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

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

  1. MasterSergeantA

    MasterSergeantA Member

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    Which law is it? Is it a recent change?
     
  2. Kleanbore

    Kleanbore Moderator

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    The Arizona law covering the Defensive Display of a Firearm was signed into law in July, 2009. The wording does not specifically address drawing a firearm. To find the limits, one will have to wait for a conviction, an appeal, and a higher court ruling on the appeal.

    In Kansas, the law was changed in 2010 to permit the presentation of a firearm when the actor had reason to believe that physical, non deadly force was immediately necessary for self defense.
     
  3. kgpcr

    kgpcr Member

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    I think the question "when can I draw" is flawed. Question should be. When do I HAVE to draw. If you don't have to draw then don't.
     
  4. Kleanbore

    Kleanbore Moderator

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    The answer to "when do I have to to draw" is simple: it is "before it is too late, but not too soon". The thread is about what constitutes "too soon".
     
    bearcreek likes this.
  5. Fred Fuller

    Fred Fuller Moderator Emeritus

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    pake,

    Generally, making a thread a 'sticky' is a good way to get it ignored :D.

    But since this one has garnered some discussion and expansion, it might be safe to move it there at this point...

    This means that a couple of 'older' sticky threads have now been moved to the Library - http://www.thehighroad.org/showthread.php?t=571476. We maintain the Library here in ST&T to avoid filling the index page with 'sticky' threads that, while important for reference, are no longer 'hot topics' for discussion.
     
  6. ClangClang

    ClangClang Member

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    We most certainly do not.

    Relevant statue in question is N.J.S.A. 2C:3-4

    N.J.S.A. 2C:3-4

    a. Use of force justifiable for protection of the person. Subject to the provisions of this section and of section 2C:3-9, the use of force upon or toward another person is justifiable when the actor reasonably believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.

    b. Limitations on justifying necessity for use of force.

    (1) The use of force is not justifiable under this section:

    (a) To resist an arrest which the actor knows is being made by a peace officer in the performance of his duties, although the arrest is unlawful, unless the peace officer employs unlawful force to effect such arrest; or

    (b) To resist force used by the occupier or possessor of property or by another person on his behalf, where the actor knows that the person using the force is doing so under a claim of right to protect the property, except that this limitation shall not apply if:

    (i) The actor is a public officer acting in the performance of his duties or a person lawfully assisting him therein or a person making or assisting in a lawful arrest;

    (ii) The actor has been unlawfully dispossessed of the property and is making a reentry or recaption justified by section 2C:3-6; or

    (iii) The actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm.

    (2) The use of deadly force is not justifiable under this section unless the actor reasonably believes that such force is necessary to protect himself against death or serious bodily harm; nor is it justifiable if:

    (a) The actor, with the purpose of causing death or serious bodily harm, provoked the use of force against himself in the same encounter; or

    (b) The actor knows that he can avoid the necessity of using such force with complete safety by retreating or by surrendering possession of a thing to a person asserting a claim of right thereto or by complying with a demand that he abstain from any action which he has no duty to take, except that:

    (i) The actor is not obliged to retreat from his dwelling, unless he was the initial aggressor ; and

    (ii) A public officer justified in using force in the performance of his duties or a person justified in using force in his assistance or a person justified in using force in making an arrest or preventing an escape is not obliged to desist from efforts to perform such duty, effect such arrest or prevent such escape because of resistance or threatened resistance by or on behalf of the person against whom such action is directed.

    (3) Except as required by paragraphs (1) and (2) of this subsection, a person employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, doing any other act which he has no legal duty to do or abstaining from any lawful action.

    c. (1) Notwithstanding the provisions of N.J.S.2C:3-5, N.J.S.2C:3-9, or this section, the use of force or deadly force upon or toward an intruder who is unlawfully in a dwelling is justifiable when the actor reasonably believes that the force is immediately necessary for the purpose of protecting himself or other persons in the dwelling against the use of unlawful force by the intruder on the present occasion.

    (2) A reasonable belief exists when the actor, to protect himself or a third person, was in his own dwelling at the time of the offense or was privileged to be thereon and the encounter between the actor and intruder was sudden and unexpected, compelling the actor to act instantly and:

    (a) The actor reasonably believed that the intruder would inflict personal injury upon the actor or others in the dwelling; or

    (b) The actor demanded that the intruder disarm, surrender or withdraw, and the intruder refused to do so.

    (3) An actor employing protective force may estimate the necessity of using force when the force is used, without retreating, surrendering possession, withdrawing or doing any other act which he has no legal duty to do or abstaining from any lawful action.
     
  7. Kleanbore

    Kleanbore Moderator

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    Clang, please note this:

    That is what is, and always has been, meant by "duty to retreat".

    Others will decide what a reasonable person"believed" and "knew" at the time, based on evidence gathered after the fact.

    This is worth reading.

    The relevant part:

    Doesn't apply in one's dwelling.
     
  8. Derry 1946

    Derry 1946 Member

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    robbery thwarted with concealed handgun

    This hit the news today, from New Orleans. Link is below. The gist is that a man asked a concealed carrier for his money, allegedly an attempted robbery. “The victim had a concealed-carry permit, exposed the pistol to him and asked if he really wanted to rob him,” [NOPD Sgt.] Scanlan said. Instead, the suspect turned and fled, Scanlan said."

    The article is not heavy on detail, but it sounds as though the police don't consider it to be brandishing. Interesting.


    http://uptownmessenger.com/2014/01/...rted-by-victims-concealed-handgun-police-say/
     
  9. Frank Ettin

    Frank Ettin Moderator

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    That's not exactly right. It's a bit more complicated.

    The act, displaying the gun for the purposes on intimidation, most likely satisfied the legal definition of brandishing. But justification is a defense, and it appears under the circumstances as described display of the gun was reasonable and justified in self defense.

    That was all discussed in detail in the first post of this thread.
     
  10. Derry 1946

    Derry 1946 Member

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    (Emphasis mine.)

    Here's where I respectfully disagree. No "circumstances as described" in the article justify common law "brandishing." Now, Louisiana does not have a crime of "brandishing" per se; it is mentioned only in the context of a somewhat complicated definition of negligent handling of a firearm. But, that aside, what "circumstances" described in the article could justify (common law) brandishing? It was after dark in a crime-burdened city? There is no suggestion that the alleged would-be robber was armed, made any threats, or otherwise placed the permit holder in reasonable apprehension of harm. "Confronted" and "demanded" are vague, a bit subjective, and equivocal. Indeed, the permit holder's casual question ("Are you sure you want to rob me?") suggests calm rather than fear. Yet the police comment suggests they see no harm, no foul, on the part of the permit holder. No arrest, no charges, no investigation. They're only looking for the alleged would-be robber.

    Of course, there could be other circumstances NOT described in the article that would serve as justification, and would explain the seeming intrepidity of the permit holder. I'm simply curious as to what they might be.
     
  11. Frank Ettin

    Frank Ettin Moderator

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    You're basing your opinion on a news article of fewer than 150 words? How much of the first draft of the article was cut by the editor to make it fit the available space? How much more information did the police have? The article does not necessarily contain all the information in the police report or the file of the investigation of the incident. Has the investigation in fact been closed?

    Details matter.

    And the crime of robbery is, in general:

    The the fact that the police have not, apparently, charged the defender is consistent with the inference that the police concluded that his threat to use force in self defense was justified.
     
  12. Island Beretta

    Island Beretta Member

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    In deciding to carry a firearm we must first be aware that we start behind the curve with the criminal way ahead of us..so we have a higher required standard of behaviour and training and a higher risk of exposure and being killed since we can only 'react'.. Just the simple fact of that 'react' can be used against you..Solution: know the law - the dos and donts, and develop tactical plans around that.
     
  13. gym

    gym member

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    Doesn't the Castle doctrine negate much of this. If someone or more, "which did happen", when I lived in Broward, 3 guys climbed over a 6 ft concrete wall around my property. It was midnight, and they were all wearing dark clothes and hoodies.
    It turned out being my neighbors kids and their friend, who were late getting home and cut through my yard to avoid walking around the block. I was out wit my dogs "before retiring" and my pistol was where it always is, in my pocket.
    I never pulled my gun, but grabbed them and explained what could have happened to their father, "teenagers", He gave them a good scolding, but if that was a real bad guy, I think under Florida law, if I saw a weapon or not, I would have been justified in pulling my weapon.
    Luckily pulled the first one off the wall as he started over, in time to see who it was. They had no clue what they were doing wrong.
     
  14. Frank Ettin

    Frank Ettin Moderator

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    No.

    For a detailed discussion of Castle Doctrine/Stand Your Ground laws see this thread.
     
  15. PistolPete45

    PistolPete45 Member

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    A great discussion ,, Several good points have been made .. We all see things just a bit differently .. if I feel the need to draw it is because the need to shoot is now! Not as a deterrent to someone that may or may not be a threat . Say this bad guy is on the ball and sees I am drawing ,,, hands in the air and such = No Boom . That is the only reason A will draw Self defense of the defense of others.
     
  16. Milt1

    Milt1 Member

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    There's a film clip on YouTube showing an officer getting shot to death. Something that the narrater of the film said that made me see this issue of when to draw much clearer. The narrater said that the man whom the officer stopped had communicated a threat to the officer which is intent. The man then started loading a semi-auto rifle. At that point the narrater said the office had a right to shoot the man because he was acting on his intent. Why the officer didn't shoot until it was too late is a mystery to all. But the point that I came away with is: if there is a communicated intent with a follow-up showing of a gun or knife then you have no choice but to defend yourself and the quicker the better.
     
  17. Frank Ettin

    Frank Ettin Moderator

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    How about a link? We shouldn't have to go searching for this.

    Maybe and maybe not. One can't rely on a formula.

    For an outline of basic use of force law see here.
     
  18. Bobson

    Bobson Member

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    He's talking about this video:

    https://www.youtube.com/watch?v=L6z8q4lOrDU

    This video is generally shown to CJ students and in LE academies to drive two very specific points home:

    Anybody who carries a firearm (in this scenario, a cop) to defend himself:
    1) Must have already made a concrete decision to use that firearm to defend himself before he finds himself in a life-or-death situation. and
    2) MUST, MUST, MUST understand use-of-force laws, and understand them with absolute clarity, so he recognizes when deadly force can/should be employed.

    You cannot wait until you find yourself in this type of scenario to decide whether or not you can legally employ a firearm in SD, or whether or not you're willing to employ a firearm in SD. It's clear that this officer found himself in one or both of these camps, and that is why he's dead. Period.
     
    Last edited: Jun 30, 2014
  19. Frank Ettin

    Frank Ettin Moderator

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    An important video, and I think you're correct about its lessons.

    There seems to be more going on than described by Milt1, and there appear to have been several points at which the assailant presented a credible lethal threat which would have justified a response with lethal force.
     
  20. Bobson

    Bobson Member

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    Absolutely.
     
  21. USNCPO

    USNCPO Member

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    I appreciate this discussion more than you all know. Wife and I both carry, and we were looking for easy, down to earth explanations of laws/thought-provoking topics of discussion. Both found here.

    We've already made the decision that, where called for, we will use our weapons for self defense (or in defense of others). Just great to see the back and forth.
     
  22. Fred Fuller

    Fred Fuller Moderator Emeritus

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  23. TomJ
    • Contributing Member

    TomJ Contributing Member

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    Great advice. I'd be especially careful in states like Illinois, where most of our politicians are against it and would love to make an example out of those of us who received our CC licenses. We were advised by the attorney and police officer who taught our CC class to keep it concealed until deadly force is necessary. If you're not sure where that line is, take a class from a competent instructor. If you pull it or reveal it and you're wrong, you can lose everything.
     
    Last edited: Aug 12, 2014
  24. Danoobie

    Danoobie Member

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    IMO, reactions are subject to many different circumstances. "Brandishing" is, by my interpretation,
    the threat of intimidation by showing your concealed gun.
    In a defense scenario, brandishing is moot. Please give me the names of any DAs or Judges who
    would rather that you shoot somebody, than show you are armed.
    Sometimes, that bright flashlight may be enough to blind your attacker, momentarily, in order for
    you to get away.

    Of course, in New Jersey, the police and government want you to run out the back of your
    house, and hide in the weeds, when thugs break your front door down. Go figure.
    Hope you brought your cell phone, and your ID, and property title, outside into the freezing
    cold, with you, order to summon help,in this event. Otherwise you could freeze do death,
    as you wait, in vain, for the police to show up, and politely ask the thugs to vacate your
    premises, if they are done enjoying all your food,
    liquor, and crapping all over your furniture, in your warm, cozy home you've lovingly
    prepared for them...
     
  25. Kleanbore

    Kleanbore Moderator

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    It may well go by another name--assault, aggravated assault, public menacing..... BUT: it can also include the reckless display of a firearm in the presence of others.
    Assuming lawful justification, yes.
    Not exactly.
     
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