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

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.

 

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.

 

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.

 

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.

 

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

 

^^^^^

Done.

 

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

See the sticky in ST&T

 

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.

 

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.

 

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.