Drawing weapon to scare threat away

[cubbyjg]

Is there ever a situation where you are legally allowed and within your rights to draw your weapon with the intent to scare a threat away? I have been telling myself that i would only draw my weapon and shoot when my life or my family's life is in imminent danger. Other than that, the weapon stays concealed.

But what about when some thug tries to steal my girlfriends purse and she holds on creating a tug of war? I dont see a weapon on him or in his hands, but obviously he is trying to commit a crime. I do not want to shoot because the threat to me does not warrant it. I would probably tell my girlfriend to let the damn thing go and just clock him so we can get away. Or what if some guy who is just looking to fight me for no reason (drunk, meth head, etc) and backs me into a corner. I would like to think that him seeing my 45 caliber glock would scare him away and allow us both to walk away and live another day. Also, can someone please tell me if there is a particular section in Texas law that addresses this? I appreciate the help!

[Beiruty]

In case of robbery in progress, you are justified to use deadly force, or threat of force. I am not a lawyer, but this is is my understanding of the statues.
In case of verbal threat, provocation of fist fight, or even a fist fight, it is questionable. I will not draw, I will try to escape after I my attempt to deescalate. If cornered and no escape and with disparity of force, I will draw as a last resort.

Other will post reference to TX law.

[A-R]

http://www.statutes.legis.state.tx.us/?link=PE" onclick="window.open(this.href);return false;

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.

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.

[Pawpaw]

This should have been covered in your CHL class.

"PC §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."

In other words, you are justified to use the threat of deadly force only if you would be justified in using deadly force.

Suppose you pull you weapon and threaten to use it and the guy just gets mad and comes at you. You just escalated the situation by brandishing your weapon.

IANAL... just food for thought.

[cubbyjg]

Thanks guys, this is what i was looking for. I kept looking at chapter 9 and i overlooked this paragraph

[A-R]

In other words, you are justified to use the threat of deadly force only if you would be justified in using deadly force.

Suppose you pull you weapon and threaten to use it and the guy just gets mad and comes at you. You just escalated the situation by brandishing your weapon.

IANAL... just food for thought.

note: emphasis added above

IANAL either, but I don't agree with your assessment entirely. I read this statute to mean it is OK to use a weapon to threaten deadly force if FORCE is justified. Basically, even though you're using a deadly weapon, you're only using it to inflict FORCE and not deadly force.

The escalation issue, I do understand and that can become a he said/he said situation. But if you were justified in producing your weapon as a use of FORCE (for instance, the person was committing theft but not robbery) you would be OK as long as you don't shoot. Once the thief ups the anty to assault or aggravated assault by "coming at you" - then you might be justified in escalating your response to use of deadly force.

Again, I'm not a lawyer, but this is how I've always understood this statute.

In the OP's case, not sure it matters because a purse snatching in which the victim is still attached to the purse (the "struggle") is a robbery (and potentially an aggravated robbery) and not merely a theft. Thus, use of deadly force is justified under PC 9.43. Not saying I would necessarily shoot in that situation, but I could see how it would be justifiable (a 6-4, 250 pound, 25-year-old man struggling with a 65-year-old woman has great potential to cause bodily injury to the woman)

And again, IANAL ... but hopefully one of the legal eagles will set me straight if I am misunderstanding this somehow.

[srothstein]

Umm, the law and the courts seem to disagree on this issue. As I read the law, it is clear that you can pull your weapon and threaten to use deadly force anytime the use of force is justified. But you cannot shoot until deadly force is justified. The problem with this is that a gun is pretty much useless if you make a threat and the suspect does not believe you. As was already posted, what do you do? What do you do if he does not come at you but just keeps doing what he was doing (stealing during daytime for example)? And, you possible problem is what to do when he thinks he was in the right and your threat of deadly force justifies his use of deadly force on you? He now has a great defense for shooting you.

But, I seem to remember that there was a court case that was very different in its interpretation of the law. I don't recall the citation but I think Charles has posted it here. The court ruled that you can only threaten deadly force when deadly force is justified, even though it is just force. I am sure someone else can get the citation again, if I am remembering it correctly.

[A-R]

Steve,

I think this may be the thread you're referring to? viewtopic.php?f=7&t=1262" onclick="window.open(this.href);return false;

Thanks for reminding me of that one. I'd forgotten the added problem of illegally unconcealing your weapon TPC 46.035 and the narrow exceptions for that offense.

Which statute supercedes which? Apparently Charles can't even tell us for sure after reading that whole thread.

Chalk it up to yet a nother "gray area" of legal concealed carry (sure are a lot of gray areas out there )

[baldeagle]

Umm, the law and the courts seem to disagree on this issue. As I read the law, it is clear that you can pull your weapon and threaten to use deadly force anytime the use of force is justified. But you cannot shoot until deadly force is justified. The problem with this is that a gun is pretty much useless if you make a threat and the suspect does not believe you. As was already posted, what do you do? What do you do if he does not come at you but just keeps doing what he was doing (stealing during daytime for example)? And, you possible problem is what to do when he thinks he was in the right and your threat of deadly force justifies his use of deadly force on you? He now has a great defense for shooting you.

But, I seem to remember that there was a court case that was very different in its interpretation of the law. I don't recall the citation but I think Charles has posted it here. The court ruled that you can only threaten deadly force when deadly force is justified, even though it is just force. I am sure someone else can get the citation again, if I am remembering it correctly.

If a court ruled that, then the case would have grounds for an appeal. The law clearly states that ..."a threat to cause death or serious bodily injury by the production of a weapon or otherwise.... does not constitute the use of deadly force." The point is, if someone is using force against you (not deadly force), you are justified in threatening death or serious bodily injury by producing your weapon. Note the qualifier, however as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary. So, if someone meets the conditions that make it legal to use force against them, so long as your purpose is to create an apprehension that you will use deadly force if necessary, your production of your weapon is justified.

Here's a scenario. A guy twice your size threatens to beat your ass to a pulp. He makes two fists, and he starts walking toward you. You would be justified in drawing your weapon and shouting, "Do not come any closer or I will shoot!" If he stops, your actions were justified. If he keeps coming, you are justified in shooting.

So this statement "In other words, you are justified to use the threat of deadly force only if you would be justified in using deadly force." is incorrect. It would be correct to state "In other words, you are justified to use the threat of deadly force only if you would be justified in using force." (IOW, I dropped the word "deadly".)

Note that IANAL either, but that's what the statute states.

[A-R]

baldeagle, I agree with your opinion above. And I think Steve does as well. And I think Charles does too. But read the particulars of why this is "up in the air" in this old thread viewtopic.php?f=7&t=1262" onclick="window.open(this.href);return false;

There was a case and it may have been incorrectly decided and not appealed (though I personally think the person prosecuted in that case was acting like a jerk and someone "brandishing" to scare away a real threat would have got off).

The problem comes from the limited exception to PC 46.035, which says you must be justified in USING deadly force to violate PC 46.035.

Some prosecutors apparently don't think PC 9.04 over rules PC 46.035.

Sec. 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.

(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.

[Pawpaw]

I agree, I misread the statute. Only justified use of force is required by the statute, not deadly force. Sorry for the confusion.

However, I still think you might have your hands full trying to prove your intent. I hope I never have to find out.

[baldeagle]

baldeagle, I agree with your opinion above. And I think Steve does as well. And I think Charles does too. But read the particulars of why this is "up in the air" in this old thread viewtopic.php?f=7&t=1262" onclick="window.open(this.href);return false;

I just got done reading the first two pages of that thread, and I have to say that there is a conflict in the law. We need to add this to the list of things that need to be fixed in the next session. Section (h) needs to be corrected to read "(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 or the threat of the use of deadly force under Chapter 9.

[Beiruty]

Here's a scenario. A guy twice your size threatens to beat your ass to a pulp. He makes two fists, and he starts walking toward you. You would be justified in drawing your weapon and shouting, "Do not come any closer or I will shoot!" If he stops, your actions were justified. If he keeps coming, you are justified in shooting.

Is the threat of beating someone is an assault? justifying producing a deadly weapon as a threat to terminate the threat of physical assault? Not sure in this scenario we CHLer can prematurely draw. Now if the assailant proceed to throw punch whether landed or otherwise, it is another story. Talking tough is just that talking tough and kind of verbal intimidation.

Moreover, even if you are subjected to a punch, under the TX law, you are not automatically allowed to shoot and kill the assailant. I want to be proven wrong, but simple physical assault is not listed a defense to the use of deadly force

[baldeagle]

I just sent this to my state Senator and Representative. I would urge others to do the same.

Senator Carona, I would like to ask you to introduce an amendment to Texas Penal Code §46.05 Section h. The law presently reads, "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."

However, TPC §9.04 reads 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."

These two sections are in conflict. I would like to suggest amending §46.05 Section h as follows: "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 OR THE THREAT OF THE USE OF DEADLY FORCE under Chapter 9."

Thank you for your consideration.

[jester]

The problem comes from the limited exception to PC 46.035, which says you must be justified in USING deadly force to violate PC 46.035.

However, deadly force is justified in response to robbery and aggravated robbery, as in the example of the strong-arm robbery against his girlfriend.