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"Brandishing", and "When Can I Draw"?

Discussion in 'Strategies, Tactics, and Training' started by Kleanbore, Oct 8, 2013.

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  1. Kleanbore

    Kleanbore Moderator Staff Member

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    This was edited on 24 May 2020 t0 4revise the section on weapon mounted lights.

    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 the discussion posts below, Frank Ettin responded to a question with this excellent answer, in which he touches upon the traditional definition of assault at common law. 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.

    Flashlights and Weapon Mounted Lights

    A number of people have chosen to equip their defensive firearms with attached light sources.

    It is extremely important to understand that such accessories are not to be regarded as flashlights. They are parts of weapons. Their purpose is to illuminate a target when and only when the display or presentation of a firearm would be lawful, for the purpose of making an effective shot possible in very low light.

    For illuminating people and areas, and for searching, hand held lights should be used instead.

    In the event that a defender is within an occupied dwelling or other "highly defensible property", the law may provide a presumption (which is rebuttable) that deadly force would be justified. That would, of course, make the presentation of a weapon lawful.

    If the firearm is equipped with a WML and it is turned on, extreme care should be taken to prevent the light from being pointed at anyone, unless that person has been identified as a lawful target for the use of deadly force, and to prevent injury due to an unintentional discharge.

    Toward those ends, the user should always keep the firearm pointed in a safe direction, and rely upon the light reflecting from floors and walls to help identify persons.

    The importance of training and practice should be self evident.

    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: May 24, 2020
  2. Librarian

    Librarian Member

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    California doesn't even use the term 'brandishing' - it's Penal Code 417 ((a)(2) for firearm)
     
  3. lemaymiami

    lemaymiami Member

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    Thanks Kleanbore... that's one of the better explanations of this topic I've seen over the years.

    Here in Florida the key is always "in necessary self defense" to be justified. The misdemeanor charge that we'd use usually involved someone recklessly waving a gun about -but not threatening anyone in particular with the firearm. The felony "aggravated assault" came when the individual pointed a firearm at another in a threatening manner without the necessary self defense justification.... As you can guess there was always a lot of gray area in these kind of situations. Most of our officers were strongly encouraged to make an arrest if it was clear that there was no self defense issue in a confrontation where guns were in hand... Later the State's attorney might have a different view... By the way, having a firearm in hand pointed in a safe direction is not in any way a "reckless display" in my view -and that's what I told my officers when I occasionally stopped an arrest from occurring on the street...
     
  4. Kleanbore

    Kleanbore Moderator Staff Member

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    I appreciate the comment.

    And where I live.

    Good explanation.

    That makes sense, and courts have so ruled in some jurisdictions, but not in all.

    The "Defensive Display" provision was reportedly enacted by the Arizona legislature after citizens had been convicted of serious felonies for doing a lot less than holding a firearm in hand.
     
  5. CA Raider

    CA Raider Member

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    thanks for posting - it is a complicated topic.

    consider the following possibilities:

    1. you do not draw your weapon - you just leave it holstered. but you reveal that you have a weapon .... maybe by opening a shirt or lifting up the bottom of a shirt. you do not threaten anyone, but indicate that if you are attacked you can defend yourself.

    2. your draw your weapon, but keep the muzzle pointed to the ground. you do not point the gun at anyone, or issue any threats of any kind.

    there are clearly many different outcomes that can happen in the real world. some of them fall into gray areas. exactly what constitutes a "threat" and what constitutes "brandishing" is not always clear.

    CA R
     
  6. valnar

    valnar Member

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    That law in Arizona should be law everywhere. If a show of force from a good guy can stop a bad guy in his tracks, why not?
     
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  7. Kleanbore

    Kleanbore Moderator Staff Member

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    The law in Arizona is actually somewhat more limiting than the law in Kansas, Texas, the State of Washington, and one or two other states.
     
  8. lemaymiami

    lemaymiami Member

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    In the real world where usually cops show up after things have already occurred you also run into.... very real world problems -particularly when one side or the other has witnesses perfectly willing to lie about what just happened...

    In those kind of circumstances the officers can be easily mis-lead (on one side or the other) and an injustice can occur - and that cuts both ways so it's always a tough call. That's one of the reasons that most communities really benefit from having very experienced officers on the street where things are seldom clear cut and you have absolutely no physical evidence or any truly independent witnesses on scene.

    I once witnessed someone getting pistol whipped right across the street from me in broad daylight. I was in a marked vehicle stopped to turn across traffic (heavy oncoming) and saw a group of guys dancing around in a gas station parking lot (very bad place - we actually found one body there a few months later - but that's another story). I could see a snub nosed revolver repeatedly raised in the air then cracked down on the head of a victim in the center of the altercation. By the time I got across traffic (and had yelled for help) there was one guy with a bloodied head, a gun on the ground, and four or five guys walking away back toward the building... To make a long story shorter the "victim" who also hung out there refused to tell us anything, I couldn't tell who had the gun - and no one on scene would admit to owning it (like I said, very bad place....). As a result I ended up writing a report, impounding the cheap handgun and everyone on my side of the law vowed to keep a much closer eye on that particular establishment... sometimes the good guys are just left holding their.....
     
    Last edited: Oct 9, 2013
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  9. Kleanbore

    Kleanbore Moderator Staff Member

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    I have edited the OP to add mention of issues that may arise when using a flashlight mounted on a firearm. The subject was raised in a recent episode of Personal Defense TV.
     
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  10. Jim K

    Jim K Member.

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    I still say a flashlight makes a very good target at night. If the light is on a gun and your face is right behind it....

    Jim
     
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  11. Cosmoline

    Cosmoline Member

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    It depends on the circumstances, as with most things. For example if I suspect a brown bear is trying to raid the dog food, the light on the firearm is going to be used to sweep the area. Or if I hear breaking glass/wood, and have reason to suspect a night-time intruder, I will not be fiddling with a light separate from my long gun.

    If you're facing an intruder who happens to be armed, you'd better be ready to both identify the target as an imminent threat and shoot VERY quickly. So that means a flashlight on the firearm and preferably it means a long gun.

    But realistically, when is this going to be an issue unless there are bear wandering around? Trying to clear rooms is a dicey prospect in the best of circumstances. With a holstered sidearm and a flashlight it's pure insanity. Just stay put, call 911, and keep a strong light and big gun pointed at the entrance to your room. An armed threat appears, and you can instantly ID it and respond.

    Of course, if you're not on your own property, then you probably ought not to be either searching or flashing a piece around. So really when are you going to be worrying about brandishing issues in the first place?
     
    Last edited: Oct 18, 2013
  12. Kleanbore

    Kleanbore Moderator Staff Member

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    Good input, Cosmo, and a good basis for a little more editing....
     
  13. Kleanbore

    Kleanbore Moderator Staff Member

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    ^^^^^

    Done.
     
  14. xXxplosive

    xXxplosive Member

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    And here in good Ole' New Jersey.....we have something called the "Duty To Retreat".......especially on your own property.......How's that one...?
     
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  15. Kleanbore

    Kleanbore Moderator Staff Member

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    The Founding Fathers had a duty to retreat....

    See the sticky in ST&T
     
  16. Frank Ettin

    Frank Ettin Moderator Staff Member

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    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:

    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.
     
  17. xXxplosive

    xXxplosive Member

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    "The Founding fathers had a duty to retreat"

    Not Hardly..............
     
    Last edited: Oct 20, 2013
  18. Kleanbore

    Kleanbore Moderator Staff Member

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    xXx, for your information,

    Actually, reception statutes were enacted in each state soon after the Declaration of Independence.

    Again, we have a sticky on the subject.

    But this is a little off topic. Whether or not a duty to retreat still exists in a particular state or territory has little or nothing to do with the subject of when it may be lawful to draw, display, exhibit, discuss, or point a firearm for the purpose of infuencing another person or creating apprehension in another person.
     
  19. xXxplosive

    xXxplosive Member

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    Thank you for that explanation............actually thought your were kiddin'.... interesting.
     
  20. Zoogster

    Zoogster Member

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    Librarian said:


    Correct as usual, but I feel the need to add to that.
    In situations the OP is discussing where a gun is pulled to threaten or in self defense where the gun is not determined justified would be serious felonies, while the above cited code would be used in very limited and less common circumstances.

    The more serious crime of assault with a deadly weapon would be the charge generally initially applied to someone that actually pulls a gun unlawfully on someone.

    In this case likely a subsection of PC 245:

    PC245 (2)

    (2) Any person who commits an assault upon the person of another
    with a firearm shall be punished by imprisonment in the state prison
    for two, three, or four years
    , or in a county jail for not less than
    six months and not exceeding one year, or by both a fine not
    exceeding ten thousand dollars ($10,000) and imprisonment.
    (3) Any person who commits an assault upon the person of another
    with a machinegun, as defined in Section 16880, or an assault weapon,
    as defined in Section 30510 or 30515, or a .50 BMG rifle, as defined
    in Section 30530, shall be punished by imprisonment in the state
    prison for 4, 8, or 12 years.
    (b) Any person who commits an assault upon the person of another
    with a semiautomatic firearm shall be punished by imprisonment in the
    state prison for three, six, or nine years.


    Pulling a typical semi auto handgun on someone and never firing a shot if it was determined unlawful is a violent felony punishable by 3-9 years in prison.
    If it was a legally registered grandfathered AR or other 'assault weapon' pulled on say the guy jumping into the back yard, then 12 years.


    As a violent felony it also subjects the person to other enhancements. Nevermind additional charges also filed.
    The person also must serve more of thier sentence prior to parole for committing a violent crime as opposed to a non violent crime, and it would also qualify as a strike in the three stikes is life in prison rule PC667. (And two strikes results in a double sentence, so it has a big sentencing impact even before the third strike results in a life sentence.)


    And this is without including gang and other enahncements which likely wouldn't apply to this discussion of otherwise lawful citizens pulling when determined unjusitifed.



    California also has a seperate criminal offense resulting in 10, 20, life for use of a firearm in certain felonies, which assault with a deadly weapon on a peace officer or firefighter would qualify under, as well as some other crimes. Often called the 'use a gun and you're done' statute.
    PC 12022.53:
    'Penal Code 12022.53 PC adds to a felony:
    10 years in prison for "using" a gun,
    20 years for firing a gun, or
    25 years to life for killing or seriously injuring another person with a gun.
    The enhancement is in addition to…and consecutive to…the sentence for the underlying felony conviction.'


    So just unlawfully pulling out a semi automatic pistol and it being determined to not have been justified even without firing a shot can result in anywhere from 3 to over 30 years depending on who it was and what gun was used, with the law mandating a good portion of that sentence be served prior to parole. It may not result in that, but it easily can.
    Meanwhile while you contemplate whether your actions will throw your life away, the attacker can focus on taking the course of action they deem most effective unencumbered by such considerations.
     
    Last edited: Oct 21, 2013
  21. Desert Panther

    Desert Panther Member

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    Why does the article specifically mention a semi auto, and not a revolver?
     
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  22. Librarian

    Librarian Member

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    Because the California Legislature is a collection of misinformed and invincibly ignorant people, I believe.
     
  23. another pake

    another pake Member

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    Thank You to all who have presented and contributed to this very informative thread! This is the kind of thread that sets THR apart from the rest.

    I for one find it to be extremely helpful... and sobering. It reminds me once again what a serious issue the decision to carry is. And of course it brings to the fore the fact that there may be a very fine but definite line separating escalation from readiness.

    Gray matter is our best defensive weapon. Training, training, training.

    Thanks again.
     
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  24. Kleanbore

    Kleanbore Moderator Staff Member

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    Thanks pake, that's what we are here for.

    Everyone should understand that the issue involving a decision to carry a firearm. It became clear to me in a recent discussion with someone that many people do not understand that the same issues can come up when someone reaches for, handles, or displays a bat, crowbar, or pipe wrench in a confrontational situation.

    Probably worth editing the OP to point that out.
     
  25. another pake

    another pake Member

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    Excellent discussion!

    I hope this makes "Sticky" status. I have directed many friends to this site especially recommending taking the time to seriously consider the information in the stickies.
     
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