Prohibited Places

BrassMonkey · Post by **BrassMonkey** » Fri Jul 13, 2007 5:07 am

I just woke up so if I make no sense, forgive me. I was reading thru the statutes yesterday and thought I read something that made my ears perk up.

Is it true that it is against the law to carry in a prohibited place unless you wind up having to use your weapon for a legal purpose? I will try to find the exact text I was reading later :-)

Off to Egg McMuffin world :-)

BrassMonkey · Post by **BrassMonkey** » Fri Jul 13, 2007 5:27 am

Specifically,

(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.

HKUSP45C · Post by **HKUSP45C** » Fri Jul 13, 2007 6:23 am

As I understand it, yes. Many states, California (of all places) incuded, seem to allow a defense to UCW if you had to use it, justifiably, to defend your life. Or in a situation in which you could have legally done so.

The caveat is: It's a defense to prosecution. So, you're still going to be prosecuted, you'll just have a defense when you show up.

IANAL YMMV

ETA:Disclaimer

Post by **Charles L. Cotton** » Fri Jul 13, 2007 9:11 am

BrassMonkey wrote:Specifically,

(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.

This is from TPC Â§46.035 and is defense to a charge of intentional failure to conceal a handgun, in violation of TPC Â§46.035(a). It is not a defense to any other statute, including carrying in a prohibited place.

There is a broad defense in TPC Chp. 9 dealing with "necessity." In general terms, it provides a defense when you are forced by "necessity" to violate a provision in the penal code. Here is an example I use in my seminars and classes. If my car breaks down on a lonely road, I have no means of communication and my wife is having a heart attack, if I steal a car to get her to the hospital, then I have a defense to prosecution. The theory is that the harm I avoid by breaking the law (my wife's death) is worse than the harm the law intends to prevent (car theft). This defense is rarely used and even more rarely is it successful. I doubt it would work in your self-defense scenario, unless you fled into a prohibited area.

Chas.

BrassMonkey · Post by **BrassMonkey** » Fri Jul 13, 2007 9:15 am

Thank you sir...

seamusTX · Post by **seamusTX** » Fri Jul 13, 2007 9:24 am

A better example, as Charles suggested, would be if you entered a school with a weapon to intervene in a criminal attack. That has actually happened several times, and the defenders were not prosecuted.

- Jim

BrassMonkey · Post by **BrassMonkey** » Fri Jul 13, 2007 9:42 am

Got it, it is a defense only if it is a good guy dooing a good thing :-)

Post by **Charles L. Cotton** » Fri Jul 13, 2007 12:37 pm

seamusTX wrote:A better example, as Charles suggested, would be if you entered a school with a weapon to intervene in a criminal attack. That has actually happened several times, and the defenders were not prosecuted.

- Jim

That's a good example of the "necessity" defense. Here is the statute:

TPC Â§3.22 wrote:NECESSITY. Conduct is justified if:
(1) the actor reasonably believes the conduct is
immediately necessary to avoid imminent harm;
(2) the desirability and urgency of avoiding the harm
clearly outweigh, according to ordinary standards of
reasonableness, the harm sought to be prevented by the law
proscribing the conduct; and
(3) a legislative purpose to exclude the justification
claimed for the conduct does not otherwise plainly appear.