You’re at a gas station with a friend. Your friend goes inside to pay and leaves his handgun in the center console. As you are sitting there, you see a man approaching a nearby car with his gun drawn. He is pointing his gun at the family inside and motioning for them to get out. Can you use your friend’s weapon to defend the family?
In Texas, you can use a firearm that does not belong to you to engage in self-defense, defense of others, or any other acts of defense allowed under Texas law, whether the firearm belongs to a spouse, friend, or even a good Samaritan stranger willing to give you access to his firearm. The fact you are using a gun that does not belong to you will not affect your right to take defensive measures.
What if You don’t have a License to Carry?
Let’s change the hypothetical. What if you don’t have a License to Carry a handgun but are out to eat at a restaurant with your friend who does have an LTC, and always carries? While you’re eating dinner, a masked man comes into the restaurant shooting. Your friend is incapacitated, but you can reach his pistol. Can you use it to take out the shooter? Yes, under the legal doctrine called the defense of necessity.
Defense of Necessity
The basic idea behind “necessity” is that the law will allow you to do something that would otherwise be illegal, without being held criminally liable, as long as your conduct was “necessary” to prevent or stop something worse from happening.
Under Texas Penal Code 9.22, you must:
- Reasonably believe your conduct was immediately necessary to avoid imminent harm;
- Reasonably believe avoiding the imminent harm outweighs the harm caused by your violation of law; and
- Not be acting against a plainly apparent legislative purpose.
So, in our previous hypothetical, the harm caused by you possessing a pistol in public without an LTC is clearly outweighed by the harm being caused by the masked shooter. You should not be held criminally liable for the crime of unlawfully carrying or for using your friend’s gun to defend yourself and the other good folks in the restaurant. This same analysis would be used if you are prohibited from possessing firearms – necessity should relieve you from criminal liability.
What if your friend is from out-of-state? Don’t worry, because you are not making a true transfer of the firearm. So, this will not affect your right to use it in a defensive manner. Keep in mind, the law cares far more about why you used a firearm than it does about what firearm you used. If you use another’s gun in an emergency self-defense situation, you will be judged by the same standard used if it was your own firearm: Did you reasonably believe force or deadly force was immediately necessary to protect against another’s use of unlawful force or deadly force?
If you have any other questions about the nuances of firearm possession or the use of defensive force generally, call Texas LawShield and ask to speak to your Independent Program Attorney.