Penal Code-Deadly Force on 06/07 Property

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locke_n_load
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Penal Code-Deadly Force on 06/07 Property

Postby locke_n_load » Sat Mar 18, 2017 1:30 pm

Okay, question for the law gurus.
You are carrying your handgun under the authority of your LTC, and you enter a property that is properly posted with 30.06/30.07. I don't think TPC makes a distinction between accidentally (didn't notice sign) or purposely (saw it and proceeded anyway). This would normally be a class C misdemeanor in most locations.

While on that property, your life becomes in danger and you shoot in defense of your person. You met all requirements of 9.31 and 9.32, except you were carrying past valid 06/07 notice, which is trespassing, a criminal activity that isn't a class C misdemeanor for traffic. Do you lose your presumption of reasonableness since you were engages in "criminal" activity? And therefore used unlawful deadly force?

Sec. 9.31. SELF-DEFENSE. (a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(b) The use of force against another is not justified:
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02;
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Re: Penal Code-Deadly Force on 06/07 Property

Postby Ruark » Sat Mar 18, 2017 2:06 pm

This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.
-Ruark


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Re: Penal Code-Deadly Force on 06/07 Property

Postby locke_n_load » Sat Mar 18, 2017 2:43 pm

Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.



You sure about #1?
Sec. 30.06. TRESPASS BY LICENSE HOLDER WITH A CONCEALED HANDGUN


2. I know. It is just a theoretical. I'm not advocating walking past proper signage.
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Re: Penal Code-Deadly Force on 06/07 Property

Postby ScottDLS » Sat Mar 18, 2017 2:46 pm

Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.


1. Technically it's TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN by the title of the statute.

2. This is a blanket statement that may or may not be true. Is carrying past a 30.06 sign illegal? Yes it is. Is it "carrying your firearm illegally" ? That would depend on your pre-paid legal service. But I'd argue that 46.035 sets out all the Unlawful Carry by LTC offenses. If you carried past 30.06are you "carrying illegally" and will you be defended by your pre-paid legal? I don't know, ask them. You will lose your presumption of reasonableness under 9.31/9.32 if you're carrying past a 30.06, or watering your lawn on the wrong day, when you defend yourself, and the prosecutor thinks to bring it up. :rules:

ETA: Corrected my statement about speeding since it's specifically mentioned 9.31/32
Last edited by ScottDLS on Sat Mar 18, 2017 3:00 pm, edited 3 times in total.
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Re: Penal Code-Deadly Force on 06/07 Property

Postby locke_n_load » Sat Mar 18, 2017 2:55 pm

This may be one of the ones that would need case law, but I was just wondering if anyone had anything more concrete.
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Re: Penal Code-Deadly Force on 06/07 Property

Postby dlh » Sat Mar 18, 2017 3:04 pm

Some other possibilities to look at would be Section 8.05 of the Texas Penal Code--DURESS, and

Section 9.22 of the Texas Penal Code--NECESSITY although the necessity defense might not apply due to Subsection 3 of that Section.

And then, there is always jury nullification :) That works best when the deceased bad guy you shot had a long criminal history and was covered in gang tats.


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Re: Penal Code-Deadly Force on 06/07 Property

Postby locke_n_load » Sat Mar 18, 2017 4:43 pm

dlh wrote:Some other possibilities to look at would be Section 8.05 of the Texas Penal Code--DURESS, and

Section 9.22 of the Texas Penal Code--NECESSITY although the necessity defense might not apply due to Subsection 3 of that Section.

And then, there is always jury nullification :) That works best when the deceased bad guy you shot had a long criminal history and was covered in gang tats.


Usually a pretty good chance in Texas!
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Re: Penal Code-Deadly Force on 06/07 Property

Postby Ruark » Sat Mar 18, 2017 9:39 pm

ScottDLS wrote:
Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.


1. Technically it's TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN by the title of the statute.

2. This is a blanket statement that may or may not be true. Is carrying past a 30.06 sign illegal? Yes it is. Is it "carrying your firearm illegally" ? That would depend on your pre-paid legal service. But I'd argue that 46.035 sets out all the Unlawful Carry by LTC offenses. If you carried past 30.06are you "carrying illegally" and will you be defended by your pre-paid legal? I don't know, ask them. You will lose your presumption of reasonableness under 9.31/9.32 if you're carrying past a 30.06, or watering your lawn on the wrong day, when you defend yourself, and the prosecutor thinks to bring it up.


1. It may technically be "trespassing," but if you are caught carrying past an 06 sign, you aren't charged with trespassing, you're charged with something else. If I'm wrong about that, please enlighten me.

2. You're digging in the woodwork here. They will defend you only if you're carrying in a place where you can do so lawfully. They have no choice. If they would defend you if you carried past an 06 and shot somebody, people would just start ignoring 06's. This is based on a long discussion I had with the CEO of a major service.
-Ruark

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Re: Penal Code-Deadly Force on 06/07 Property

Postby ScottDLS » Sun Mar 19, 2017 1:22 am

Ruark wrote:
ScottDLS wrote:
Ruark wrote:This doesn't answer the question, but a couple of points:

1. Carrying past an 06 sign isn't "trespassing." It's "carrying past an 06 sign."

2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.


1. Technically it's TRESPASS BY HOLDER OF LICENSE TO CARRY CONCEALED HANDGUN by the title of the statute.

2. This is a blanket statement that may or may not be true. Is carrying past a 30.06 sign illegal? Yes it is. Is it "carrying your firearm illegally" ? That would depend on your pre-paid legal service. But I'd argue that 46.035 sets out all the Unlawful Carry by LTC offenses. If you carried past 30.06are you "carrying illegally" and will you be defended by your pre-paid legal? I don't know, ask them. You will lose your presumption of reasonableness under 9.31/9.32 if you're carrying past a 30.06, or watering your lawn on the wrong day, when you defend yourself, and the prosecutor thinks to bring it up.


1. It may technically be "trespassing," but if you are caught carrying past an 06 sign, you aren't charged with trespassing, you're charged with something else. If I'm wrong about that, please enlighten me.

2. You're digging in the woodwork here. They will defend you only if you're carrying in a place where you can do so lawfully. They have no choice. If they would defend you if you carried past an 06 and shot somebody, people would just start ignoring 06's. This is based on a long discussion I had with the CEO of a major service.


1. You will be charged with violating TXPC 30.06, that's the statute you're violating. The title of the statute is TRESPASS BY A LTC. That's what it's called...TRESPASS, It's exactly one section higher than 30.05, The title of PC Chapter 30 is BURGLARY and CRIMINAL TRESPASS. So what else are you charged with for violating TXPC 30.06? Burglary?
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Re: Penal Code-Deadly Force on 06/07 Property

Postby NNT » Sun Mar 19, 2017 7:58 am

Ruark wrote:
ScottDLS wrote:
Ruark wrote:
2. You're digging in the woodwork here. They will defend you only if you're carrying in a place where you can do so lawfully. They have no choice. If they would defend you if you carried past an 06 and shot somebody, people would just start ignoring 06's. This is based on a long discussion I had with the CEO of a major service.


Interesting point. Though defending you, and winning that defense, are two separate things. Isn't it your attorney's job to vigorously defend you? Not to pre-judge you? It feels to me like they are looking for reasons to not spend money on defending you, like any good insurance company. They are not in the business of actually helping people, they are in the business of collecting premiums. Any plausible way out of paying, they jump at.

It would only take one or two cases to get a precedent set, then it would either be OK to ignore signs, or not...


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Re: Penal Code-Deadly Force on 06/07 Property

Postby Riley » Sun Mar 19, 2017 5:51 pm

You would lose the automatic presumption but you can assert the defense in TPC 9.32(a) as justification.

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Re: Penal Code-Deadly Force on 06/07 Property

Postby LucasMcCain » Mon Mar 20, 2017 12:40 pm

Ruark wrote:2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.


I asked the President of the service I use this specific question. He said he cannot advocate carrying past a legally binding sign, but that I would most definitely be covered if I had to use my gun in that situation, as long as I was otherwise justified in doing so. He said they will absolutely not refuse to defend someone over a technicality, and they will always side with the member if there's a question about the legality of their actions. I have received this information both in person and in writing.

I'm sure there are some services for which your statement is true, so it would behoove anyone who has this type of coverage to ask about this scenario. I'm being purposefully vague because I'm not allowed to discuss specific services of this type on this forum, if I remember correctly. (Mods if I'm doing anything wrong by even saying this much, please just let me know.)

ETA: Just in case it's not clear, I am not advocating ignoring signs. The main reason I asked was because I have missed poorly posted (arguably non-compliant) signs a couple times.
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Re: Penal Code-Deadly Force on 06/07 Property

Postby locke_n_load » Mon Mar 20, 2017 1:59 pm

Riley wrote:You would lose the automatic presumption but you can assert the defense in TPC 9.32(a) as justification.


So to be justified in using force,

Sec. 9.31. SELFDEFENSE.
(a) Except as provided in Subsection
(b), a person is justified in using force against another when and to
the degree the actor reasonably believes the force is immediately
necessary to protect the actor against the other's use or attempted
use of unlawful force.
The actor's belief that the force was
immediately necessary as described by this subsection is presumed to
be reasonable if the actor:


So your actions can still be found to be reasonable if they don't fall under the next subsections, you just don't have the automatic presumptions that it was reasonable. You can use force against any form of unlawful force, not just the ones listed under that. You just lose the automatic presumption of reasonableness, but it can still be found to be reasonable.

Then,
Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is
justified in using deadly force against another:
(1) if the actor would be justified in using force against
the other under Section 9.31; and
(2) when and to the degree the actor reasonably believes
the deadly force is immediately necessary:
(A) to protect the actor 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 actor's belief under Subsection (a)(2) that the deadly
force was immediately necessary as described by that subdivision is
presumed to be reasonable if the actor:


Deadly force is a little different I see, that you can only use it
(A) to protect the actor 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.
The use of deadly force is not allowed for any other situations. However, if they meet one of those items, you can still be found to be reasonable even if you don't meet the later parts of the code, you just lose the automatic presumption.
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Re: Penal Code-Deadly Force on 06/07 Property

Postby Ruark » Mon Mar 20, 2017 8:35 pm

LucasMcCain wrote:
Ruark wrote:2. No prepaid legal service on the planet will assist you if you use your firearm while carrying illegally. You would be totally on your own.


I asked the President of the service I use this specific question. He said he cannot advocate carrying past a legally binding sign, but that I would most definitely be covered if I had to use my gun in that situation, as long as I was otherwise justified in doing so. He said they will absolutely not refuse to defend someone over a technicality, and they will always side with the member if there's a question about the legality of their actions. I have received this information both in person and in writing.


In that case, my comment "no prepaid service on the planet" was not correct. Thanks.

I'm curious: have you read the terms and conditions of your service membership? I've never seen one that didn't say, in so many words, that they covered you any time you were carrying in a place where you could do so legally. If that's the case with your service, the person you spoke with contradicted the terms of the agreement.
-Ruark


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Re: Penal Code-Deadly Force on 06/07 Property

Postby RossA » Tue Mar 21, 2017 9:42 am

Be careful listening to insurance people who tell you in advance "don't worry, we'll cover you." They obviously want you to keep paying premiums.
The real test comes when you are arrested and file a claim for coverage.
Ask the guy who told you that if he will put it in writing. I'm betting not.
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