Actually, you are correct and I am the one who misread the law. I really am sorry. I did not read down far enough and forgot that section. I have to retract my statement about to the degree necessary. That is what I get for going on my memory and only checking the wording of what i thought I needed to check.G26ster wrote:Steve, if the above is so, can you explain to me why 9.31 says, "The use of deadly force is not justified under this subchapter except as provided in Sections 9.32,9.33, and 9.34?" This why I keep going back to 9.32(a)(2)(B). Seems like 9.31 is saying one can use force to the degree necessary, but not deadly force, unless the conditions of 9.32 are met. I am not challenging your opinion, but I am genuinely confused.srothstein wrote: This is why 9.31 includes the term "when and to the degree necessary". This term is what allows use of higher levels of force if necessary. Note that there is no limit on the degree necessary to limit it to less than deadly force.
But after rereading all of 9.31 and 9.32, you do need the justifications under 9.32 to use known deadly force. But the logic still applies, mostly. The secret is to know what constitutes the other person's unlawful use of deadly force to be justified under 9.32 also. The disparity of force argument still applies. If the pro football player is coming at the 72 year old retiree, just using fists might be deadly force. We need to remember that deadly force is not always lethal, but includes anything that causes serious bodily injury. Serious bodily injury is defined as serious permanent disfigurement, protracted loss or impairment of the function of any bodily member or organ, or substantial risk of death. While each DA will interpret this differently, a good rule of thumb I have been taught is any broken bone or any injury requiring hospitalization are examples of serious bodily injury. I did have one rural DA in Caldwell county who accepted a small scar on the lip as permanent disfigurement, but I thought that was pushing it.
So, if the person attacking, even with just his hands, is going to be big and/or strong enough to put you in a hospital, he is using deadly force. Some things that would go into this decision include the attitude, statements, size, physical condition, and number of opponents. All of this is a judgment call, but in most cases, you are reasonable and the cops are reasonable. You will both agree on the justification (especially if you talk to your attorney first and can articulate your reasoning). Obviously, there are cases in the gray area where the police may disagree with you (especially if the media plays it differently).
But in all honesty, I think most of the cases out there will be clear cut on the disparity of force and the justification will be clear. And there is still the necessity defense to supplement the defense laws.
