TDCAA TDCAA Community Criminal Texas Penal Code 38.14 - Taking or attempting to take weapon from peace officer
This statute currently provides: "A person commits an offense if the person intentionally or knowingly and with force takes or attempts to take from a peace officer, parole officer, or community supervision and corrections department officer the officer's firearm, nightstick, or personal protection chemical dispensing device with the intention of harming the officer or a third person."
Is there a practical reason anyone can think of that this specific intent needs to be part of the statute? Shouldn't it be an offense to take a weapon from an officer for any reason? The statute already requires the act to be done "intentionally or knowingly" and it also requires the act be done "with force."
In my opinion based on my experience, requiring the additional specific intent that the person have the “intent to harm the officer or a third person” is problematic for several reasons. First, if a person takes a weapon from an officer with the intent to harm himself (i.e suicidal) it would not be an offense. Second, if a person attempts to take a weapon and fails, how will we ever prove beyond a reasonable doubt, the suspect's intent. Third, it puts peace officers in the dangerous predicament of having to decide whether to (a) wait for a suspect to take their weapon and demonstrate some intent to harm before intervening to have sufficient evidence of this element or (b) act immediately to prevent a person from taking the weapon (which is what officers will do 9 out of 10 times) effectively preventing us from proving that element at trial beyond a reasonable doubt.
Any other prosecutors run into proof problems on this element?
The statute has some flaws. First, how could one use force to take over possession of the “protective gear” without acting intentionally or knowingly? Second, since “force” is ambiguous in this context, maybe the statute should provide the taking is “without the officer’s consent,” as that seems to be the real harm involved. But, “force” is likely used in order to bring into play the justification defenses available under Texas law and particularly §9.22.
In my opinion the specific intent provision may be necessary to spell out the very thing that you assume, that a taking for the purpose of harming only one’s self is “not an offense.” Without that requirement a taking for any purpose might be seen as unlawful (although it may be doubtful any prosecutor would choose to apply it in that way).* Your second concern deals with how to apply sec. 15.01(a) to the statute and not the wording of the statute itself. 15.01 always carries its own issue of how to prove “specific intent to commit [the] offense.” That problem might be the genesis for the rather strange provision that proof of a completed offense will allow prosecution as though only an attempt was involved.
Meaning no disrespect, I will state that your second and third concerns might be seen as “stalking horse” challenges, as the fact-finder almost always has to rely on circumstantial evidence in finding the mens rea. If the officer reasonably believes the transfer of possession will endanger, he can immediately act on that belief and if the would-be taker persists there should generally be no problem in proving the more specific evil intent existed.
*Florida law does not have the limitation you criticize but does refer to taking “without authorization.” Fla. Stat. §775.0875(1). South Carolina law likewise places no such limit on its application but does specify a need for “lack of consent of the officer.” S.C. Code §16-23-415. New Hampshire prefers “against the officer’s will,” but perhaps tellingly includes an attempt within its scope. Of some interest, its statute provides an affirmative defense for taking the firearm in order “to disarm an officer engaging in felonious conduct or conduct so reckless as to endanger the lives of others.” N.H. Rev. Stat.§642.3-a.
Thank you for taking the time to offer such a thoughtful response.
First, I think forcibly taking or attempting to take an officer’s weapon, even if it’s only to harm yourself, SHOULD BE an offense. Can you think of any reason why it shouldn’t be?
Second, the Texas statute already includes “excessive force” by the officer as an affirmative defense to the offense much like the New Hampshire one.
Third, I’ve looked at other state statutes and I know you have too. We didn’t find any with the specific intent to harm. I think that’s telling...don’t you??
Hard to tell why the specific intent was included, except perhaps to meet the objection that the bill was not "sufficiently narrow." I agree that so long as lack of consent were included, then any taking or attempt could safely be criminalized (the approach chosen elsewhere), with any appropriate justification being separately available.
HB731.pdf (52 Kb, 1 downloads)
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