txinvestigator wrote:
Our bad guy did not use force. He entered an an unlocked door. CJATE's justification was 9.04
I have to admit that I sometimes push the unlock buttin twice. I need to stop doing that.
Hey Tx, not disagreeing with you here, but can you draw me a line as to where the threat was made in the scenario to invoke 9.04? If you cited it i'm sure it's there, i'm just not seeing it.
It appeared from his description that the intruder saw the gun?
I apologize again if i'm being dense here, but if he saw the gun or recognized through his gestures that he had a gun would the threat in that scenario not be from CJATE, not the intruder?
feel free to smack me about with a large trout here. i just wanna understand.
If you carry IWB with a shirt tucker, what do you think about carry IWB without the shirt tucker?
This underscores the importance of proximity of threat and working scenarios in and around vehicles.
“It is the belief that violence is an aberration that is dangerous because it lulls us into forgetting how easily violence may erupt in quiescent places.” S. Pinker
I think what TXI was saying is not that there was a threat from the trespasser, but that the showing of the pistol or draw is not deadly force. 9.04 says that you can threaten deadly force if reagular force is authorized.
And under 9.41, the use of force was justified to stop the trespass since the lesser choice of telling the person to get out did not work.
But it does show that we have a flaw in our law from the use of the term "with force". Force is not defined in the Penal Code that I know of. I believe that the courts would not define it as just the physical application of force (using the physics definition) since that would make the term meaningless (every action took some force to accomplish it). In this usage, I think the courts would say the common understanding is a force that is destructive or violent in nature. Just opening an unlocked door would not be considered force (again, I think).
But, hitting the side of the truck might be considered enough force if you were smart enough and calm enough to think of it. A good lawyer would remind you about it later as a defense and maybe confuse a jury enough to get you off. I woul dnot want to rest my case on that point though.
And CJATE, you did what I think was the right thing. You made sure you were safe and avoided the possibility of a much worse situation. That is much more imorant than the fine points of the law when it is happening. This is why juries should always go by what the person's mental state was at the time. Sitting here calmly discussing what happened to someone else, it is easy to say what he should or should not have done. It is a lot harder in the fractions of a second available at the scene.
And the lesson for everyone is obvious. Practice drawing (and shooting) from all positions you might get into.
After re-reading the original post, a guy that I don't know, in a "shady area", tries to get in my truck, uninvited, after dark, and wants a ride to someplace thats "just two blocks"?
My hinky-meter is pegged.
IMHO, the original poster handled the situation correctly.
Disclaimer: not only am I not a lawyer, I am not a LEO.
edit: srothstein said it better than I could, while I was still typing my reply.
srothstein wrote:I think what TXI was saying is not that there was a threat from the trespasser, but that the showing of the pistol or draw is not deadly force. 9.04 says that you can threaten deadly force if reagular force is authorized.
And under 9.41, the use of force was justified to stop the trespass since the lesser choice of telling the person to get out did not work.
got ya... crystal clear now. That's kinda what i was thinking too, just wanted to hear someone else say it first.
LarryH wrote:
IMHO, the original poster handled the situation correctly.
srothstein wrote:I think what TXI was saying is not that there was a threat from the trespasser, but that the showing of the pistol or draw is not deadly force. 9.04 says that you can threaten deadly force if reagular force is authorized.
And under 9.41, the use of force was justified to stop the trespass since the lesser choice of telling the person to get out did not work.
got ya... crystal clear now. That's kinda what i was thinking too, just wanted to hear someone else say it first.
LarryH wrote:
IMHO, the original poster handled the situation correctly.
Yeah sorry. I was running late getting out of the office and I just typed a quick response.
*CHL Instructor*
"Speed is Fine, but accuracy is final"- Bill Jordan
Remember those who died, remember those who killed them.
In 4’clock, but to rear because, standing it’s better, setting in truck its hard. I also keep a 38 in my door pocket but it did not occur to me at the time.
My shirt is not tucked, but as I carry more at work, I fear I’ll be forced to start tucking.
No way he saw my gun, but it was obvious (at least to me) what I was after. I certainly was not reaching for my wallet.
I agree, I had no right to answer an opened door with deadly force, but it happened so fast, I did not know what he had in mind.
1. You're in a seedy part of town, late in the day, someone comes from the shadows and bangs on your truck. Not normal behavior. If you were that person (the other guy), in that area, would you behave that way? If you did, what would you expect the reaction of the driver to be? Would a normal person be expected to behave that way?
2. The man was banging on your truck ... a provocation? anger? rage? rudeness? Psychotic break? How can you know?
3. The man, a stranger to you, entered your vehicle, uninvited. You told the man, more than once, to leave. He did not. Thus, he escalated the situation ... you did not. He put himself in danger by refusing to leave your vehicle the first time you ordered him to do so. Normal, law-abiding citizens, do not enter a stranger's vehicle uninvited and refuse to leave, when ordered to do so.
4. As he came within arm's length of you, he posed a possible ... yet undefined ... danger to you, evidenced by his previous behavior. His request could have been a ruse to throw you off guard. Would a normal person with good intentions bang on your vehicle, enter uninvited, and then refuse your order to leave, and stay there and argue with you?
5. This person exhibited all the earmarks of a mental case or someone who was out to rob or harm you.
I believe that you did the right thing, under the circumstances. I doubt that you had a choice to do otherwise, and if you had done nothing, I believe that you may not have been here to make your post.
Thanks for sharing, you have educated all of us.
I'm not a lawyer or LEO, either, but common sense is common sense.
My brother and his wife (gf at the time) lived in a bad area of Beaumont for awhile, and they said that this happened on more than one occasion. A person would get into their vehicle with them and refuse to leave until being given a ride.
My brother was dumb enough to actually take them somewhere until he wised up to the culture and just kept his doors locked.
Personally, I wouldn't tolerate it. A man forcing his way into my vehicle and then demanding I take him somewhere is up to no good. I realize that many people here don't believe that the use of DF is necessary, but the intruder isn't leaving you with many options.
1) You could flee your own vehicle. I think this could put you at further harm, and it's definitely not an option if you have children with you.
2) Compliance with the intruder takes your eyes off him and on the road. Your back is to him; he's in control.
3) You could attempt to move him by other force, but you're opening yourself up to injury or death there too.
I could be wrong, but I'm thinking the Castle Doctrine would cover this one.
(BTW: I lock my doors as soon as they shut.)
Last edited by Venus Pax on Fri Jan 18, 2008 10:32 pm, edited 1 time in total.
"If a man breaks in your house, he ain't there for iced tea." Mom & Dad.
The NRA & TSRA are a bargain; they're much cheaper than the cold, dead hands experience.
In my mind, the actions of the guy border on attempted carjacking.
Something very similar happened to my wife a couple of years ago. She was stopped at a stop sign, and a woman approached her passenger side door. In attempting to make sure that her doors were locked, she actually unlocked them. The woman jumped in, and made my wife drive her to the next town over (Longview). According to her, she had someone she needed to kill. The woman was very twitchy (strung out on something), and kept acting like she was reaching for something in her pocket (a knife, maybe?).
Anyway, my wife drove her where she wanted to go, and kept her talking the whole time. She dropped the lady where she wanted to go, and made a bee-line for the nearest gas station pay phone (we each got cell phones shortly after this incident), and called the police, who were never able to locate the woman.
Charles L. Cotton wrote:During the debate on SB378, one of the Senators stated that he too didn't like the "with force" requirement and he too gave the example of a burglar opening an unlocked door and coming in. Quite by accident, one of the ADA's gave testimony that was helpful. He testified that, for purposes of unlawful entry, burglary, etc., pushing a door open constitutes the use of force. When he said this, I looked around the room and all of the criminal attorneys (prosecutors and defense lawyers) were nodding their heads in agreement. Even Sen. Henajosa, a criminal defense attorney, agreed. This went a long way toward easing my concern about the "with force" requirement.
Venus Pax wrote:My brother and his wife (gf at the time) lived in a bad area of Beaumont for awhile, and they said that this happened on more than one occasion. A person would get into their vehicle with them and refuse to leave until being given a ride.
Passing over the question of whether there's a good area of Beaumont, let's look at the definition of aggravated kidnapping:
PC § 20.04. AGGRAVATED KIDNAPPING. (a) A person commits an offense if he intentionally or knowingly abducts another person with the intent to:
(1) hold him for ransom or reward;
(2) use him as a shield or hostage;
(3) facilitate the commission of a felony or the flight after the attempt or commission of a felony;
(4) inflict bodily injury on him or violate or abuse him sexually;
(5) terrorize him or a third person; or
This is one of the justifications for the use of deadly force in Chapter 9. However, these grifters have enough street smarts to use the Nike defense when they know what they're facing.
- Jim Edited to correct typo.
Last edited by seamusTX on Sat Jan 19, 2008 9:23 am, edited 1 time in total.
I tried carrying IWB at 4 o'clock but it cuts into my back too much in my vehicles. I always carry at 2 o'clock now and I love it. I think in your situation it would be easier for me to draw on an intruder getting into the passenger seat.
Springfield XD(m) 9mm 3.8 | Springfield XD-45 Compact | Springfield XD-9 Service
Kimber Pro CDP II .45 ACP | Kimber Pro Aegis II 9mm w/Crimson Trace | Walther PPS 9mm
Bushmaster AR-15 w/Magpul pistol grip and foregrip, Bushnell holosight I carry a gun because I can't carry a cop.
