• Walker & Taylor, PLLC

Stop McCloskey-Style Prosecutions in Texas: Vague Texas Gun Law Undermines Our Right of Defense

Updated: Oct 1, 2020

TEXANS ARE VULNERABLE


We have an inalienable right to feel secure in our houses, free from violence and mob attack. Tragically, a contradiction in Texas Law is eroding your right to defend yourself, family, and home. This error in drafting leads to preposterous effects that should shock any Texan into action. We don’t want what happened to one St. Louis couple, merely defending their house, to keep happening here. I say "keep" because law-abiding gun owners have already learned—the hard way—about this legal snare.


Don’t let what happened to Mark and Patricia McCloskey in St. Louis, Missouri, happen to you. We must amend Texas law to protect our right to self-defense. The McCloskeys were forced into the national spotlight when they were charged with felonies after defending their family and their home from a large group of people threatening to burn down their house and kill them.


Texans are currently vulnerable to this same type of malicious and political prosecution. People who are forced to act in self-defense, defense of a third person, or defense of property are being unfairly punished because of the current confusion in the wording of the Threats as Justifiable Force statute (Tex. Pen. Code Sec. 9.04) and Aggravated Assault statute (Tex. Pen. Code Sec. 22.02).


The Threats as Justifiable Force statute clearly shows the legislature intended the "production" of a weapon (as opposed to the "use" of a weapon), in defense, to be a use of force not deadly force. Absent justification, the use of force ordinarily constitutes a misdemeanor, whereas the use of deadly force constitutes a felony.

POINTING A GUN IN DEFENSE IS PROSECUTED THE SAME AS SHOOTING SOMEONE?!


A plain reading of the Threats as Justifiable Force statute makes it clear that an actor is justified in using force 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 the weapon as deadly force if necessary. This act should only constitute a use of force. However, the Aggravated Assault statute is in direct conflict with the Threats as Justifiable Force statute as it uses the word "exhibits" instead of "production." In context, the applicable definition of "production" means "to offer to view;" "exhibition" means "to present to view." Even though they have virtually identical meanings, individuals using force in defense are being erroneously targeted, arrested, and charged with second degree felonies, based upon the accusation that they have unlawfully used deadly force.


Currently, exhibiting a gun is treated the same as using a gun. If you merely point a firearm at someone, you will likely be charged with the same crime as you would be if you shot and seriously injured that person. This is an obvious flaw in the law – everyone can agree that shooting another person is far more serious and should be punished more harshly than exhibiting a weapon. That is why we must eliminate the current conflict between the justified defense statutes and the aggravated assault statute, and logically correct the illogical felony punishment for misdemeanor conduct.

THE CONFLICT IN SHORT


Exhibition of a weapon under the Threats as Justifiable Force statute (Tex. Pen. Code Sec. 9.04) - conduct constitutes force.


Exhibition of a weapon under the Aggravated Assault statute (Tex. Pen. Code Sec. 22.02) conduct constitutes deadly force.


Without this necessary amendment to the current laws, you could be charged with a felony for displaying a weapon… just like the McCloskeys.

THE SOLUTION


Change Texas Penal Code 9.04 to use the word "exhibition" instead of "production."


Change Texas Penal Code 22.02 to make it clear that "using" a weapon should be treated differently than the "exhibition" of a weapon.


Check out our draft bill that would fix this legal nightmare.


Take Action! Share this message! Bring this pressing issue to your state representatives! And educate your local 2A community about this dangerous vulnerability!


Authors: T. Edwin Walker, Emily Taylor, & Richard D. Hayes, II

DISCLAIMER: The information on this website does not contain legal advice or create an attorney-client relationship. Every case is different, and this material is not a substitute for, and does not replace the advice or representation of, a licensed attorney.



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