Brandishing a firearm.. on an unarmed man?

[Moby]

My question is for Chas or other lawyers on the forums.
I of course never want to have to draw my sidearm on anyone EVER!
I hope I go my whole life carrying it on my hip as a useless paper weight only used at the range or maybe IDPA.

But if I am ever physically attacked by someone without a weapon, can a CHL holder draw? Or expose a firearm without drawing?
Of course avoiding pointing it at him thus avoiding an agravated assault charge.

My concern is I have a prosthetic hip and dupuytren’s disease in my hands.
Physically fighting back is very limited being semi disabled.

http://en.wikipedia.org/wiki/Dupuytren's_contracture" onclick="window.open(this.href);return false;
If I was hit kicked or otherwise attacked by someone without a weapon,
can I draw to stop the attack without pointing my firearm at the perpatrator as a warning?
The Sears "Black Friday" guy got away with it but what does the law say.

I see the Zimmerman / Martin case and seeing the long drawn out case there
I am thinking the judge knows Zimmerman will walk and is allowing time to pass
to avoid rioting. He certainly is not getting a speedy trial. He was attacked by a man without
a weapon but clearly was a life threatening situation. Does one have to wait until their head is bashed into the cement?

[carlson1]

I will be watching this as I am interested in the right answer.

My thought is if you cannot legally "shoot" then you cannot legally "draw."

[JP171]

first I am NOT a lawyer, the way the law is written is that production of a weapon is NOT deadly force, but is force. If you would be justified in using force you would be justified pulling your weapon out and allowing the perp to see it even to the point of pointing it at them as an escalation of force. some people believe that you should not, you have to make the decision as to what you would do. I have done it, have not been in jail for it, but then I have done much worse than mere production of a weapon and still sittin at home with no trouble


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.

[CainA]

"Fear for your life"...of course you're going to have to substantiate it some how, some way and of course with $$(probably).

I know I just added zero value to your thread.

[JP171]

"Fear for your life"...of course you're going to have to substantiate it some how, some way and of course with $$(probably).

I know I just added zero value to your thread.

accoirding to 9:04 you do NOT need to fear for your life to produce a weapon nor tell them if you don't leave I will shoot you. if force is justified you can make a threat to shoot them in the face with a bazooka and its not illegal

[CainA]

Well if it happened to me, I would probably show my weapon(in holster, hand on it-ready to draw) and tell the potential perp that it's probably a good idea to move on(but probably more colorful language).

[JP171]

Cain, if that served to make the perp go away, it works. thats why the law is written the way it is now. used to be that it was deadly force to produce a weapon. Some LEO's will tell you its deadly conduct because they either don't know the law or have an opinion and use that to enforce the law

[Moby]

Well if it happened to me, I would probably show my weapon(in holster, hand on it-ready to draw) and tell the potential perp that it's probably a good idea to move on(but probably more colorful language).

I am hoping that would stop most from escalating the situation.
Of course I'd try to avoid any situation before we got to that point.
But the whole Road Rage thing comes to mind. Sometimes folks
do not need to be in a car to have that rage.
I would problaby do as you mentioned. Just wondering if i'd lose my CHL because of it.

[Waco Kid]

And don't forget the flip side of this occurrence... The guy you're facing turns away, calls the cops, "he pulled a gun on me", and the cops roll to a man-with-a-gun call...

[JP171]

And don't forget the flip side of this occurrence... The guy you're facing turns away, calls the cops, "he pulled a gun on me", and the cops roll to a man-with-a-gun call...

well you can always call the police first, run in the bathroom slam the door and start crying first, it always works with my wife

[KC5AV]

IANAL.
It's called disparity of force. In your condition (OP), you would be at a considerable disadvantage against even one relatively healthy assailant, so you would (likely) get wider latitude with a jury (or grand jury), if it got to that point. It is the same idea behind a 100 pound woman drawing her gun on a 250 pound attacker. He could easily cause her serious bodily injury or death with just his bare hands, and she is very much at a disadvantage without the benefit of a firearm.

In any situation where a gun is drawn, you ALWAYS want to be the first one to call the police, because the first one to call is generally considered to be the victim.

[A-R]

PC 9.04 provides some cover/justification, but remember if carrying under authority of a CHL ...

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.

Being justified to use force under 9.04 may not be enough to get around 46.035.

PC 9.22 Necessity could also provide some justification.

It's a judgment call. With your physical limitations, you're already articulating some amount of reasonableness depending on circumstances.

Of course, IANAL.

[carlson1]

In any situation where a gun is drawn, you ALWAYS want to be the first one to call the police, because the first one to call is generally considered to be the victim.

This Right Here!

Do not ever think, "well that worked we can leave now."

[03Lightningrocks]

I am going to warn you folks that a perp can be on you much quicker than you are thinking. If you show your weapon with your hand on it, while it remains in the holster, I bet you your life I can be on you quicker than you can decide to draw, extend and fire that weapon. Try it and you will see what I mean. Tell the person you are experimenting with to randomly withdraw and randomly attack. That way you won't know which way it is going to go, like real life.

[JP171]

In any situation where a gun is drawn, you ALWAYS want to be the first one to call the police, because the first one to call is generally considered to be the victim.

This Right Here!

Do not ever think, "well that worked we can leave now."

I have to disagree with this, sorry Carl. I recently had a problem where my neighbor came running to my house after her MIL showed up, we immedialy called the Galveston Sheriffs dept got a deputy on the way, my BIL and myself carry at home as well as anywhere we aren't prohibited. the LEO's talked to her first and she told them we had weapons and she was afraid, both weapons were in holster and were in plain view, one of the deputies that showed told us that we had committed deadly conduct just by having the holstered weapon on us, she got a free pass to trespass and again harass our neighbor. the officer didn't arrest anyone due to the 3 of us having almost identical statements, but they took her as the victim and us as the aggressors up until the 3 of us had made the nearly identical statements after almost an hour of saying the same thing he finally relented but refused to arrest her for criminal trespass after she stole several things out of my neighbors yard. so its not always who calls first it is infact many times who gets to the LEO first and tells is story first