Does removing gun from holster constitute assault or aggrevated assault?

[Slats]

Somebody settle this one please. In TN, does removing a handgun from your holster, lowering your arm to your side and keeping the muzzle pointed down, considered assault or aggravated assault? It's my opinion that it is aggravated assault, a friend says "Nope, not until you point the weapon." Who's right? Thanx in advance.

 

[Eidolon]

Somebody settle this one please. In TN, does removing a handgun from your holster, lowering your arm to your side and keeping the muzzle pointed down, considered assault or aggravated assault? It's my opinion that it is aggravated assault, a friend says "Nope, not until you point the weapon." Who's right? Thanx in advance.

Why don't you look up the relevant Tennessee law yourself?

 

[Fallschirmjäger]

39-13-102. Aggravated assault.
(a) A person commits aggravated assault who:

(1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and:

(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon; or​

(2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:

(A) Causes serious bodily injury to another; or
(B) Uses or displays a deadly weapon.​

39-13-101. Assault.
(a) A person commits assault who:

(1) Intentionally, knowingly or recklessly causes bodily injury to another;
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or
(3) Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

​

It sounds cut-and-dried, but then you also have to figure why the firearm was removed in the first place.

39-11-611. Self-defense.
(b)

(1) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force against another person when and to the degree the person reasonably believes the force is immediately necessary to protect against the other's use or attempted use of unlawful force.
(2) Notwithstanding § 39-17-1322, a person who is not engaged in unlawful activity and is in a place where the person has a right to be has no duty to retreat before threatening or using force intended or likely to cause death or serious bodily injury, if:

(A) The person has a reasonable belief that there is an imminent danger of death or serious bodily injury;
(B) The danger creating the belief of imminent death or serious bodily injury is real, or honestly believed to be real at the time; and
(C) The belief of danger is founded upon reasonable grounds.​

(c) Any person using force intended or likely to cause death or serious bodily injury within a residence, business, dwelling or vehicle is presumed to have held a reasonable belief of imminent death or serious bodily injury to self, family, a member of the household or a person visiting as an invited guest, when that force is used against another person, who unlawfully and forcibly enters or has unlawfully and forcibly entered the residence, business, dwelling or vehicle, and the person using defensive force knew or had reason to believe that an unlawful and forcible entry occurred.

(d) The presumption established in subsection (c) shall not apply, if:

(1) The person against whom the force is used has the right to be in or is a lawful resident of the dwelling, business, residence, or vehicle, such as an owner, lessee, or titleholder; provided, that the person is not prohibited from entering the dwelling, business, residence, or occupied vehicle by an order of protection, injunction for protection from domestic abuse, or a court order of no contact against that person;
(2) The person against whom the force is used is attempting to remove a person or persons who is a child or grandchild of, or is otherwise in the lawful custody or under the lawful guardianship of, the person against whom the defensive force is used;
(3) Notwithstanding § 39-17-1322, the person using force is engaged in an unlawful activity or is using the dwelling, business, residence, or occupied vehicle to further an unlawful activity; or
(4) The person against whom force is used is a law enforcement officer, as defined in § 39-11-106, who enters or attempts to enter a dwelling, business, residence, or vehicle in the performance of the officer's official duties, and the officer identified the officer in accordance with any applicable law, or the person using force knew or reasonably should have known that the person entering or attempting to enter was a law enforcement officer.​

(e) The threat or use of force against another is not justified:

(1) If the person using force consented to the exact force used or attempted by the other individual;
(2) If the person using force provoked the other individual's use or attempted use of unlawful force, unless:

(A) The person using force abandons the encounter or clearly communicates to the other the intent to do so; and
(B) The other person nevertheless continues or attempts to use unlawful force against the person; or​

 

[bofh]

Simply removing your weapon from the holster and pointing it in a safe direction is not a crime. Doing so to threaten someone without a justifiable self defense claim is:

39-13-102. Aggravated assault.

(a) A person commits aggravated assault who:
(1) Intentionally or knowingly commits an assault as defined in § 39-13-101 and:
(B) Uses or displays a deadly weapon

in combination with:

39-13-101. Assault.

(a) A person commits assault who:
(2) Intentionally or knowingly causes another to reasonably fear imminent bodily injury

 

[apvbguy]

my rule of thumb is to never ever remove my weapon from it's holster unless I am in imminent danger, if it clears leather it is being fired. anyone who uses his weapon as a tool of intimidation is a jackass

 

[Fallguy]

I know this isn't the answer you want, but it is the most common one when it comes to the law.... It depends.

If the other person reasonably feels imminent harm by your action, then yes you could be charged with aggravated assault. What causes each person to feel that way can be different and what a jury may find reasonable could be as well.

There is no law in TN directly on topic of displaying or brandishing a weapon as there is in other states.

 

[JimTh]

Here is the dilemma. If the display of the firearm scares the crap out of somebody then you have committed assault unless the bad guy you display the firearm to is threatening the life or health of you or some other person. The gun should never be unholstered unless you are planning on using it. The flip side of that coin is if you unholster the gun because you plan on using it does not then require you to use it. Most bad guys will disengage once they see that you are armed. If you shoot someone that no longer presents a threat and you are not a cop, then you could be in some serious trouble.

 

[SR9]

I'd be more in the belief that, that would constitute aggrevated menacing or terroristic threatening, since your comment did not mention a assault actually happened.

 

[Slats]

Thanks for the input and defining "it depends"
Slats

 

[NavyLCDR]

I'd be more in the belief that, that would constitute aggrevated menacing or terroristic threatening, since your comment did not mention a assault actually happened.

And which Tennessee statutes define aggrevated menacing or terroristic threatening? Even if you spell aggravated correctly?

 

[Paul Dragotto]

As a firearms instucter for handgun and long guns and personal protection. The law i, if you look at someone and put your hand on your gun, or pull it from the holster, that's called brandising a firearm. I teach , never to draw your gun unless you intend to use it. If you have some thugs eyeing you keep your hand off that side arm, unless they start to
confront you and the hair stand up behind your neck, then be ready to draw and fire if your in danger and if they have a weapon.

 

[NavyLCDR]

As a firearms instucter for handgun and long guns and personal protection. The law i, if you look at someone and put your hand on your gun, or pull it from the holster, that's called brandising a firearm. I teach , never to draw your gun unless you intend to use it. If you have some thugs eyeing you keep your hand off that side arm, unless they start to
confront you and the hair stand up behind your neck, then be ready to draw and fire if your in danger and if they have a weapon.

Do you have a citation for this "brandishing" law? We are still waiting for SR9's citations to the "aggravated menacing" and "terroristic threatening" laws. In order to be convicted of a crime in the US there must be a statute provided that you violated.

 

[apvbguy]

Do you have a citation for this "brandishing" law?

I am not going to do searches like YOU do, but here in FLA, and in some other places like NY or NJ displaying your weapon as a form of intimidation could earn brandishing charge. until recent changes in the laws here in FLA mere display of the weapon could have generated charges

 

[Fallschirmjäger]

my rule of thumb is to never ever remove my weapon from it's holster unless I am in imminent danger, if it clears leather it is being fired. anyone who uses his weapon as a tool of intimidation is a jackass

Such blanket statements can come back to haunt those who made them. I can easily imagine a case coming to court where the opposing attorney tells the jury that 'you' deliberately killed someone who was no longer a threat, merely because you had determined that you would shoot if you had to 'clear leather'.

 

[NavyLCDR]

my rule of thumb is to never ever remove my weapon from it's holster unless I am in imminent danger, if it clears leather it is being fired. anyone who uses his weapon as a tool of intimidation is a jackass

I'd be more in the belief that, that would constitute aggrevated menacing or terroristic threatening, since your comment did not mention a assault actually happened.

As a firearms instucter for handgun and long guns and personal protection. The law i, if you look at someone and put your hand on your gun, or pull it from the holster, that's called brandising a firearm. I teach , never to draw your gun unless you intend to use it. If you have some thugs eyeing you keep your hand off that side arm, unless they start to
confront you and the hair stand up behind your neck, then be ready to draw and fire if your in danger and if they have a weapon.

I am not going to do searches like YOU do, but here in FLA, and in some other places like NY or NJ displaying your weapon as a form of intimidation could earn brandishing charge. until recent changes in the laws here in FLA mere display of the weapon could have generated charges

Link Removed

Lots of unsubstantiated opinions about states' laws that the OP didn't even ask about....

 

[apvbguy]

Such blanket statements can come back to haunt those who made them. I can easily imagine a case coming to court where the opposing attorney tells the jury that 'you' deliberately killed someone who was no longer a threat, merely because you had determined that you would shoot if you had to 'clear leather'.

what a moronic assumption. my gun wouldn't clear leather unless I was in imminent danger.

 

[apvbguy]

Lots of unsubstantiated opinions about states' laws that the OP didn't even ask about....

exactly what is unsubstantiated? that in FLA until recently mere accidental exposure more than likely could get a concealed carrier a brandishing charge? or that in NY if you pull your weapon you WILL be charged with menacing? I think maybe it is time you chilled out and stopped pretending to know all

 

[bofh]

As a firearms instucter for handgun and long guns and personal protection. The law i, if you look at someone and put your hand on your gun, or pull it from the holster, that's called brandising a firearm. I teach , never to draw your gun unless you intend to use it. If you have some thugs eyeing you keep your hand off that side arm, unless they start to confront you and the hair stand up behind your neck, then be ready to draw and fire if your in danger and if they have a weapon.

The state of Tennessee does not have a brandishing law. After all, this discussion is in the Tennessee sub-forum. The only applicable criminal code that exists is aggravated assault as discussed before. What nonsense other states do, does not apply in Tennessee. The media often uses the term brandishing when they really mean displaying a weapon and threatening someone during the commission of a crime, i.e., committing an aggravated assault or worse. However, brandishing is not a legal term in the state of Tennessee.

Note: This is my personal opinion. I am not a lawyer. If you need one, I suggest to get one and STFU.

As for leaving your handgun in the holster until actually need it to defend yourself or others. +1. That's where that racking a round in the chamber when "expecting" a fight nonsense that Arc Angel constantly argues really fails.

 

[NavyLCDR]

exactly what is unsubstantiated? that in FLA until recently mere accidental exposure more than likely could get a concealed carrier a brandishing charge? or that in NY if you pull your weapon you WILL be charged with menacing? I think maybe it is time you chilled out and stopped pretending to know all

I don't pretend to know all. I post citations to statutes that I base my opinions on so other people can read the statutes for themselves and decide whether or not they agree with me. And why should the OP care what happens in NY, NJ or FL when he asked about TENNESSEE and TENNESSEE only? Neither you, SR9 nor Paul Dragotto have provided a single citation to anything that substantiates your opinion. It doesn't mean your opinion is wrong - it just means that it is unsubstantiated. And even if you did back your opinions regarding NY, NJ and FL with some evidence, it still wouldn't apply to the state the OP asked about!

 

[Fallschirmjäger]

what a moronic assumption. my gun wouldn't clear leather unless I was in imminent danger.

I think I understand where you're coming from, so I can only hope you will forgive me for attempting to keep this conversation at an adult level and not 5th grade elementary school name-calling.
The danger in such statements as yours is that they can easily be used against the issuer (in this case, the issuer means 'you'). It simply goes like this....
"Ladies and gentlemen of the jury, I will prove today that my client, Mr Thuglife was deliberately shot by the accused, Mr Apvbguy. My client was indeed attempting to commit a criminal act, but when confronted by Mr Apvbguy dropped his weapon, fell to his knees in supplication, raised his hands in surrender and begged, BEGGED, for his life. Unfortunately for him, Mr Apvbguy had drawn his pistol and as you saw introduced as evidence had made repeated statements that if he drew his weapon he was going to use his weapon, no ifs ands, or butts. He was going to kill someone if he drew and that was just simply that. My client is the victim here, and Mr Apvbguy by his very words has confessed to being the aggressor."