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

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

  1. RPZ

    RPZ Member

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    In Texas I believe it is described as "in a manner calculated to cause alarm". Pointing a firearm at someone in circumstances where deadly force would not be justified is called "deadly conduct".

    The only concern some people might have in drawing, and not without some validity, is that your badguy(s) might call the police and report that someone "pointed a gun at them", and describe your sidearm with sufficient accuracy to raise a genuine question to any responding POs. And now, you are perhaps being charged with a crime. They might have "witnesses" as well.
     
  2. Kleanbore

    Kleanbore Moderator

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    Actually, in Texas, threatening deadly force, such as pointing a firearm for the purpose of creating an apprehension that deadly force might be used should it become necessary, may be lawful in circumstances in which force would be justified.

    That is by no means the only concern.
     
  3. Frank Ettin

    Frank Ettin Moderator

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    Which is why if you need to draw your gun in self defense you report the incident to the police as soon as possible. (And if you don't need to draw your gun in self defense, you don't draw your gun.)
     
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  4. Creaky_Old_Cop

    Creaky_Old_Cop Member

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    There is a lot of good advice in the previous posts. Let me add an LE perspective (Arizona Based).

    Consider: Drawing "too early" can lead to legal ramifications, however "drawing too late" can lead to physical ones. This is an exigency you will face in a self defense situation.

    A taxi driver in a southern Arizona city picked up four men from a club on the south side of town. The driver was in his late 50s, and a new CCW holder and carried a Smith & Wesson Sigma in 40 with the post 1994 AWB 10 round mags. He was originally from New York (retired NYC employee) and as such new to the whole idea and lifestyle of carrying a defensive firearm.

    He took the men to their destination, a small rat hole apartment complex, and they declined to pay him. The driveway to the complex was a tight cul de sac, and driving away forward was not an option and at least one subject was behind the car, and the driver didn't have any idea that he could simply put the car in reverse and SLOWLY go backward until the subject moved or got run over.

    When the driver picked up his cell phone to call 911, he was dragged out of the taxi and all the men put the boots to him. He balled up on the ground and took a vicious beating from the four subjects. The beating he took made the beating George Zimmerman took from Trayvon Martin look like a Romper Room tussle.

    911 was called by another resident of the apartment complex who witnessed the incident but "didn't want to get involved" as the subjects were feared in the small apartment complex in which they lived. I was the second officer on scene, arriving seconds after my beat partner. We exited our vehicles and my partner assessed the condition of the driver, I had dispatch roll an ambulance and covered my partner while trying (unsuccessfully) to make phone contact with the resident who called 911 initially.

    The smoke eaters arrived on scene and got the victim stabilized and onto a gurney and we were able to get a statement from him. The upshot was that he had no idea about disparity of force, or that the mere act of attempting to physically remove him unwillingly from his car was justification (This falls under carjacking and a good prosecutor could make a case of illegal detention or even kidnapping, as such is specific justification for the use of force in AZ).

    When I asked him why he didn't shoot, he said "I didn't see a gun and my CCW instructor said that I could only pull my gun if they had a gun".

    ***?

    I am not going to dissect all the ways in which the so-called "instructor" helped to get this man beaten into the ground when he could have acted legally and morally in his own defense. The point is that because the driver got bad information (I can't call what he received "training") and he waited too long, and in so doing was ultimately unable to defend himself against a clear cut case of disparity of force and took a beating that placed him in immediate and otherwise unavoidable danger of death or grave bodily harm.

    The point is, he waited too long to act in his own defense, and was then rendered incapable of doing so. Once hands were laid on him and the intent to remove him physically from the taxi was made clear, he had every right to access his pistol and fire. He had bad/no information on this exigency, and took a terrible beating because he was afraid of prosecution.

    The Arizona statute that clarifies Defensive Display was still fifteen years in the future, but had he said "I have a firearm and will defend myself, back off!" and drawn the gun, he still would have been justified once the intent to harm him had been made clear to his reasonable belief, or threats from the group had been made. I certainly would NOT have charged the driver with ANY crime. At the least, I could have charged each member of the group with Threats and Intimidation, and Criminal Menacing, as well as Theft of Service. None of those crimes are justification for use of force, but the totality of the circumstances would lead a reasonable person to believe that they were in immediate danger, and there is your justification to draw and articulate your intent to defend yourself.

    After the ambulance left, we were able to make contact with the initial 911 caller, and she told us which apartment the men shared, and that they were landscapers and always left at 0500-0515 in the morning. Our patrol sergeant decided we would come back and hook them all up when they left for work. My beat partner and I went back to the complex at 0440, and other units positioned themselves on the street. When the lights in the apartment went on at 0445, four other officers including our sergeant converged on the complex and when they exited their apartment they were all taken into custody without incident. They were all tired, hung over, and bleary eyed. All four were charged with multiple felony counts. A search of their apartment incidental and pursuant to arrest revealed a small amount of marijuana and cocaine (only enough for a simple possession charge) and a stolen pistol.

    The subjects were Mexican nationals, and were here illegally. The case never went to trial, they all took a plea bargain, did 18 - 24 (I don't recall exactly) months in state custody and I assume were deported after their sentences were completed.

    I gave the victim the name of a GOOD instructor. As far as I know, he did return to driving a taxi after he recovered from the beating.

    Don't wait TOO LONG to draw. Use common sense, and be able to articulate why a reasonable person, knowing what you knew at the time, would do the same thing.
     
    Last edited: Aug 12, 2017
  5. Creature

    Creature Member

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    I firmly believe in the mantra: "He who dials 911 first....wins.".
     
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  6. RPZ

    RPZ Member

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    It also doubles as a bullet proof audio recording even if you don't get to talk. The call center or dispatcher heard it as well if course.
     
  7. JohnKSa

    JohnKSa Member

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    This is not an especially complicated topic and the principles behind making the decision to draw are fairly simple.

    The problem is that many people aren't satisfied with "fairly simple" and demand a single, very simple, very short answer, a super-clear/black & white one-liner that creates a definite/absolute threshold that they can use in every possible situation and set of circumstances, which will always tell them if they can/can't draw.
    It's certainly possible that the instructor told him precisely that. However it is at least as likely, IMO, that the instructor gave a more thorough explanation, most of which was tuned out, leaving only the "single, very simple answer/threshold" of a visible gun as being the sole discriminator of when one can draw or not.

    You can see this mindset repeated over and over in discussions on any forum where the principles behind the legal use of deadly force are discussed. There is a contingent of people who aren't satisfied with thorough but accurate answers, and demand instead, super-simple answers which are, inevitably inaccurate due to oversimplification.

    A classic example of this kind of school of thought is the "everything falls at the same speed" misconception. It is commonly taught in school that everything falls at the same speed in a vacuum. Unfortunately, this accurate statement is very commonly oversimplified when the student drops the underlined qualifying statement. In the (perhaps inadvertent) quest for simplicity, something very important is lost and the modified statement is completely useless for determining what will happen in the real world even though the original statement was exactly correct.
     
    Last edited: Aug 12, 2017
  8. 1MoreFord

    1MoreFord Member

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    IMO Arkansas carry law is very vague on what is permissible on use of less than a deadly force outcome. I'd like to see some clarification.
    There are some of you in other states who have much better law verbiage.
     
  9. Kleanbore

    Kleanbore Moderator

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    In Arkansas, the display of a firearm in a way that creates a substantial danger of death or serious physical injury to another person is classified as aggravated assault.

    Purposely creating an apprehension of imminent physical injury in another person is defined as assaulting the third degree,

    An immediate necessity to defend against an imminent threat of death or serous bodily harm would provide a defense against either charge. That is true in most states.

    Arkansas does not appear to provide for the lawful "defensive display of a firearm" in cases in which the use of deafly force would not be justified, but I have not attempted to research the case law. I tend to seriously doubt it.
     
  10. Creaky_Old_Cop

    Creaky_Old_Cop Member

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    Sadly, his CCW instructor probably DID tell him that, and in those exact words. I had to audit many CCW classes over a period of about two years when the CCW program was in its infancy in Arizona. The relative quality of many of the so-called instructors was all over the map. From "pretty darned good" to "I can't believe they let this guy teach at all". There was a good deal of the old Bubba Gump School Of Gun Shootery still being preached. Not only was the misunderstanding of lethal force law and lethal force dynamics in play, but the lack of ability to actually interpret the law and effectively communicate it to students.

    The even sadder reality is that most CCW classes are "gun safety seminars with live fire...or not" and they are being taught by well meaning, but borderline inept full time plumbers and convenience store clerks with dreams of being famous "tactical instructors".

    Even more sad...the requirement for a CCW in AZ is now only four hours. Let that sink in...four hours. How much useful information is the new gun carrier likely to get in four hours?

    I am certainly not bagging on plumbers or convenience store clerks...I am simply showing the juxtaposition between a professional trainer and the part time hobbyist CCW instructor. The quality of the content will vary widely and wildly with the individual.
     
  11. 1MoreFord

    1MoreFord Member

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    Thanks for the reply and the attempt at help. I knew what I meant to say but failed to convey that I was really wanting legislative clarification. Sometimes I baffle myself.
     
  12. Kleanbore

    Kleanbore Moderator

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    Legislatures put some laws on the books. Others are found at common law and are made binding by the rulings of judges in superior courts.
     
  13. scaatylobo

    scaatylobo Member

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    This was a GREAT POST [ again ].

    And you are so spot on that this should be read and have it explained [ if needed ] to all who CCW.

    DISPARITY OF FORCE = is not explained in my states penal law !!!.
     

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