn't take Bubba or his friends down with physical force. Are you justified in using a weapon to protect yourself?

[txinvestigator]

I know this is probably covered in a CHL class but I was a little curious about it. What happens if 'Bubba' or 'Bubba and his friends' are about to assault you with or without the intent to kill? Since you have a weapon on you, there is a likelihood they could find the weapon and use it against you seeing as most people couldn't take Bubba or his friends down with physical force. Are you justified in using a weapon to protect yourself?

Their intent is not so relevant as what they actually do. I don't think the fact that you have a weapon on you and they "might" get it gives justification for deadly force.

DF requires a reasonable belief that using it is immediately necessary.

Bubba physically assaulting you could be deadly force . Disparity of size, strength and number of attackers all goes towards your belief that they were attempting to or were actually using DF against you.

[Chris]

that sounds like a jeff foxworthy line...

"if you walk into a bank wearing panty hose on your head, you might be an excuse to use deadly force."

"if you walk up to the drive thru and order money, you might be an excuse to use deadly force."

i think i might have something there.

[KBCraig]

Their intent is not so relevant as what they actually do. I don't think the fact that you have a weapon on you and they "might" get it gives justification for deadly force.

It's justification for a police officer. Why wouldn't it be for anyone else?

But, the assault itself is justification. Disparity of force (Bubba and his buddies), or blows about the head, are both use of deadly force, and would justify deadly force in return.

Kevin

[txinvestigator]

Their intent is not so relevant as what they actually do. I don't think the fact that you have a weapon on you and they "might" get it gives justification for deadly force.

It's justification for a police officer. Why wouldn't it be for anyone else?

So we are on the same page....what is justification for a Peace Officer?

[KBCraig]

Their intent is not so relevant as what they actually do. I don't think the fact that you have a weapon on you and they "might" get it gives justification for deadly force.

It's justification for a police officer. Why wouldn't it be for anyone else?

So we are on the same page....what is justification for a Peace Officer?

Losing your pistol to an assailant presents an immediate threat and likelihood of deadly force. Protecting your firearm is a defense of self against another's attempted use of unlawful deadly force, as in PC 9.32(a)(3)(A).

Kevin

[txinvestigator]

Their intent is not so relevant as what they actually do. I don't think the fact that you have a weapon on you and they "might" get it gives justification for deadly force.

It's justification for a police officer. Why wouldn't it be for anyone else?

So we are on the same page....what is justification for a Peace Officer?

Losing your pistol to an assailant presents an immediate threat and likelihood of deadly force. Protecting your firearm is a defense of self against another's attempted use of unlawful deadly force, as in PC 9.32(a)(3)(A).

Kevin

Glad I asked, I thought you meant something else. I agree 100%, and I believe the same goes for ANYONE.

I was referring to the fact that if somone assaults you (non-LEO) that just because you are carrying a gun and if the offender found the gun he might be able to use it on you, is not automatic justification for going straight to deadly force.

Your use of force must always be to a degree that is reasonable considering the level of force being used against you.

[BobCat]

No flames, but a question. In your original post, you said,

"You have some disagreement with Bubba and he says, "tomorrow I am going to kill you, mark my words" Most people would, at that time, be afraid for their life. But there is no justification to use deadly force against Bubba based simply on that statement, regardless of how you "felt" or if you were in fear."

Does Bubba's threat to kill me constitute "assault" or some other specific legal offense? What I mean is, is his threat to kill me "against the law" in some way that, if a Police Officer heard the threat, he could arrest Bubba, or assert that he might arrest Bubba if Bubba attempts to carry out his threat?

I think I understand your point about my state of mind (fear) being irrelevant; I have to reasonably believe that (deadly) force is immediately required to protect myself (or other) against Bubba's unlawful use of deadly force. However, I think that when someone asserts that he was "in fear for his life" that might be shorthand for, "It was quite clear to me that Bubba meant to kill me right then and there, so I reasonably believed that my use of deadly force against him was immediately necessary to stop his imminent unlawful use of deadly force agains me." Possible?

Thanks for your insight.

Regards,
Andrew

[TxFire]

I believe that Bubba's threat to kill you would be classified as a "Terroristic Threat" and is an offense to the law.


Sec. 22.07. TERRORISTIC THREAT. (a) A person commits an offense if he threatens to commit any offense involving violence to any person or property with intent to:
~ ~ (1) cause a reaction of any type to his threat by an official or volunteer agency organized to deal with emergencies;
~ ~ (2) place any person in fear of imminent serious bodily injury; or
~ ~ (3) prevent or interrupt the occupation or use of a building; room; place of assembly; place to which the public has access; place of employment or occupation; aircraft, automobile, or other form of conveyance; or other public place; or
~ ~ (4) cause impairment or interruption of public communications, public transportation, public water, gas, or power supply or other public service.
~ (b) An offense under Subdivision (1) or (2) of Subsection (a) is a Class B misdemeanor. An offense under Subdivision (3) of Subsection (a) is a Class A misdemeanor. An offense under Subdivision (4) of Subsection (a) is a felony of the third degree.

[gigag04]

Does Bubba's threat to kill me constitute "assault" or some other specific legal offense?

Nope - unfortunately not. The law does not hold into account words only. If "bubba" is charging towards you, and he is huge and punches through a door to get to you, then that is assualt. Once he has physically touched you it is assualt AND battery.

The threat of imminent bodily physical harm is assault. Harming of the body is battery, does that make sense?

Another example...if you are walking down the street and don't see the attack coming, but get blindsided and knocked straight out, then that is ONLY battery, since there was never a "threat" of bodily harm.

As far as another legal issue, it may fall into another category for an illegal action, but it does not justify a use of force (as far as I can tell).

Good question!


-nick

[txinvestigator]

Does Bubba's threat to kill me constitute "assault" or some other specific legal offense?

Nope - unfortunately not. The law does not hold into account words only. If "bubba" is charging towards you, and he is huge and punches through a door to get to you, then that is assualt. Once he has physically touched you it is assualt AND battery.

The threat of imminent bodily physical harm is assault. Harming of the body is battery, does that make sense?

Another example...if you are walking down the street and don't see the attack coming, but get blindsided and knocked straight out, then that is ONLY battery, since there was never a "threat" of bodily harm.

As far as another legal issue, it may fall into another category for an illegal action, but it does not justify a use of force (as far as I can tell).

Good question!


-nick

Nick, we don't have assault and battery in Texas. It is either assault or not.

The question of whether Bubba's stated threat is an offense, we have to consider whether it places us in fear of imminent serious bodily injury or if he threatens us with imminent bodily injury. The key is "imminent".


Texas Penal Code
§22.01. Assault.

(a) A person commits an offense if the person:


(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse

TXFIRE, your terrosistic threat statute requires that "imminent" fear also.

[TxFire]

I did not intend to say that the "Terroistic Threat" would justify or be a "defense to prosecution" for lethal force. I just wanted to point out that it is listed in the Texas Penal code.