Use of Force Theory.

Penal Code Chapter 9 is the Texas law of justification. If conduct is justified under the chapter, that is a defense to prosecution. It opens with general rules that apply to every justification that follows.

Deadly force is force that is intended or known by the actor to cause death or serious bodily injury, or that is capable of causing death or serious bodily injury in the manner of its use or intended use. A threat is treated differently. Threatening force is justified whenever using force would be justified. Threatening death or serious bodily injury, by producing a weapon or otherwise, is not a use of deadly force as long as your purpose is limited to creating an apprehension that you will use deadly force if necessary.

Confinement is justified when force is justified, if the actor takes reasonable measures to end the confinement as soon as he knows he safely can, unless the person confined has been arrested for an offense.

Two limits matter to every officer. If you are justified in using force against one person but recklessly injure or kill an innocent third person, the justification is not available in a prosecution for the injury or death of that third person. And justification under Chapter 9 does not abolish or impair any remedy available in a civil suit.

Section 9.51 is the officer’s own section. A peace officer is justified in using force when and to the degree the officer reasonably believes it is immediately necessary to make or assist in an arrest or search, or to prevent escape after arrest. Two conditions apply. The officer must reasonably believe the arrest or search is lawful, or the warrant valid. And before using force the officer must manifest the purpose to arrest or search and identify himself as a peace officer, unless he reasonably believes his purpose and identity are already known or cannot reasonably be made known.

General justification. Under Public Duty (9.21), conduct is justified if the actor reasonably believes it is required or authorized by law, by a court’s judgment or order, or in the execution of legal process. Deadly force is not justified under that section unless the actor reasonably believes it is specifically required by statute, or it occurs in the lawful conduct of war. Under Necessity (9.22), conduct is justified if the actor reasonably believes it is immediately necessary to avoid imminent harm, the desirability and urgency of avoiding the harm clearly outweigh the harm the law seeks to prevent, and no legislative purpose to exclude the justification plainly appears.

Protection of persons. Self-defense (9.31) justifies force when and to the degree the actor reasonably believes it is immediately necessary to protect against another’s use or attempted use of unlawful force. Force is not justified in response to verbal provocation alone. It is not justified to resist an arrest or search the actor knows is being made by a peace officer, even an unlawful one, unless before the actor offers any resistance the officer uses or attempts to use greater force than necessary. Deadly force in defense of person (9.32) requires that force be justified under 9.31 and that deadly force be immediately necessary to protect against unlawful deadly force, or to prevent the imminent commission of aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery or aggravated robbery. Defense of a third person (9.33) applies the same rules when the actor reasonably believes intervention is immediately necessary to protect the third person.

Protection of life or health (9.34) has two parts. Force, but not deadly force, is justified to prevent another from committing suicide or inflicting serious bodily injury on himself. Both force and deadly force are justified when immediately necessary to preserve the other person’s life in an emergency.

Protection of property. A person in lawful possession may use force to prevent or terminate a trespass on land or unlawful interference with property (9.41). Deadly force to protect property (9.42) needs three things: force would be justified under 9.41; deadly force is immediately necessary to prevent the imminent commission of arson, burglary, robbery, aggravated robbery, theft during the nighttime or criminal mischief during the nighttime, or to stop a person fleeing immediately after burglary, robbery, aggravated robbery or theft during the nighttime from escaping with the property; and the actor reasonably believes the property cannot be protected or recovered by any other means, or that lesser force would expose the actor or another to a substantial risk of death or serious bodily injury. Section 9.43 extends these rules to a third person’s property. A device may be used to protect property (9.44) only if it is not designed to cause, or known to create a substantial risk of causing, death or serious bodily injury, and its use is reasonable.

Special relationships and custody. A parent, an educator or other person entrusted with care, and a guardian of an incompetent may each use force, but not deadly force (9.61 to 9.63). The parent rule covers a child younger than 18. Force to prevent the escape of an arrested person from custody is justified when it could have been used to make the arrest. A correctional facility guard or a peace officer may use any force, including deadly force, reasonably believed immediately necessary to prevent a person’s escape from a correctional facility (9.52). A person who uses force or deadly force that is justified under Chapter 9 is immune from civil liability for the resulting personal injury or death.

The outline groups the use of force cases by the kind of force involved. Learn the groups, because they show that every tool on your belt, and even the way you restrain someone, has been examined by a court.

Cases relevant to Texas cover use of force in general, the Taser, and shooting at a moving car. Cases from other circuits cover handcuffing, pepper spray, seizure at gunpoint, the use of a canine as force, and the hog-tie or hobble tie.

Federal appeals courts are divided into circuits, and Texas is in the Fifth Circuit.