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Does a Conviction for DWI/DUI Make a Person Ineligible for a Texas Concealed Handgun License (CHL)?5/18/2015  Question:
I was convicted of drunk driving while stationed in North Carolina on military duty. I have since been discharged and am now back home in Texas. Does my out-of-state drunk driving conviction render me ineligible for a Texas CHL? Answer: It sounds like you probably are eligible to receive a CHL. You might want to consider having a firearms/CHL attorney assist you. The attorney would likely interview you to obtain more details of your specific case and, if deemed necessary, obtain and review copies of court documents. Then, if all appears in order, the attorney could assist you with completing your application. The attorney's office need not be physically located in your geographic area, as long as the attorney is licensed to practice in Texas. For more information on this topic, or other legal topics, click: Contact Lapin Law Offices Texas Firearms Law Attorney - Serving all 254 Texas Counties Lapin Law Offices, P.C. 877.570.2200 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
A number of the congregants who attend the place of worship that I attend are licensed to carry concealed handguns. Because the cost of hiring armed, plainclothes security officers is prohibitively expensive, these concealed handgun license (“CHL”) holders are considering whether they should organize a volunteer (e.g., unpaid) group to provide armed security for the other congregants. What are the potential legal issues associated with this idea? Answer: In most of America, and especially in Texas, it is still possible for persons to lawfully arm themselves for the purpose of self-defense. Often, this arming involves some form of prior statutory or regulatory compliance. Fortunately, such compliance issues are usually not overly burdensome. The Texas Concealed Handgun law provides a quick, easy, and inexpensive means for law-abiding Texas residents to obtain a concealed handgun license (CHL). The purpose of CHLs is to allow individuals to carry concealed firearms for personal protection. When, in Texas, a person endeavors to go beyond protecting oneself (and immediate family) and provides personal protection to others, state law requires that such person be licensed under the Private Security Act (hereinafter “Act”), which has been codified as § 1702 of the Texas Occupations Code. Persons who wear a “distinctive uniform” and openly carry a firearm are referred to under the Act as “Commissioned Security Officers.” Section 1702.169. Persons who wear clothing which does not constitute a “distinctive uniform” and who carry a concealed firearm are referred to under the Act as “Personal Protection Officers.” Section 1702.201, et seq. One must first attain the status of Commissioned Security Officer before being granted the status of Personal Protective Officer. Section 1702.204. The Texas Private Security Act makes it unlawful for persons who have not been issued a license thereunder to provide security services. A civil penalty of up to $10,000 per occurrence may be imposed on any person who violates the Act. Section 1702.381(a). Likewise, a person (or entity) that employs a person who is required to hold a license under section 1702, but who is in violation of that requirement, also violates the Act and may also, upon proper notice, be assessed a civil penalty of up to $10,000 per occurrence. Section 1702.381(b-c). Arguably, the civil penalty which might be imposed on the “employer” could be up to $10,000 per unlicensed person. Thus, for example, an entity that “employs” ten unlicensed persons might be assessed a civil penalty of $100,000. The legislative history of the Act strongly suggests that the term “employ,” is to be given broad meaning; that is, the term is to be understood expansively, to encompass voluntary associations of unpaid persons in places of worship, and is not to be read narrowly to mean only an employer who engages the services of an employee for compensation. During 2013, two separate bills were introduced in the Texas legislature which, if passed, would have amended the Act to allow non-uniformed concealed carry of firearms by volunteers who serve charitable and religious organizations. Neither bill made it out of committee. The Private Security Act does, however, contain an exception to its licensing requirements for volunteers who serve charitable and religious organizations. However, persons who take advantage of this exception may not lawfully carry firearms while providing security services – even if they possess a valid Concealed Handgun License – (and also may not wear uniforms). Section 1702.323. There is, however, a course of action that is available to charitable and religious organizations that would provide them with armed security at economical, below-market rates. A tax-exempt legal entity – separate and apart from the charitable or religious organization – could be formed for the sole purpose of providing security services to a single charitable or religious organization or, alternatively, to a group of such organizations (“Private Security Entity”). The Private Security Entity would obtain a Security Company license under the Private Security Act and then hire properly-licensed volunteer Personal Protective Officers (PPOs) from among the members of the organization it serves or, alternatively, from the general workforce. To minimize the risk of civil liability, the Private Security Entity and the charitable or religious organization it serves would enter into a contract for services, with the Private Security Company indemnifying the charitable or religious organization for any civil liability that might arise from the performance of services under the contract. The charitable or religious organization would, in turn, pay the Private Security Company an agreed-upon fee for services, which because of the Private Security Company’s not-for-profit nature and method of operations would, presumably, be much more affordable than contracting with a for-profit private security company. For a related information, please visit: Texas Concealed Carry in Places of Worship For more information on this topic, or other leg topics, click here: Contact Lapin Law Offices Texas Firearms Law Attorney - Serving all 254 Texas Counties Lapin Law Offices, P.C. 877.570.2200 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  In an opinion filed on February 11, 2015, and one that almost certainly will be appealed, a Federal District Court (trial court) in Northern Texas has ruled that the long-standing prohibition, found in the Gun Control Act of 1968, which makes it illegal for Federal Firearms Licensees (FFLs) to sell handguns to residents of states other than the state where the FFL is located, is unconstitutional. Mance v. Holder.
The court found that the plaintiffs, a Texas FFL, the FFL’s two customers (husband and wife) who reside in the District of Columbia, and the Committee for the Right to Keep and Bear Arms, all have standing to bring this challenge to the “federal interstate handgun transfer ban,” which is found in the Gun Control Act of 1968. The Court then found that, based on District of Columbia v. Heller, the federal interstate handgun transfer ban is properly evaluated under a test of constitutionality known as “strict scrutiny” and that it fails that test. Very few laws can survive strict scrutiny analysis. The Court went on to find that the transfer ban would still be unconstitutional under the lower, more lenient, standard of “intermediate level” scrutiny. Although the trial court’s opinion in Mance v. Holder is very favorable to those who support the Second Amendment, the trial court’s opinion on this constitutional issue almost certainly will be appealed. The court’s full opinion can be accessed here: https://www.firearmspolicy.org/wp-content/uploads/2015/02/40-opinion.pdf For more information on this topic, or other leg topics, click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
Approximately twelve years ago, I received deferred adjudication for the offense of assault with a deadly weapon (ADW) and, as a result, was placed on 5 years of community supervision (probation). I successfully completed the period of probation and, by all standards, have been a law-abiding, taxpaying citizen ever since. Recently, I completed a Texas concealed handgun licensing course and applied for a Texas Concealed Handgun License (CHL). My application for a CHL was denied, due to the presence on my criminal history record of the deferred adjudication for the ADW offense. Will a deferred adjudication for a felony offense constitute a permanent bar to being issued a CHL? Answer: There seems to be much confusion regarding the legal effect and consequences of Texas deferred adjudications, as evidenced by the number and frequency of inquiries on this subject. Casual Internet research also suggests there is much false information on this issue which is circulating online. A hypothetical, but common case involves a young adult, say under 25 years of age or so, who had a momentary lapse or absence of good-judgment and, as a result, ended up being charged with a felony offense. During pretrial negotiations, this young adult, who may or may not have been relying on the assistance and advice of counsel, accepted a settlement offer from the prosecuting attorney which involved a plea of “guilty” or “no contest” to the offense, in exchange for a period of deferred adjudication. Our hypothetical young offender may even have been told that, after successful completion of the term of deferred adjudication, the offender would be “discharged.” Our hypothetical young offender then turned over the proverbial “new leaf,” successfully completed the period of deferred adjudication, was “discharged,” and then went on to lead a law-abiding and productive life. Over the many years that pass, our hypothetical and once youthful-offender turned law-abiding citizen discovers that the deferred adjudication may have been an obstacle to professional licensing and employment, and, last but not least, is and has been a bar to the lawful ownership and use of firearms. In fact, our hypothetical, now law-abiding citizen may even have applied for a CHL, only to be reminded, upon receipt of a letter denying issuance of a CHL, of the continuing consequences of the (now) long-ago deferred adjudication. Let us take a look at the relevant law. Federal law provides that it is unlawful for a person convicted of a felony offense to possess firearms. 18 U.S.C. § 922. Texas law also criminalizes the possession of firearms by persons who have been convicted of a felony offense. Texas Penal Code § 46.04. To the extent that state law is less restrictive than federal law, federal law will control. U.S. Constitution, Article VI, clause 2. For purposes of federal law, a criminal “conviction” which renders a defendant ineligible to lawfully possess firearms is to be determined “in accordance with the law of the jurisdiction in which the proceedings were held.” 18 U.S.C. § 922(a)(20). Thus, because federal law looks to state law to determine what constitutes a felony conviction for the purposes of firearms, we must turn to Texas state law to answer the following questions: 1. Whether “deferred adjudication” for a Texas felony is considered a felony “conviction” which results in a corresponding loss of firearms-related rights. 2. Assuming an affirmative answer to the first question, whether a “discharge” following successful completion of the period of deferred adjudication results in a restoration of a defendant’s firearms-related rights. Texas appellate courts, over the course of main appeals which have spanned many years, have consistently held that a disposition of deferred adjudication constitutes a conviction. In reaching this conclusion, the Texas courts have looked to, and interpreted, § 20(a) of Article 42.12 of the Texas Code of Criminal Procedure as creating two types of relief, one mandatory and the other discretionary. Mandatory relief has been described by Texas appellate courts as the usual – most common – disposition, which merely consists of a “discharge” from community supervision. The second – and least common – form of relief has been described by Texas appellate courts as “judicial clemency,” which consists of a dismissal of criminal charges and a release “from all penalties and disabilities” that resulted from the offense. Section 20(a) of Article 42.12 states in relevant part: If the judge discharges the defendant under this section, the judge may set aside the verdict or permit the defendant to withdraw the defendant's plea, and shall dismiss the accusation, complaint, information or indictment against the defendant, who shall thereafter be released from all penalties and disabilities resulting from the offense or crime of which the defendant has been convicted or to which the defendant has pleaded guilty. . . . Texas Code of Criminal Procedure, Article 42.12, § 20(a). Because, as the Texas appellate courts have explained, the “usual” disposition of deferred adjudication cases is a mere “discharge” from community supervision – without a dismissal of charges and a releases from all penalties and disabilities that result from the offense – Texas law views most deferred adjudications to be no different, in any meaningful way, from convictions. There is, however, a judicially-recognized method of changing the status of a deferred adjudication from that of a “conviction,” where nothing but the defendant’s discharge from community supervision (e.g., probation) is deferred, to that of a true deferred adjudication – a dismissal – with a release from all penalties and disabilities following successful completion of probation. The timing related to seeking “a release from all penalties and disabilities” has also been the subject of much Texas litigation. For those who would like to have their civil rights restored after completing a period of deferred adjudication, the best time to start preparing to make the request is before agreeing to be placed on deferred adjudication. The next-best time is during, but before the expiration of the period of deferred adjudication. And, as readers might have already guessed, the least-preferred time to start preparing to make the request is after the period of deferred adjudication has concluded. One final – but important – note: As explained above, unless and until a person who has been placed on deferred adjudication for a felony offense receives a release from all penalties and disabilities which resulted therefrom, that person will be considered to be a convicted felon for purposes of possessing firearms. As such, not only will the deferred adjudication create a permanent bar to being issued a Texas concealed handgun license (CHL), the seemingly simple act of applying for a CHL could be used as a basis for a new criminal prosecution, one which would allege the unlawful possession of a firearm by a felon, as successful completion of the CHL course necessarily requires a student to physically possess and demonstrate proficiency with a handgun. For a related information, click: Texas Deferred Adjudication: Is it a “Bait-and-Switch”? For more information on this topic, click here to: Contact Lapin Law Group Texas Firearms Law Attorney - Serving all 254 Texas Counties Lapin Law Group, P.C. 877.570.2200 Disclaimer: The information contained in this publication is provided by Lapin Law Group, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
I am a legal gun owner, and recently married a man who is on parole for a felony DWI. We have had several burglaries in our neighborhood, as well as two attempted burglaries in our own home. If someone breaks into our home, may my husband use deadly force with MY gun, or do I have to be the one who stops the intruder? Answer: It is unlawful, in almost all circumstances, under both Texas and federal law, for a person who has been convicted of a felony to possess a firearm. "Possession" includes "actual" possession, such as the holding or use of a firearm, as well as the "construction" possession, or what many might refer to as mere access to a firearm. Thus, a parole officer or police officer who might happen to search a parolee's home would, in all likelihood, arrest (and a prosecutor would likely prosecute) a parolee for unlawful possession of a firearm if a firearm that a parolee had access to was found in the parolee's home, even if the firearm was lawfully owned and possessed by another member of the household. In cases where a person who is prohibited to possess firearms, such as a person who has been convicted of a felony, uses a firearm in a justifiable self-defense shooting, it would not be unexpected for the prohibited person to not be prosecuted, or if prosecuted, to be found not-guilty, of assault or homicide, but to still be convicted of unlawful possession of a firearm. Typically in these types of cases, a conviction for unlawful possession of a firearm is based on the felon's possession (actual or constructive) BEFORE the need to use deadly force actually arose or came into existence, rather than for possession of a firearm at the moment of the actual shooting. For more information on this topic, click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
Although I have my concealed handgun license, I’m not exactly sure whether, if I am ever involved in a self-defense shooting, I should waive my Fifth Amendment right against self-incrimination and talk with police or whether I should simply make no statement at all and ask to contact my attorney. Answer: Persons who are licensed to carry concealed handguns are among the most law-abiding citizens in American society; they have to be, otherwise they would not have been eligible to receive their concealed handgun license. It follows that Concealed Handgun License (CHL) holders (as they are called in Texas) – are among those in society who are the least likely to have had first-hand experience as a suspect in a criminal investigation. In other words, CHL Holders are not experienced in responding to questions from police officers who are attempting to determine whether the CHL Holder committed a crime and, in the opinion of the police officer, should be arrested and booked into jail. And make no mistake about it, after a CHL Holder is involved in a shooting, the CHL Holder will be viewed by police (and likely the local prosecutor’s office) as a criminal suspect, at least initially. As an attorney who, since 1999, has been representing clients in both criminal and civil litigation matters, my experience strongly suggests that it usually is not a good idea for persons who are – or who likely will be – involved in litigation to make statements to the police. On the other hand, my experience, prior to entering the practice of law, of being a municipal police officer and detective who, for more than a decade, was responsible for conducting criminal investigations – including both officer-involved shootings as well as general homicide and assault cases – suggests that there are instances where it may be in the best interests of a criminal suspect to give a statement to police. There are some who advocate that, after being involved in a shooting, a CHL Holder should simply tell police that the CHL Holder was in fear of his or her life; provide police with basic identifying information (CHL, Drivers’ License, etc); and then invoke the Fifth Amendment right against self-incrimination, and be adamant when saying that no statement to police will be made until after the CHL Holder consults with legal counsel. See, http://dailycaller.com/2013/10/30/the-most-important-article-you-will-read-what-to-do-after-a-defensive-shooting/1/ A different approach, one advocated by renowned firearms trainer, expert litigation witness, and sworn reserve police officer Massad Ayoob, takes a more nuanced approach. Inform the police: 1. That the injured/deceased person attacked you; 2. You will cooperate with any criminal prosecution of a surviving attacker; 3. About the existence and location of evidence (e.g., firearms, spent casings, knifes or other deadly weapons; 4. About the existence and location of witnesses, security cameras, and the like; and 5. That you will fully cooperate with the police after you have spoken to your Attorney. Be polite when interacting with police. You should, of course, identify yourself as the holder of a CHL and provide your CHL and drivers license to the officer. See Massad Ayoob’s video on this subject at: https://www.youtube.com/watch?v=pCZXZMYyRl4 This approach does a good job in balancing a CHL Holder’s interests in not making statements that, on the one hand, while well-intended, might be misunderstood, misinterpreted, or even incriminating, with, on the other hand, the need to direct police investigators to crucial evidence that will assist investigators in confirming the statements the CHL Holder may – after consulting with counsel – later make to police. Lest one think that the Massad Ayoob approach provides for too much interaction between the CHL Holder and the investigating police officers, consider this: The Massad Ayoob approach is, in substance, exactly the approach many police officers are trained to take – both by police trainers and the attorneys who regularly represent police officers – in the event an officer has been involved in a police shooting. It is important to emphasize, however, that the Massad Ayoob approach should be considered only when the CHL Holder has a reasonable basis to believe the shooting was justified. If there is any question in the CHL Holder’s mind that the shooting might be unlawful, the make-no-statements approach would probably be the most prudent. Yes, when it comes to carrying a firearm, judgment is everything. Click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
Is it lawful in Texas for a holder of a concealed handgun license to be armed while at places of worship? I have been receiving conflicting information on this issue. Answer: There seems to be some confusion regarding whether it is lawful for holders of Texas Concealed Handgun Licenses (CHL) to carry concealed handguns in churches, synagogues, and other “established place[s] of religious worship.” To understand the Texas CHL law, as well as the reason for this confusion, we need to take a brief look at the legislative history of the Texas CHL law. The current Texas “shall-issue” concealed carry law was enacted in 1995, in the aftermath of the 1991 mass-shooting at Luby’s Cafeteria, in Killeen, Texas. At that time, the Luby’s shooting was the deadliest mass-shooting in American history. The Texas CHL law is codified as Penal Code § 46.035. As originally enacted, the statute stated that it was unlawful for a License Holder to carry a concealed firearm “on the premises of a church, synagogue, or other established place of religious worship.” P.C. § 46.305(b)(6). The term “premises” is defined narrowly, to include only “a building or a portion of a building. The term [premises] does not include any public or private driveway, street, sidewalk or walkway, parking lot, parking garage, or other parking area.” P.C. § 46.035(f)(3). Thus, as originally enacted, the Texas CHL law made it unlawful for CHL holders to carry inside churches and other religious buildings, regardless of whether the property owner was amenable to concealed carry on the premises. In 1997, two years after the current CHL law was passed, the Texas legislature decided to eliminate the prohibition against concealed carry in churches and certain other statutorily-prohibited locations. The simply, most logical, and most straightforward way of making these changes would have been to simply repeal subsection (b)(6) of section 46.305, as well as the subsections that formerly outlawed concealed carry at certain other locations. But instead of simply repealing subsection (b)(6) and the other undesirable subsections, the Texas legislature, instead, added a new subsection, subsection (i), which states: “Subsections (b)(4), (b)(5), (b)(6), and (c) do not apply if the actor was not given effective notice under Section 30.06.” P.C. § 46.035(i). The term “Section 30.06” is a reference to Texas Penal Code § 30.06, which is a trespass statute that gives owners of real property the legal ability to prohibit the otherwise lawful carry of concealed firearms while on their property. Section 30.06 is an attempt to balance the rights of private property owners against the rights of License Holders. Thus, the Texas legislature mixed legislative “apples and oranges,” by taking a statute which originally was intended to be used for the state government to prohibited concealed carry in certain locations and turned it, at least partially, into a trespass statute to be used by owners of certain private property buildings who want to prohibit concealed carry inside those buildings. Although most subscribers to this column would likely agree that the Texas legislature achieved a desirable result when it added subsection (i) to Texas Penal Code § 46.035, it’s hard to argue that method the legislature chose to do so was not illogical, inartful, or downright clumsy. Click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
What legal issues should be considered when deciding whether to use “custom-made” firearms as self-defense weapons? Answer: As an attorney and former police officer who provides legal representation to both civilian and law enforcement clients in use-of-force and firearms-related matters, and who also gives lectures and other presentations on issues related to “legal self-defense,” I read a fair amount of law enforcement-related training materials. Unfortunately, I often find discussions of liability issues by authors who, although they are subject-matter experts in firearms and use-of-force matters, lack sufficient knowledge of issues relating to legal liability. One such article appeared in a recent issue of a periodical which focuses on police firearms and tactics. The author of the article is a high ranking, career law enforcement officer with SWAT experience; obviously someone who has subject-matter expertise with respect to law enforcement issues. The article discussed the use of “custom[-made] duty weapons,” in the context of the AR-platform type of rifle. The end of the article contains a brief discussion of potential civil liability, and states in relevant part: “Some say that if you defend yourself with a gun that has an other-than-factory trigger, you’ll be successfully sued. . . .” In downplaying the likelihood of a successful lawsuit, the article goes on to say that “over the last decade or so, the courts have heavily favored the ‘Totality of the Circumstances’ standard in law enforcement use of force cases. . . . In most of the cases from this century that I have read, the details of the gun never even came up in the legal argument.” The conclusion that this author apparently has reached – that using custom-made weapons such as AR-platform rifles or after-market components such as triggers, does not present a significant liability issue – is probably correct. But not because “the details of the gun never [come up] in the legal argument” of cases where the outcome is determined by the “totality of the circumstances.” The reason the “details of the gun” never come up in “totality of the circumstances” cases is simply because the details of the gun are irrelevant in such cases. Consideration of the “totality of the circumstances” can be one of many factors in a lawsuit alleging an intentional tort (an intentional use-of-force). If a shooting is intentional, it matters not whether the firearm was defective in any respect. All that matters is whether the shooting was justified under the “totality of the circumstances” and any other applicable legal standard. In other words, a justified shooting does not somehow become unjustified simply because it was accomplished with a defective firearm. If, on the other hand, a shooting is not intentional (that is, the shooting is accidental or otherwise unintended), the “totality of the circumstances” standard does not apply. The “totality of the circumstances,” by definition, can never justify an accidental shooting. An accidental shooting which is caused, in whole or in part, by a defective trigger or other issue relating to the functionality of the firearm itself, raises a whole panoply of other legal issues; however, none involve the “totality of the circumstances.” The manufacture or assembly of firearms – especially those used for law enforcement or other self-defense purpose – inherently involve legal risk. The first step in minimizing and managing legal risk is to have a clear understanding of the relevant legal theories of liability that apply in a given situation. Once that has been accomplished, we can begin taking substantive steps in the direction of legal risk management and asset protection. Click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you.  Question:
What can we expect after a self-defense incident? We have our concealed handgun licenses and we engage in various forms of firearms training on a regular basis; however, our focus has always been on physically surviving a self-defense incident and not on the legal aftermath of such incidents. Answer: “Defense of Self-Defense” is, in all likelihood, what will be needed after a use of deadly force incident. The objective of Defense of Self-Defense is not simply to be found “Not Guilty” of criminal charges or not liable for civil damages; the true objective is to never be prosecuted criminally or sued civilly. Proper training to safely and responsibly carry concealed firearms involves many aspects. One aspect of that training which frequently is not given the attention it deserves is Defense of Self-Defense. As with all other aspects of firearms training, the time to begin one’s Defense of Self-Defense training is not after a deadly force incident, but rather, long before the incident ever occurs. Basic firearms training usually includes instruction on firearms safety and marksmanship (before formally beginning the process of licensure training). Training to obtain a concealed carry license often includes a few hours in a classroom and a quick range qualification. However, anyone who believes that this minimal amount of required training is all that one needs, is seriously mistaken. Nevertheless, for reasons that we will endeavor to discuss in a future post, that is not a good or sufficient reason to increase the amount of training which is required to obtain a concealed carry license. Defense of Self-Defense training will teach a concealed carry licensee how to better handle the aftermath and legal consequences of a shooting incident. Defense of Self-Defense training includes, among other things, obtaining an in-depth understanding of the law (beyond that taught in concealed carry licensing courses) that will be used to evaluate the propriety of one’s actions after a shooting. A proper understanding of the law will not only result in one knowing what to say (and not say) after a use of force incident, it will, more importantly, result in a greater understanding of when (and how much) force is lawful. This understanding, in turn, should then assist the concealed carry licensee in making appropriate decisions concerning whether, and how much, force to use in a given situation. Although the legal contours of the constitutional right to carry in public are still being worked out in the courts, the law regarding use of deadly force is much more settled. It is this (mostly) settled latter body of law that the responsible concealed carry licensee will focus his or her attention. Intellectual understanding and knowledge, however, are not enough. One should use that knowledge as a foundation upon which to base, grow and refine both their decision-making and practical shooting skills. This is done through regular, realistic training which is calculated to replicate, as much as is feasible, those real-world use of force situations that are most likely to be encountered. Remember, the objective of Defense of Self-Defense is not simply to be found “Not Guilty” of criminal charges or not liable for civil damages; the true objective is (or at least should be) to never be prosecuted criminally or sued civilly. Click here to: Contact Lapin Law Offices Attorney Dallas TX 75244 Lapin Law Offices, P.C. 5001 Spring Valley Road, Suite 400 East Dallas, Texas 75244 972. 292.7425 Disclaimer: The information contained in this publication is provided by Lapin Law Offices, P.C., for informational purposes only and, shall not constitute legal advice or create an attorney-client relationship. The laws and interpretation of laws discussed herein may not accurately reflect the law in the reader’s jurisdiction, or since this publication may have changed statutorily or have been affected by judicial decision. Do not rely on the information contained in this publication for any purpose. If you have a specific legal question, please consult with an attorney in your jurisdiction who is competent to assist you. |
AuthorLapin Law Offices is a full-service Texas law firm that provides litigation and non-litigation legal services throughout the State of Texas. Archives
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