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Old April 9, 2009, 04:37 PM   #1
ar15chase
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Self defense question

I have my CHL in TX. I was walking out into the parking lot at to local Wal-Mart at about 10pm with my 2 year old daughter in my arms, still about 75 yrds from my vehicle. When 2 kinda rough looking guys with saggy pants. ( I am sure you know the type) Came out about 10 feet in front of us and asked to use my phone. I said I didnt have a phone and started walking in a different direction to my truck to avoid them. Just a few seconds later I noticed them both behind me charging at us yelling cursewords. There was no way for me to outrun them with my little girl in my arms, and I was pretty sure I was in for a beating. Not to mention my daughter could be seriously injured. So I set her down as fast as I could behind a nearby car(about 2 feet from me) and drew my 45 on them, and told them to stop or I will shoot. Lucky for me they did and ran off in the other direction. My question is would I have been justified in firing on them if they got any closer?? I did not see either with a weapon. But I dont think they would have needed one. Do you think I did the right thing in drawing my weapon?
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Old April 9, 2009, 04:45 PM   #2
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Yes, absolutely I think you did the right thing. Who knows if it would be ruled as a SD shooting, but, in that situation, you didn't have any choice, IMHO. Glad it worked out no worse than it did.
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Old April 9, 2009, 04:51 PM   #3
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I'm not saying you were totally wrong, but in NC you would have been charged with at LEAST "brandishing a firearm", maybe criminal assault since you were a permit holder. You would have gone to jail, and your little girl would have been taken in by either a matron or DSS. Of course, this all depends on how convincing you are, and also what evidence they found on the assailants. Does Texas not have an "escallation of force" clause in their defense law?


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Old April 9, 2009, 04:51 PM   #4
djohn
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IMO yes,I would have done the same thing.If they where charging you i think there intention where not good and show disregard that you had a little one. Sounds like you where about to get jaked up and robbed with the ask of the phone but since you walked right away It gave them a lttle time to get angry.Glad it worked in your favor and not esculated to a shooting.
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Old April 9, 2009, 04:52 PM   #5
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Good to hear NAVYLT. One thing I forgot to mention was the fact that I wasnt going to stick around for LE to arrive in fear they could come back with a gun. So I called when I got home.
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Old April 9, 2009, 05:10 PM   #6
ar15chase
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I dont know if we have an escallation of force" clause here in TX I would have to check. But I can say that if so I have never heard of it. As I said before I called the police when I got home. One officer seemed angry I didnt stick around for them. But his partner didnt seem to care.
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Old April 9, 2009, 05:16 PM   #7
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I have done this same thing before and will do again!

the key to this in a self defense case is PROVING you were in fear of your life or someone elses life. your toddler child would not take a lot of abuse to be fatal.

if they were"charging" you and threatening you then you were justified...

yes in NYC you probly would get in trouble...same with California...but your in texas! thank God that all states don't follow the idiot law makers of some other states.

old saying rings true "its better to be judged by 12 than carried by six"

Nuff said.

oh by the way if they had a knife...the federal kill zone for self defense is 21 feet. so make sure they are close before pulling the trigger!
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Old April 9, 2009, 05:19 PM   #8
ar15chase
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Thanks for the info on the knife.
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Old April 9, 2009, 05:33 PM   #9
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Sec. 9.32. DEADLY FORCE IN DEFENSE OF PERSON. (a) A person is justified in using deadly force against another:

(1) if the actor would be justified in using force against the other under Section 9.31; and

(2) when and to the degree the actor reasonably believes the deadly force is immediately necessary:

(A) to protect the actor against the other's use or attempted use of unlawful deadly force; or

(B) to prevent the other's imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery.

(b) The actor's belief under Subsection (a)(2) that the deadly force was immediately necessary as described by that subdivision is presumed to be reasonable if the actor:

(1) knew or had reason to believe that the person against whom the deadly 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 an offense described by Subsection (a)(2)(B);

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(c) A person who has a right to be present at the location where the deadly force is used, who has not provoked the person against whom the deadly force is used, and who is not engaged in criminal activity at the time the deadly force is used is not required to retreat before using deadly force as described by this section.

(d) For purposes of Subsection (a)(2), in determining whether an actor described by Subsection (c) reasonably believed that the use of deadly force was necessary, a finder of fact may not consider whether the actor failed to retreat.
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Old April 9, 2009, 05:42 PM   #10
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As long as you are fully aware of what was just seconds away from happening to you and your daughter, ok. We still teach other non-lethal methods here because the "..fist to fist, club to club, knife to knife, gun to gun.." progression is so much played out in NC courts on both sides of the bench.


Glad everything worked out. Do yourself a favor and buy some O.C. spray.


-7-

Last edited by a7mmnut; April 9, 2009 at 05:44 PM. Reason: addition
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Old April 9, 2009, 05:49 PM   #11
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Two against one is enough deadly force by my line of reasoning, even if unarmed. Add to that you were not completely free to defend yourself, you had to defend your daughter as well. Two thugs vs 1 man and a little baby. You avoided them, and they pursued, cursing at you. You did the right thing. The proof was that they ran off. They knew they were up to no good, and so did you, and so do we.

Chalk one up for concealed carry!
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Old April 9, 2009, 05:49 PM   #12
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It's kinda Hard to defend yourself with a child in your arms and if you put her down to do battle with one the other can grab the child its a losing battle in all ways I vote you did what you had to to protect your child. JMO
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Old April 9, 2009, 05:50 PM   #13
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As long as you are fully aware of what was just seconds away from happening to you and your daughter, ok. We still teach other non-lethal methods here because the "..fist to fist, club to club, knife to knife, gun to gun.." progression is so much played out in NC courts on both sides of the bench.


Glad everything worked out. Do yourself a favor and buy some O.C. spray.


-7-
He's not in North Carolina. He's in Texas. Good advice to a North Carolinian is not necessarily good advice to a Texan. A Texan can legally shoot a thief who is stealing their property while that thief is RUNNING AWAY, if that is the only way for the Texan to stop the robbery.
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Old April 9, 2009, 05:51 PM   #14
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In my CHL class here in Tx the instructor put it this way:

If it is a single, unarmed attacker you may not draw.

If it is a single, armed attacker you may draw.

If it is multiple attackers, armed nor not, you may draw.

FWIW, the rules for drawing and the rules for firing are one and the same.
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Old April 9, 2009, 06:30 PM   #15
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I am glad I didnt shoot in this situation since it all worked out, but its nice to know I could have. If the BG's would have got to the car parked next to the one we were stoped at I would have fired. I guess THE GOOD LORD above was helping out on this one. I just hate the fact that 2 thugs, would try to do something like that when there is a small child involed. It just goes to show how little some people care about the helpless. (my 2 year old) I am also thankful my father taught me never to walk to close to a car in a parking lot, because you never know who might jump out.
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Old April 9, 2009, 06:52 PM   #16
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So, in NC you'll be jailed for pulling your weapon on an attacker? I knew that you had to retreat in your own home but, in this situation what else could you do? These laws make me angry.
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Old April 9, 2009, 08:09 PM   #17
ar15chase
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I agree a person should NOT have to run a hide, just to be able to defend themselves with dealdly force. It makes no sense. Glad I am in TX.
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Old April 9, 2009, 08:12 PM   #18
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What was the police response to your call?
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Old April 9, 2009, 08:28 PM   #19
ar15chase
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"As I said before I called the police when I got home. One officer seemed angry I didnt stick around for them. But his partner didnt seem to care."


When LE arived at my home....25mins after i called.....I told them the same thing I told you guys, with the exeption that I said everything they yelled at me, which I cant put in this forum. They asked to see the weapon I was carrying, which I showed them. LE looked at it got the serial numbers and gave it back to me. All in all, they said they were going to check the cameras at Wal_mart to try and find out exactly what happened. They have cameras all over the parking lot there. I hope they get the thugs, before they hurt someone. But I doubt it.
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Old April 9, 2009, 09:07 PM   #20
skydiver3346
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Did you do the right thing?

Without question in my opinion. Especially When you tried to evade them and get away and they still pursued you and your little girl. They were up to no good for sure and you did what you had to do to stop the threat. If you fired, that is another matter but drawing your weapon after what transpired was justified in most folks eyes. Who knows if they had a weapon or not and it really doesn't matter as they actually put you in fear of your life for no reason. You must defend yourself and especially your child. They are lucky that you didn't pull the trigger on your .45. I guarantee that they won't have the same approach again to other people without thinking this could happen again and someone else may just blow them away.........
Thank God you and your child were able to go home safely and in one piece.
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Old April 9, 2009, 09:14 PM   #21
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IMHO given the fact that your 2-year-old child was next to you, no jury in Texas would convict you of any wrongdoing. I would not have done anything different.

OTOH if I were alone in the same situation, I would have first backed up rapidly while loudly exclaiming "I HAVE A GUN- BACK OFF!!" If they did not respond by the count of 2, then I would draw.
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Old April 9, 2009, 10:18 PM   #22
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Part of this in any jurisdiction is going to depend on what witnesses saw. Calling LE was the right thing to do, but you should have remained at the scene until the LEOs arrived, and gotten the names of any witnesses. Also, I would not "confess" to anything, especially brandishing a weapon. Let the witnesses tell the story. If there were no witnesses, and the BGs left, you only need to report their actions so LE can be on the look out. You cannot be convicted of brandishing a weapon unless there are witnesses. Stick to the facts, and say as little about your actions as you can.
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Old April 9, 2009, 11:17 PM   #23
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In my own little world, their is no higher law (state, federal, whatever) than that of defense of your child. Hesitation caused by legal concerns could have cost you the life of your child. The lifetime guilt that you would have endured would have been a lot more of a punishment than ANYTHING the law could do to you.
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Old April 10, 2009, 12:48 AM   #24
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Quote:
FWIW, the rules for drawing and the rules for firing are one and the same.
That is not correct in TX.

In TX, you may not fire until deadly force is legally justified, however you CAN threaten someone with a gun when only force (not deadly force) is legally justifed. Here is the applicable section of law.
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. 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.
NavyLT has correctly quoted the section of the law dealing with the justification for deadly force. Below is the section dealing with the justification for force NOT deadly force.
Sec. 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;

(2) did not provoke the person against whom the force was used; and

(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.

(b) The use of force against another is not justified:

(1) in response to verbal provocation alone;

(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);

(3) if the actor consented to the exact force used or attempted by the other;

(4) if the actor provoked the other's use or attempted use of unlawful force, unless:

(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and

(B) the other nevertheless continues or attempts to use unlawful force against the actor; or

(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:

(A) carrying a weapon in violation of Section 46.02; or

(B) possessing or transporting a weapon in violation of Section 46.05.

(c) The use of force to resist an arrest or search is justified:

(1) if, before the actor offers any resistance, the peace officer (or person acting at his direction) uses or attempts to use greater force than necessary to make the arrest or search; and

(2) when and to the degree the actor reasonably believes the force is immediately necessary to protect himself against the peace officer's (or other person's) use or attempted use of greater force than necessary.

(d) The use of deadly force is not justified under this subchapter except as provided in Sections 9.32, 9.33, and 9.34.

(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.

(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
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Old April 10, 2009, 12:51 AM   #25
maestro pistolero
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So, in NC you'll be jailed for pulling your weapon on an attacker?
In your situation I doubt that very much. There were two aggressors which amounts to a disparity of force, plus the mitigating factor of a young child to defend.

Well done. You didn't have to shoot so you didn't shoot. It couldn't have turned out better. Do get some pepper spray. In this case, with your two attackers, it probably wouldn't have helped. But against one unarmed assailant, it can save you a lot of 'splainin and a mountain of attorney's fees.
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