Al Thompson
Moderator Emeritus
I don't see this one gaining any traction. I'd call it "asked and answered"...
ugh... I need to move.
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Al Thompson
Moderator Emeritus
Reopened at OP's request.
WALKERs210
Member
It was my understanding that brandishing a weapon was more than just having in you hand down by your side. I live in a very decent area but before the car door is ever unlocked I make a sweep of the entire area just to make sure. When I get out I most time have a hand full of items i.e. Mail, shopping bag, bottle water or soda and then my pistol gripped until I am completely outside the car where the pistol will be placed in my hip pocket. I have had situations where several young men surrounded me blocking path completely. Grace of God they spread out for me to pass and that was with out a firearm. Young boys or Young Men have a tendency to push just as cam to unnerve a person. My teaching was never never threaten anyone with you weapon unless it 100% certain that the kids might or most likely make a situation and continue to approach. From what I am gathering from the GZ and TM case you can do everything right but still be sitting in a jail sell. Back in the 70's 80's an officer told me that if you ever have to pull the weapon
"Don't stop shooting until the BG is stopped kicking or your gun starts clicking. That mind set today would get you moved to the front cell where you most likely would spend a great deal of town even if your robbed , beat just not dead.
"Don't stop shooting until the BG is stopped kicking or your gun starts clicking. That mind set today would get you moved to the front cell where you most likely would spend a great deal of town even if your robbed , beat just not dead.
improperlyaged
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Sorry been working.
As to the brandishing, in my state brandishing is defined as using the gun in a threatening manner i.e. pointing it at someone or pointing at it and saying something threatening. Anything else isn't considered brandishing and it is the duty of the prosecuting attorney to prove I was using my firearm in a threatening manner. As to the location, I was in my front yard, I pull my truck up all the way to the porch. I live in an urban area that is well lit. The house they came from behind is empty and one of the reasons they made me a little nervous. I learned long ago to trust my gut hence the shotgun was brought out.
Ps. My neighbor told me today he was awake and heard me yell howdy at the fellas. He said he was standing in his garage working on his truck (he goes to sleep at 6 pm and wakes up at 0230) and was armed with a shotgun cause he saw "the punks" walking the neighborhood. He had also called the police earlier, the cops came drove around and the guys had apparently went and hid while the cruiser was making the rounds. My neighbor is a good ole ex Navy Seal and even though I didn't know it, he had my back.
improperlyaged
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That did go through my mind, but it did so extremely quickly. I really didn't think I had time to ponder the consequences of my actions if my actions needed to be acted right then. I suppose they could have called the police and said I threatened them, but I would have a phone call to the police on record, and unknowingly a witness (my neighbor)
Stevie-Ray
Member
Seems that is opening another can of worms as to whether to store a gun in a vehicle. Generally, very generally, that's a no-no, so I for one expected that he does this every night, which for somebody that comes home at 3:30 am or so is not so much a stretch.
There is also some confusion as the difference between being somewhere legally, and being somewhere you shouldn't be. In my neighborhood, you can walk the street at 3:30 am legally, but should you? 100% of the cops in my neighborhood will tell you no, and though I haven't polled them, I firmly believe that the same 100% will guess that you are up to no good and at least put you on notice, accordingly.
Librarian
Member
I find this thread confusing. Perhaps someone might assist.
The OP posted a narrative.
It's true that in some jurisdictions his posted reaction to the late-night strollers might be considered 'brandishing', and if that were presented to LE, brandishing can be a large problem.
Having said that, why the continuing emphasis on what the OP judged to be reasonable preventive behavior as though he actually committed a crime?
Is there not room for individual evaluation of circumstances, including local laws on the point, followed by action that seemed wise within the boundaries of that information?
I may be mistaken in reading that emphasis into the thread, so apologies if I might be wrong.
The OP posted a narrative.
It's true that in some jurisdictions his posted reaction to the late-night strollers might be considered 'brandishing', and if that were presented to LE, brandishing can be a large problem.
Having said that, why the continuing emphasis on what the OP judged to be reasonable preventive behavior as though he actually committed a crime?
Is there not room for individual evaluation of circumstances, including local laws on the point, followed by action that seemed wise within the boundaries of that information?
I may be mistaken in reading that emphasis into the thread, so apologies if I might be wrong.
I'll try, though we have been over it extensively.
Let's start by not using the term "brandishing". The legal point is, producing and displaying a firearm in the presence of others in a manner that can be interpreted as threatening constitutes a crime unless the act is lawfully justified. The threshold for justification varies, but at minimum, the immediate use of physical force for self defense would have to be justified.
Individual judgment is always a factor.
However, that judgment will be evaluated by others in light of the evidence and local laws.
When the OP got out of his car in the wee hours and with three men walking his way, he certainly had every right to be wary. But with no overt indications of a threat and with the men still fifty feet away, displaying a firearm was probably not justified.
That's the legal side of the question. The other point is that the man unlimbering his long arm at night as others approach stands a not altogether insignificant risk of having his action interpreted as an imminent threat. He could be shot in arguably lawful self defense by one of the men, or by a police officer or armed citizen who happened to be at the scene.
In that light, taking out the gun was probably not the most prudent thing to do, either.
If it were to happen to me, I would move toward the house quickly, ready to reach for my concealed handgun if necessary. But if I happened to not be carrying, I would at least consider backing out of the driveway, driving around the block, and returning.
Deltaboy1984
Member
Folks as many of our Mothers told us Nothing good happens after midnight, add to it Cooper' s advice to avoid groups of young males at night and OP is correct in his actions.
lloveless
Member
Yep the OP done good and his neighbor had his back(not sealed his fate). Just because others live in areas of oppression doesn't mean everyone does. Each of us needs to be aware of the laws and norms of our areas. I hike at all hours of the day and night. Luckily I live in the county on a very rural road. I am known by the police and neighbors(on VFD, and was a Deputy for 11 years).
LL
LL
henschman
Member
First and foremost, you should do whatever gives you the greatest chance of getting through a situation alive. If an unknown group of fellas are approaching me in my driveway and I have a shotgun available, I am going to grab it. I am not going to take any extra risks with my life just to avoid the long-shot application of a misdemeanor statute by some Monday morning quarterback cop. Newsflash for y'all... scumbags don't call the cops on folks for brandishing. They don't want to have to explain why they were approaching you threateningly at night in front of your own house. They don't want anything to do with the cops. And you certainly can't worry about the possibility of a cop or concealed carrier standing in the shadows and popping you as soon as he sees a gun. You act based on what you reasonably know about the situation. you don't have time to make crazy unjustified assumptions like that. Having second thoughts like that will get you killed in a SD situation. The loud and confident verbal challenge/greeting is exactly right, and probably kept you from having to use that hog leg.
Good job OP, and thanks for letting us learn from your experience
Good job OP, and thanks for letting us learn from your experience
Fred Fuller
Moderator Emeritus
Newsflash for y'all... scumbags don't call the cops on folks for brandishing.
Actually they do, sometimes....
http://politicaloutcast.com/2013/04/home-intruder-fears-owner-has-gun-calls-911/
Home Intruder Fears Owner Has Gun -- Calls 9-1-1
Posted on April 17, 2013 by Dave Jolly filed under Crime, Email Featured
======================
Overestimating crooks isn't smart... neither is underestimating them.
http://weblogs.sun-sentinel.com/new...2008/07/dumb_and_dumber_crook_calls_co_1.html
Dumb and dumber: Crook calls cops about money he stole
By Liz Doup July 10, 2008 10:00 AM
Actually they do, sometimes....
http://politicaloutcast.com/2013/04/home-intruder-fears-owner-has-gun-calls-911/
Home Intruder Fears Owner Has Gun -- Calls 9-1-1
Posted on April 17, 2013 by Dave Jolly filed under Crime, Email Featured
======================
Overestimating crooks isn't smart... neither is underestimating them.
http://weblogs.sun-sentinel.com/new...2008/07/dumb_and_dumber_crook_calls_co_1.html
Dumb and dumber: Crook calls cops about money he stole
By Liz Doup July 10, 2008 10:00 AM
Yes indeed. Often, that means avoidance.
That's OK, if and only if you have reason to believe that grabbing your shotgun is immediately necessary to defend yourself. You would have to have reason to believe that the individuals had the ability, the opportunity, and the intent to harm you (in some states, to kill or cause serious injury) and that you had no other alternative.
It would be very difficult under most circumstances to convince the proverbial "reasonable man" that persons who happened to be walking in your direction who were fifty feet away constituted an imminent threat, or that producing a firearm had been immediately necessary.
Make no mistake about it: aggravated assault is not a misdemeanor; it can result in serious jail time and in the life-time loss of your gun rights.
You are making several unsubstantiated and unjustified assumptions there.
It's not the odds, it's the stakes. It's a risk--a remote one, but very serious.
If you were waiting to pick up some folks after a party and you saw a man pull into a driveway and unlimber a long arm in their direction without cause, would you consider drawing and firing before he shot at you or them?
Good comment. What did the OP know about the situation?
Just what is it that made this a "SD situation"?
We often say that when one has a hammer, everything tends to look like a nail.
Had the situation gone bad, the OP would rue the day he decided to present his weapon, and wish that he had chosen instead to drive around the block.
tomrkba
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Kleanbore,
This entire discussion could all be due to the misinterpretation caused by a brief forum post. The OP was there and he could see their body language. It's very possible to tell the difference between someone merely walking around and someone stalking you with purpose. Based upon what the OP said, it *appears* that they reacted to his presence (odds of them coming out at that moment are very low at 0330 hours). They approached him. Three on one justifies lethal force.
Is it legal for them to do what they did? Sure thing!
But put it all together at 0330 hours and it certainly looks like they had evil intent.
Again this could be all misinterpreted since this is flat text. But, some of your posts go too far in their conclusions.
Seriously, are you deliberately being dense for the sake of argument? They have feet and it's only 50 feet, which may be crossed in a few seconds. Three on one justifies lethal force.
They came from behind the house as the OP arrived, prior to the display of the weapon. It is VERY, VERY, VERY, VERY, VERY unlikely coincidence at 0330 hours.
Lawful, yes, but it also speaks to intent. You are acting as if the situation was emotionally devoid and the OP could not read body language.
Crossing onto someone's property at 0330 is lawful? Perhaps they didn't get that far before the OP responded. It's not clear to me.
One simple action would be for the OP to move so the vehicle is between him and the trio. This adds cover to the equation and forces the trio to move around an obstacle once they arrive. It certainly demonstrates intent on the part of the trio should they continue toward the OP.
Yes, it does because of the reaction to his presence and the approach. Again, the entire context must be considered, not the individual parts. The OP felt like he was being stalked, therefore, he was. Whether or not this is actually true in the minds of the three men is irrelevant at this point of the encounter. The actual use of lethal force is not justified at this point, but the readying of a weapon for the purposes of stopping an attack certainly is. The OP is not expected to be telepathic and the courts recognize this. What the OP did have was: three men approaching onto his property at 0330 hours after suddenly appearing from behind another house after he parked his car. The odds are very low that they would suddenly decide to take a walk at that time. Perhaps they truly were innocent and actually needed Skittles at 0330 hours. But, telepathy is not part of the equation; only the actions of the trio matter and their actions certainly appear to the be the precursor actions for an attack. The rule of thumb is "fear of death or great bodily harm", not actual harm unless it occurs. People are allowed to think ahead and predict "great harm/death to themselves", but they need to be able to speak to the evidence (see pre-attack indicators, below*). Displaying a firearm to ward off an attack is a legal use of a firearm in self-defense, but the person doing so had better be able to clearly lay out the reason for doing so afterwards.*
You are almost taking the position of the prosecution of Zimmerman: that damage must be done before lawful self-defense can occur. You are right there on the line with your arguments.
You are not correct in that because it's not so cut and dried. Two or more men on one justifies lethal force in my state. They do not need to be armed. A large disparity in force and/or skill in a one-on-one fight can also trigger lawful use of lethal force in my state.
* Southnarc/Craig Douglas/shivworks' ECQC course goes over the pre-attack indicators which can be used to demonstrate their intent. Facial grooming, looking around, looking over the shoulder, nervousness/giddiness, cocking the leg, slapping an area on their body, very pale face/face turning pale, concealing a hand, hand at the waist, heavy breathing (though this can be contextual) or touching clothing where a weapon is located, and working in a group are all indicators that people can use as evidence of intent.
This entire discussion could all be due to the misinterpretation caused by a brief forum post. The OP was there and he could see their body language. It's very possible to tell the difference between someone merely walking around and someone stalking you with purpose. Based upon what the OP said, it *appears* that they reacted to his presence (odds of them coming out at that moment are very low at 0330 hours). They approached him. Three on one justifies lethal force.
Is it legal for them to do what they did? Sure thing!
But put it all together at 0330 hours and it certainly looks like they had evil intent.
Again this could be all misinterpreted since this is flat text. But, some of your posts go too far in their conclusions.
Seriously, are you deliberately being dense for the sake of argument? They have feet and it's only 50 feet, which may be crossed in a few seconds. Three on one justifies lethal force.
They came from behind the house as the OP arrived, prior to the display of the weapon. It is VERY, VERY, VERY, VERY, VERY unlikely coincidence at 0330 hours.
Lawful, yes, but it also speaks to intent. You are acting as if the situation was emotionally devoid and the OP could not read body language.
Crossing onto someone's property at 0330 is lawful? Perhaps they didn't get that far before the OP responded. It's not clear to me.
One simple action would be for the OP to move so the vehicle is between him and the trio. This adds cover to the equation and forces the trio to move around an obstacle once they arrive. It certainly demonstrates intent on the part of the trio should they continue toward the OP.
Yes, it does because of the reaction to his presence and the approach. Again, the entire context must be considered, not the individual parts. The OP felt like he was being stalked, therefore, he was. Whether or not this is actually true in the minds of the three men is irrelevant at this point of the encounter. The actual use of lethal force is not justified at this point, but the readying of a weapon for the purposes of stopping an attack certainly is. The OP is not expected to be telepathic and the courts recognize this. What the OP did have was: three men approaching onto his property at 0330 hours after suddenly appearing from behind another house after he parked his car. The odds are very low that they would suddenly decide to take a walk at that time. Perhaps they truly were innocent and actually needed Skittles at 0330 hours. But, telepathy is not part of the equation; only the actions of the trio matter and their actions certainly appear to the be the precursor actions for an attack. The rule of thumb is "fear of death or great bodily harm", not actual harm unless it occurs. People are allowed to think ahead and predict "great harm/death to themselves", but they need to be able to speak to the evidence (see pre-attack indicators, below*). Displaying a firearm to ward off an attack is a legal use of a firearm in self-defense, but the person doing so had better be able to clearly lay out the reason for doing so afterwards.*
You are almost taking the position of the prosecution of Zimmerman: that damage must be done before lawful self-defense can occur. You are right there on the line with your arguments.
You are not correct in that because it's not so cut and dried. Two or more men on one justifies lethal force in my state. They do not need to be armed. A large disparity in force and/or skill in a one-on-one fight can also trigger lawful use of lethal force in my state.
* Southnarc/Craig Douglas/shivworks' ECQC course goes over the pre-attack indicators which can be used to demonstrate their intent. Facial grooming, looking around, looking over the shoulder, nervousness/giddiness, cocking the leg, slapping an area on their body, very pale face/face turning pale, concealing a hand, hand at the waist, heavy breathing (though this can be contextual) or touching clothing where a weapon is located, and working in a group are all indicators that people can use as evidence of intent.
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Torian
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I have some concerns about this post, but I'm going to sit back and see what Kleanbore's response is.
To tomrkba: I do not want to argue, but in the interest of keeping others from making a bad decision, I'll address these points one more time.
But don't forget opportunity, jeopardy, and preclusion.
"Would it not be quite reasonable to expect someone to "react" by changing course rather than continue to approach a stranger who had just armed himself with a long arm under unusual circumstances?"
And even if they were possible precursors, what would indicate that an attack was imminent?
This paper on the subject of self defense is worth bookmarking and reading.
This provides an excellent illustration of how difficult it may be to prevail using a disparity of force argument when the attackers wers not armed.
One: they walked in his direction. Two: their reaction indicates abolutely nothing; had someone unlimbered a long arm in my direction, you can bet your boots I would have reacted. And I carry a gun.
NO! One can argue that the disparity of force gave them the ability, and one may win or lose on that point.
But don't forget opportunity, jeopardy, and preclusion.
Did you ever leave a party in the wee hours of the morning?
Good reason to be very alert, but I sure wouldn't pull a gun in that situation. I might get ready to, or I might get the heck out of there, but I'm not sure just what expert witness I would be able to find to counter the prosecution's recital of Dennis Tueller's findings.
Covered that once. Not by itself it doesn't and it's not clear cut. The jury would have to decide.
"Would it not be quite reasonable to expect someone to "react" by changing course rather than continue to approach a stranger who had just armed himself with a long arm under unusual circumstances?"
The OP said nothing about reading body language in the dark. Nor would it justify the presentation of a firearm.
It is not unlawful, but it was not claimed, either.
I think the reaction of turning around surely indicates a prudent tactic of self preservation, but it cannot be argued that it indicates aggressive intent beforehand.
Nope.
Where does "his property" come into this?
What is the basis for that conclusion?
And even if they were possible precursors, what would indicate that an attack was imminent?
True. Ability can also derive from a disparity of force. But it is usually a rather difficult defense.
What we have here is several people walking together. I observe that from my porch almost every evening.
This paper on the subject of self defense is worth bookmarking and reading.
This provides an excellent illustration of how difficult it may be to prevail using a disparity of force argument when the attackers wers not armed.
tomrkba
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Again, one has to read the situation and decide if one is being stalked. One does not have to wait for the attack to begin.
According to YOUR interpretation based upon a vague forum post. All I am saying is that neither of us were there and the actions of the trio were such that the OP believed they were stalking him for the purposes of committing a crime. He is "more" right than either of us because he was there.
I am not sure where you got the notion that two or more on one does not justify lethal force. Care to elaborate?
UPDATE: I see where you're going with that after reviewing one of Ayoob's articles on the subject.
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Indications of being stalked do not justify pulling a gun.
True. Wait too long, and get injured. Act too soon and end up in real trouble.
He hasn't said that, but even so, how would that justify pulling a gun?
The first thing to do when one is being stalked is to get away from the stalkers. The OP had a vehicle, and he has not indicated that he could not have easily gone into his house.
I've said it once, and I'll say it again. Ability alone does not justify the use of deadly force.
There's another issue. Unless the defender is a woman or is on crutches, trying to preset a disparity of force defense is by no means a free get out of jail card, regardless of what one may have heard in training classes. The jury will decide.
Read this carefully. The man was seriously attacked by three persons, was tried twice, and spent a lot of time in jail, in what most of us would consider a very clear cut case of justifiable self defense.
Fred Fuller
Moderator Emeritus
Working through this thread I'm reminded again of one of our primary responsibilities if we are ever called upon to use force in self defense - being able to clearly articulate the reasons why it was apparent that the use of force was necessary in that situation, at that time...
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