DEADLY FORCE IN DEFENSE OF PERSON

[FightinAggieCHL]

I think it depends on the attacker versus you. If you're an older guy, and the attacker is younger, stronger, and has a reasonable chance of doing serious bodily harm, you might be justified in producing your weapon. However, if the attacker attacks initially, but then backs off, and you produce a weapon, you may be called for escalation of violence. I think if that you reasonably try to retreat, and the attacker seems to be escalating (ie hitting harder and faster while you try to get away), you might be able to claim self defense by stating that you were attempting to make a retreat and de-escalate, but the attacker was intent on beating you into the ground.

What is the definition of serious bodily harm when assaulted with fists? if the attacker breaks your nose or something that's not necessarily serious bodily harm, but if he knocks you down, then stomps your face, it is. Where is the line drawn saying that he had an intention?

*edit* I was typing when the previous post was written, so I don't mean to reiterate any points that were made, or have any arguments with something that I haven't read yet. Also, I think that my post was more concerning when YOU were being attacked, rather than another person. I'm not sure if that changes it much, as you can protect the life of another as if it were your own life, if I'm not mistaken.

[seamusTX]

What is the definition of serious bodily harm when assaulted with fists?

Unfortunately, it's decided after the fact by a judge or jury.

Personally, I would say that any injury that requires medical treatment or causes permanent damage is a serious injury.

The one case that I know very well is that of Gordon Hale, the first Texas CHL holder who killed an attacker. He was punched in the face while seated in a vehicle. The [deleted] DA pressed a murder charge. Mr. Hale had suffered skull fractures that damaged his vision. The grand jury no-billed him.

- Jim

[LedJedi]

I think it depends on the attacker versus you. If you're an older guy, and the attacker is younger, stronger, and has a reasonable chance of doing serious bodily harm, you might be justified in producing your weapon. However, if the attacker attacks initially, but then backs off, and you produce a weapon, you may be called for escalation of violence. I think if that you reasonably try to retreat, and the attacker seems to be escalating (ie hitting harder and faster while you try to get away), you might be able to claim self defense by stating that you were attempting to make a retreat and de-escalate, but the attacker was intent on beating you into the ground.

What is the definition of serious bodily harm when assaulted with fists? if the attacker breaks your nose or something that's not necessarily serious bodily harm, but if he knocks you down, then stomps your face, it is. Where is the line drawn saying that he had an intention?

*edit* I was typing when the previous post was written, so I don't mean to reiterate any points that were made, or have any arguments with something that I haven't read yet. Also, I think that my post was more concerning when YOU were being attacked, rather than another person. I'm not sure if that changes it much, as you can protect the life of another as if it were your own life, if I'm not mistaken.

Well done and nicely stated. I generally agree with the above (not that that means anything).

The only way I can reconcile the potential abuse of TPC §9.04 with its useful application is much like txinvestigator did, i.e. by incorporating the requirements of TPC §9.31 (force). That is, §9.31 will allow the use force “to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force. In the restaurant scenario, a person could not reasonably believe it was necessary to pull a gun to keep a woman from slapping you. Conversely, in the theater parking lot scenario, a person could reasonably believe it was necessary to reveal or even present a pistol to thwart an apparent stalking or impending assault. Beware! This is merely my evaluation and attempt to reconcile differing views on the scope of TPC §9.04. Don’t try to rely upon it!

I've never heard that before, but that honestly makes a whole lot of sense to me. i agree, that's the only POV that really brings everything into focus. Thank you VERY much for sharing that. The point about the slap in the restaurant is something I had never considered. Very thought provoking.


Threatening DV vs Breaking Concealment:

I would like to point out that there are two divergences in the discussion going on as well that should be noted.

1) Is a verbal threat of DF justified when DF itself is not? For me, I think Mr. Cotton just cleared that up for me personally.

2) Is it considered a break of concealment to produce your weapon for the express content of threatening?

Personally I think producing a weapon before you are justified in using it is an all-around bad idea. I see the logic that the thread of producing the weapon could serve to deter further escalation of the situation, but this does not sound like the best option in most scenarios I could reasonably foresee.

Certainly just because you pull a weapon doesn't mean you have to use it, but the idea of producing a weapon without the intent to immediately use it personally makes me nervous. These days i'm much more of the mindset to not pull it until I intend to use it most ricky-tick. To do otherwise puts you in some shaky ground.

I'm not sure about the rest of you guys and gals, but I have certainly learned a lot from the discussion on this topic. thank you very much for participating :)

[FightinAggieCHL]

What is the definition of serious bodily harm when assaulted with fists?

Unfortunately, it's decided after the fact by a judge or jury.

Personally, I would say that any injury that requires medical treatment or causes permanent damage is a serious injury.

The one case that I know very well is that of Gordon Hale, the first Texas CHL holder who killed an attacker. He was punched in the face while seated in a vehicle. The [deleted] DA pressed a murder charge. Mr. Hale had suffered skull fractures that damaged his vision. The grand jury no-billed him.

- Jim

I think that a lot of these cases have a similar theme: You have to be lucky with whatever jury has been assigned to your case. I guess that makes sense, but I wish some of these phrases, like serious bodily injury, had a more formal definition. I mean, with the medical treatment definition, you could go see a doctor for stitches for a cut. Yea, it may be bleeding, and it may be a relatively deep cut, but there is no threat to your life there.

On that note, I don't think that serious bodily injury has to have already occurred in order to justify using DF. As long as the imminent and immediate danger of serious bodily injury is present (ie, a guy attacking you relentlessly while you try to get away), you are justified in using DF. If you reasonably believe that the only time an attacker will stop his attack is either when he's proven his point and beaten you (or someone else), or when you stop him, I think that could be considered an imminent and immediate threat of serious bodily injury.

*edit* See above edit.

[txinvestigator]

What is the definition of serious bodily harm when assaulted with fists? if the attacker breaks your nose or something that's not necessarily serious bodily harm,

But is certainly serious bodily injury, which IS deadly force.

[Charles L. Cotton]

What is the definition of serious bodily harm when assaulted with fists? if the attacker breaks your nose or something that's not necessarily serious bodily harm,

But is certainly serious bodily injury, which IS deadly force.

This is a very important point that we all must appreciate!! I'm not saying that if someone threatens to break your jaw, and takes some action to carry out the threat, that you should empty a magazine into them. I'm far more concerned with people threatening to break someone's leg, jaw, etc. not realizing that they just threatened the use of deadly force. As always, we need to watch what we say.

Chas.

"Serious bodily injury" means bodily injury that creates a substantial risk of death or that causes death, serious
permanent disfigurement, or protracted loss or impairment of the function of any bodily member or organ.

Case law holds that broken bones are "serious bodily injury."

[FightinAggieCHL]

Ok, so that IS serious bodily injury. And since DF is defined as force which can cause serious bodily injury, or death, they are using deadly force. That was my question.

So, in essence, if you believe that someone has the capacity of seriously injuring someone, and has the intent to pummel them in a manner which would send them to the hospital, AND they are showcasing that intent in an immediate fashion by escalating a situation while the victim is trying to retreat, you may be able to use the Protection of Another Person clause as a defense for using deadly force?

I guess it's all dependent on when an attacker crosses the line from just a scuffle into intent on actually causing harm to somebody. I wonder how that would be proven to a jury...

[KD5NRH]

Case law holds that broken bones are "serious bodily injury."

Does said case law specify which bones? I'd be hard pressed to say that a pinky fracture or a single cracked rib is always "serious."

I'd still like to find an authoritative list of injuries that have been held by the courts to constitute "serious bodily injury."

[flb_78]

My personal opinion is that if someone cracks me in the jaw with a closed fist, they will end up staring down the barrel on my gun. If they then decide to try and injure me further, I will stop them. If they decide that staring down the barrel of gun is enough of a deterrent to cease their actions, I will then call the authorities and press charges.

If I walk up and see someone being attacked, I would most likely do what I could to stop it and detain the attacker and it would most likely involve pulling my gun to deter any further attacks. I would hope that at the sight of my gun, the attacker would come to their senses and stop.

[FightinAggieCHL]

If I walk up and see someone being attacked, I would most likely do what I could to stop it and detain the attacker and it would most likely involve pulling my gun to deter any further attacks. I would hope that at the sight of my gun, the attacker would come to their senses and stop.

Right, and that's where it can cause a problem. If the attacker shows no imminent and immediate threat in inflicting serious bodily injury, or death upon the attackee, then you may not be justified in threatening deadly force. You would have to reasonably believe that the attacker is going to do some damage.

I can see your point though. Any reasonable person would stop punching somebody if they had a gun drawn and aimed at them. If they didn't stop for whatever reason, I would imagine that you could say they were "frenzied" or something at that particular instance. That would probably swing most of the juries to your favor if after being warned of the use of DF, the attacker ignored the threat (essentially, risking his life) and continued to harm the other person. You could probably make a pretty clear case that that attacker was going to do whatever it took to inflict some serious injury on that other person.

[pt145ss]

I think reconciling TPC 9.04 with TPC 9.31 is a great way to look at this. My question is, can one reconcile TPC 9.04 with other justifiable force, for example TPC 9.41 (protection of one’s own property)? TPC 9.41 justifies force (not necessarily DF) to stop someone’s trespass on your property. Because force is justified and TPC 9.04 says that a threat of DF is not the same as DF, can one produce a weapon to encourage the trespasser to leave the property? In a situation like that, TPC 46.035 (failure to conceal) does not come into play as you are on your own property.

Here are a few scenarios that I can think of:

I own 30 acres out in the middle of no where. While cursing my property I stumble upon hunters that I do not want there. I ask them to leave but they refuse. Can one use the threat of force to encourage them to leave?

I own property and a medical testing facility that test new medications on animals. PETA decides they are going to protest outside my property possibly chaining their selves together and not allowing anyone to enter the property. At that point, I assume it would be considered interference with the property and force is justified. Could one use the threat of deadly force to gain entrance to the property? This one I guess TPC 46.035 could apply as you are not on your property yet.

I own a house in a residential neighborhood. I see someone on the side of the house peering into the windows. The guy has not yet attempted to break in so not yet a burglary or theft or anything. I guess this would be simple trespass. Could one use the threat of DF (displaying the gun at the ready) while questioning his motives for being there?

[casingpoint]

"I own 30 acres out in the middle of no where. "While cursing my property I stumble upon hunters that I do not want there. I ask them to leave but they refuse. Can one use the threat of force to encourage them to leave?"

Consider your response to trespassers in light of the following:

I once had a business acquaintance who owned a secluded ranch near Palestine, TX. adjacent to a railroad track. Three escaped convicts from MS jumped off a train and were apparently waiting inside the house when my acquaintance arrived. Make a long story short, they bludgeoned him to death inside a barn hanging from a rafter with one of his own guns.

Messing with non-compliant trespassers is risky business. You must assume complete control of the situation and be prepared to shoot or otherwise disenfranchise them. They are the party breaking the law. When the cops arrive and there are dead trespassers lying about with guns, I'd say you are considerably ahead of the game than my former acquaintance.

When I was a kid growing up in Central Texas, it was understood a landowner could shoot to kill trespassers. Where did y'all get it wrong?

[seamusTX]

I own 30 acres out in the middle of no where. While cursing my property I stumble upon hunters that I do not want there. I ask them to leave but they refuse. Can one use the threat of force to encourage them to leave?

Yes. However, confronting hostile, armed people while you're alone may not be the best tactic. This is why we have police.

I own property and a medical testing facility that test new medications on animals. PETA decides they are going to protest outside my property possibly chaining their selves together and not allowing anyone to enter the property. At that point, I assume it would be considered interference with the property and force is justified.

I think not. They are probably committing disorderly conduct and the police could arrest them for it, but you cannot.

Interference with the enjoyment of property is a civil issue, and you cannot resolve it by force. You could probably get a restraining order, and they could be arrested and held in contempt later for violating the restraining order.

I own a house in a residential neighborhood. I see someone on the side of the house peering into the windows. The guy has not yet attempted to break in so not yet a burglary or theft or anything. I guess this would be simple trespass. Could one use the threat of DF (displaying the gun at the ready) while questioning his motives for being there?

Yes. You are on your own property and could pick your teeth with a Bowie knife while telling the guy to leave, if you wanted.

- Jim

[pt145ss]

Interference with the enjoyment of property is a civil issue, and you cannot resolve it by force. You could probably get a restraining order, and they could be arrested and held in contempt later for violating the restraining order.

Why is it a civil matter? I unserstand that calling the authroties is the best way to handle it, but barring that, would one be on solid legal ground if one displayed a weapon as force seems justified (maybe not reasonable...i think that is what would get me).

§ 9.41. PROTECTION OF ONE'S OWN PROPERTY. (a) A person in
lawful possession of land or tangible, movable property is
justified in using force against another when and to the degree the
actor reasonably believes the force is immediately necessary to
prevent or terminate the other's trespass on the land or unlawful
interference with the property.
(b) A person unlawfully dispossessed of land or tangible,
movable property by another is justified in using force against the
other when and to the degree the actor reasonably believes the force
is immediately necessary to reenter the land or recover the
property if the actor uses the force immediately or in fresh pursuit
after the dispossession and: