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Posted: Wed Aug 29, 2007 12:59 pm
by Charles L. Cotton
There won’t be a problem with the phrase “has a right to be present at the location where the deadly force is used.� Basically, as long are you are not committing a trespass (a lesser included offense of burglary) or violating a court order then you have a right to be there. (Obviously, other laws rendering locations off-limits would apply, but you understand the concept.) An interesting question is what effect does violation of a provision of TPC§46.035 or federal law have on this provision? For example, if you carry concealed into a 51% location, do you have a right to be present? I believe you do, it’s only the gun that should be there. At this point, it would be an academic discussion, because you would be committing a crime and you wouldn’t get the presumption anyway.
It’s also important to note that your use of deadly force can still be justified, even if you don’t get the benefit of the presumption. For example, if you trespass onto someone’s real property (not their home, business or car) and are not committing a crime that would justify deadly force being used against you, then would wouldn’t get the presumption, but you could still use deadly force in self-defense if the property owner tried to kill you.
Chas.
Posted: Wed Aug 29, 2007 12:59 pm
by frankie_the_yankee
Russell wrote:I've been looking through the law and can't seem to locate where civil lawsuits were blocked if the shooting was justified.
Where is this? It DID get passed didn't it?
Check out this thread.
http://www.texasshooting.com/TexasCHL_F ... c&start=15
Note that TXI's post is unclear. The "Affirmative defense" language was stricken and replaced with "Civil Immunity" language. But because the strikeovers in the text do not copy into this forum, the text is confusing.
Look for a cleaned up rendering of the civil immunity language in my post of May 8, 2007 in the thread (on page 1).
Posted: Wed Aug 29, 2007 1:09 pm
by Charles L. Cotton
Russell wrote:I've been looking through the law and can't seem to locate where civil lawsuits were blocked if the shooting was justified.
Where is this? It DID get passed didn't it?
A lawsuit can still be filed, but the defendant will win and will do so early in the process. There is a good chance the defendant will be awarded attorney fees as well, but this isn't guaranteed. Some judges flat won't award attorneys fees, some will. More importantly, no attorney is going to take a case and spend money on it when they cannot win.
A law cannot be passed that prevents someone from filing a suit. It would be unconstitutional, as it should be. We can't tell people you have no access to the courts to address grievances.
Chas.
Posted: Wed Aug 29, 2007 2:10 pm
by Renegade
Here, this will help muddy the water:
You are on some property, somewhere, with the right to be present at the location.
A person with authority asks you to leave, in compliance with 30.05, he states, effective immediately, you no longer have the right to be present at the location.
As you are leaving, you get into gunfight resulting in homicide of another.
Did you have the right to be present at the location or not when the homicide occurred?
Posted: Wed Aug 29, 2007 3:19 pm
by txinvestigator
Renegade wrote:Here, this will help muddy the water:
You are on some property, somewhere, with the right to be present at the location.
A person with authority asks you to leave, in compliance with 30.05, he states, effective immediately, you no longer have the right to be present at the location.
As you are leaving, you get into gunfight resulting in homicide of another.
Did you have the right to be present at the location or not when the homicide occurred?
Of course.