Did the Texas Legislature Legalize Murder of Peace Officers?

The bill is HB 910, and the caption text reads:  “Relating to the authority of a person who is licensed to carry a handgun to openly carry a holstered handgun; creating criminal offenses.”

Supporters argue 2nd Amendment rights, and this bill which is on its way to Governor Greg Abbot’s desk for his signature to become law is about the open carry of handguns not peace officers specifically.

My question, however, is not about interpretations of the 2nd Amendment, opinions about any type of firearm, open or concealed carry, or any other Constitutional provisions such as the 4th Amendment in regard to the bill amendment proposed by Senator Don Huffines, adopted by the Senate but later withdrawn in part because of negative reactions from police chiefs in the state.

My question is how this bill relates to    TEX PE. CODE ANN. § 9.31 : Texas Statutes – Section 9.31: SELF-DEFENSE

http://codes.lp.findlaw.com/txstatutes/PE/2/9/C/9.31

This statute is the Texas version of Stand Your Ground.

“(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:”

Reading down the statute one finds a section that seemingly answers my question:

(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);

But read Subsection C.

(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.

Naturally upon initial reading the image of the “bad” cop, the person who believes that they are the law and not an instrument to uphold the law; the person who brutally beats a suspects, murders a suspect, for reasons unknown to hopefully the majority of We the People appears to be the type of individual to which force to resist is justified under the law.

Again, let’s leave any opinions, preconceived or other, about law enforcement officers out of the equation. That’s impossible you say.

How could this legalize the murder of Peace Officers?

A crime, let’s say a homicide has taken place. The suspect is described as a Caucasian male, 20s, approximately 6 feet tall, brown hair, 180 pounds, athletic build, tattoo on right forearm, and was last seen heading west on 2nd street wearing blue jeans and a purple LSU T-shirt. An officer is rolling down 3rd street when he spots someone who fits the physical description and is wearing blue jeans and an LSU T-shirt.  The person spotted did not commit the crime and has no idea that a crime had been committed. That person does not know that the officer is stopping him for a legitimate reason and taking reasonable precautions during the initiating of contact.

The actor, believing that he or she is being stopped for no reason and who has not resisted, feels that he or she must use force to protect themselves from the peace officer with a drawn weapon.

Is the officer justified in making the initial stop to determine if that individual who matches the description is the perpetrator of the crime?

Is the individual who believes that the officer is using undo precautions and likely force legally justified to use their weapon?

Apparently under Texas law, both answers are going to be YES. 

This scenario would have been more likely if the Huffines Amendment had been included in the final bill.

That amendment read:

Sec. 411.2049.  CERTAIN INVESTIGATORY STOPS AND INQUIRIES PROHIBITED.

“A peace officer may not make an investigatory stop or other temporary detention to inquire as to a person ’s possession of a handgun license solely because the person is carrying in a shoulder or belt holster a partially or wholly visible handgun.”

For some the idea behind the amendment was apparently to protect against unreasonable search and seizures which might result from profiling.

  • I know that some will challenge this scenario, and it certainly could happen without any open or concealed carry considerations. Some may accuse me of living in a fantasy world which has become a common retort when anyone questions what they want to happen.  They have that right and while I can answer questions about what it’s like to be in a public situation and as a civilian legally carrying a firearm when ‘bad things’ happen along with being in a public environment without any firearm when others pulled their firearms, I honestly can’t say what is better.
  • I know that sounds crazy, and I thought it was crazy until some twists of fate allowed me the experiences. How does one know who the bad people are and who the good people are when you know none of them at all?  Sure the initial actor often sticks out, but is the person to your right or just over yonder in cahoots with that ‘bad’ person or another ‘good person’ just like you?
  • I know that the  time that I looked straight into a barrel aimed at my face when I had no firearm never did result in any personal injuries or nightmares about the ‘bad’ guy.  It was, however, the only occasion where I have ever felt a slug flying past my body. The bad guy did not fire because quickly after being pointed at my face his Saturday Night Special was approximately 10 feet away as he and I struggled on the floor of that gas station/market.  The slug came from the weapon of a ‘Good Samaritan’ who fortunately became frightened after that first shot and never fired a second.

I wish there were easy answers and one size fits all solutions, but they do not exist.

For everyone who is sincere about solving the problems and working together, it’s something that will sadly never be to our satisfaction. We hopefully agree, however, that one problem is the ‘bad guys’ with weapons or even without. Another problem are those who are so insecure that gain some sense of power by walking with any weapon whether concealed or openly.  Honestly doing so makes you no different from the bullies of your past who broke your self-esteem.

For all, please read up on US History. I mean read from primary sources.  The “legal” carry, both open and concealed, of firearms, both long guns and hand guns, is neither of a common precedent nor as simple as many try to present today.  Legends of the Old West make for great movies and some old TV shows in my opinion, but the Hollywood versions were not based upon reality. What many believe and spout as truth is in fact merely fiction.

One additional aside for the time being about open or concealed carry on higher education campuses:

Arguments by supporters that since the age for a permit in many areas is 21, the proposal will have minimal effect is one of ignorance.  Walk into Community College classrooms and often so-called non-traditional or older students are the majority.  It was years ago, but I have taught courses on university campuses where I as the instructor was the youngest in the classroom.  These were history courses.  A greater diversity in student ages exists than many realize.

If campus carry happens at an institution where I am working, I cannot fathom what the atmosphere will become. I’ve not been on a campus with any type of active shooter event, so I’m not commenting about that possibility. I have been in a number of classroom situations that more than likely would have resulted in bloodshed if either students or I had a firearm at the time. During discussions students are often passionate about their views and opinions, and rational discourse can quickly reach a tipping point. Some students do not like when their exam or paper has earned them a failing grade, and often they conclude in the moment that I have given them a failing grade and not that their work received the failing grade.

I would compare the situation of a professor at that moment to be that of an RN setting up a patient for an IV. Do you want the patient to have a firearm to potentially use if they feel any pain from the needle?  Do you want the nurse to hold you at gunpoint while inserting a needle?

As I wrote earlier:

I wish there were easy answers and one size fits all solutions, but they do not exist. 

For everyone who is sincere about solving the problems and working together, it’s something that will sadly never be to our satisfaction. We hopefully agree, however, that one problem is the ‘bad guys’ with weapons or even without.

These attempts at legislation are for the most part creating more problems, and not doing a thing to address the actual problems.

http://www.legis.state.tx.us/tlodocs/84R/billtext/pdf/HB00910E.pdf#navpanes=0

http://www.legis.state.tx.us/tlodocs/84R/amendments/pdf/HB00910S2F9.PDF

http://www.legis.state.tx.us/BillLookup/History.aspx?LegSess=84R&Bill=HB910

http://codes.lp.findlaw.com/txstatutes/PE/2/9/C/9.31

http://www.texastribune.org/2015/05/22/after-one-more-gun-fight-open-carry-passes-senate/

http://www.liberalamerica.org/2015/05/26/gun-safety-texas-open-carry/

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