When is it legal to brandish a firearm?

[toreskha]

Back in the late 1980s, my grandmother and aunt were once in a convenience store in Tennessee, as we would occasionally go on vacation up to the Knoxville area. My grandfather, who wasn't in the store at the time, had given my grandmother a 5 or 6 inch switchblade to use for personal protection (although she didn't have a CWP at that time). While in the store, they noticed a couple of guys following them around, apparently waiting for them to leave. They got in line at the register and the guys stood behind them as well. While my aunt paid for whatever they had bought, my grandmother reached into her purse with her opposite hand, pulled the switchblade under her arm, and deployed it so that the blade came out behind her arm. Apparently the two guys got the message and left.

This was long before cell phones were in common use. IMO, they would have been better off simply staying in the store and asking the clerk to call the police. Although unlikely, it's possible they could have gotten in trouble themselves, both for brandishing a weapon and for carrying a concealed weapon without a license.

However, not long before that, my grandfather himself had been the victim of an armed robbery (he wasn't hurt) in his own neighborhood, so everyone was on edge and determined to not let it happen again. Following that, my grandmother purchased a Taurus .38 Special revolver, and has used it as a car and nightstand gun ever since.

 

[[email protected]]

If you were my students, i would correct every one of you except torch and festus. Never, ever, ever, point a weapon at someone if you do not intend to use it. Pointing a gun at someone is a crime. Period. Shooting someone is a crime. Period. All the law of justified self defense does is give you a possibility, a chance, that you will bew found not guilty of homicide, in one degree or another. Never draw, point, or even threaten with a weapon if you have not already made the desision to KILL. Did you see that last word? It is Spelled K-I-L-L. It is not pretty, it is not nice. If I draw my weapon, it will take an act of God to keep someone from dieing. I will do my very, very best to KILL them before they hit the ground. Shooting someone already on the ground is excessive use of force, and will get you prison time. Shooting someone in the back is excessive use of force, and will get you in prison. Shooting them three times through the head with a 44 magnum before they fall down is probably going to get you a shooting medal.

There is so much mis imformation, so much ignorance, so much mamby pamby nicety nice in this world that we are blinded to reality. It takes a brute beast to hurt a defenseless woman, child, or older person. It takes a subhuman piece of garbage to commit armed robbery. Those who live by the sword are supposed to die by the sword. Our moral obligation, if any, is not to give the perpetrater of violence the benefit of the doubt. It is to protect the "next " victim. I can assure you, if some pos will try to rob me, a three hundred pound stonemason, he will not hesatate to rape or rob some one weaker. I don't have the right to defend myself, as much as I have an obligation to defend those weaker than me. We used to understand this, that's why we went into wwII with a largely volunteer army.Look how far we have fallen!

I am a firm believer in the book, the blood and the blessed hope. i also believe that there are some lines that you don't cross.Do not ateempt to kill, or threaten to kill another human being when you have the means either on your person or in your hands to carry out that threat, or make good that attempt. Do not threaten or attempt to sexually assault a man, woman or child. Do not threaten or attempt to seriously injur another human being, with or withoiut weapons. If you cross one of those lines, you deserve to be shot, and killed. We are all God's children, made in his own image. But there are lines we just don't cross.

I tell my students that drawing a weapon is like launching a missle. There are checks, balances, safeguards, and descisions. Once the gun clears leather, there are no descisions left. I am often asked "what if he drops the weapon after you draw?" I tell them that he would be one fast S.O.B. I am not going to give them time. Drawing should be the absolute last option. There will not be enough time for him to put anyting down. That is the other guy's fault not mine. There will not be enough time for him to turn and run. Again, not my fault. Won't be enough time for him to say anything. Not my fault.

I hope you understand i am not blood thirsty at all, I am just dead serious that you shouldn't draw until all other options are exausted. And when you do draw, there had better be a funeral. Understand? Either his or yours. If you are going to live with taking another human being's life, you had better know you couldn't have waited any longer, and that you couldn't have turned and run, and that it was either them or you.

 

[Glock Fan]

.... Shooting someone already on the ground is excessive use of force, and will get you prison time. Shooting someone in the back is excessive use of force, and will get you in prison....

Mostly good points except for what's quoted above. There are a couple of scenarios that I can think of where shooting someone on the ground is apprpriate. As for shooting someone in the back as being "excessive use of force", that can be debated as well.

The world isn't as "black and white" as you make it out to be. If pointing a gun at someone is "illegal period", then there are a lot of LEO on the streets that should be brought up on charges. Laws differ from state to state and in the end, most times it's a judge (who is usually human and from this earth) that will be administering your punishment.



gf

 

[Boomboy007]

I hear you, but....

I totally understand where Doc is coming from. I think that we all should be mentally prepared for that very circumstance. That said, a lot can happen between the beginning of your draw and getting the muzzle on target. If I am faced with a BG that has a firearm in hand, they are getting plugged (hopefully) before they do the same to me. However, someone with a bat or blade that starts backpedaling might keep their life.

I think that the most important thing that seems to be getting short shrift is law enforcement notification. The very first thing that you should do after pulling a handgun out of concealment is to CALL THE POLICE IMMEDIATELY.

:yes4:

If I have to choose between that third mag and a cell phone, the phone will win every time. It does not matter if the gun was discharged or not, and it does not matter who you think was watching. If your gun comes out, resign yourself to LE notification. If you do not, all you need is for one person (even the BG!) to call the cops and claim that you were playing Wyatt Earp. If you have already notified the police, they will be much more likely to believe your story. If you didn't notify them, they will assume that the caller was correct. One instance of non-notification could cost you your license regardless of the truth.

On a side note, I think that Ziggy should consider maybe switching to a revolver with an exposed hammer. You could get the same kind of "deterrent effect" by pulling back a hammer as you would with a slide rack, but you would still have one in the pipe for a DA stroke if you needed it. If you really want to stick with your semi auto, can't you still rack the slide with one in the pipe? Just a suggestion.

 

[toreskha]

Mostly good points except for what's quoted above. There are a couple of scenarios that I can think of where shooting someone on the ground is apprpriate. As for shooting someone in the back as being "excessive use of force", that can be debated as well.

The legal rule of thumb in Florida is that it's allowable to fire until the attacker "stops advancing" or alternately, stops their attack.

It's possible for an attacker to fire from the ground, or a gun-wielding suspect may still be dangerous even though their back is turned for a second. Anyone may be dangerous if they're turning to grab a weapon. It would certainly be allowable to fire at a mass shooter from the back, or someone who is attacking someone else.

 

[defender829]

"I hope you understand i am not blood thirsty at all, I am just dead serious that you shouldn't draw until all other options are exausted."
In my state (Alabama), it is legal to use a gun to protect yourself or anybody else, against bodily harm, or to prevent a felony. To me personally, this as a legal and moral obligation, just as we are required to stop and offer assistance to traffic accident victims.
I agree that you shouldn't draw until no other options are available, but don't wait so long that it is a race between you and the scumbag, like a gunslinger on TV!

 

[Glock Fan]

The legal rule of thumb in Florida is that it's allowable to fire until the attacker "stops advancing" or alternately, stops their attack.

It's possible for an attacker to fire from the ground, or a gun-wielding suspect may still be dangerous even though their back is turned for a second. Anyone may be dangerous if they're turning to grab a weapon. It would certainly be allowable to fire at a mass shooter from the back, or someone who is attacking someone else.

Exactly my point. A couple of great examples. I'm sure if we think hard enough, we can come up with many more. I really don't like dealing with "absolutes" like "always", "never", etc. With the "human error" factor, there should be some room for an "exception". Very few situations are "absolute".


gf

 

[crazycathed]

there was an incident during the rodney king trials where I was jumped from behind, knocked down and 3 guys proceeded to start kicking me in the face. would this have been seen as serious bodily injury? I had a broken orbital socket and stitches. I had a knife but did nothing to protect myself since they weren't using weapons. I didn't want to get in trouble since I lived through it a judge wouldn't have seen it as life threatening.

 

[Glock Fan]

In the case of 3 guys kicking the crap out of you, "disparity of force" would apply. I would have done what I had to do to defend myself. Having had to go to the hospital, I'd say that "serious bodily injury" does apply. Can't think of any of my buddies that wouldn't have pulled their knife to use as a defensive tool in the scenario you presented.

Only exception would have been if YOU instigated the altercation. Maybe they looked at you funny and you said something like "What the f**k are you looking at?" At that point, you could be considered the instigator and "self defense" wouldn't apply.



gf

 

[tattedupboy]

Mostly good points except for what's quoted above. There are a couple of scenarios that I can think of where shooting someone on the ground is apprpriate. As for shooting someone in the back as being "excessive use of force", that can be debated as well.

The world isn't as "black and white" as you make it out to be. If pointing a gun at someone is "illegal period", then there are a lot of LEO on the streets that should be brought up on charges. Laws differ from state to state and in the end, most times it's a judge (who is usually human and from this earth) that will be administering your punishment.



gf

I agree. If the threat can be stopped by drawing and pointing, but not shooting, you've just saved not only your life, but you've also gotten out of a world of legal trouble.

I remember reading somewhere (can't remember if it was here on USA Carry or on another forum) about a homeowner who discovered a kid hiding in his bushes waiting to rob him as he drove up. The man, who had a carry permit, saw this, ordered the kid out of the bushes, and held him at gunpoint until the police arrived. Could someone please tell me how that's not okay?

 

[[email protected]]

If the kid, or his parents, wanted to push the issue, the old man could have been found guilty of assault with a deadly weapon. It is illegal to point a gun at another person. If your state has a citizen's arrest law, may be not. I NC, a citizen has a very limited right to"detain", but can not use lethal or deadly force to effect or enforce this "detainmant". the fact that the would be robber was a minor blows the original scenario completely out of the water. Kids are "hands off" even for LEOs. asault on a minor, illegal detainment of a minor, come to mind. It isn't right, but it is the law. Ought to be able to give them a good beating with a belt, but try that with your own kids now days and see what happens. If a criminal wants to leave, and you cant use nondeadly force to hold him until the calvary arrives, he is free to leave. never try to hold someone at gunpoint until the law gets there. Again, your state may be different, but I doubt it.

 

[tattedupboy]

If the kid, or his parents, wanted to push the issue, the old man could have been found guilty of assault with a deadly weapon. It is illegal to point a gun at another person. If your state has a citizen's arrest law, may be not. I NC, a citizen has a very limited right to"detain", but can not use lethal or deadly force to effect or enforce this "detainmant". the fact that the would be robber was a minor blows the original scenario completely out of the water. Kids are "hands off" even for LEOs. asault on a minor, illegal detainment of a minor, come to mind. It isn't right, but it is the law. Ought to be able to give them a good beating with a belt, but try that with your own kids now days and see what happens. If a criminal wants to leave, and you cant use nondeadly force to hold him until the calvary arrives, he is free to leave. never try to hold someone at gunpoint until the law gets there. Again, your state may be different, but I doubt it.

If I were the man's lawyer, I would reply that by doing what he did, he prevented a serious violent crime, and without resorting to firing any shots. I'm pretty sure that if pointing a weapon prevents a serious violent crime, then it's justifiable just about everywhere.

 

[Jay]

In Indiana, deadly force can be employed to prevent the occurrence of a forcible felony..... and citizens arrest is viable if a felony, or some misdemeanors are witnessed.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against
another person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force,
against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person's unlawful entry of or attack on
the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an
occupied motor vehicle, a person is justified in using reasonable
force against another person if the person reasonably believes that
the force is necessary to immediately prevent or terminate the other
person's trespass on or criminal interference with property lawfully
in the person's possession, lawfully in possession of a member of the
person's immediate family, or belonging to a person whose property
the person has authority to protect.


Indiana Code 35-33-1-4:

Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.

 

[tattedupboy]

In Indiana, deadly force can be employed to prevent the occurrence of a forcible felony..... and citizens arrest is viable if a felony, or some misdemeanors are witnessed.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against
another person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force,
against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person's unlawful entry of or attack on
the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an
occupied motor vehicle, a person is justified in using reasonable
force against another person if the person reasonably believes that
the force is necessary to immediately prevent or terminate the other
person's trespass on or criminal interference with property lawfully
in the person's possession, lawfully in possession of a member of the
person's immediate family, or belonging to a person whose property
the person has authority to protect.


Indiana Code 35-33-1-4:

Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.

This is Indiana's Castle Doctrine law you're quoting.

 

[Jay]

Correct, and the highlighted portion supports your statement...

I'm pretty sure that if pointing a weapon prevents a serious violent crime, then it's justifiable just about everywhere

.

The citizen's arrest portion posted to note that the level of force allowed (in Indiana) to effect a citizen's arrest is not specified.

 

[tattedupboy]

Correct, and the highlighted portion supports your statement... .

The citizen's arrest portion posted to note that the level of force allowed (in Indiana) to effect a citizen's arrest is not specified.

Other than that, Indiana is great, isn't it?

 

[tag1737]

Nice thread. Lots of good info here.

I have a question. I'm walking to my car and I see a three suspicious characters heading my way. At some point they start making demands for money and car keys. In my state I must retreat so I turn and run till I risk being caught. I don't know what, if any, weapons they may have, and they have not made any death threats. I am however very afraid for my safety. I stop, turn to face them and...

Do I risk drawing my weapon and shooting some punk kids trying to scare an old guy for fun. Or, do I sweep back by jacket and put my hand on my holstered weapon and tell them to stop as I am prepared to defend myself.

Seems to me that announcing my capabilities by showing my holstered firearm would put the punks in a position to make up their own minds as to how this encounter will end and, I technically did not brandish my firearm.

Any further advance would be proof to me that they intend to do me harm and would cause me to draw and fire. A retreat would be wiser on their part and my firearm stayed holstered.

Of course, timing is important and the retreat law does not help. Making an old guy run away is a great idea. In reality I would turn away and note their reaction. If they are still threatening, that's when I turn to confront them.

Comments?

 

[tattedupboy]

Nice thread. Lots of good info here.

I have a question. I'm walking to my car and I see a three suspicious characters heading my way. At some point they start making demands for money and car keys. In my state I must retreat so I turn and run till I risk being caught. I don't know what, if any, weapons they may have, and they have not made any death threats. I am however very afraid for my safety. I stop, turn to face them and...

Do I risk drawing my weapon and shooting some punk kids trying to scare an old guy for fun. Or, do I sweep back by jacket and put my hand on my holstered weapon and tell them to stop as I am prepared to defend myself.

Seems to me that announcing my capabilities by showing my holstered firearm would put the punks in a position to make up their own minds as to how this encounter will end and, I technically did not brandish my firearm.

Any further advance would be proof to me that they intend to do me harm and would cause me to draw and fire. A retreat would be wiser on their part and my firearm stayed holstered.

Of course, timing is important and the retreat law does not help. Making an old guy run away is a great idea. In reality I would turn away and note their reaction. If they are still threatening, that's when I turn to confront them.

Comments?

Better to be judged by twelve than carried by six.

The law notwithstanding, do what you have to do to get out of the situation alive. Remember, fire a shot only as a last resort. If drawing and pointing stops the threat and they run away, then fine.

 

[Jay]

Brandishing...... per Webster.....

1bran·dish Listen to the pronunciation of 1brandish
Pronunciation:
\ˈbran-dish\
Function:
transitive verb
Etymology:
Middle English braundisshen, from Anglo-French brandiss-, stem of brandir, from brant, braund sword, of Germanic origin; akin to Old English brand
Date:
14th century

1 : to shake or wave (as a weapon) menacingly
2 : to exhibit in an ostentatious or aggressive manner

to me, simply exposing the firearm in it's holster, does NOT meet the definition of brandishing. Check with your local proscecutor.

In my state I must retreat so I turn and run till I risk being caught.

Most of the time.... (key word is most) disparity of force is on the side of us older folks. If the agressors are old and frail, you're gonna have a tough time making your case. But if the agressors are young and fit, and I'm good for a senior citizens discount, it's a bit easier to presume that I was at risk of being caught right away. I have exposed my firearm just as you described, twice in 40 years of carrying. Both times, the situation was thankfully de-escalated, and both times, when LEO's finally showed up, there was no hassle. Your state laws should give you the answer to this, not us. I'm a far cry from attorney status.

Call or write your Attorney General and see what he/she says..... then let us know.

 

[tag1737]

I did a little research this morning about "brandishing" and found many references to a few studies that state over 2 million crimes each year are stopped by a citizen simply brandishing. In less then 1% was a shot ever fired. I also noticed that LE was NOT called in almost all cases. The BG was allowed to run away with a lesson learned.

In my state of NY, brandishing is definitely not a good thing and at minimum you will lose your permit. On the other hand, intentionally displaying your holstered firearm to the BG has not resulted in any convictions.

IMO, it would seem reasonable that if after displaying a holstered firearm the BG is still coming at you, it's time to take it to the next level. The question of calling LE is a problem for me. I would have to think it through long and hard before I make the call.