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"I'd like to see you try and take my gun" is a common mantra among 2nd amendment enthusiasts, the implied sentiment being they'll kill anyone who tries, but I'm interested in what would happen if this actually occurred.

If, for instance, a student brought an AR-15 slinged across her back challenging others to take it, and another student abruptly tried to disarm her but was shot and killed, would the student who brought the gun be able to argue a successful self-defense case to a court, or would she likely be found guilty of homicide?

  • In the answer to a recent question it was stated that if you carry a gun illegally, and you start an argument, then you cannot use the gun in self defense. So carrying a gun and challenging others to take it would mean there is no right to self defense using that gun. Someone will surely know details. – gnasher729 May 18 '18 at 21:06
  • closely related law.stackexchange.com/questions/6610/… and law.stackexchange.com/questions/15860/… – user4460 May 18 '18 at 21:10
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    A claim of "Self Defense" requires the shooter to be in mortal danger. If the aggressor is merely trying to take the weapon, and is clearly not going to use it on the shooter, then the shooter does not have a reasonable fear of being killed. – abelenky May 18 '18 at 21:28
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    @abelenky - "and [the aggressor] is clearly not going to use it on the shooter" - wouldn't that mean the shooter would have to be able to read the aggressor's mind? – jww Sep 19 '18 at 19:48
  • Challenging someone to take it? You have case for self-defense. If, on the other hand, you could reasonably expect that, after taking it, they would kill you, then yes, you could shoot them in defense. – forest May 5 at 9:13
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I think it would depend on how a jury viewed the "challenge" to her audience.

The general rule for self-defense in Texas is that the person needs to reasonably believe that force is immediately necessary to protect herself from someone else's use of force. I think a jury would find it reasonable to believe that someone forcefully attempting to steal your gun was planning to use it against you.

More importantly, the law generally presumes that that belief is reasonable if the person is being robbed, assuming that she isn't otherwise engaged in criminal activity. Since openly carrying an AR-15 is -- as far as I know -- legal in Texas, I think she'd probably be fine.

But: The law also says that the use of force is not justified when a person consents to the other person's use of force, or if the person has provoked the other person. So now you have the question of whether the student's challenge constitutes a provocation or consent to the use of force.

I think you can make a decent argument for provocation, which means that "the defendant did some act or used some words intended to and calculated to bring on the difficulty in order to have a pretext for inflicting injury." Neal v. State, No. 12-14-00158-CR, 2016 WL 1446138, at *11 (Tex. App. Apr. 13, 2016).

You might also make out a decent argument for consent, which doesn't necessarily seem to require that the parties exactly spell out the rules of engagement, just that there is some kind of agreement between the two parties.

In one case, for instance, a defendant tried to argue that a fight had gone beyond the rules because one party used a chokehold and knocked the other out. But the court said that the only actual rule agreed to was that there would be no weapons used. Padilla v. State, No. 03-07-00513-CR, 2008 WL 5423139, at *2 (Tex. App. Dec. 31, 2008).

That makes me think that as long as there's consent to some kind of fight, you don't necessarily need rules, though you do need to abide by them if you agree to them. So what's the scope of consent in this case? If we say that she's agreed to the use of force by challenging people to take something from her, and she hasn't said how you can do it, can you do it by any means you choose? I don't think a court would let someone shoot her to get it, but maybe they would be allowed to pry it out of her hands.

So all of that is a long way of saying that this is a tricky question, and that any decision would probably depend a lot on the specific facts of who she was talking to, what exactly she was saying, how she was carrying the gun, and so on.

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    I really like your analysis skills and citations. You also write very well so your analysis are easy to understand. I am envious. You should probably hold a diamond badge here. (As I randomly wander through the site's questions....) – jww Sep 19 '18 at 19:51
  • Thanks. Like anything, it helps if you enjoy what you're doing, and I love this stuff. – bdb484 Sep 20 '18 at 1:11

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