There was a
long-running thread on the scope of threats of force under TPC §9.04 (5 pgs. worth!). I was on one side, while txinvestigator and Kyle Brown were on the other. I think they were right and I was wrong. If you read the thread, read it all or you will miss a lot and possibly get the wrong impression of the scope of TPC §9.04.
Here is a copy of my last evaluation post in that thread. Since this was posted, I've talked to more knowledgable people and I've heard a DPS Leutenant discuss TPC §9.04 and I'm even more convinced that the "broad view" is correct.
Chas.
Charles L. Cotton wrote:This thread has been inactive since Dec. 19th, so people may have forgotten the very narrow issues presented. Remember, the discussion centers on two issues: 1) whether TPC §9.04 authorizes a person (other than a LEO) to threaten the use of deadly force by the production of a weapon when they would not be justified in actually using deadly force; and if so 2) does TPC §46.035(a) subject a CHL holder to prosecution for intentionally failing to conceal his handgun if they did so. (The McDermott case upheld the conviction of a CHL under these circumstances.)
Just to make sure there is no confusion, if you would be justified in using deadly force to thwart an attack, then you are justified in threatening the use of deadly force by pulling your gun on someone. Just because you can shoot someone, you doesn't mean you have to!
Back to the scope of TPC §9.04. Between Kyle and I, we have spoken to criminal defense attorneys, prosecutors for various DA’s offices, police officers, judges and a law school professor that teaches criminal law. Everyone Kyle talked with believes TPC §9.04 authorizes the threat of deadly force even when the use of deadly force would not be lawful, if the other requirements of §9.04 were met. (Let’s call this the “broad view.�) The people I’ve talked with fall on both sides of the interpretation. Some accept the “broad view,� while others contend that TPC §9.04 only authorizes the threat of force equal to the degree of force you would be authorized to use; i.e. you can’t threaten deadly force unless you can use deadly force. We’ll call this the “narrow view.�
To complicate matters further, I just received a return telephone call from a lady who is an attorney on staff with the DPS in Austin. She apparently teaches the law portion of the CHL Instructor Certification and re-certification course. She believes the “narrow view� of TPC §9.04 is correct.
I’ve spoken with a lot of very knowledgeable people who have differing opinions on the scope of TPC §9.04. However, if I were forced to choose one on whom to rely, I would have to choose the law school professor. As a law professor, he must remain current on issues such as this one and the professor I spoke with said the “broad view� is very common in the U.S. He also said the “broad view� is codified in the Model Penal Code. That said, he also concedes it’s an open question in Texas, since there is no case law on point, but the express language in TPC §9.04 appears to adopt the “broad view.�
All throughout my deliberations on this issue, I keep coming back to the two hypothetical scenarios txinvestigator and I presented. Mine was the slap in the face in the restaurant and his was the gang members following my wife and I in a theater parking lot. I have presented these scenarios to everyone I have spoken with and we all agree that these polar opposites are troublesome to reconcile. The restaurant scenario was presented to show the absurd result that could occur with adoption of the “broad view� of TPC §9.04 while the gang members in the parking lot reveal a reasonable application of the “broad view.�
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!
However, this academic discussion of the scope of TPC §9.04 is even more complicated when we introduce TPC §46.035(a) - Intentional failure to conceal and the McDermott case. The statute and the McDermott opinion expressly state that you are justified in intentionally failing to conceal when you are justified in actually using deadly force.
These few facts are certain: 1) there is no case law in Texas interpreting the scope of TPC §9.04; 2) there is no agreement among experts in the field on the scope of TPC 9.04; 3) it is common in the U.S. for state penal codes to allow the threat of deadly force when the use of deadly force is not authorized, so long as the sole motive for the threat is to cause apprehension that you will use deadly force if necessary; 4) TPC §46.035(a) makes it an offense to intentionally fail to conceal your handgun, unless you are authorized to actually use (not merely threaten) deadly force; and 5) the McDermott Court rejected a CHL's attempted reliance on TPC §9.04.
Whatever the Courts ultimately determine concerning the scope of TPC §9.04, TPC 46.035(a) needs to be amended to include the justification found in either TPC §§ 9.04 (threats), 9.31 (force) or 9.32 (deadly force).
Regards,
Chas.
