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Old November 20, 2013, 08:15 AM   #1
OldMarksman
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On the Lawful Presentation of a Firearm in a Defensive Encounter

Introduction

Few subjects are more widely misunderstood than that of the proper and improper presentation of a firearm or other weapon in a confrontation or self-defense situation.

We have penned the following to address this important issue. Thanks to Frank Ettin for taking the time to help with this.

The laws vary among jurisdictions, and while it is important to know the law wherever we intend to travel, we must caution against looking for ways to justify pulling a gun. Pointing a firearm at another person is a very serious thing to do. There are legal ramifications, and there are other serious risks. One should only draw a gun when there is reason to believe that it is immediately necessary to do so.

Common Misconceptions

One of the more common misconceptions goes something like, “if you draw, you must shoot, or you will be charged with brandishing.” Nothing could be farther from the truth. This convoluted view probably comes from a basic misunderstanding of the common principle that one is not justified in drawing a gun on someone unless one is justified in actually using the gun. That is true in some states, but not in all. But in all states, if the need for deadly force ceases when the gun is drawn, it is unlawful to shoot.

“Brandishing” and Other Terms

The term “brandishing” is widely used, but it is not used in law in all jurisdictions.

Intentionally pointing a gun at someone without lawful justification constitutes a serious crime. Some states may use the term “brandishing”, which may be a misdemeanor; others may refer to “exhibiting a firearm in a dangerous manner”. The most common classification of the most serious offense, however, is assault of some manner, such as aggravated assault.

In a discussion of this important subject,, Frank Ettin responded to a question with this excellent answer, in which he touches upon the traditional definition of assault at common law:

Quote:
This can become a question of why, and under what circumstances, you are displaying your gun.

If you are you displaying your gun to intimidate someone, to assure that someone keeps his distance or leaves, to secure his compliance, etc., your display could well be seen as a threat. And that sure seems to be your most likely purpose in displaying your gun, at least as you've posed the question. Or are you suggesting that you're displaying your holstered gun just so someone can admire the craftsmanship of your fancy grips?

The usual definition of assault, based on the Common Law, is:

Quote:
an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.
In the laws of some States this crime might be given another name. For example, in Alabama it's called "menacing." But by whatever name it is called, it is a crime in every State.

So a display of a firearm or telling someone you have a gun, when done for the purposes of intimidation, is, in all States, an assault of some type. You are effectively putting someone in fear of an imminent harmful or offensive contact, i. e., getting shot.
It brings up another important point: while the subject of this thread involves firearms, it is important to remember that many other items that can be employed as bludgeons or as edged weapons can be used to administer deadly force. Handling a pipe wrench, crowbar, or even a baseball bat in a manner intended to make an impression on someone in an encounter can lead to serious difficulties with the law.

Some state laws provide for mandatory penalties for unlawfully threatening someone with a firearm or displaying a gun to intimidate, and in some, state CCW training materials point out that point out that a firearm may not be loaded for its improper display to be a serious crime. There have even been convictions for assault resulting from threats made with inoperable firearms.

It should be understood that it is not necessary to actually draw a firearm or to point it at someone to commit the crime of assault. Simply telling someone that you are armed and causing that person to believe that you will use your gun can constitute assault, absent conditions of necessity that would make such action excusable under the law.

Justification

The existence of an immediate need to present a firearm to defend oneself or a third person, or in some cases to prevent certain felonies, is a defense against the charge of assault. Justification varies among states. In the majority of states, one would be justified in presenting a firearm only if conditions were such that deadly force would be justified.

But again, should those conditions change, one may not shoot simply because he had initially been justified in drawing firearm.

In a few states, the threshold for justification is somewhat lower. In those states, the law provides for the lawful display of a weapon under conditions in which non-deadly, physical force is justified.

In another state (Arizona), the law provides for the defensive display of a weapon, such as placing one’s hand on it, exposing the gun, or telling a person that one is armed. Prior to a recent change in the law, doing any one of those things without justification for the use of deadly force had been considered aggravated assault. Now, the justification can include any justification that would permit the use of non-deadly physical force. That may not justify actually drawing a firearm.

It should be realized that higher court findings that pointing a gun at someone does not constitute the use of deadly force per se has nothing to do with the justification or the presentation of a firearm.

As in other things concerning the law, there is more to understanding one’s state laws than reading parts of state codes in isolation. There are legal precedents from higher court rulings, and jury instructions embodying same.

Other Risks

In addition to concerns about criminal charges, there is the possibility that the other person may react by using force to defend himself or herself, and may even be justified in so doing; and there is the very real possibility that a first responder or armed citizen may see the person with gun in hand as an immediate threat, and open fire.

Of course, one should not discount the risk of an unintentional discharge.

What To Do if You Have Had to Draw Your Gun

As in any use of force incident involving self-defense, it is very important to be the first to report the incident to the police. One more time: if you ever pull your gun on anyone for any reason, it is very important to be the first to report the incident to the police.

Considerations Regarding Flashlights on Guns

Many people equip their firearms with flashlights for use indoors at night. Those lights should be used only as a means of finally confirming that the person illuminated is in fact a threat to the actor, and as an aiming aid.

Using a flashlight that is attached to a firearm to search a room or an area may result in pointing the firearm at someone at whom one should not point a gun. That is not only dangerous, it can result in accusations or charges of various kinds. For other reasons, it is rarely prudent to try to find and engage an intruder. Once family members have been made safe, it is a far better strategy to let the threat come to the defender.

Only a separate hand-held flashlight should be used for searching inside a house or in a populated area.at night.

Fact and Fiction

When one watches old western screen fiction, one will often see the heroes in with their white Stetson hats draw their revolvers and point them at others, giving commands and making threats. There are never any legal ramifications.

That makes for good entertainment, but it is extremely important that everyone recognize it for what it is. That is just not the way the world works.

Last edited by OldMarksman; November 20, 2013 at 08:20 AM.
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Old November 20, 2013, 09:00 AM   #2
Spats McGee
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Thank you, OldMarksman, for another excellent piece of work.
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Old November 20, 2013, 09:03 AM   #3
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Just curious, in which states are you licensed to practice law?
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Old November 20, 2013, 09:06 AM   #4
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If you're asking me, Arkansas, state and federal, up to and including SCOTUS. No other States, though.
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If you ever have a real need for more than a couple of magazines, your problem is not a shortage of magazines. It's a shortage of people on your side of the argument. -- Art Eatman
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Old November 20, 2013, 09:34 AM   #5
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Actually, both of you. Thanks for answering.
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Old November 20, 2013, 10:18 AM   #6
OldMarksman
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I do not practice law.

I have substantial experience in working with and for corporate attorneys; I have taken a great deal of what would, if I were an attorney, be classified as Continuing Legal Education; I have taken more formal classroom training in use of force law than many attorneys receive in law school.

As was the case during my varied corporate career, nothing from my pen ever sees the light of day without having been vetted by at least one attorney. Spats McGee often contributes to my postings, but at the time the OP was drafted, he was tied up practicing law.

I live in Missouri, and while I read the statutes, review relevant appellate rulings, and discuss pertinent issues with attorneys and law enforcement personnel, I do not consider myself an expert on Missouri use of force law. I have not read the Missouri jury instructions for criminal cases, and a knowledge of those instructions would be desirable for anyone who wants to discuss the castle doctrine in any depth.

I carry a firearm, but I have never drawn one outside of my home.
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Old November 20, 2013, 11:21 AM   #7
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Thanks for your answer as well.
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Old November 20, 2013, 12:59 PM   #8
Frank Ettin
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OldMarksman,

I just noticed that this had gone up here. Thank you for posting it here.

I might as well answer MarkCO's question also.

I'm licensed to practice in all California courts and in the Federal District Courts in the Northern and Central Districts of California. Although I've been retired since 2007 I maintain my active Bar membership and continue to fulfill my continuing education requirements.
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Old January 27, 2014, 12:07 PM   #9
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I am curious how these laws and guidelines apply within one's own home.

In my case, our plan in the event someone breaks into our home at night is to get my gun, secure the family (wife), call 911, and defend the bedroom or upper level. I would then announce to the intruder that I have a gun and they should leave my house and not attempt to come upstairs or I will shoot. My intent would be to cause the intruder to leave and avoid a confrontation. Would such an announcement/warning in my home constitute assault?

Similarly, if I am already in confrontation with an intruder in my home, and the intruder does not appear to be armed and is not advancing toward me in a threatening way (i.e not a shooting justification), can I draw my gun and hold the intruder at bay until police arrive?

I understand that in some states the very fact that the intruder broke into your house may justify deadly force, but I would not shoot if I can determine the intruder does not pose an imminent threat. If it is dark and I cannot make such a determination, however, I would likely fire.

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Old January 27, 2014, 01:39 PM   #10
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I'm not a lawyer. With that said, PA passed a "stand your ground law". it isn't what most people think. I has so many restrictions, it's almost no change to the laws. One aspect that people don't understand. it was advertised as immunity from civil suits in the case of a justified shooting. It isn't it only says if your sued and it was a justified shooting and they loose the suit the suing entity is libel for all costs theirs and yours. good luck collecting in some cases.
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Old January 27, 2014, 02:53 PM   #11
Frank Ettin
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Quote:
Originally Posted by TomNJVA
I am curious how these laws and guidelines apply within one's own home.

In my case, our plan in the event someone breaks into our home at night is to get my gun, secure the family (wife), call 911, and defend the bedroom or upper level. I would then announce to the intruder that I have a gun and they should leave my house and not attempt to come upstairs or I will shoot...
The short answer is that under the laws in many (probably most) States you should have little or no difficulty establishing justification for the use or threat of lethal force in self defense if you know or have reason to believe that someone has unlawfully and forcefully entered your home.

More a more detailed discussion of these issues see: here, and here.
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