Threats as justifiable force...please explain

[kauboy]

Okay, I ran across this today and wanted a little clarification. As I understand it, the first part deals with the threat of non-deadly force only if the actual application of the force would be justified.
But, my confusion lies with the second part. The threat of deadly force part. Does it mean that you may present your weapon to de-escalate a situation, even if deadly force would not be justified? Or does "the threat of force is justified when the use of force is justified" cover both deadly and non-deadly force?

Penal Code, 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.

I interpret this to mean that simply because you present your weapon to de-escalate a situation, does not automatically make it okay to use deadly force.
But you can still present?
Is this right?
If so, is it wise?

I could be way off. It could mean that you may only present if deadly force is justified. But what does the "constitute the use" part mean. If you are to the point where deadly force is necessary, wouldn't that mean that you are justified in using it?
I'm so confused. Please educate me.

[txinvestigator]

I made a long post on this before.

Penal Code, Chapter 9
§ 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of
force is justified when the use of force is justified by this
chapter

That's clear right? If you would be justified in using force, then you are justified in simply in simply threatening to use force.

That sentence does not include deadly force. It is for force, which is not deadly force.

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

Lets take out the middle and study this; For purposes of this section, a threat to cause death or
serious bodily injury by the production of a weapon or otherwise, does not constitute the use of deadly force

Does that make more sense? Threatening to use deadly force does not equal deadly force. You are still threatening to use deadly force, which is not authorized if only force (not deadly force) is justified. That does NOT say that the threat of deadly force is justified when the use of force is justified. That is the mistake most make when reading that.

If you were to hear a noise at night, open your door and see someone stealing something from your car and you pointed your gun at them and told the to stop and get on the ground, your production of the gun was not deadly force.

The law adds that it is not deadly force only if the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary.

It cannot be used to threaten or scare someone, etc.

It does NOT say that if if you find yourself in a situation where you were justified in using force (not deadly force) that you could threaten deadly force by producing your weapon.

Lets say a person grabbed your collar and yelled at you. The person is assaulting you, and you would be justified in using force (not deadly force) to protect yourself. Section 9.04 does NOT authorize you to produce your handgun in that situation. That would be threatening deadly force when only force is justified.

Does that make sense?

[Charles L. Cotton]

Here's another very long thread on this issue. Don't stop reading in the middle; opnions changed.

Chas.

http://www.texasshooting.com/TexasCHL_F ... =mcdermott

[txinvestigator]

Here's another very long thread on this issue. Don't stop reading in the middle; opnions changed.

Chas.

http://www.texasshooting.com/TexasCHL_F ... =mcdermott

Here is an excellent post by Charles;

The Penal Code is often confusing, especially concerning the Justification provisions. Determining if/when you can act is a building-block process.

Starting with TPC § 9.04, we learn that we can use threats to use force, but only if we would have been justified in the actual use of force. Here is §9.04: THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter.

So we have to look to other TPC sections to see when we are justified in using force, which in our example is deadly force. The first stop is TPC §9.31 - Self-Defense. This section authorizes us to use force to protect ourselves against another’s use or attempted use of unlawful force. However, this authorization does not extend to the use of deadly force unless requirements of §§9.32, 9.33 or 9.34 are met, as expressly stated in §9.31(d) See below.

§ 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 he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

According to TPC §9.32 - Deadly Force In Defense of Person, in order to use deadly force, we must first meet the requirement of §9.31, then me must meet the requires §9.32. One of the key requirements is that we are acting to prevent someone from using unlawful deadly force against us. See below.

§ 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another: (1) if he would be justified in using force against the other under Section 9.31; (2) if a reasonable person in the actor's situation would not have retreated; and (3) when and to the degree he reasonably believes the deadly force is immediately necessary:

(A) to protect himself against the other's use or attempted use of unlawful deadly force; or . . .

So we cannot actually use deadly force in response to a threat or attempted use of unlawful force by another person, unless the force they threaten or attempt to use is deadly force. If we are not authorized to use deadly force, then we are not authorized to threaten the use of deadly force. This is expressly stated in TPC §9.04. See above.

I believe the provision in §9.04 stating that the threat of using deadly force is not an actual use of deadly force comes into play when the actor is not justified in making the threat. That is, if you pull a gun on someone but do not shoot them or attempt to shoot them, and are not justified in doing so, then you have committed a crime, but you have not used or attempted to use deadly force. Thus you could not be charged with a crime that has the use or attempted use of deadly force as an element of the crime. There may be other situations where this becomes relevant, but I don’t practice criminal law and I’m not sure of the scope of this provision.

There are other justifications for the use of deadly force set out on TPC §§9.33 and 9.34, but they are not relevent for this discussion.

This gives an idea what law students go through on criminal law exams! You have to start stacking the blocks and see if you have all you need for a charge or defense.

Regards,
Chas.

[DustinB]

As others have said, if you're not justified in using it, you can't pull it.

As far as a threat goes, correct me if I'm wrong on this.

Let's say a guy walks up to you and says, "I'm going to stomp your head into the concrete". Now this is a threat of deadly force, but no action. You are not justified in using deadly force.

Now let's say the same guy comes up and says the same thing, only this time he is holding a bat and coming towards you. This is a threat of deadly force which shows an imminent probability of deadly force used against you. You would be justified in using deadly force as well as pulling your weapon to de-escalate the situation.

[kauboy]

Chaz, did you ever get that call from the guys that were trying to come to a consensus? From your last post in that thread, it seemed that you agreed with the "broad view" of 9.04.

Do you still hold that 9.04 allows for threat of deadly force to create an apprehension that deadly force will be used if necessary?

I got to thinking about this a little more and wondered whether or not 9.04 only applies to citizens who do not have a CHL(even though thats not expressed anywhere). Since deadly force can come in many forms, a baseball bat could be used as a threat to create apprehension. But, as in Mr. McDermott's case, he was charged with failure to conceal, which only a CHLer can be charged with. If he had instead produced a bat from his softball gear, could it have ended differently?

Was it ever resolved about whether 9.04 trumps 46.035(h)? Again, this is questioning whether a CHL holder is held to a different standard than a non-carrier, since Chapter 9 is for everybody, and 46 only applies to a CHL.

Still so very confusing.

Side note: I can't begin to understand how I could have missed that thread. I probably saw the title, and the number of pages, and made my own assumptions. Bad thing to do, I know.