Threshold for legal justification of displaying/drawing

[VeeTee]

Quote:
"I am too slow-witted to make these snap decisions in an emergency..."

George: I share your pain (and slow wit) ha ha...

Quote:
"But, having thought about it, I believe I would get back in the car, if time permits, lock the doors, and drive a block away and call authorities. I really don't care about an ATM card, or money."

I've thought a lot about it, too. But for me, had I been the OP, any course of action based on leading them to, or drawing their attention to, my car - and my child inside - would have been a non-starter. And possession and control of the keys in my pocket would have become my own personal "alamo".

Quote:
"what a first post, why not something easy, such as, "why should I by a 1911?"

I burst into laughter reading that. I agree about the "easy". It is the only decision I've faced in life that was "easier" than "coke or pepsi".

Thank y'all for the warm welcome and for your thoughtful replies.

VT

[Charles L. Cotton]

I rarely answer these types of questions, but the scenario presented is pretty clear. To an experienced eye, this was clearly a robbery in the making and the OP's action appeared reasonable in response to this threat. I think the case Steve was talking about is McDermott that erroneously held that the only defense to intentional failure to conceal by a CHL (TPC §46.035(a)) is the ability to actually use deadly force. McDermott was wrongly held and thankfully it only applies to that particular appellate jurisdiction, although it is "persuasive authority" all over Texas. (It was a Court of Appeals case, not a Texas Court of Criminal Appeals case.)

McDermott ignored TPC §9.04 that allows the threat of force to defuse a potentially deadly confrontation. Unless I'm mistaken, there still is no Texas appellate decision dealing directly with the scope of §9.04. It was taken from the Model Penal Code, the comments to which state that one can threaten the use of deadly force, even if only non-lethal force could be used. The rationale is to allow people to make the aggressor aware that the intended victim can and will use deadly force if it becomes necessary. During my last in-person CHL Instructor course in Austin, a now-retired DPS Lt. gave an example of this precise use of the threat of deadly force in a scenario where deadly force would not yet be justified. He noted this was authorized by TPC §9.04. Again, I haven't researched §9.04 in a good while, so the Lt. and I may be mistaken.

As Diesel42 noted, the presence of a young child in the van is a factor, a major factor in my view. As to what I would physically do, it's hard to say, but I think the OP's actions were reasonable, but I would have added an element of verbal compliance. Since I use and teach a draw stroke that makes a retention or "break away" shot easy, I probably wouldn't have drawn my handgun, but I certainly would have had my hand on it ready to respond quickly.

Chas.

BTW: I am an attorney, but I'm not yours so this isn't legal advice, just my opinion.

[Scott in Houston]

One other thought too...

Most ATM machines have some sort of video monitoring. There's the video mounted on the ATM itself which would likely be very grainy and not very helpful because of its limited field of view, but there's usually also some sort of overhead video that would show the whole scene. It would be very helpful when showing the 21 foot rule, and your body language and then their continued closure on your space afterwards. I don't think a reasonable person would argue with the actions taken given they did not back off once you demonstrated that you were in fear of being attacked.

This same scenario at another location with no video could be uglier to work out in court afterwards.

[74novaman]

And that post alone was worth well more than the price of membership here! (oh yeah..that was free!)

Thank you for taking the time to write out such an excellent explanation, Mr. Cotton.

I truly do not think I know of a board who has a more knowledgeable and helpful admin (or moderators for that matter).

Just wow. Thanks for going through the effort to keep this board up and running. You're truly doing a great service for a CHLs who stumble across this forum.

[speedsix]

...Boss, I've believed that the intent was as more clearly spelled out in PC46.035 (h)...but the wording in PC9.04 doesn't support my belief...so it's a matter of choice for me that I wouldn't show it unless I was justified in using it...thanks for your experience in researching it...

[sugar land dave]

§ 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.

....<snip>....

(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.

§ 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.

[Superman]

But, From he description, I think a robbery was about to be committed. And you may use deadly force to prevent a robbery. This makes the question of the threat moot.

As I respect your views I have to ask, in the scenario presented and based on the law below, when did the robbery become imminent? I would think they would have to display some more specific behavior other than walking towards you, such as either producing a weapon or saying "give me your money," or words to that effect, or other aggressive action. I'm not sure about the use of deadly force based on what I think is going to happen based on this scenario.

"(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery."

It sounds like there is a lot of inferring on what "might" happen. The inference could be very wrong and displaying a weapon could have the opposite effect (scaring them and making them call the cops on you). The easiest way to be sure is to *communicate*...simply ask them to stay back until you're done with your transaction and then they can have the ATM. If they don't comply after that and keep coming towards you (or even reply in a bad way), then your inference of them wanting to do you harm is much more easily justified. Talking to clarify your inferences is free...assuming you're correct can cost a lot. Putting myself in that situation, that's what I would have done (communicate to stay back and then show/draw if they didn't respect the request). By communicating before the draw, you take away their potential "excuse" of them just trying to use the ATM too and then trying to say you overreacted. Just my 2 cents...

[hi-power]

It sounds like there is a lot of inferring on what "might" happen. The inference could be very wrong and displaying a weapon could have the opposite effect (scaring them and making them call the cops on you). The easiest way to be sure is to *communicate*...simply ask them to stay back until you're done with your transaction and then they can have the ATM. If they don't comply after that and keep coming towards you (or even reply in a bad way), then your inference of them wanting to do you harm is much more easily justified. Talking to clarify your inferences is free...assuming you're correct can cost a lot. Putting myself in that situation, that's what I would have done (communicate to stay back and then show/draw if they didn't respect the request). By communicating before the draw, you take away their potential "excuse" of them just trying to use the ATM too and then trying to say you overreacted. Just my 2 cents...

I just wanted to make sure you saw the other part of srothstein's quote:

I have to admit that I would try the recommended shouting first, but if they did not stop, the one on the left goes first.

[VeeTee]

Quote by Superman:
"It sounds like there is a lot of inferring on what "might" happen. The inference could be very wrong and displaying a weapon could have the opposite effect (scaring them and making them call the cops on you). The easiest way to be sure is to *communicate*...simply ask them to stay back until you're done with your transaction and then they can have the ATM. If they don't comply after that and keep coming towards you (or even reply in a bad way), then your inference of them wanting to do you harm is much more easily justified. Talking to clarify your inferences is free...assuming you're correct can cost a lot. Putting myself in that situation, that's what I would have done (communicate to stay back and then show/draw if they didn't respect the request). By communicating before the draw, you take away their potential "excuse" of them just trying to use the ATM too and then trying to say you overreacted. Just my 2 cents..."

Y'all will please remember that I am not the "OP" of the thread. I'm simply the guy who hijacked the OP's thread and brought it here because I thought it's delicious complexity would make it a very good learning tool.

But Superman, you are correct. As a matter of fact, that appears to be exactly what the OP did. He did NOT draw. He simply stepped into a shooting stance, put his (presumably) right hand on his weapon (which they could not see) and held up his left in the "STAY BACK!" gesture. So, to be clear, the OP handled things exactly the same way that I would HOPE to have had the good judgment and composure to do.

As I said in MY "original post", as far as the "real OP" was concerned, once he got some amount of feedback as to whether he responded properly, plus suggestions on what he MIGHT have done after it was over (such as call 911 and file a report), he was satisfied. It was precisely at that point that I hijacked the thread for my own purposes, which were to think through what he (or I or anybody) could/should have done HAD THE BGs REFUSED TO TAKE THE HINT.

The OP mentioned that the BGs split apart into a pincer movement - instantly - upon approaching him. Since I am not an expert observer I am in no position to say "that was probable cause of evil intent". However, under the "If it looks like a skunk, walks like a skunk, and smells like a skunk, it sure ain't a rose" rule, I would personally have considered myself "reasonable" to brandish or draw. But I decided to seek a wide range of opinions for my own education.

And it has paid off immensely. I thank all of you generally, and Mr. Cotton specifically, for lighting the after-burners on my quantum leap forward on better understanding Texas law as it applies to CHL holders in the decision making process. My presumption is that it's far better to gum the thing to death inside my head rather than bitterly reflect on it - or NOT BE AROUND TO DO SO - after it's too late.

Thanks to all of you, I now feel that I'm ready to let this particular anecdote go. It's ironic I think, that I was the last one to throw in the towel. I'd like to believe that was because I perceived it to be an excellent - possibly perfect - model for the complexity of these crucial decisions.

Best to all.

VT

[G26ster]

I just wanted to make sure you saw the other part of srothstein's quote:

I have to admit that I would try the recommended shouting first, but if they did not stop, the one on the left goes first.

That was the reason for my original question. It's not the posturing, or even the drawing of the weapon I was questioning. It was the "one on the left goes first," that implies shooting someone who did not heed your command to stay away. That is why I asked when did a crime listed in the statute become imminent? I just don't think failure to obey someone's command to stop is just cause for being shot, sans other evidence of a crime in progress IMHO. I'm not a lawyer or a LEO.

[VeeTee]

Quote by G26ster
"That was the reason for my original question. It's not the posturing, or even the drawing of the weapon I was questioning. It was the "one on the left goes first," that implies shooting someone who did not heed your command to stay away. That is why I asked when did a crime listed in the statute become imminent? I just don't think failure to obey someone's command to stop is just cause for being shot, sans other evidence of a crime in progress IMHO. I'm not a lawyer or a LEO."

G26ster (and everybody),

The thing we must never forget, and (for me) the reason that ANY use of deadly force is so treacherous, is that "neither a lawyer or a LEO" can answer the questions of "when did a crime listed in the statute become imminent?" and/or "what would a 'reasonable' person have done" as that is the exclusive province of a jury (or grand jury) of "reasonable" people. But, what's so complicating (hence scary!) is that one's jury is really the "luck of the draw". Today, Jupiter aligns with Mars, and one lucky CHL defendant draws a jury of his "peers" i.e. "red state Texans". Tomorrow, it does not, and the same (now unlucky) CHL defendant draws a jury of card carrying vegan PETA members - or whatever, because the events unfolded in Austin.

NRA people, CHL holders, and generally, all "red state" and RKBA people (such as many - perhaps most? - Texans) live their lives in one bubble universe. Others, of ..er.. a different political persuasion, live in their own bubble universe. These two mostly parallel - but always separate - world views never meet except when they collide.

My twin objectives in presenting this scenario were: a) To learn what other "reasonable" people would do; and, b) To learn from their opinions. Nevertheless, we should all remember that each of us is "preaching to the choir" and that approximately half of the population in the USA has no interest whatsoever in listening to the sermon.

V

[hi-power]

I just wanted to make sure you saw the other part of srothstein's quote:

I have to admit that I would try the recommended shouting first, but if they did not stop, the one on the left goes first.

That was the reason for my original question. It's not the posturing, or even the drawing of the weapon I was questioning. It was the "one on the left goes first," that implies shooting someone who did not heed your command to stay away. That is why I asked when did a crime listed in the statute become imminent? I just don't think failure to obey someone's command to stop is just cause for being shot, sans other evidence of a crime in progress IMHO. I'm not a lawyer or a LEO.

Yeah, it is a sticky situation and one I would not like to be in. Too many ifs to consider in a very short time. I don't know the answer either, but as the VeeTee says it does a lot of good just talking about it.

And speaking of VeeTee, welcome to the forum! I think you'll have a lot of good insight into posts like these based on your work being a court interpreter. You have the real world court experience that I would like to hear about on a number of topics in this forum.

(edited to fix spelling)

[Scott in Houston]

A jury isn't "total" luck of the draw.
Good attorneys will tell you that the jury selection process will make or break every case, and is arguably the single most important part of a trial.

[Superman]

Y'all will please remember that I am not the "OP" of the thread. I'm simply the guy who hijacked the OP's thread and brought it here because I thought it's delicious complexity would make it a very good learning tool.

It was not my intention for my comment to be directed at you, so sorry if it was taken that way.

The original post didn't say he raised his hand towards them at all, just that he turned with a "stance and steely resolve". Raising a hand in that manner would cover the kind of communication I'm talking about. Reflecting on what I would have done, personally, I would have actually said something to make it clearer. I don't think it sounds like the original OP did anything wrong. Actually, everyone walked away alive and unharmed, so the outcome was great.

[VeeTee]

Quote:
"It was not my intention for my comment to be directed at you, so sorry if it was taken that way."

Superman,

No worries. I took no offense. I brought that point up for a couple of reasons: First, to remind everybody that I was not the hero of the story. Second, because I realized that I had omitted an important detail from my original background summary, and that you needed to know it.

However, I laud and appreciate you for being CONCERNED ABOUT IT. It is truly unfortunate that so many people care not one whit. Yea, verily. Many seem to make it their central objective to do so.

Best to all.

V