I agree............all my posts here reflect my thinking in general terms related to the "Covert Ready Position" and it's usefulness.....not the guy and his smoking partner.
What I think some (all?) need to think about is this: having a permit to carry, whether under LEOSA or state-issued permit, is just that, only a license to "carry," not a green light to use. Once you've removed a firearm from its holster, that firearm is "in use," whether "brandished" in a threatening manner or used "covertly" and hidden from view, and you enter a entirely different set of laws. Instinct may save your life, and instinct make put you in legal jeopardy just as quickly.
Definitely premature for him to draw. That is, unless he thought the "dark figure" was asking for a "Sig." :wink:
I suppose he could have pointed his 442 and said, "No Sig--S&W!"
Retired LEO is now just a ccw civilian. My question to him, would you have ticketed/arrested a ccw civillian for the same action when you were still on duty. I would almost guarantee his answer would be "of course".
Different set of rules now.
This post based on the assumption that brandishing is against the law in his locality.
SigGuy, please keep your replies brief. Don't waste words.:danceban:
Texas Penal Code 9.04--Threats as Justifiable:
"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."
The retired officer did not threaten anyone, he merely prepared himself. According to the original scenario, he did not cause alarm to anyone (a necessary element in Texas, therefore, no crime has been commidtted. I don't care what your classes have taught you. If it were to boil down to and entity, such as a grand jury questioning the retired oficer's motives, I'm sure he would be able to express his concerns based upon years of dealing with the unknowns and underbelly of society, all of which most of you guys don't have. This is why your instructors teach you when to draw and not draw a handgun. Each state is different but based on exerience in these matters, if it occurred where I worked, he would not be charged.
...now justify the use of force in the OP's scenario...otherwise TPC9.04 doesn't kick in...and we can't...so it doesn't...but the rest of your post is spot on and he has broken no law since noone became alarmed...he committed no breach of the peace...had someone seen him draw and seen his firearm...whole nother matter...
AND, to answer you question as to whether this retired officer would have been arrested...no...no district attorney would pursue any charges against such a person give the capability of articulate his reason for holding his handgun.
Quite frankly, I believe it does apply, and any exerienced officer, who has faced such situtations will be justified. Why ? Merely because of the experience and his ability to articulate that before a decision making body such as a grand jury. However, as I stated, I know of no officer who would ever pursue the arrest or charge ieven if this had been a CHL holder. Fearlevels for people are based upon esperiences or the lack thereof. Your level of fear and mine maybe miles apart, and all that comes to bear is when one has to articulate why they did something such as draw a handgun fearing something may occur.
Can you tell me your reasons which would lead you to believe this would be considered a crime even if someone observed the retired LEO's actions.
Why does everyone assume an officer of 40 years is the most competent person to make a decision years after he leaves the force. In fact, why do follks assume he was even a good LEO? LEO's like everyone else have their duds. And LEO's (retired and active) make mistakes just like everyone else.
Forget he is a retired LEO and put in "old dude, possibly stressed becuase of the medical condition of his wife, tired at 3 AM like most folks and more so because he most likely has not got a lot of sleep". Lets see how the coments flow then.
It does nothing to say whether it was legally justifiable or not, but on a personal level, I'd be inclined to cut a retired cop some slack on this as well. This is why: Asking for a cigarette has to be the #1 most common way to attract the attention of someone who is about to be mugged. It's happened to me. I was able to subdue the probably 15 year old gang member without drawing my gun. It happened to a good friend of mine who is a Marine officer in Baltimore. One scumbag asked for a cigarette while another approached from behind and smashed him in the head with a 40 ounce bottle. He wound up unconscious in the street. They even took his shoes, and could have killed him. A cop would know this tactic and probably reacted instinctively. But like I said before, IF the smoker guy had seen the weapon and reported to police that he felt terrorized, the retired cop broke the law and could have (if he wasn't a retired cop) been arrested.
This is a good reason to grab that little flashlight too when you grab the gun, on your way out the door. That's the only way of knowing if the shadowy figure 20 feet away has earned a quick draw. Hate to use stereotypes, but a particular type of individual tends to frequent emergency rooms late at night. They don't feel at all awkward asking for things to which they feel entitled; they're used to it. If there's one place people will ask you for something, and mean it, it's late at night in front of the ER.
And for god's sake, if someone you don't know approaches in a public place asking for a smoke, check your six. Criminals are too lazy to think up fresh tactics I guess.