Safe, Legal way to inform an aggressor you are carrying

Bovice · Feb 17, 2013

ZeSpectre said:
Ask for legal advice from a Lawyer, not on the internet. Therefore any following advice is just my opinion, not any sort of legal advice.

Reconsider your mindset.

A firearm is not a shield and should not be thought of as a deterrent (though it sometimes acts as one, depending on that effect will get you into some serious trouble). It is unwise IN THE EXTREME to use a firearm, or even the hint of one, to "warn off" a potential aggressor and the introduction of a firearm into ANY confrontational situation is ALWAYS an escalation.

Valid use of a firearm in a self-defense situation is pretty much restricted to determining the answer to the question "do I currently have a reasonable fear for my life?" which is often determined by an analysis of the "MMO" yardstick.
Means - Does this person have the means to harm me?
Motive - Does this person appear to have a motive?
Opportunity - Can this person actually get to me to carry out their threat?

If the answers are yes, then you are past the "warning" stage and it is probably time to defend yourself. If any of the answers are "no" then introducing (or hinting about ) a firearm is generally a bad idea.

A firearm is not a shield? I think Smith and Wesson disagree. (M&P Shield... haha)

The people who say that if you pull, you HAVE to fire, are wrong. You can't just go into autopilot and start blasting away. Clint Smith's "say stop while shooting" seems silly to me. You should have said that before, give that a shot at de-escalation. If pulling your gun causes a submissive response, don't pull the trigger. Back away and leave. The idea is to avoid the hassle that comes with a shooting. As far as being charged with brandishing, get real. Are you going to sit there and wait for an hour to see what comes next? Leave.

Deanimator · Feb 17, 2013

The people who say that if you pull, you HAVE to fire, are wrong.

You don't HAVE to shoot if you draw, but you should ONLY draw if you INTEND to SHOOT.

If I draw my firearm, it's going to be because I face the immediate and credible threat of unlawful deadly force. I'm not drawing as a warning. I'm drawing as part of a seamless process of countering deadly force with deadly force.

If my assailant gives me an unambiguous indication of submission or flight, I won't shoot him. However, his window of opportunity to do so is so fleeting as to be virtually nonexistent. The odds of him being able to accomplish that in the time between me drawing and squeezing the trigger are on a par with the odds of him surviving a trip over Niagara Falls... WITHOUT the barrel.

I have ZERO legal duty to incur ANY risk to mitigate the effects of YOUR bad choices. Once you've thwarted my attempt to walk away, you're going to have a VERY bad day. And that's only if I'm outside my home, on foot. In vehicle or home, I have no duty to retreat AT ALL.

At least where I live, unlawful deadly force attacks are dangerous for the victim AND the assailant. If somebody doesn't like that, they shouldn't have chosen to BE the "assailant".

Fremmer · Feb 17, 2013

How about you call 911 and tell them to send the police immediately and that you legally ccw. Right in front of him so he can hear it. And then wait for the police.

Sol · Feb 17, 2013

You will know in your gut if you really have to use it...

More details of the situation would help.
Did the individual have a weapon?
Any threats of death or serious injury?
How many people?
I would keep my distance and would pull only if a weapon is produced or being surrounded.

Wouldn't want another Martin/Zimmerman fiasco would ya?

brickeyee · Feb 17, 2013

Of course I will check local/state etc. laws

Just remember that statute law is NOT the only law.

CASE ('common') law is also out there.

if the situation is that bad i plan on no warning.

Start to back away (distance is your friend), be ready as needed.

Sam1911 · Feb 17, 2013

A few points to consider:

1) Telling someone you are armed, and either stating or implying that you will shoot them if... is a crime, usually a form of assault.

2) Drawing a firearm and displaying it (brandishing) or pointing it at someone is a crime, usually a form of assault.

3) Punching, kicking, striking, etc. someone is a crime of assault.

4) Striking someone with a blunt weapon, stabbing someone, or shooting someone is assault with a deadly weapon.

5) Any of the above are felonious crimes in (I believe) every state and jurisdiction in the USA.

6) Any of the above MAY be justifiable under very strictly defined circumstances as spelled out in your state's use of force and use of deadly force laws.

7) The key to surviving what happens AFTER the police arrive to investigate the incident is that you must have a clear and articulable reason why you HAD to perform that act in order to save your life or to stop one of a very few other serious crimes against you. You must be able to say, "I believed that THAT man was going to do X to me, right that instant, ..." and that must represent a reasonable, realistic belief.

Various states do allow you to present a weapon or indicate one in slightly broader circumstances than they allow you to SHOOT someone, but those are only slightly broader circumstances.

Sam1911 · Feb 17, 2013

Further, there are some really good verbal and physical steps you can take to back someone off, or (more properly) ascertain their intents, and create some distance for yourself. We've had lots of threads on that sort of pre-altercation maneuvering.

beatledog7 · Feb 17, 2013

The decision to draw = the decision to shoot. However, if during the split second before you press the trigger the perp acts in some manner that allows you change your mind, that's better for everyone. In 99.99% of situations, there is a better option than deciding to shoot, meaning by inference that the same figure applies to the decision to draw.

The point remains: if you're drawing you're shooting unless the bad guy gives you the opportunity to not shoot.

Kleanbore · Feb 17, 2013

A pretty good rule of thumb is that in no jurisdiction may anyone other than a sworn oficer lawfully cause apprehension in another party by discussing, displaying, or exposing a deadly weapon unless you would be lawfully justified in the use of physical force for defense or to prevent a forcible felony.

In one state, when such justification exists, one may lawfully tell the offending perty that one has a firearm, or place one's hand on it, or uncover it, but one may not lawfully draw.

In two other states, when such justification exists, one may lawfully draw and point a firearm.

Best to avoid confrontations and to avoid any kind of action that could be perceived as a threat.

easyg · Feb 17, 2013

A pretty good rule of thumb is that in no jurisdiction may anyone other than a sworn oficer lawfully cause apprehension in another party by discussing, displaying, or exposing a deadly weapon unless you would be lawfully justified in the use of physical force for defense or to prevent a forcible felony.

No one can even discuss deadly weapons if it might make another person apprehensive???

Where did you hear this?

Telling someone you are armed, and either stating or implying that you will shoot them if... is a crime, usually a form of assault.

No.
You might be charged with "communicating a threat" if you just tell someone you're going to shoot them, and rightfully so.

But telling someone who is threatening you that you are armed and will use deadly force to defend yourself is not a crime.

Deanimator · Feb 17, 2013

But telling someone who is threatening you that you are armed and will use deadly force to defend yourself is not a crime.

I could be mistaken, but isn't that PRECISELY what the NRA recommends in their "Personal Protection in the Home" course?

I seem to remember something to the effect of, "Police have been called. I have a gun. Don't enter or I'll shoot."

Frank Ettin · Feb 17, 2013

easyg said:
..But telling someone who is threatening you that you are armed and will use deadly force to defend yourself is not a crime....

Actually, it can be.

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

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 or to secure his compliance, 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.

Now in all States it will be a defense against a charge of assault (or any similar crime) if you establish that your assault satisfied the applicable legal standard for justification.

In most States the standard for justifying a threat of lethal force is the same as for justifying the use of lethal force in self defense. In a few, it's a somewhat lesser standard. So in all States if you threaten lethal force you will need to be able to at least show prima facie such threat was legally justified, that is if you want to avoid a conviction for assault.

Deanimator said:
But telling someone who is threatening you that you are armed and will use deadly force to defend yourself is not a crime.

Click to expand...

I could be mistaken, but isn't that PRECISELY what the NRA recommends in their "Personal Protection in the Home" course?

I seem to remember something to the effect of, "Police have been called. I have a gun. Don't enter or I'll shoot."

But in the context of that NRA class one is being advised to say that to someone you is reasonably believed to have unlawfully and forcibly entered the actor's home, or is in the process of doing so. Those are circumstances which generally justify the use of lethal force.

easyg · Feb 17, 2013

Read on.

Per your linked passage...

The act required for an assault must be overt. Although words alone are insufficient, they might create an assault when coupled with some action that indicates the ability to carry out the threat. A mere threat to harm is not an assault; however, a threat combined with a raised fist might be sufficient if it causes a reasonable apprehension of harm in the victim.

Merely telling someone that you are armed and will use deadly force to defend yourself is not a crime.

Deanimator · Feb 17, 2013

But in the context of that NRA class one is being advised to say that to someone you is reasonably believed to have unlawfully and forcibly entered the actor's home, or is in the process of doing so. Those are circumstances which generally justify the use of lethal force.

GENERALLY, but not UNIVERSALLY.

There are places where you are required to flee from your own home.

Sam1911 · Feb 17, 2013

Merely telling someone that you are armed and will use deadly force to defend yourself is not a crime.

Oh good heavens. This is taking the point to absurdity.

Yeah, sitting around the lunch counter telling your pals, "I'm armed and will defend myself!" is not a crime. You aren't trying to intimidate someone, there is no perception of an assault about to happen to or by you.

However, confronting someone approaching you and giving them the hard stare with the words "I AM ARMED AND WILL DEFEND MYSELF!" certainly would be a crime if there was no lawful justification for your need to use that level of (non-contact) "force" to stop an attack. You are using the implied threat of your gun to secure the other person's compliance with your wishes (in this case to back off and/or not attack you).

Context is absolutely a factor that goes beyond black letter law.

easyg · Feb 17, 2013

Sam, you're wrong.

Merely stating, to anyone that you happen to meet, that you're armed and willing to defend yourself is not a crime.
Heck, you can wear a t-shirt that says "I'm armed and will use deadly force to defend myself" if you desire.
Just like you can put a sign on your front door that says "Property protected by Smith & Wesson" if you desire.

It's not the same as saying "I'm going to kill you!" to someone you just met on the street.
That would be conveying a threat for sure, but even so it is still not assault.
Words alone cannot be an assault.

Sam1911 · Feb 17, 2013

Put into the context we're discussing, they absolutely can be. If you want to dance on the line of what you think you can't be arrested for, go right ahead.

In the end, what you're doing is telling someone something with the intention of instilling in them the idea that you are armed and will hurt them or kill them if they do or don't do whatever it is you don't or do want them to do. If you can pull that off without somehow including some indication that you're going to act on this (the raised fist in the example given in Frank's link...but that could be quite broad), perhaps you could skirt that definition.

But that's merely the common law basis of the principle, not the specific state law of any jurisdiction. Menacing, making terroristic threats, and so forth appear as crimes in a number of states and pointedly telling someone that you're armed -- in an attempt to scare them off of a course of action -- could fall into lots of them.

Kleanbore · Feb 17, 2013

Posted by easyg: That would be conveying a threat for sure, but even so it is still not assault.

Please reread Frank Ettin's post.

Words alone cannot be an assault.

While verbal threats alone do not justify the use of physical force, they can result in criminal charges.

smle41 · Feb 17, 2013

I find myself generally agreeing with 'easyg'. Many years ago, I ended a confrontation by placing my hand on a holstered pistol, thereby letting the youths know that I was armed ( I did call the police, but they never came out nor called back, and after some time we eventually disposed of the film), but no shots were fired nor did the youths complain to the authorities. In the same city, and the same timeframe, being chased down a street and actually drawing the handgun, to have them scatter in retreat, no rounds used nor did the miscreants seem to desire filing charges for anything.
Of course, your experience and knowledge is yours, and in your area; it does seem that a fear of being arrested for something while engaged in self-preservation may be a tad over wrought... on the other hand, if one is facing incompetent officers or overzealous prosecutors, that might change the equation.
I also doubt, at least in Idaho, Wisconsin or Washington, that police would be reprimanded for placing their hands on their weapons. Perhaps in some areas...
Anyway, there is something to be said for the deterrent effect of a weapon.

LiENUS · Feb 17, 2013

easyg said:
Sam, you're wrong.

Merely stating, to anyone that you happen to meet, that you're armed and willing to defend yourself is not a crime.
Heck, you can wear a t-shirt that says "I'm armed and will use deadly force to defend myself" if you desire.
Just like you can put a sign on your front door that says "Property protected by Smith & Wesson" if you desire.

It's not the same as saying "I'm going to kill you!" to someone you just met on the street.
That would be conveying a threat for sure, but even so it is still not assault.
Words alone cannot be an assault.

easyg you seem to be confusing assault with battery. Battery involves physical contact. Assault in the united states does not involve physical contact. Threatening someone with words can very well be assault.

OptimusPrime · Feb 17, 2013

Strangely, carrying a CCW over the past few years has actually given me a much calmer outlook on potential dust-ups. Maybe I'm just older, but knowing that I've got the ultimate trump card in my pocket makes it very easy to walk away from any challenges I may have been the recipient of. Anything from walking across the parking lot after a concert, those road rage lane changers, or the punks in the Taco Bell parking lot, but I easily ignore them now with impunity.
10 years ago it would have been a fight. Now I don't even rise to the bait.

bikemutt · Feb 17, 2013

Maybe I've just been lucky but I prefer to avoid places notorious for trouble. Still, you never know when things could go wrong. The gun is reserved for when it goes wrong and no other way out is possible.

zxcvbob · Feb 17, 2013

easyg you seem to be confusing assault with battery. Battery involves physical contact. Assault in the united states does not involve physical contact. Threatening someone with words can very well be assault.

Hurt someone's feelings, go directly to jail.

LiENUS · Feb 17, 2013

zxcvbob said:
Hurt someone's feelings, go directly to jail.

Hurting someone's feelings isn't the same as threatening with words. Also upon closer inspection I believe I may have misspoke there does need to be a bit more than threatening with words there must be some other circumstance to indicate a threat of violence. The presence of a weapon, a gesture, something like that. I personally try to avoid even making verbal threats of any form whether I have a weapon or not. Tends to avoid the possibility of a factor you didn't realize was in play.

Frank Ettin · Feb 18, 2013

easyg said:
Sam, you're wrong.

Merely stating, to anyone that you happen to meet, that you're armed and willing to defend yourself is not a crime.
Heck, you can wear a t-shirt that says "I'm armed and will use deadly force to defend myself" if you desire...

So when were you admitted to the Bar, and how long have you been a lawyer?

As Sam and I have pointed out, context can be everything.

So when your statement reasonably creates a fear of imminent harmful or offensive contact, it indeed can be considered an assault. When you have made the statement for the purpose of intimidating someone and obtaining his compliance, which is exactly what the OP posited, it can be an assault.

Safe, Legal way to inform an aggressor you are carrying

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