Real scenario from the news: License holder pulls gun during Black Friday melee

[Hopyard]

In Texas, per the CHL statutes, threatening with a deadly weapon is not considered using deadly force. It's considered verbal force.

And per the law, the threat of force is justified when the use of force is justified, meaning if someone hits you, you can either hit them back or say "Ill hit you back" since physical force is allowed, so is threatening the force.



Therefore going off the article, the CHL guy was 100% legally right.

I think this is pretty thin ice because the next thing you know an unarmed individual gets shot (lethal force)
and the whole question of whether or not the use of lethal force was justified by the threat comes into play.

Also risk of bystanders in the crowd getting shot too were exceedingly high. IMO sufficiently high
to constitute criminal negligence if it happened.

The use of force was appropriate in this case, but force considerably less than drawing the gun was
probably in order. e.g., pepper, a kick, or how about less ego and just walk away.


I do agree with the earlier poster who said an LEO made a call at the scene so there probably
are lots of pieces of info we don't have.

[DefensiveCarry.com]

[deadguy]

In Texas, per the CHL statutes, threatening with a deadly weapon is not considered using deadly force. It's considered verbal force.

And per the law, the threat of force is justified when the use of force is justified, meaning if someone hits you, you can either hit them back or say "Ill hit you back" since physical force is allowed, so is threatening the force.



Therefore going off the article, the CHL guy was 100% legally right.

There ya go.

I guess it's also possible the aggressor made a verbal threat at the time that justified no arrest of the CHP holder. We just don;t know

[Hopyard]

There ya go.

I guess it's also possible the aggressor made a verbal threat at the time that justified no arrest of the CHP holder. We just don;t know

Not so fast:

PC §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 the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

1A Is irrelevant to the situation
1B Is also irrelevant to the situation
1C Says nothing about simple assault, and is irrelevant.

Per this section (which deals with use of force in general, not lethal force specifically) there
does not appear to be a presumption that force can be used in response to what occurred.
Simply being punched doesn't create the presumptions which are defined; at least
that is my reading of this. Put another way, you can't just engage in a fight if you can walk away.
You can't just retaliate.

[ntkb]

I think this is pretty thin ice because the next thing you know an unarmed individual gets shot (lethal force)
and the whole question of whether or not the use of lethal force was justified by the threat comes into play.

Also risk of bystanders in the crowd getting shot too were exceedingly high. IMO sufficiently high
to constitute criminal negligence if it happened.

The use of force was appropriate in this case, but force considerably less than drawing the gun was
probably in order. e.g., pepper, a kick, or how about less ego and just walk away.


I do agree with the earlier poster who said an LEO made a call at the scene so there probably
are lots of pieces of info we don't have.

He pulls the gun after he is attacked, not before, if he was to use mace or pepper spray and it got other people a law suit may have been pending. I disagree with you completely, several people have been killed with just one punch and also others have had severe damage done to their person, losing an eye and what not.
It’s high time people learned to be polite in public, my guess is the next time he thinks of smacking someone he will think twice.

[suntzu]

He pulls the gun after he is attacked, not before, if he was to use mace or pepper spray and it got other people a law suit may have been pending. I disagree with you completely, several people have been killed with just one punch and also others have had severe damage done to their person, losing an eye and what not.
It’s high time people learned to be polite in public, my guess is the next time he thinks of smacking someone he will think twice.

Yes, we all know someone can be killed with one punch. Evidently HE was not killed and apparently not even injured (enough) for someone to be arrested. EDIT: Just noticed the guy fled.......oops
Sorry, I know "I wasn't there" line but I don't see myself drawing my firearm in this circumstance. I have had guys 6 inches taller than me threaten me and I never felt he need to pull my weapon.

Folks seriously need to learn less than lethal means of handling encounters (H2H or pepper spray or whatever.).

[ntkb]

Yes, we all know someone can be killed with one punch. Evidently HE was not killed and apparently not even injured (enough) for someone to be arrested. EDIT: Just noticed the guy fled.......oops
Sorry, I know "I wasn't there" line but I don't see myself drawing my firearm in this circumstance. I have had guys 6 inches taller than me threaten me and I never felt he need to pull my weapon.

Folks seriously need to learn less than lethal means of handling encounters (H2H or pepper spray or whatever.).

As I read it the other guy fled the scene after hiding behind a refrigerator, seems he wasn’t there for LE to ask his opinion of what happened. I am guessing that others in the store had some things to say.

[d2jlking]

Very stupid. Not sure of the brandishing laws in Texas and the article dosn't give any real details...... I'm assuming the police did not arrest the 'gun-puller' because there was 'other' information excluded from the press.... i.e., witness statements, threats made by the roudy shopper, etc.

I agree with the "stay home OR show extreem self-control and back out of a bad situation". Leave the gun holstered.

Don't want to stare down a gun barrel? Don't punch people in the face. This isn't grade school. You don't get to bully people. Im glad he didn't get arrested for pulling his gun. A punch in the face is a clear signal that you are a violent criminal. The damage from a punch to the head can be severe. Even deadly.

[onacoma]

Here are more links to acts of Stupidity on Balck Friday!

Shots Fired Outside Tallahassee Wal-Mart

Black Friday 2012: Rush at Victoria's Secret Pink at Oak Park Mall in Overland Park, Kan.

WATCH: Fight breaks out over phones on Black Friday | National News - NewsRadio 1200 WOAI, San Antonio

Boy Robbed During Black Friday Shopping At Arundel Mills « CBS Baltimore

I'm still trying to figure out the Vicky's uproar! Was someone hit with a wonder bra or what?

[d2jlking]

I'm not going to comment other than to say that I see countless people here in this forum post that they would shoot before they let anyone punch them even once in the face. Usually expressing the analogy "but I could have been killed if he hit me."

Personally, I don't believe a jury would buy that excuse, but a lot of folks seem to stick with that being enough to keep them out of jail.

We all know there are anecdotal cases of someone dying from being punched one time in the head. Most people can cite at least one case they know about. Although frequently the actual facts can be mischaracterized because the story is second, third, or fourth hand passed down over generations by the great grandchildren of weird uncle Fudd who once served time in prison with the offender.

But what the jury quickly finds out in reality that for every one person who tragically gets killed from one punch hits, there are literally hundreds of thousands of other people who get the crap stomped out of them without getting killed or having any serious lasting effects. And that changes how things get viewed when using the "reasonable man standard." The reasonable standard basis of weighing innocence or guilt does not consider a "freak occurrence" to be the norm. And they are presented with statistics which shows the guy who dies from a single punch to the head, falls more in the category of "freak occurrences."

All I can say is for me, the incident in this post probably wouldn't cross the threshold of drawing a gun... yet. But I'd be ready to if the aggressor thought he was going to continue the assault.

Very good post. Well stated and thought out. I have a serious question though: You say in this case you wouldn't have drawn a gun. Fair enough. My question is....would you hit him back? Because if you do, you are now probably going to be involved in some mutual combat. He could maybe wrestle your gun free. He may get the upper hand in the fight and begin pummeling you, making it impossible for you to retrieve and use your gun. Please understand, I'm not being argumentative. I just am not sure how I would handle the situation myself. I can't blame the guy for drawing his weapon. At what point is it NOT OKAY for someone to infringe on the rights of others to live in peace?

[d2jlking]

One more point....."people who get the crap stomped out of them".............

if you are getting the "crap stomped out of you" would you feel justified in pulling your gun? At what point in the assault do you make the determination that you must stop the assault by force?

[onacoma]

4) Being on line for a Black Friday sale violates the rules of stupid.

Thoughts from the gallery please.

Item four (4) is the only Pertinate issue! Had dinner yesterday at the Red Rock Casino Buffet with she who must be obeyed and after a 3 hour wait in line my neck is sore from scanning for BGs, etc.

[d2jlking]

I think this is pretty thin ice because the next thing you know an unarmed individual gets shot (lethal force)
and the whole question of whether or not the use of lethal force was justified by the threat comes into play.

Also risk of bystanders in the crowd getting shot too were exceedingly high. IMO sufficiently high
to constitute criminal negligence if it happened.

The use of force was appropriate in this case, but force considerably less than drawing the gun was
probably in order. e.g., pepper, a kick, or how about less ego and just walk away.
I do agree with the earlier poster who said an LEO made a call at the scene so there probably
are lots of pieces of info we don't have.

Hopyard- good point about the bystanders. A real important consideration. As for "pepper, a kick or less ego" what is you don't have pepper spray? What if you arent capable of engaging in or winning a fight (kicking, punching, whatever).? As for LESS EGO. I fundamentally disagree with this. Our society is so backwards now that it seems to usually be the victims of bullying or violence or verbal abuse who end up in trouble with authority because of their response to the situation. To me, if you punch me in the face, my response is not about my ego. You punching me, that may have been about your ego, but my response? My response is about me standing up for my right to live free from abuse. My response is about self defense.

[Hopyard]

He pulls the gun after he is attacked, not before, if he was to use mace or pepper spray and it got other people a law suit may have been pending. I disagree with you completely, several people have been killed with just one punch and also others have had severe damage done to their person, losing an eye and what not.
It’s high time people learned to be polite in public, my guess is the next time he thinks of smacking someone he will think twice.

Wow, you are responding on the emotional level---"its high time...etc." not on the level of
what the law allows. In this instance there was no legal presumption to protect the license holder
from being charged. The law does allow what he did if it is deemed "reasonable." We all know
that what one officer or DA finds reasonable another might find outrageous.

Not being there we only know that the responding officer sided with the license holder. Good.

But, as a general matter, once the punch has been landed it is over unless the guy is winding up or
threatening more. You as the defender don't keep a fight going just for ego when there is
nothing further to defend against. The horrific analogy is that pharmacist who shot
a robber after he was no longer a threat.

A determined assailant, who meant you serous harm would probably have thrown a series
of combative strikes and kicks and drawing a weapon would have been impossible. A trained
defender may have been justified in returning the force with equal or similar force, but
per the law there is no presumption that he would have been.

It all depends on what is reasonable in the circumstance. How many here
really want to trust their freedom to "it all depends," and the 20/20 hindsight of others?

NOT ME.

Unless another blow was imminent or being threatened, I'd get my injury treated and let the cops
make the arrest. If no weapon was being presented I'd prefer pepper to presenting a firearm
because ALL --absolutely ALL of the legal downsides of its use are greatly far less severe
than the legal downsides of pointing a gun and perhaps actually firing it.

There is a reason why the famous book everyone here knows is titled, "IN THE GRAVEST EXTREME."

[Lish]

I used to shop every Black Friday. Barely sleep...wait in line...be one of the first ones in at 2am... I finally realized it's not worth it. People are nuts. There's a fist fight almost every year at my Walmart on Black Friday. I'd rather be home, safe and warm, sleeping. Maybe I'm getting old...

On the other hand, if you punch me in the face...I can see me going for my weapon...

[d2jlking]

Not so fast:

PC §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 the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;

1A Is irrelevant to the situation
1B Is also irrelevant to the situation
1C Says nothing about simple assault, and is irrelevant.

Per this section (which deals with use of force in general, not lethal force specifically) there
does not appear to be a presumption that force can be used in response to what occurred.
Simply being punched doesn't create the presumptions which are defined; at least
that is my reading of this. Put another way, you can't just engage in a fight if you can walk away.
You can't just retaliate.

I read the info. Thanks for providing that. Is that a Texas law? As for the last sentence.......is that true in practice? You can't just retaliate? If someone punches me, I can't punch them back? That doesn't sound correct.