Threshold for drawing a handgun

[duns]

As a new CHL, I have studied the laws of my state (TX) but there is one gray area that constantly confuses me and keeps me thinking scenarios over in my mind. I think the same gray area may exist in the laws of most states.

If I am to pull my handgun and point it at someone I need reasonable justification, i don't think anyone would disagree with that. Is it enough that someone is approaching me and refuses commands (1) to explain what they want and (2) not to come any closer. Do I have to wait for them to make an explicit verbal threat ("I'm going to kill you/do you seriously bodily harm"), lay hands on me, start hitting me, or produce a weapon, before I am justified in drawing my gun?

One of my concerns is that even laying hands on me/hitting me may not be legal justification. Maybe the stranger is just a "touchy-feely" person and put his hand on my arm with no malice intended? Maybe when he started hitting me, he just wanted to prove his machismo and his blows were not intended to do me me any serious harm?

I'm not talking about bar brawls here. The scenario that most concerns me is when someone approaches me on the street, no weapon evident, no threats made, but refuses to stay back when commanded to do so. If I wait till the person is within 7 yards, or I am actually attacked, my chances of survival are greatly diminished if that person does have malicious intent.

 

[JoeSlomo]

You are the only one that can answer that question as there are too many variables to be considered in each individual situation.

I base my use of force decisions on the imminent threat of "great bodily harm or death", which will vary depending on the size / number of threats, and what type of weapon, if any, they are employing. I understand that I will have to justify my actions to the state, and to a jury, should I opt to use deadly force.

Texas law allows for a great deal of defensive flexibility compared to other states, so I would bone up on the actual laws as written, and think of how they apply in your situation. With an understanding of the law, as written, you will be more prepared to use deadly force when needed, and be better able to justify your actions should an incident occur.

 

[shockwave]

someone approaches me on the street, no weapon evident, no threats made, but refuses to stay back when commanded to do so

That is definitely a problem. Personally, I obey very few "commands" that other citizens issue toward me, such as, "move," "get out of my way," etc. If some person suddenly started shouting at me, "Don't come any closer! Don't come near me!" etc., I'd be inclined to flip that person off and tell them to return their piehole to the upright and locked position.

Regardless of the logic of the Tueller Drill, you do of necessity have to presume the goblin will be well inside of 7 yards of you before you have any knowledge that he or she intends to rob you, beat you, knife you, etc. Expect the actual distance to be less than 10 feet. As for justification, the gold standard is "what a reasonable person would do." As you are on the stand in court, explaining to the judge and jury what actions you took and why, it would be best if everybody was nodding and making lots of "mm-hm, I woulda done that myself," noises.

 

[duns]

You are the only one that can answer that question as there are too many variables to be considered in each individual situation.

I base my use of force decisions on the imminent threat of "great bodily harm or death", which will vary depending on the size / number of threats, and what type of weapon, if any, they are employing. I understand that I will have to justify my actions to the state, and to a jury, should I opt to use deadly force.

Texas law allows for a great deal of defensive flexibility compared to other states, so I would bone up on the actual laws as written, and think of how they apply in your situation. With an understanding of the law, as written, you will be more prepared to use deadly force when needed, and be better able to justify your actions should an incident occur.

Thanks for replying but you've really only said that the threshold for drawing is fuzzy. I knew that already -- that was why I posted -- and was hoping for some guidelines rather than an "it all depends" answer. You also said I should study my state laws but as I pointed out in my post I have already done that.

 

[duns]

That is definitely a problem. Personally, I obey very few "commands" that other citizens issue toward me, such as, "move," "get out of my way," etc. If some person suddenly started shouting at me, "Don't come any closer! Don't come near me!" etc., I'd be inclined to flip that person off and tell them to return their piehole to the upright and locked position.

Really? I would not. I would respect the other person's concern for their safety and would seek to reassure them.

Regardless of the logic of the Tueller Drill, you do of necessity have to presume the goblin will be well inside of 7 yards of you before you have any knowledge that he or she intends to rob you, beat you, knife you, etc. Expect the actual distance to be less than 10 feet. As for justification, the gold standard is "what a reasonable person would do." As you are on the stand in court, explaining to the judge and jury what actions you took and why, it would be best if everybody was nodding and making lots of "mm-hm, I woulda done that myself," noises.

Like the previous poster, you are not giving me any guidelines as to what is the threshold for drawing. You seem to be saying that I was justified if I can convince a jury. Well, isn't that saying the obvious?

 

[KodiakBeer]

you are not giving me any guidelines as to what is the threshold for drawing. You seem to be saying that I was justified if I can convince a jury. Well, isn't that saying the obvious?

Yes, he was stating the obvious. Are you going to enter 10,000 possible "what if" scenarios into a blackberry and check the list in each situation?

Common law is based on the "reasonable person" doctrine. If a reasonable person would feel threatened with death or grievous bodily harm in the same situation, then you probably won't have to convince a jury and if you do, you'll probably win.

In the real world, I don't think you'll have to worry about "what if". You'll know when you need to draw, and you'll know when you need to shoot. The hard part is going to be actually following through on what you know you need to do.

 

[duns]

Yes, he was stating the obvious. Are you going to enter 10,000 possible "what if" scenarios into a blackberry and check the list in each situation?

I didn't ask for guidance on 10,000 scenarios but on one scenario.

In the real world, I don't think you'll have to worry about "what if". You'll know when you need to draw, and you'll know when you need to shoot.

So I can't go wrong in the eyes of the law? You are saying my instinct on when to draw and when to shoot will be infallible?

 

[ironcode]

My opinion is that, to draw, you should later be able to justify your decision. You had a gut feeling you were in danger - that's fine, but there was actually a specific reason why you felt this way. Think about that in advance so that you know what you are looking for and be able to articulate it. For example, the person's actions weet following a pattern that you knew in advance was often employed by criminals, such as two persons flanking you, or a person insistently trying to get close to you even though you warned them and retreated, etc.

However, notice that this is still not enough. While now you can justify why you felt threatened and in danger, there still must be some disparity of force before you can employ a deadly weapon. For example, there is more than one attacker. Or he is bigger and stronger than you. Or is visibly armed.

Now, things get ugly if the villain is not bigger than you, and you don't know if they are armed or not. If the pattern they are following is consistent with a potential robbery or something similar, then it is reasonable to believe that they are armed (for example, they tell you to give your wallet bet you don't see a weapon - you can assume there is one). However, if you are not sure or if the person just assaults you with fists, then it's hard to justify drawing. This is precisely why I also carry a pepper spray.

 

[Sam1911]

Duns, you are right to be highly concerned about this question. However you are not going to find any hard-and-fast answers. It really all does come down to what a "reasonable" person would do based on the information they had to work with -- juxtaposed against the specific laws of your state.

If someone approaches you against your will, even to the point of physical contact, but they don't physically harm you, self-defense is not an affirmative defense for a justifiable homicide. "Well, he got too close to me and I told him not to, so I shot him," isn't going to fly with a jury. However, if you had a reasonable belief that he had means, motive, and opportunity to hurt or kill you, then you may have a legally justified position.

Is the person armed? Is the person physically larger than you? Younger? What is their attitude/demeanor? How are they approaching? Are they alone or with a group? Did they speak to you? Make eye contact? All of these things may indicate a reasonable decision to shoot. Or none of them may.

Firing your self-defense weapon is a HUGE risk for you as the defender. Even in the face of the worst threat, you may not be found innocent of wrongdoing. There have been many books (and tens of thousands of internet posts ) written trying to explain when you should and shouldn't shoot. But every case is a nightmare all of it's own. It is best to prepare yourself for even the most justifiable shooting to change your life forever.

Read through the archives of the S&T forum here for a few suggestions, but don't expect universal answers. Read books by and or train with the more respected self-defense trainers (Farnam, Givens, Awerbuck, etc. -- http://www.thehighroad.org/showpost.php?p=4964136&postcount=2) for more insights on the matter. Still ... they won't be at your gunfight, and most of them won't be at your trial either.

Good luck!

 

[BigO01]

I'm not talking about bar brawls here. The scenario that most concerns me is when someone approaches me on the street, no weapon evident, no threats made, but refuses to stay back when commanded to do so. If I wait till the person is within 7 yards, or I am actually attacked, my chances of survival are greatly diminished if that person does have malicious intent.

KodiakBeer is correct in that many if not most State laws are probably based on the "reasonable person" doctrine .

As such unless you have just watched this person commit a violent act against a third party or have had some sort of prior interaction with them or factual knowledge of them being in some way violent and perhaps unstable and prone to sudden attack on people it would be pretty hard to meet "reasonable person" doctrine with just a total stranger walking towards you .

For all you know they could just be hard of hearing or completely deaf and have a scowl on their face because they are having a bad day .

Being "Out on the town" as they say and just having a stranger approaching you seemingly because the two of you happen to be in the same place with them traveling towards you on foot isn't a reason to pull a gun on them .

In a case like this even in Texas I would imagine many reasonable people would say you should try crossing the street or in some way avoiding the person unless you have clearly been threatened by them rather than even threatening the use of any force much less deadly force .

Just because a person is paranoid and unable to defend themselves without a weapon and a person who looks like they could mop the floor with them is walking towards them doesn't mean they intend to harm them in anyway even if they look unfriendly , nor are they by any means required to obey your commands to stay X distance from you in a public place .

This whole thing sounds like a fine line between the justifiable use of force and a case of a person being overly paranoid .

 

[duns]

Ironcode, this is the first reasonable reply so far, IMO. Thanks!

If I understand you, you are saying that I must be able to firstly articulate a specific reason why I felt threatened and secondly articulate that there was a disparity of force - more than one attacker, attacker bigger and stronger, or visibly armed. lternatively, if the disparity of force is not there, you seem to be saying that I can draw/shoot if the villain is following a pattern consistent with robbery or similar such as demanding my wallet. That all seems reasonable to me.

Very interestingly, you are saying that being attacked with fists does not justify drawing. A couple of years ago, I was attacked with fists and feet in a crowded street by a stranger for no known reason and I suffered internal bleeding for two weeks after. I was able to fight him off after a certain amount of damage had been done to me and he ran away. Had he had a gun or knife, I would have been dead. How do I know that someone beating me is just going to put me under medical treatment for a couple of weeks and nothing worse? People have been killed by hands and feet plenty of times. Do I have to assume the best or can I assume the worst outcome?

 

[KodiakBeer]

I didn't ask for guidance on 10,000 scenarios but on one scenario.

If your mindset is that danger will only come in one scenario, then you've already lost the fight.

So I can't go wrong in the eyes of the law? You are saying my instinct on when to draw and when to shoot will be infallible?

Only if you are a "reasonable person". I don't know you, so I can't answer that question.

You are asking for a black and white answer to a gray question. Your mindset should be geared to awareness and avoidance. If forced into a situation, the last thing you should be thinking of is a bunch of tangled and obscure legal definitions because you are only going to hesitate and perhaps die as a result. If you think you are going to be killed or badly hurt, then draw your weapon and if necessary (which only you can define), shoot.

I think when/if it happens, you'll know it's time to defend yourself.

 

[duns]

Firing your self-defense weapon is a HUGE risk for you as the defender. Even in the face of the worst threat, you may not be found innocent of wrongdoing.

That's a sobering thought.

 

[duns]

For all you know they could just be hard of hearing or completely deaf and have a scowl on their face because they are having a bad day.

That's a good point. But the bottom line seems to be that I have to let the BG take the first blow/shot (and if its just blows, I'm hearing that is not necessarily enough)? All my situational awareness would do is to enable me to try to avoid that person but if I don't manage to avoid them I have to wait until my life or health is in unquestionable danger? Is that the thrust of the law?

 

[KodiakBeer]

Very interestingly, you are saying that being attacked with fists does not justify drawing.

He's not saying that. In some situations, that might be an affirmative defense. If it's some staggering drunk on the street taking a swing at you - no. But in another situation, a physically stronger individual (or multiple individuals) trying to beat and rob you (or take your own gun and kill you with it) would probably be a damned good reason to draw your weapon.

You have to judge the intent and the danger.

 

[duns]

He's not saying that. In some situations, that might be an affirmative defense. If it's some staggering drunk on the street taking a swing at you - no. But in another situation, a physically stronger individual (or multiple individuals) trying to beat and rob you (or take your own gun and kill you with it) would probably be a damned good reason to draw your weapon.

I can recognize a staggering drunk but what if the person does not appear to be drunk and launches themselves on me? What is the threshold for drawing/firing? You appear to be saying that it is to do with physical strength, numbers, or whether they are making a clear attenmpt to seize my gun. My point is that when everything is clear, it is usually too late for effective self defense. My question was really about how to establish clarity before it is too late. If that's not possible, then the value of a concealed handgun is greatly diminished IMO.

 

[duns]

...means, motive, and opportunity to hurt or kill you...

Those are probably the key words. My concern is that felons are not likely to disclose means and motive until they have opportunity! By the time they disclose means and motive, would it not usually be too late (because they now have the opportunity)?

 

[KodiakBeer]

I can recognize a staggering drunk but what if the person does not appear to be drunk and launches themselves on me? What is the threshold for drawing/firing?

I'm in my fifties and stand 5'8"... Your mileage may differ.

Did you just pat his girlfriend on the behind, or is this a robbery or a racially motivated attack? Did you just walk out of gay coffee shop into a crowd of skinheads? What is his motive? How big are you? How big is he? Are you with a couple of friends who can help you out? Is he with a gang...? Is he covered in prison tattoos, or just some guy swinging at you in a case of mistaken identity?

See what I mean? Every situation is different. You'll have to decide.

 

[Straight Shooter]

What will determine what a reasonable person would think and how a reasonable person would react is what led up to the final event, the draw.

Was it an argument that you both participated in? Both help to escalate? You're probably not going to convince anyone that you were justified.

Were you jumped by multiple people, probably justified.

Is the other person armed with a deadly weapon, knife, stick, brick, rock, gun? You're probably justified.

A fist fight is a tough call. You are going to have to convince people that you were in fear for your life, not just in fear of getting your butt kicked. Is the other person much larger than you? Is he beating you against a hard surface (kicking you against a wall or stomping you while you are on the ground)?

 

[Shawn Dodson]

Five Rules for CONCEALED Carry (see http://www.firearmstactical.com/)

1. Your concealed handgun is for protection of life only.

Draw it solely in preparation to save a life from the wrongful and life-threatening criminal actions of another.​

2. Know exactly when you can use your gun.

A criminal adversary must have, or reasonably appear to have:

1. ability to inflict serious bodily injury (he is armed or reasonably appears to be armed with a deadly weapon; you face multiple unarmed attackers; an unarmed attacker has an obvious, substantial advantage in physical ability and/or skill),
   
2. opportunity to inflict serious bodily harm (he is physically positioned to immediately harm you), and
   
3. intent (hostile actions and/or words) that indicates he means to do you serious or fatal physical harm.

When all three of these "attack potential" elements are in place simultaneously, then you are facing a reasonably perceived deadly threat that may justify an emergency deadly force response.​

3. If you can run away -- RUN!

Just because you’re armed doesn’t necessarily mean you must confront a bad guy at gunpoint. Develop your situation awareness skills so you can be alert to detect and avoid trouble altogether. Keep in mind that if you successfully evade a potential confrontation, the single negative consequence involved might be your bruised ego, which should heal with mature rationalization. But if you force a confrontation you risk the possibility of you or a family member being killed or suffering lifelong crippling/disfiguring physical injury, criminal liability and/or financial ruin from civil lawsuit. Flee if you can, fight only as a last resort.​

4. Display your gun, go to jail.

You should expect to be arrested by police at gunpoint, and be charged with a crime anytime your concealed handgun is seen by another citizen in public, regardless of how unintentional or innocent or justified the situation might seem. Choose a method of carry that keeps your gun reliably hidden from public view at all times.

You have no control over how a stranger will react to seeing (or learning about) your concealed handgun. He or she might become alarmed and report you to police as a "man or woman with a gun." Depending on his or her feelings about firearms, this person might be willing to maliciously embellish his or her story in attempt to have your gun seized by police or to get you arrested. An alarmed citizen who reports a "man with a gun" is going to be more credible to police than you when you're stopped because you match the suspect's description, and you're found to have a concealed handgun in your possession.

Before you deliberately expose your gun in public, ask yourself: "Is this worth going to jail for?" The only time this question should warrant a "yes" response is when an adversary has at least, both ability and intent, and is actively seeking the opportunity to do you great harm.​

5. Don't let your emotions get the best of you.

If, despite your best efforts to the contrary, you do get into some kind of heated dispute with another person while you’re armed, never mention, imply or exhibit your gun for the purpose of intimidation or one-upmanship. You’ll simply make a bad situation worse -- for yourself (see rule #4).​

 

[ironcode]

About the disparity of force when being robbed - I'm saying that it might not be visible, but, depending on the situation, you might be able to assume it's there and act accordingly.

Someone attacking you with fists and being of the same size or even smaller than you is tough. You know you have a weapon and that it can get ugly, but they don't know that. If there is no disparity of force in their favor, you can't draw. Your best bet is to defuse the situation, run away, or use non-deadly options to end it such as pepper spray, baton, flash light or something similar. If you do get into a fistfight, things might change. The villain might realize you're armed and go for your gun - that's bad and if it happens, you might have to shoot. Or they can beat you up. If this happens and there is no sign of it stopping anytime soon, now there is disparity of force and you can draw and shoot. But it's bad to get into a fight, as you might get knocked out immediately and lose your gun and have it used against you. In these cases swallowing your pride and running is the best option. Just in case this is not an option, having a non-lethal weapon such as a pepper spray could be very useful.

 

[shockwave]

But the bottom line seems to be that I have to let the BG take the first blow/shot (and if its just blows, I'm hearing that is not necessarily enough)? All my situational awareness would do is to enable me to try to avoid that person but if I don't manage to avoid them I have to wait until my life or health is in unquestionable danger? Is that the thrust of the law?

Yes. You now grasp the reality. The Bad Guy(tm) has all the advantages. The BG decides whether your are his victim today or not. The BG gets to pick the time and place. The BG gets to control the environment. The BG, if armed, will likely be able to draw his weapon first. The defender cannot do much to change those realities.

Bear in mind that the BG may be on the very cusp of lashing out to smash your windpipe, and then decide for whatever reason to not do so. You don't get to employ deadly force until such is necessary to save your own life. This is why I carry an ASP Street Defender. It is in itself a kubotan and offers an option to drawing the handgun. A violent, belligerent drunk might need a good macing down in a situation where bullets are not warranted.

In addition to practicing situational awareness, I train daily in martial arts. Not once or twice a week - daily. Because the BG has so many advantages, it doesn't hurt to offset as many of those as you can. You can be stronger, faster, and have better-trained reflexes and, if the worst starts to happen, you can operate better in a high-adrenaline situation.

The real problem, which you are now seeing, is that while a handgun is a powerful tool, it has many limitations. For example, we had a case here of a High Road member walking away from a store and another pedestrian came up from behind and fell into step beside him. The guy said, "hey, how's it going" and opened his jacket to reveal a handgun pointed directly at him. He responded by running into traffic and escaped the mugging. He had no ability to produce his own firearm or bring it into play.

 

[Shawn Dodson]

But the bottom line seems to be that I have to let the BG take the first blow/shot...

No, you don't have to allow the bad guy to try to kill you first before you draw your handgun. You may draw it IN PREPARATION to defend yourself.

 

[Shadow 7D]

Every bullet has a lawyer attached to it
you train for what you train for
I train for what I train for
OR we don't

My state is not your state
My applicable legal statues are not yours
My local PD and DA are not your

SO please quit nitpicking, if you don't know and aren't sure, go to a local school or accredited training center/instructor,

OR best yet, refer to the above lawyer, go with money and get yours, just make sure that he's good, he should be able to answer all your questions.

 

[duns]

I agree with most of what has been said so far but I don't find the "it all depends" responses helpful. The thrust of my question was to obtain guidance on what "it" all depends on -- and not just in general terms (i.e. restating the law) but in terms of what specifically has been/not been acceptable in the past. Case law would be very helpful but so far no one seems to know of any -- though I would have thought there must be some case law with alleged defensive uses of firearms in the USA running into hundreds of thousands to millions per year.

On a key question, as to whether I have to let the BG take the first blow/shot, I see two opposing opinions so far. My instinct is to go with Shawn's opinion where he states

No, you don't have to allow the bad guy to try to kill you first before you draw your handgun. You may draw it IN PREPARATION to defend yourself

.In the specific scenario I mentioned, where someone refuses my command not to approach closer, and if the context is threatening (e.g. the BG had stepped out of the shadows and followed me and kept on coming despite commands not to do so), would it be correct to say it would be reasonable to draw but not yet to point the gun at the BG?