The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old May 3, 2012, 10:43 PM   #1
rose728751
Member
 
Join Date: March 11, 2011
Location: Far West Texas
Posts: 68
Is this brandishing

Lets just say that I am on my bike doing 55mph in the slow/ right hand lane (the speed limit is 55) Its hot out, so I have a T shirt and unbuttoned flannel shirt on I have G27 in a IWB @ the 4oclock with my T-shirt tucked under my ass, but the flannel shirt is not, along comes this car up on my ass,(he was doing a good 65 comming upon me and slows At 55 MPH about 5 / 6 feet from my rear tire.( I have no idea as to why he just got up on me like that and stayed there when he could have just passed me on the left) no turns up ahead fore a couple of mile. I speed up a bit he speeds up. I change lanes and he slows down and changes lanes and comes up on me again at that point i just lifted my ass up and my Tshirt blew up. he backed off and slowed down. I kept going and got off on a side road. Was not followed after that or any thing. tucked my T-shirt back under my ass and went on my way. would that have been Brandishing?
rose728751 is offline  
Old May 3, 2012, 10:50 PM   #2
TheNocturnus
Senior Member
 
Join Date: May 29, 2011
Location: Missouri
Posts: 1,093
Yes. Sounds like you intentionally showed your firearm to get a response from another person. Bad idea.
__________________
My EDC:
Gun
Wallet
Brain (Use this one the most)
TheNocturnus is offline  
Old May 3, 2012, 10:54 PM   #3
MagnumWill
Senior Member
 
Join Date: March 18, 2009
Location: Central Colorado
Posts: 692
Maybe, maybe not. I say this because my father in law has walked out with his shirt tucked in incorrectly (6 o clock Holster) and he didn't *intentionally* do it.
This is Will's rule of thumb, which I preach to my wife (because sometimes she would just LOVE to brandish hers):

The only time ANYONE needs to know that I have a pistol is when I am currently shooting them with it. Until then, it does not exist. If I was looking to intimidate someone, I would have a gas chainsaw with "I <3 Brains" written on the bar.


Frankly, I would have done a quick double-lane switch, gotten behind him and called him in. You signing a reckless driving affidavit is going to ruin his day more than anything he could possibly control.
__________________
Generally speaking holes in anti-gun theories are called "facts."
-Madcap_Magician

Last edited by MagnumWill; May 3, 2012 at 10:59 PM.
MagnumWill is offline  
Old May 3, 2012, 10:58 PM   #4
9mm
Senior Member
 
Join Date: January 9, 2011
Location: Land of the Free
Posts: 2,698
Depends on your state law, my state it doesn't matter.
__________________
SHTF vs TEOTWAWKI you ask? SHTF, just some crap on the ceiling and walls, TEOTWAWKI end of the world as we know it. Orignally made by 9mm/®™©
9mm is offline  
Old May 3, 2012, 11:07 PM   #5
JohnKSa
Staff
 
Join Date: February 12, 2001
Location: DFW Area
Posts: 17,951
Based on the TX penal code, you can display/produce a weapon to threaten "death or serious bodily injury" if your purpose is limited to making the other person think you will use deadly force if necessary.
Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.
You can do so legally when FORCE is justified. That's a more relaxed standard of justification than DEADLY FORCE.

So, the question is, did your situation justify the use of force. Below is the applicable section of the penal code. I've left out some parts that don't have anything to do with your situation.
Sec. 9.31. SELF-DEFENSE.
(a) Except as provided in Subsection (b), a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other's use or attempted use of unlawful force. The actor's belief that the force was immediately necessary as described by this subsection is presumed to be reasonable if the actor:
(1) knew or had reason to believe that the person against whom the force was used:
(A) unlawfully and with force entered, or was attempting to enter unlawfully and with force, the actor's occupied habitation, vehicle, or place of business or employment;
(B) unlawfully and with force removed, or was attempting to remove unlawfully and with force, the actor from the actor's habitation, vehicle, or place of business or employment; or
(C) was committing or attempting to commit aggravated kidnapping, murder, sexual assault, aggravated sexual assault, robbery, or aggravated robbery;
(2) did not provoke the person against whom the force was used; and
(3) was not otherwise engaged in criminal activity, other than a Class C misdemeanor that is a violation of a law or ordinance regulating traffic at the time the force was used.
(b) The use of force against another is not justified:
(1) in response to verbal provocation alone;
(2) to resist an arrest or search that the actor knows is being made by a peace officer, or by a person acting in a peace officer's presence and at his direction, even though the arrest or search is unlawful, unless the resistance is justified under Subsection (c);
(3) if the actor consented to the exact force used or attempted by the other;
(4) if the actor provoked the other's use or attempted use of unlawful force, unless:
(A) the actor abandons the encounter, or clearly communicates to the other his intent to do so reasonably believing he cannot safely abandon the encounter; and
(B) the other nevertheless continues or attempts to use unlawful force against the actor; or
(5) if the actor sought an explanation from or discussion with the other person concerning the actor's differences with the other person while the actor was:
(A) carrying a weapon in violation of Section 46.02; or
(B) possessing or transporting a weapon in violation of Section 46.05.
(e) A person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.
(f) For purposes of Subsection (a), in determining whether an actor described by Subsection (e) reasonably believed that the use of force was necessary, a finder of fact may not consider whether the actor failed to retreat.
I guess you could try to make a case that you reasonably believed that force was immediately necessary to protect you against the use or attempted use of unlawful force by the other driver, but there's nothing in the law that clearly spells out that you would be justified in displaying a weapon.

It would all hinge on whether a reasonable person in your situation would feel that a person tailgating & shadowing would consititute the use or attempted use of unlawful force. Probably a stretch...
__________________
Did you know that there is a TEXAS State Rifle Association?
JohnKSa is offline  
Old May 3, 2012, 11:24 PM   #6
rose728751
Member
 
Join Date: March 11, 2011
Location: Far West Texas
Posts: 68
With that ( above) I did not touch the gun, I just let the shirt blow up and yes I did feel threatened, How many of you ride and Know what it like to have a car on your ass doin 55 5/6 feet way from your back tire
rose728751 is offline  
Old May 3, 2012, 11:27 PM   #7
hoytinak
Senior Member
 
Join Date: July 5, 2006
Location: Texas
Posts: 5,708
I ride and have had my shirt blow up exposing my CCW on accident but never on purpose. Actually had a sheriff deputy tell me I was showing at a red light. He didn't make a big deal about it but here in Texas since open carry isn't legal he prolly could have.
hoytinak is offline  
Old May 3, 2012, 11:35 PM   #8
TheNocturnus
Senior Member
 
Join Date: May 29, 2011
Location: Missouri
Posts: 1,093
Quote:
With that ( above) I did not touch the gun, I just let the shirt blow up and yes I did feel threatened, How many of you ride and Know what it like to have a car on your ass doin 55 5/6 feet way from your back tire
You may have felt threatened but it sounds like brandishing a firearm was not the appropriate response. Did you look at the car and maybe wave a hand in the air for them to go around or get away from you? Was the person on the phone and maybe oblivious that he was matching your speed? People have pack mentality and it can certainly take over subconsciously when driving.

Is it possible maybe the guy was interested in purchasing the exact bike you were riding and was just checking it out. A bit of a stretch I know but it's not like the guy was trying to run you off the road.
__________________
My EDC:
Gun
Wallet
Brain (Use this one the most)
TheNocturnus is offline  
Old May 3, 2012, 11:43 PM   #9
farmerboy
Junior member
 
Join Date: May 16, 2009
Location: Central Texas
Posts: 1,343
It would really depend on who pulled you over. I might give you a break and say nothing but officer x may stop you and cite. Like that in almost every case really, depends on who you get.
farmerboy is offline  
Old May 4, 2012, 12:11 AM   #10
JohnKSa
Staff
 
Join Date: February 12, 2001
Location: DFW Area
Posts: 17,951
Quote:
With that ( above) I did not touch the gun...
I don't think that's relevant. You "produced" the gun by intentionally making it visible.

I think it's clear that you used force and therefore for what you did to be legal, you'd have to find justification in the statute quoted above.
Quote:
yes I did feel threatened, How many of you ride and Know what it like to have a car on your ass doin 55 5/6 feet way from your back tire
The statute doesn't provide justification simply due to "feeling threatened", you must reasonably believe that what the other person is doing constitutes the use or attempted use of unlawful force and further that the other person's use or attempted use of unlawful force makes it immediately necessary for you to protect yourself with force.

From a practical standpoint, you'd need to be able to convince other "reasonable" persons that what you did was immediately necessary to protect yourself and that what the other person did was the use or attempted use of unlawful force.
__________________
Did you know that there is a TEXAS State Rifle Association?
JohnKSa is offline  
Old May 4, 2012, 12:42 AM   #11
rose728751
Member
 
Join Date: March 11, 2011
Location: Far West Texas
Posts: 68
Thank you for the info, I was wrong
rose728751 is offline  
Old May 4, 2012, 12:48 AM   #12
BIG P
Senior Member
 
Join Date: July 8, 2010
Location: North Georgia
Posts: 1,553
Yes I think so,You ment to did'nt you ?
I do ride also,And have done it myself. Its not out of the question that I would do it again.Sometimes you just have to ask yourself is that how I should deal with this problem. It can go either way.

Road rage on a scooter not a good idea IMO. I'm just saying.
BIG P is offline  
Old May 4, 2012, 02:26 AM   #13
fivepaknh
Senior Member
 
Join Date: December 7, 2001
Location: Nashua, New Hampshire
Posts: 609
YOu said the car changed lanes with you and kept that close distance. It sounds like they were intentionally messing with you. Whether their intent was to do you harm or not tailgating you as close as they were did put your life in danger. There are no fender benders on a motorcycle. You deescalated the situation without having to fire your weapon. I think you did the right thing.
fivepaknh is offline  
Old May 4, 2012, 04:48 AM   #14
AndyWest
Senior Member
 
Join Date: October 14, 2011
Posts: 617
Rose I'm not clear, did your shirt just blow or did you do something to show the gun? I'm not judging, just asking cause it seems that could make a difference.
__________________
Shoot smart. Shoot S-Mart.
AndyWest is offline  
Old May 4, 2012, 05:08 AM   #15
Sheriff Gotcha
Senior Member
 
Join Date: March 19, 2012
Location: The Keystone State
Posts: 229
Andy, he had his t-shirt covering his CCW and kept it concealed by sitting on the back of his shirt as to not let it blow in the wind exposing the firearm. He then lifted himself off the seat slightly as to let the shirt loose which exposed his carry.

At least that is what I got from the original post.
Sheriff Gotcha is offline  
Old May 4, 2012, 05:17 AM   #16
AndyWest
Senior Member
 
Join Date: October 14, 2011
Posts: 617
My mistake, I was picturing it wrong. Thanks Sheriff.
__________________
Shoot smart. Shoot S-Mart.
AndyWest is offline  
Old May 4, 2012, 05:52 AM   #17
BoogieMan
Senior Member
 
Join Date: April 4, 2012
Location: South Jersey
Posts: 1,249
Glad it worked out for you this time. Just to play devils advocate. You were armed he was in a car. What if you had escalated by "accidently" allowing your pistol to show? He could have just as easily clipped your back wheel.
BoogieMan is offline  
Old May 4, 2012, 06:07 AM   #18
ritepath
Senior Member
 
Join Date: February 22, 2009
Location: Virginia
Posts: 826
Right or Wrong you may have saved your life.

There are people out there that get a kick out of hitting bikers and bicyclist.
__________________
There's only one...
ritepath is offline  
Old May 4, 2012, 06:33 AM   #19
Micahweeks
Senior Member
 
Join Date: February 21, 2009
Location: North Mississippi
Posts: 799
No. It is not brandishing in your state. But, it's still not a good idea.
Micahweeks is offline  
Old May 4, 2012, 06:36 AM   #20
zincwarrior
Senior Member
 
Join Date: July 1, 2011
Location: Texas, land of Tex-Mex
Posts: 1,119
Am I the only person who thought he was asking if moon ing the other driver was brandishing?

To be clear, in Texas you could have been prosecuted for brandishing. You had no claim to self defense here, and you intentionally did it.

Also lets be frank. It wasn't a very smart move.
1. You should have moved off from the situation.
2. I never had a bike that couldn't leave a car in the dust as an afterthought.
3. Showing a gun on a bike when he has a two ton vehicle that can smear you if that was his intent was..inprudent.
zincwarrior is offline  
Old May 4, 2012, 08:07 AM   #21
MLeake
Senior Member
 
Join Date: November 15, 2007
Location: Outside KC, MO
Posts: 10,128
I agree with zincwarrior's enumerated advice, but having had a knucklehead or two pull such stunts on me back when I rode, I agree with the OP that it was not unreasonable to feel threatened - after multiple, unsuccessful attempts to get the guy to pass or back off.
MLeake is offline  
Old May 4, 2012, 08:30 AM   #22
AH.74
Junior member
 
Join Date: October 13, 2008
Location: Hermit's Peak
Posts: 623
First of all- I won't do anything that anyone can even accuse of being brandishing. So I would not have done what you did.

Secondly- equip yourself better if you are going to carry while you ride. I know you said it was hot, but having to sit on a t-shirt to keep it covering your gun is not a good setup. Having your other cover shirt unbuttoned and billowing out behind you as you ride is not good either.

Get a jacket that is ventilated for air flow and will serve as proper cover.

Now- to your issue with the other driver. Evade, evade, evade.

If the driver won't back off after an obvious glance back, swing to one side and hit the brakes, letting the guy get by you. And then get ready to head in the other direction.
AH.74 is offline  
Old May 4, 2012, 08:38 AM   #23
K1500
Senior Member
 
Join Date: December 24, 2011
Posts: 158
On a bike a quick twist of the wrist may have solved the problem as well, although speeding and aggressive driving are also against the law.
K1500 is offline  
Old May 4, 2012, 10:22 AM   #24
zincwarrior
Senior Member
 
Join Date: July 1, 2011
Location: Texas, land of Tex-Mex
Posts: 1,119
Quote:
I agree with zincwarrior's enumerated advice, but having had a knucklehead or two pull such stunts on me back when I rode, I agree with the OP that it was not unreasonable to feel threatened - after multiple, unsuccessful attempts to get the guy to pass or back off.
To be clear I am not attempting to attack the poster. I just believe this was not wise and could have resulted in a far more injurious result. Brandishing is the least of negative events that could have occurred. Being on a bike you are at a natural disadvantage vs. a vehicle. On the other hand your evasion / hard break and bail option is much greater.

Also agree with AK's comment on better gear.
zincwarrior is offline  
Old May 4, 2012, 11:17 AM   #25
farmerboy
Junior member
 
Join Date: May 16, 2009
Location: Central Texas
Posts: 1,343
If the car driver wanted to call 911 and report a man driving a bike with open carry theres a good chance an officer could stop and cite or maybe not depending on the officers call. Yes in a way I can say you showed it to him intentionally because you felt threatened. Thats just a given riding a motorcycle, people dont respect cars much less a bike... Would I ever do the same??? Sure if I felt someone toying with me just to be funny, Sure Id even do more than that really if someone wants to play. This sounds like it could go either way but still really depends on how the officer chooses to handle it and how each person describes their side. Glad it worked out for you but be very careful next time. Some people are out there to see if they can just ruin someones day and some officers are there for the same reason.
farmerboy is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 02:50 PM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2013 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.12880 seconds with 7 queries