Legally draw?

[Mike38]

I have a question for those smarter than me on legality of brandishing a carry pistol. I left a gas station just as my daughter was going in, so I missed it by minutes. As my daughter was waiting in line to pay for her fuel, a joker ran in and shouted “Everybody hands in the air, this is a stick up!” I fear that if I was still inside, I would have jumped for cover, then covered him with the muzzle of my .38. I seriously doubt I would have pressed the trigger, but do believe I would have drawn on him. Would I get arrested? Would he get arrested? Both of us? I’m in Illinois if that matters. Regardless, in this day and age, what that guy did was beyond stupid.

[Aguila Blanca]

Your state does matter, because what's legal and what's not will be controlled by the laws of the state where an incident occurs. To find the answer to your question, look up Illinois' laws on the use of deadly (or lethal) force. I expect that you are going to find that drawing a firearm is considered to be the use of deadly force.

Generally speaking, we are permitted to use deadly force to defend ourselves against threats of "imminent" death or grievous bodily harm (that's lawyer-speak for "serious injury"). My non-lawyer opinion is that, in the situation you described, you probably would not be charged for anything because you reacted to a threat (bogus, but you would not have had any way to know that at the time) with a reasonable show of force. Had you pulled the trigger it might get a bit more complicated.

Here's the statute on justifiable use of force. I'm not a lawyer, so I won't attempt to decipher it for you.

http://www.ilga.gov/legislation/ilcs...SeqEnd=9900000


Would/could the joker have been arrested? Again, it depends on what Illinois law has to say. I feel fairly certain that there's something in there that a creative cop and a creative prosecutor could trot out to charge him with. One such might be Disorderly Conduct (a misdemeanor):

http://www.ilga.gov/legislation/ilcs...eqEnd=75200000

Possibly Intimidation (a felony):

http://www.ilga.gov/legislation/ilcs...eqEnd=26900000

[44 AMP]

Was it a bad practical joke, or actually an intended robbery?

People have been arrested, convicted and sent to full prison terms for attempted robbery where the only "gun" they had was their finger in a pocket.

People have also been shot and killed for the same thing, and the shootings (sometimes) deemed justified.

Individual facts matter, and state laws differ. Usually if you believe he has a gun, you're not found at fault for reacting as if he does have a gun. USUALLY.

If you put 3 slugs into him as he throws up empty hands and shouts "just kidding folks" you'll probably be in serious trouble. If you've drawn and are covering him without shooting, PROBABLY not.

Check your state laws on brandishing and use of deadly force. They ARE different in different places.

[Aguila Blanca]

Originally Posted by 44 AMP

Check your state laws on brandishing and use of deadly force. They ARE different in different places.

There's that word again: "brandishing."

I keep seeing that word. As far as I know, my state's laws have no definition of "brandishing" and don't in any way make it an offense. I've only looked at the laws of a few other states but, so far, I have not yet encountered any state that mentions "brandishing" in its statutes. If anyone knows of any state laws that actually mention "brandishing" as an offense, please post.

[Mike38]

Was it a bad practical joke, or actually an intended robbery?

It was a bad joke. Seconds later he started laughing, but it only takes seconds to become a backstop for a couple lead pills.

I guess it was a joke because here in Illinois, we are still considered on lock down and must be wearing masks. Thought he would be cute or something.

I'm going to do some research on this, also my CCL comes up for renewal in November, and I can bring up this subject at that retraining class we have to take every 3 years.

Side note: My daughter called the city police after she left. No word on any action taken.

[raimius]

If the jury felt you reasonably believed your life was in danger, you would probably be ok (for both drawing and shooting). That said, the standard in most states is that of a reasonable person fearing for their lives or grievous bodily injury, or the same to those of a (non-aggressor) third party. If you want a more definitive answer, you would need to look at specific state laws, definitions, and previous court cases.

[TomNJVA]

Originally Posted by Aguila Blanca

If anyone knows of any state laws that actually mention "brandishing" as an offense, please post.

Virginia state law does address brandishing a firearm:

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.

In other states I imagine brandishing with the intent to cause fear or intimidation may fall under assault.

[Aguila Blanca]

Originally Posted by TomNJVA

Virginia state law does address brandishing a firearm:

Thank you.

There's one that mentions "brandish." Does the law define what "brandish" means? "It shall be unlawful for any person to point, hold or brandish any firearm ..." seems rather open to interpretation if the law doesn't define the term it uses.

[TomNJVA]

Originally Posted by Aguila Blanca

There's one that mentions "brandish." Does the law define what "brandish" means? "It shall be unlawful for any person to point, hold or brandish any firearm ..." seems rather open to interpretation if the law doesn't define the term it uses.

I find the word "brandish" or "brandishing" in seven sections of the Virginia Code, and none define it.

I imagine a court would apply its common use definition, which per the Merriam-Webster dictionary means: "an act or instance of waving something menacingly or exhibiting something ostentatiously or aggressively". It derives from Middle English braundisshen from brant, braund, the Anglo-French word for "sword", and apparently was used originally to refer to waving a sword in a threatening manner. It is now commonly used for objects other than swords.

I agree, however, that it is still open to interpretation. For example, would simply raising your shirt to show your gun be brandishing, even though you are not pointing or waving it in an aggressive manner? And how about just stating that you have a gun without showing it? It seems to be dependent on your intent, or perhaps the interpretation of the other party, which may be difficult to determine. It also seems to overlap with "assault".

[Don P]

Florida, wording changed about "brandishing" in the statues to read as below in my emphasis in bold because folks were getting arrested if their cover garment allowed for their firearm to be briefly UNINTENTIONALLY exposed for the public to see
790.053 Open carrying of weapons.—
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
(2) A person may openly carry, for purposes of lawful self-defense:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
(3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 87-537; s. 173, ch. 91-224; s. 3, ch. 97-72; s. 1205, ch. 97-102; s. 3, ch. 2006-298; s. 1, ch. 2011-145.

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 4532, 1897; GS 3272; RGS 5105; CGL 7207; s. 5, ch. 69-306; s. 743, ch. 71-136; s. 2, ch. 76-165; s. 174, ch. 91-224.

[Aguila Blanca]

Originally Posted by tOMnjva

I imagine a court would apply its common use definition, which per the Merriam-Webster dictionary means: "an act or instance of waving something menacingly or exhibiting something ostentatiously or aggressively". It derives from Middle English braundisshen from brant, braund, the Anglo-French word for "sword", and apparently was used originally to refer to waving a sword in a threatening manner. It is now commonly used for objects other than swords.

That's my understanding of what the word means. In my personal lexicon, "brandishing" means taking a gun out and waving it around. However, over the years I have seen people on "gun" boards post that simply putting your hand on the butt of a holstered firearm is considered to be "brandishing." That's what prompted me to ask the question.

Originally Posted by Don P

Florida, wording changed about "brandishing" in the statues to read as below in my emphasis in bold because folks were getting arrested if their cover garment allowed for their firearm to be briefly UNINTENTIONALLY exposed for the public to see
790.053 Open carrying of weapons.—

The word "brandish" or "brandishing" does not appear anywhere in the section you quoted.

[Don P]

I'll just emphasized my opening statement the word brandish did exist in Florida statutes prior to them changing the law about the brief exposure of a firearm unintentionally

[zukiphile]

"Brandishing" is covered by Ohio code. While I think of the act of brandishing as the dictionary definition above, prosecutors charge it where a PO sees a firearm under the control of a person with whom they've some sort of problem.

Based on the way I've seen it used in Ohio, I wouldn't make a reflexive draw my practiced response to an initial indication of danger. If I did draw and it turns out that I was mistaken, I'd prepare to explain how the circumstance was reasonably construed as so terrifying that my life was playing through my mind as I drew.

O.R.C. 2941.145 Firearm displayed, brandished, indicated that offender possessed the firearm, or used it to facilitate offense specification.


(A) Imposition of a three-year mandatory prison term upon an offender under division (B)(1)(a)(ii) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be stated in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed the firearm, or used it to facilitate the offense)."

(B) Imposition of a three-year mandatory prison term upon an offender under division (B)(1) (a)(ii) of section 2929.14 of the Revised Code is precluded if a court imposes a one-year , eighteen-month, six-year, fifty-four-month, or nine-year mandatory prison term on the offender under division (B)(1) (a)(i), (iii), (iv), (v), or (vi) of that section relative to the same felony.
(C) The specification described in division (A) of this section may be used in a delinquent child proceeding in the manner and for the purpose described in section 2152.17 of the Revised Code.
(D) Imposition of a mandatory prison term of fifty-four months upon an offender under division (B)(1)(a)(v) of section 2929.14 of the Revised Code is precluded unless the indictment, count in the indictment, or information charging the offense specifies that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed a firearm, or used the firearm to facilitate the offense and that the offender previously has been convicted of or pleaded guilty to a firearm specification of the type described in section 2941.141, 2941.144, 2941.145, 2941.146, or 2941.1412 of the Revised Code. The specification shall be stated at the end of the body of the indictment, count, or information, and shall be in substantially the following form:
"SPECIFICATION (or, SPECIFICATION TO THE FIRST COUNT). The Grand Jurors (or insert the person's or the prosecuting attorney's name when appropriate) further find and specify that (set forth that the offender had a firearm on or about the offender's person or under the offender's control while committing the offense and displayed the firearm, brandished the firearm, indicated that the offender possessed a firearm, or used the firearm to facilitate the offense and that the offender previously has been convicted of or pleaded guilty to a firearm specification of the type described in section 2941.141, 2941.144, 2941.145, 2941.146, or 2941.1412 of the Revised Code.)"

(E) Imposition of a mandatory prison term of fifty-four months upon an offender under division (B)(1)(a)(v) of section 2929.14 of the Revised Code is precluded if the court imposes a one-y ear, eighteen-month, three-year, or nine-year mandatory prison term on the offender under division (B)(1)(a)(i), (ii), (iii), (iv), or (vi) of that section relative to the same felony.
(F) As used in this section, "firearm" has the same meaning as in section 2923.11 of the Revised Code.

http://codes.ohio.gov/orc/2941.145

[Trumpanista]

Yuppers brandishing is a big word here in California, used at any opportunity by law enforcement, but we get a lot of nuts out here.
If somebody yells something like that, it's NOT protected speech, same as yelling
"Fire" in a crowded theater.
The vaunted legal term "reasonable person" will most probably also be used in court as well as "brandishing".

A reasonable person might well be advised to believe someone yelling "fire" in a theater, don't you think?

"Well Judge, my daughter was in there too with the others, I believed him when he said "hands up", only people with guns say that, don't they?"

[Trumpanista]

you said "reasonably" already, as far as I can tell that's one of those rubber legal words

[Mike38]

I've done some research on this subject. Last night and this morning. illinoiscarry.com and at illinoisconcealedcarry.com as well as others and it appears to me, a non lawyer, that if you remove a weapon from it's place of concealment, you have to have already made the decision to use that weapon. So keep it concealed. Diving for cover and dialing 911 would be the first and best moves to make.

My CCL renewal comes due in November, and will take the renewal training 120 days prior. I'm going to bring this up there, hoping I can get a good answer.

Why anyone with an ounce of grey matter between their ears would do something this stupid is beyond me.

[Aguila Blanca]

Originally Posted by Mike38

I've done some research on this subject. Last night and this morning. illinoiscarry.com and at illinoisconcealedcarry.com as well as others and it appears to me, a non lawyer, that if you remove a weapon from it's place of concealment, you have to have already made the decision to use that weapon. So keep it concealed. Diving for cover and dialing 911 would be the first and best moves to make.

Another variant of this that crops up periodically is the advice/instruction that "If you draw your gun, you have to shoot."

Seriously?

Suppose someone is threatening you with harsh words ... and a knife. He begins to approach you, you draw your gun, the guy sees that you have the better weapon, so all of a sudden his attitude gets adjusted: "Hey, no big deal, man. I don't want no trouble. I'm outta here."

What are you supposed to do, shoot him in the back? You used your gun to end the threat, and you were able to do so without firing a shot. WHY would you want to shoot once the creep has turned tail and skulked off?

[TomNJVA]

I think what Mike38 was pointing out is that in his state the same criteria for a legal shoot applies to a legal draw, i.e. a genuine fear of being imminently and seriously harmed. I am not a lawyer, but from what I have read I believe this is true in many states. There is certainly no requirement to shoot.

[mehavey]

Another variant of this that crops up periodically is the advice/instruction that
"If you draw your gun, you have to shoot."

Better:
"If you draw your gun, you had better be in a situation where shooting would have been justified."
(Whether you eventually shoot or not)

[JohnKSa]

That's the safest approach, legally speaking, but in some states, it may be legal to draw/display a firearm even though the justification for the use of deadly force does not yet exist. There must still be SOME legal justification, but, depending on the state, the level of justification for displaying/drawing a firearm may be less than what is required for actually firing the gun.

I'm not saying that's the case in Illinois because I don't know Illinois law, just noting that it is the case in at least one state.

[Sharkbite]

IIRC, Az has a “lawful display of a firearm” statue. It allows you to display a firearm in a defensive manner without criminal consequences. I dont know the statue or its exact language. Ive only heard students talking about it.

[Frank Ettin]

Originally Posted by Sharkbite

...Az has a “lawful display of a firearm” statue. It allows you to display a firearm in a defensive manner without criminal consequences. I dont know the statue or its exact language. Ive only heard students talking about it.

The statute is ARS 13-421. It reads:

Justification; defensive display of a firearm; definition

A. The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.

B. This section does not apply to a person who:

1. Intentionally provokes another person to use or attempt to use unlawful physical force.

2. Uses a firearm during the commission of a serious offense as defined in section 13-706 or violent crime as defined in section 13-901.03.

C. This section does not require the defensive display of a firearm before the use of physical force or the threat of physical force by a person who is otherwise justified in the use or threatened use of physical force.

D. For the purposes of this section, "defensive display of a firearm" includes:

1. Verbally informing another person that the person possesses or has available a firearm.

2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another's use or attempted use of unlawful physical force or deadly physical force.

3. Placing the person's hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

So it's not as simple or straightforward as you seem to imply. Certain conditions need to be satisfied in order for the defensive display of a firearm to be legally justified; and there are exceptions.

A vague reference to a statute existing on a subject aren't in general very useful. We need at least a citation. And one needs to read the statute to know what it actually says.

[JohnKSa]

A very good point. This topic can be more complicated than it seems.

For example, I know the TX law about when it is legal to display a firearm in self-defense, but I didn't get into the details on purpose because it takes a lot of typing to explain it.

First, one has to quote and discuss the laws that discriminate between 'force' and 'deadly force'. Then once that foundation is established, the same must be done for the laws about when 'force' can legally be used. The next step is learning the law that states the handgun can be drawn and displayed (in a particular manner--not just any way the wielder chooses) if the progression of circumstances that justifies 'force' has been met.

The bottom line is that displaying a deadly weapon in a manner calculated to put a person in fear that it will be used is a crime unless sufficient legal justification exists. The level of justification required can differ from one state to another, but some level of justification is ALWAYS required.

By the way, the term 'brandishing' comes up a lot in this kind of discussion. It helps to understand that pointing a firearm at someone is most commonly described as "assault with a deadly weapon" or "aggravated assault" or something similar. This kind of discussion tends to blind the participants by causing them to focus only on the situation from their perspective. Turn it around and think about what the situation would be if someone pointed a gun at you in anger. Now understand that is the perspective the other party will have--and the perspective the courts will have if insufficient justification exists.

[armoredman]

@Aguila Blanca;

Originally Posted by azleg.gov

Searching Arizona Revised Statutes for 'brandishing'
Your search for brandishing resulted in 0 document(s) (max 1000). Up to 50 documents will be displayed on each page.
Total Results: 0

[DaveBj]

The single quotes messed your search up. Try searching on that phrase without any punctuation -- 72,800 hits.

D