When is it legal to brandish a firearm?


ishi

New member
This is Arkansas state code. Your state may differ.


5-13-204. Aggravated assault.

(a) A person commits aggravated assault if, under circumstances manifesting extreme indifference to the value of human life, he or she purposely:

(1) Engages in conduct that creates a substantial danger of death or serious physical injury to another person; or

(2) Displays a firearm in such a manner that creates a substantial danger of death or serious physical injury to another person.​

(b) Aggravated assault is a Class D felony.

(c) The provisions of this section do not apply to:

(1) A law enforcement officer acting within the scope of his or her duty; or

(2) Any person acting in self-defense or the defense of a third party.​


History. Acts 1975, No. 280, § 1604; A.S.A. 1947, § 41-1604; Acts 2003, No. 1113, § 1.


Feel free to post your state's version of this, if it is different.

(ishi does not advocate brandishing! I posted this to show that brandishing is legally defensible by the same criteria as deadly force)
 

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Muzz

New member
From Missouri Revised Statues, Ch. 571 - Weapons Offenses:
(this isn't the whole thing, only the applicable excerpts - Muzz)
Unlawful use of weapons--exceptions--penalties.
571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

5. Subdivisions (3), (4), (5), (6), (7), (8), (9), and (10) of subsection 1 of this section shall not apply to persons who are engaged in a lawful act of defense pursuant to section 563.031, RSMo.

Here is 563.031 in a nutshell, as it applies:

From Missouri Revised Statues, Ch. 563 - Defense of Justification:
Use of force in defense of persons.
563.031. 1. A person may, subject to the provisions of subsection 2 of this section, use physical force upon another person when and to the extent he reasonably believes such force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful force by such other person, unless:
(1) The actor was the initial aggressor; except that in such case his use of force is nevertheless justifiable provided
(a) He has withdrawn from the encounter and effectively communicated such withdrawal to such other person but the latter persists in continuing the incident by the use or threatened use of unlawful force; or
(b) He is a law enforcement officer and as such is an aggressor pursuant to section 563.046; or
(c) The aggressor is justified under some other provision of this chapter or other provision of law;
(2) Under the circumstances as the actor reasonably believes them to be, the person whom he seeks to protect would not be justified in using such protective force.
2. A person may not use deadly force upon another person under the circumstances specified in subsection 1 of this section unless he reasonably believes that such deadly force is necessary to protect himself or another against death, serious physical injury, rape, sodomy or kidnapping or serious physical injury through robbery, burglary or arson.
 

ishi

New member
Brandish? Never.:confused:

Yeah, that's pretty much the point of this thread. Plenty of folks who think that showing a weapon/racking the slide is a big deterrent to evil-doers. I started the thread to show that pointing/brandishing is usually only legally defensible when you're already allowed to use lethal force.
 

Torch

New member
Yeah, that's pretty much the point of this thread. Plenty of folks who think that showing a weapon/racking the slide is a big deterrent to evil-doers. I started the thread to show that pointing/brandishing is usually only legally defensible when you're already allowed to use lethal force.
I'm with you guys. The only time I would ever brandish is, if in the act of drawing to shoot, the bad guy starts running. I wouldn't want to shoot somebody in the back.
 
Brandishing is classified as an unnecessary display of your gun and should never occur. The only time a weapon should be drawn is in defense of life and when your ready to take anothers life in that defense.
 

Ziggy

New member
Yeah, that's pretty much the point of this thread. Plenty of folks who think that showing a weapon/racking the slide is a big deterrent to evil-doers. I started the thread to show that pointing/brandishing is usually only legally defensible when you're already allowed to use lethal force.

This comment, and hundreds like it, make me wonder. Since everyone is so dead set against the possibility that having a gun could be a deterrent to crime, are you all dead set on firing the second you've taken aim? No matter what the BG does, you're going to shoot? You're not going to wait to see if the threatening behavior ceases?

In addition, how does it logically follow that if someone thinks that racking/aiming a gun will hopefully be a deterrent, that that person is not willing to follow through if necessary?
 

Red Hat

New member
This comment, and hundreds like it, make me wonder. Since everyone is so dead set against the possibility that having a gun could be a deterrent to crime, are you all dead set on firing the second you've taken aim? No matter what the BG does, you're going to shoot? You're not going to wait to see if the threatening behavior ceases?

In addition, how does it logically follow that if someone thinks that racking/aiming a gun will hopefully be a deterrent, that that person is not willing to follow through if necessary?
The problem I see brandishing a weapon as a deterrent is you may make the BG back down and run off but I can see them hiding their weapons and call the police on you. All the BG has to say is you pulled a weapon on him and the police finds one on you then you are going to jail! BG wins! My CWP give me the right to protect myself, family and others. I don't have much of a duty to retreat in SC. The only, only time you pull your weapon is when you feel your life is in danger and it's either BG or you. If I'm ever put into that situation and I have to pull my weapon the BG is going down. I look at it this way, the BG shouldn't have put me in that situation...
 

Ziggy

New member
The problem I see brandishing a weapon as a deterrent is you may make the BG back down and run off but I can see them hiding their weapons and call the police on you. All the BG has to say is you pulled a weapon on him and the police finds one on you then you are going to jail! BG wins! My CWP give me the right to protect myself, family and others. I don't have much of a duty to retreat in SC. The only, only time you pull your weapon is when you feel your life is in danger and it's either BG or you. If I'm ever put into that situation and I have to pull my weapon the BG is going down. I look at it this way, the BG shouldn't have put me in that situation...

A very good point.
Keep in mind that I am a woman, and there are things other than my life at stake...things that, in my state, allow me to defend myself with lethal force. I also live in an extremely rural area; when I carry it's not to defend myself against an armed mugger on the city streets at night, but rather a BG who sees a woman alone, hiking in the middle of nowhere (and apparently unarmed) and gets big, bad ideas in his head.
Cocked and locked for home intruders is another matter entirely, as readiness goes, but this was a "carry" question.
 

Red Hat

New member
A very good point.
Keep in mind that I am a woman, and there are things other than my life at stake...things that, in my state, allow me to defend myself with lethal force. I also live in an extremely rural area; when I carry it's not to defend myself against an armed mugger on the city streets at night, but rather a BG who sees a woman alone, hiking in the middle of nowhere (and apparently unarmed) and gets big, bad ideas in his head.
Cocked and locked for home intruders is another matter entirely, as readiness goes, but this was a "carry" question.

If a BG sees you out in a rural area and gets bad ideas and tries to act on them (the key) then you have every right to protect yourself with deadly force. If you brandish your weapon as a deterrent the BG could possibly take it away from you. Remember in most cases the BGs usually are within 3 or 4 feet from the victim. Close enough for them to react before you can if you brandish your weapon.
 

ishi

New member
If a BG sees you out in a rural area and gets bad ideas and tries to act on them (the key) then you have every right to protect yourself with deadly force. If you brandish your weapon as a deterrent the BG could possibly take it away from you. Remember in most cases the BGs usually are within 3 or 4 feet from the victim. Close enough for them to react before you can if you brandish your weapon.

Good point, Redhat. This is especially the case if, in addition to brandishing, there is no round in the chamber.

When I helped my sister buy her pistol, I made sure to tell her "A gun is not for threatening. It's for shooting". I think that being mentally prepared to take a life in self-defense is something that has to happen before making the decision to own a gun. This goes the same for men as it does for women.

My own dad even once told me that he had a revolver but no bullets. How idiotic! He's always been the sort of guy who relies on the 'big bluff'. It's a terrible, terrible idea to make a bluff like that. (he has bullets now)

People who victimize other people often have strange ideas about their invulnerability. They may find a threat like that hilarious. "If you were going to shoot, you would have already done it" will be going through his egotistical mind.
 

ishi

New member
This comment, and hundreds like it, make me wonder. Since everyone is so dead set against the possibility that having a gun could be a deterrent to crime, are you all dead set on firing the second you've taken aim? No matter what the BG does, you're going to shoot? You're not going to wait to see if the threatening behavior ceases?

I will wait at long as possible, and try to reason with the assailant until the threat becomes dire. But once I am in immediate danger of life and limb, I stop waiting. The gun comes out and I fire as soon as I have taken aim.

The great danger of planning to brandish/threaten to stop the crime, is that you will brandish *before* it is actually legal to do so. If you do this, the assailant can turn tail, run, get to the police first, and then you go to jail (and lose your 2nd amendment rights).

In addition, how does it logically follow that if someone thinks that racking/aiming a gun will hopefully be a deterrent, that that person is not willing to follow through if necessary?

I understand your point; and I'm not claiming in any way that a person who wants to brandish does not have the will to follow through. It's just that the psychology of the perpetrator is what will decide the outcome of a brandish/threat. And psychology is always a wildcard.

A conflict of this sort is nothing short of warfare, and a person with less physical prowess (like me!) has to use every single tactical and legal advantage to defeat the physical superiority of the attacker.
 

molonlabetn

New member
Right before you pull the trigger.

If you are justified in doing that... Whatever happens between the time you clear leather and pull the trigger is between your target and God. You do not have the authority to threaten someone with lethal force who is not a threat which justifies the use of it.

This does not mean that you have to shoot everyone you may have to draw on (some people get hung-up on that), but it does mean that when you draw you must actually need to defend yourself with lethal force at that moment.

Basically, if you don't need to shoot... you don't need to use the gun at all (since that's what it's for, it's not some magic object which will ward off harm simply by its presence).
 
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Ziggy

New member
Right before you pull the trigger.

If you are justified in doing that... Whatever happens between the time you clear leather and pull the trigger is between your target and God. You do not have the authority to threaten someone with lethal force who is not a threat which justifies the use of it.

This does not mean that you have to shoot everyone you may have to draw on (some people get hung-up on that), but it does mean that when you draw you must actually need to defend yourself with lethal force at that moment.

Basically, if you don't need to shoot... you don't need to use the gun at all (since that's what it's for, it's not some magic object which will ward off harm simply by its presence).

I don't think that at any point in this conversation anyone has implied that they would draw a gun without the intent, and legal right, to use it.
 

molonlabetn

New member
...snip...Since everyone is so dead set against the possibility that having a gun could be a deterrent to crime, are you all dead set on firing the second you've taken aim? No matter what the BG does, you're going to shoot? You're not going to wait to see if the threatening behavior ceases?...snip...

One, you don't have to be threatening deadly force (brandishing) to get the idea across that you are armed (which is one reason for open-carry).

Two, if you are relying on the deterrence-factor of having a gun, that is just begging to be one-upped on the street.

Three, not much can happen between the time a person clears leather and pulls the trigger (if it can, you're probably going to be dead).

Four, when you draw, whether or not you believe it, you are making a decision to kill the person. It is lethal-force. You had better decide before-hand if it is necessary... or you may be the one in cuffs before it's through.*

*If you are unsure of whether or not the person you have drawn on is an imminent threat yet, by deciding 'wait and see what they'll do before you shoot', it was not justified. Admit that you pulled a gun before you were sure of the nature of the threat, in court, and see what happens.
 
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molonlabetn

New member
I don't think that at any point in this conversation anyone has implied that they would draw a gun without the intent, and legal right, to use it.

Suggesting that one draw their gun and then wait to see if the person becomes a threat worthy of shooting means that they were not an imminent threat to begin with. All that accomplishes is either escalate the situation or turn them into the victim of aggravated assault.
 

Ziggy

New member
Suggesting that one draw their gun and then wait to see if the person becomes a threat worthy of shooting means that they were not an imminent threat to begin with. All that accomplishes is either escalate the situation or turn them into the victim of aggravated assault.

That wasn't suggested. No one has suggested drawing their gun unless it is already clear that the person is a threat worthy of shooting.
 

Ziggy

New member
One, you don't have to be threatening deadly force (brandishing) to get the idea across that you are armed (which is one reason for open-carry).

Two, if you are relying on the deterrence-factor of having a gun, that is just begging to be one-upped on the street.

Three, not much can happen between the time a person clears leather and pulls the trigger (if it can, you're probably going to be dead).

Four, when you draw, whether or not you believe it, you are making a decision to kill the person. It is lethal-force. You had better decide before-hand if it is necessary... or you may be the one in cuffs before it's through.*

*If you are unsure of whether or not the person you have drawn on is an imminent threat yet, by deciding 'wait and see what they'll do before you shoot', it was not justified. Admit that you pulled a gun before you were sure of the nature of the threat, in court, and see what happens.

One, open carry is highly inappropriate in many situations.
Two, deciding to not shoot unless the BG doesn't back down is not relying on a deterrence factor. Once again, no one has suggested drawing a gun without the intent to shoot if necessary.
Three, you're addressing only one of thousands of possible scenarios.
Four, well, yes, perhaps you have missed the multiple posts where it was said that no one is drawing without the intent to shoot. Are YOU one of those who will shoot, even if the BG turns around and runs when you draw? The fact is, "brandishing" a gun IS a deterrent.

*Who ever said anything about pulling a gun out without being in immenent danger, without the intent to fire? It's getting silly that this point keeps being brought up as a bad idea, when no one has suggested doing it.
 

molonlabetn

New member
That wasn't suggested. No one has suggested drawing their gun unless it is already clear that the person is a threat worthy of shooting.

"No matter what the BG does, you're going to shoot? You're not going to wait to see if the threatening behavior ceases?"

How long do you wait? If you have time to wait, you have time to escape. If you had time to wait, it must have not been that 'imminent' a threat?

I just don't like the idea of pointing a gun at someone, or holding them at gunpoint, you see... I'm not a cop, I have no responsibility to talk them down or prolong my foray into harms-way. They either are an imminent lethal threat, or they are not.
 

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