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Old August 8, 2014, 11:04 AM   #20
tirod
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Join Date: January 21, 2009
Posts: 1,672
What an LEO is required to do, and trained to accomplish, vs what the citizen can do, are two different areas of responsibility and can have different courses of action.

Is his opponent identical in build, larger, or smaller? What sex? Lots of things are still in the air in determining whether brandishing has occurred to menace the opponent, or simply even up a disparity in force. "Threat" is completely undefined, when that is precisely what determines brandishing. Not the gun.

The differences in the instructor's opinions are exactly why a judge would take all that in as evidence in weighing a determination in a truly fair trial. The scenario as described doesn't tell us enough, which is the point. If it did, then we'd likely all be in agreement.

More specific information might spoil the discussion, tho.

Insert the following and see where it goes:

Homeless guy scrounging for aluminum cans after dark.
Teenager stealing a beer dispenser for his new bong.
Female who got lost looking for the air hose who is now in Red trying to escape.

Taking just the defensive cues as presented and discarding the grappling scene as not part of the printed setting, there's still too many variables to determine brandishing or not. It's dependent on WHO you present the gun to, and WHY you were there at all.

Got lost looking for the air hose, too.
Looking to steal what you can, and found the store owner back there.
Taking a jog after work thru that part of town and trying to avoid the large gang of thugs out front.

Now we have six different situations where it would or wouldn't be brandishing.
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