A fascinating read on the Texas rules on CCW and self defense

Jim March · September 27, 2014, 10:18 AM

http://www.washingtonpost.com/news/v...-other-person/

Bottom line:

A Texas CCW permit (or legal carry rights gained by a permit TX recognizes, if you're not a Texan) gains you certain self defense rights that you would not have if you are illegally packing heat.

Specifically, if you are in a dispute with somebody and visit them (at any location for a deliberate meeting for the purpose of discussing the dispute) and you go armed knowing the other party is upset with you and might attack you, and they do attack and you shoot them, you might be facing much more than an illegal packin' charge if you aren't legal to carry. You might be denied the ability to make a self defense claim at all!

That is a very odd circumstance. In most situations when illegally strapped, in the event you need to use it your only real risk is a charge of illegal packing, not murder if it really is self defense. Even in TX this lack of an ability to raise a self defense claim only applies in this one fairly unusual class of scenario; most of the time an illegal packer still has the normal self defense rights and risks only the illegal packing charge in a use-of-force case.

This situation may be specific to TX for the reasons outlined in more detail in that article. Texans ought to read that over, in my opinion.

Does anyone know of other states where there's no possible claim to self defense when illegally strapped? Even New York lacks that; Bernie Goetz wasn't charged with murder for shooting those clowns armed with screwdrivers on a subway (although the NYC illegal packing penalties have sentence potentials so high they more or less didn't need to!).

KyJim · September 27, 2014, 08:05 PM

It's not the law in Kentucky. Beyond that, I can't say.

Interesting article and, IMO, a strange result where someone carries a weapon and cannot use it to defend himself. That law presumes it is better for a prudent person to die than the aggressor who unjustifiably uses deadly force -- an absurd result even if the prudent person is unlawfully carrying.

**JohnKSa** · September 27, 2014, 08:53 PM

From reading the article, it looks like it's all based on case law and precedent. I've certainly never seen anything like that in the penal code itself.

4thPoint · September 27, 2014, 09:59 PM

"Be not guilty of instigation" - from old English law.

6A I agree with, Deliberate Provocation makes it murder whether or not Don was licensed to carry a concealed weapon, carrying one unlicensed, or carrying an AR at port arms.

6B's a bit iffy. Volokh seems to be saying that if they can't prove deliberate provocation and Don kills Vic then Don gets a pass IF he was legally licensed. Huh? If two men meet beneath a dark underpass but there's nothing to prove that the meeting was either prearranged or provoked then Don's innocent? Does that still apply if Vic was shot in the back or was handcuffed?
What if Vic has a ccw and kills Don? Then neither of the dead guys was guilty?

6C is even More troubling. We have the exact same circumstances of Don and Vic meeting. We have the same 'unable to prove provocation.' We have the same Vic bleeding out in a pool of his own blood. But because Don committed the crime of carrying illegally then his possibly self-defense act is now murder?

What if Don came unarmed, but wrestled the pistol from Vic (and is now in possession of a firearm that isn't his) and kills Vic?

What if Don comes with an unlicensed weapon such as an AR carried at port arms?

Sadly, Professor Volokh's threat matrix needs a bit more work.

Bartholomew Roberts · September 29, 2014, 05:27 PM

Here is an interesting variant - since the "coming armed" murder charge is linked to a violation of Sec. 46.02 (Unlawful Carry of a Weapon), and it is not a violation of 46.02 to open carry a long gun or blackpowder handgun, then in theory, someone who open carries a long gun gets the same benefits as a CHL in this situation.

You can go even further and hypothesize a CHL holder who doesn't bring a pistol but it carrying a knife with a blade longer than 5.5" and uses it in self-defense in that situation. He is now guilty of violating 46.02 and subject to murder charges?

September 27, 2014, 10:18 AM	#1
Jim March Senior Member Join Date: February 14, 1999 Location: Pittsburg, CA, USA Posts: 7,417	A fascinating read on the Texas rules on CCW and self defense http://www.washingtonpost.com/news/v...-other-person/ Bottom line: A Texas CCW permit (or legal carry rights gained by a permit TX recognizes, if you're not a Texan) gains you certain self defense rights that you would not have if you are illegally packing heat. Specifically, if you are in a dispute with somebody and visit them (at any location for a deliberate meeting for the purpose of discussing the dispute) and you go armed knowing the other party is upset with you and might attack you, and they do attack and you shoot them, you might be facing much more than an illegal packin' charge if you aren't legal to carry. You might be denied the ability to make a self defense claim at all! That is a very odd circumstance. In most situations when illegally strapped, in the event you need to use it your only real risk is a charge of illegal packing, not murder if it really is self defense. Even in TX this lack of an ability to raise a self defense claim only applies in this one fairly unusual class of scenario; most of the time an illegal packer still has the normal self defense rights and risks only the illegal packing charge in a use-of-force case. This situation may be specific to TX for the reasons outlined in more detail in that article. Texans ought to read that over, in my opinion. Does anyone know of other states where there's no possible claim to self defense when illegally strapped? Even New York lacks that; Bernie Goetz wasn't charged with murder for shooting those clowns armed with screwdrivers on a subway (although the NYC illegal packing penalties have sentence potentials so high they more or less didn't need to!). __________________ Jim March

September 27, 2014, 08:53 PM	#3
JohnKSa Staff Join Date: February 12, 2001 Location: DFW Area Posts: 24,992	From reading the article, it looks like it's all based on case law and precedent. I've certainly never seen anything like that in the penal code itself. __________________ Do you know about the TEXAS State Rifle Association?

September 27, 2014, 08:05 PM	#2
KyJim Senior Member Join Date: July 26, 2005 Location: The Bluegrass Posts: 9,142	It's not the law in Kentucky. Beyond that, I can't say. Interesting article and, IMO, a strange result where someone carries a weapon and cannot use it to defend himself. That law presumes it is better for a prudent person to die than the aggressor who unjustifiably uses deadly force -- an absurd result even if the prudent person is unlawfully carrying.

September 27, 2014, 09:59 PM	#4
4thPoint Junior member Join Date: August 28, 2012 Posts: 240	"Be not guilty of instigation" - from old English law. 6A I agree with, Deliberate Provocation makes it murder whether or not Don was licensed to carry a concealed weapon, carrying one unlicensed, or carrying an AR at port arms. 6B's a bit iffy. Volokh seems to be saying that if they can't prove deliberate provocation and Don kills Vic then Don gets a pass IF he was legally licensed. Huh? If two men meet beneath a dark underpass but there's nothing to prove that the meeting was either prearranged or provoked then Don's innocent? Does that still apply if Vic was shot in the back or was handcuffed? What if Vic has a ccw and kills Don? Then neither of the dead guys was guilty? 6C is even More troubling. We have the exact same circumstances of Don and Vic meeting. We have the same 'unable to prove provocation.' We have the same Vic bleeding out in a pool of his own blood. But because Don committed the crime of carrying illegally then his possibly self-defense act is now murder? What if Don came unarmed, but wrestled the pistol from Vic (and is now in possession of a firearm that isn't his) and kills Vic? What if Don comes with an unlicensed weapon such as an AR carried at port arms? Sadly, Professor Volokh's threat matrix needs a bit more work.

September 29, 2014, 05:27 PM	#5
Bartholomew Roberts member Join Date: June 12, 2000 Location: Texas and Oklahoma area Posts: 8,462	Here is an interesting variant - since the "coming armed" murder charge is linked to a violation of Sec. 46.02 (Unlawful Carry of a Weapon), and it is not a violation of 46.02 to open carry a long gun or blackpowder handgun, then in theory, someone who open carries a long gun gets the same benefits as a CHL in this situation. You can go even further and hypothesize a CHL holder who doesn't bring a pistol but it carrying a knife with a blade longer than 5.5" and uses it in self-defense in that situation. He is now guilty of violating 46.02 and subject to murder charges?