Brandishing firearm

[primetime]

What would be the legal ramifications if there was an uninvited person on my property and I had my pistol in hand, loaded, but not pointed at the individual? Essentially, after asking the uninvited guest to leave, and he doesn't comply, and then i pull my piece, BUT i don't point it at him..and obviously i don't fire it either. And lets say that only after pulling my piece (again never pointing it at him) that he finally leaves the property.. Is there any legal ramification? keeping in mind i'm on my property the whole time, and so is the person in question. Thanks.

PS and for the record, NO this has never happened to me. But i'm asking, just in case it might.

 

[Crusader103]

While laws vary greatly from state to state and even within states, you may be walking a thin line here.

In most places you have greater leeway with what you can and cannot do on your own property, however, and it is a big however, it is still possible to commit a crime against another person, including an unauthorized person, on your own property. This includes assault, terroristic threatening, and brandishing.

The exact wording again varies by locale but generally the main difference between brandishing and assault and/or terroristic threatening is whether or not you pointed it at the individual (assault/threatening) or simply displayed it (brandishing). Further defined, would a reasonable person in the same situation feel threatened by your actions and/or would another reasonable person in your shoes do the same thing?

While you are generally free to carry a firearm on your own property any way you choose, including in hand, it is your actions, and not the fact that you are in possession of the firearm, that will likely be judged.

The best rule of thumb, and it is universal, is to not draw your firearm or use it in a manner for which another may feel intimidated/threatened unless you are doing so out of a reasonable fear that you will likely be pulling the trigger. Note that I did not say you should refrain from drawing until you know you are going to shoot, but only until it appears that you may reasonably be forced to do so in the immediate future. That is something you will have to be able to articulate to any finders of fact.

Some states allow use of force, up to and including deadly force, in defense of property under certain circumstances. But I would caution you that you would be opening yourself up to more trouble than it is worth if that is your sole justification for drawing, even if the letter of the law states that you may do so.

A firearm is not a tool of intimidation or a means of getting your way. It is a tool, that when used appropriately, is designed to defend yourself and others from the threat of death or serious bodily injury. Its use under any other circumstances is ill advised.

Ask yourself this. "If he doesn't do what I tell him to do (leave) will I shoot him?" If your answer is "No," and it should be based only upon a trespass offense, than you have no business introducing a firearm into the situation.

For what it is worth, I am a court certified firearms/use of force expert and consultant.

 

[ArmedBear]

It depends on what "uninvited" means.

Does it mean that person is threatening you, or threatening to commit a felony of any kind?
Does it mean you have a restraining order preventing him/her from coming within a certain distance, and he/she is violating it?
Or does it mean you don't like him/her there, but there's no threat?

Is the property open to public passage, like a sidewalk or path in front of your house in a subdivision, that you might own, but haven't fenced off?
Or is the property behind a closed gate, inside a fence, posted area, etc.?
Did the uninvited person break and enter?

I think you get where I'm going. Exact laws and case law will vary from state to state, but the general gist is similar. If there's no actual threat, just go and call 911 to have the person removed. If there is, consider your safety first.

 

[primetime]

thanks for the reply jscott. And yes i agree a firearm is not a tool to be used in this sense. However, i was wondering since it seems to be the less volatile method to diffuse a potentially dangerous situation, rather then pulling the piece and firing on the individual, (of course only firing if I felt my life was threatened). Am I wrong in this sense?

 

[primetime]

Armed bear, "Uninvited" meaning someone who is on your property for unknown reasons, and will not leave after you verbally ask them to leave your property. Say they do not show a firearm, that you can see or any weapon in plain sight, but they are clearly on your property and they will not comply with your requests to leave..

Oh and say he hasn't entered your home, or broke in, but is on your front lawn or back lawn...no fences. sorry, I should've clarified a little more.

 

[CoRoMo]

...it seems to be the less volatile method... Am I wrong in this sense?

I think so. Threatening them with a firearm, regardless of where you point it or what you do with it after drawing it, just to simply cause them to change their location, is a horrible tactic. At best, it might get you arrested. At worst, it might get someone unnecessarily killed.

 

[ArmedBear]

My back lawn is behind a fence. My front lawn is not. Kids can run across it unhindered, for example.

I could probably even draw on someone I found in the back yard, legally, not just brandish, though I'd call 911 instead. It's smarter than deliberately seeking out danger, unless I had to protect someone who was already out in the yard. I would not brandish in the front yard, though.

Different states have different laws about posting private land, and how "private" it is, depending on fencing, posting, etc. Simply owning the land is not the only variable.

Trespassing on my front lawn is certainly not a felony. If there is no further threat, I would be on very thin ice, brandishing. That may vary from state to state, but Idaho is not exactly anti-gun or anti-self-defense...

OC is legal here, and is never considered brandishing -- UNLESS one returns to the scene of an altercation, now carrying openly when he/she was not before. This becomes brandishing. If I were to go outside with a holstered gun, initially, that would be legal. However, if I were to talk to the guy, not like what he had to say, then go inside and come back out with the holstered gun, that could be a crime. Again, call 911 instead, and stay inside. If the uninvited guest then attacks you inside your house, you're no longer dealing with any legal gray areas.

 

[Crusader103]

Under your further description I would be comfortable in saying that, "No, you are probably not going to be justified" under most interpretations of law.

A trespass, which is all you are describing, is generally not a felony and could hardly be considered a situation necessitating the presentation of force (display of firearm).

since it seems to be the less volatile method to diffuse a potentially dangerous situation

"Less volatile" as opposed to what.... going in your house and locking the door, calling 911? I would assert that the display of a firearm during a trespass offense will be viewed by responding law enforcement, and confirmed by the courts, as causing the situation to become volatile. That would likely put you squarely into the realm of "brandishing."

While some may disagree, I would not think that it would be determined by any finders of fact that a reasonable person would draw a firearm based solely upon a trespasser absent any additional signs of force/intimidation being displayed by them.

Here's something to ponder. Not everyone who has a firearm displayed near them, or even pointed at them, runs in fear. I have had more than one instance, while working patrol as a police officer, that someone I pointed a firearm at begged me to shoot them. I drew out of a reasonable fear, and they weren't convinced to stop, instead inviting me. In one instance, a suspect threw his knife down and then started towards me.

What would you do when the response to drawing your firearm, on a trespasser, isn't the response you were hoping for?

 

[ArmedBear]

While some may disagree, I would not think that it would be determined by any finders of fact that a reasonable person would draw a firearm based solely upon a trespasser absent any additional signs of force/intimidation being displayed by them.

You are quite right.

There are good reasons for this, too. I was once an EMT, many moons ago. People can become disoriented due to physical or mental illness, blood sugar problems, legal or illegal drug use, Alzheimer's, etc. Even someone in a very agitated emotional state might be disoriented.

We can't exactly have a functional society where your neighbor's grandpa wanders onto your lawn and you draw a gun on him first thing.

Furthermore, even if you can squeak by legally, you don't do any favors for those of us who want to preserve RKBA, and who want a free society where individuals are trusted to act responsibly unless they have proven otherwise.

 

[CoRoMo]

Right!

Imagine if YOU were the one, arguing with a neighbor about some issue important to you. He keeps telling you to get lost, but you just want to try and get him on the same page as you. He then draws a gun.

If that were me, I don't think I would feel comfortable unless the police knew he drew on me. I'd hate to see him do that, I draw and use my own firearm to try and save my life from what I think is about to happen. Horrible!

 

[ArmedBear]

That's another issue...

If someone is on your unfenced front lawn, next to the public sidewalk, and you brandish a firearm, you are likely giving him justification to draw and shoot you. You could end up dead. Never assume the other person is unarmed, and don't use a gun to try to make yourself seem intimidating: that's the spirit of laws against brandishing, even if not the letter of the law. It's just a bad plan all around.

 

[primetime]

Ok guys its getting a little out of control..I wasn't asking to brandish to say "hey get off my lawn you idiot"... IF I was threatened and the person would not leave. then I would ponder the brandish (or not, thats why i'm asking). If I'm threatened by him and he's on my property I can fire at him too, thats my legal right here. Of course thats the last resort..But simply put, I have that right. Its just the brandishing part I was somewhat unsure of. i appreciate all the feedback guys.

 

[CoRoMo]

Who's out of control?

You made it clear that he wasn't presenting any real threat to you, but regardless, you're drawing a firearm just to make him walk away. Where's the control in that?

 

[ArmedBear]

In most places, if he poses a serious threat, you can fire on him anywhere you are. Your property has nothing to do with it, except that it is often easier to show that you were being threatened on your own property.

So why would you ask?

WRT brandishing to stop a threat, that varies from state to state. Some states go so far as to say you have to keep the gun concealed unless you intend to fire it. Others allow the use of a firearm, without shooting, to stop a crime from being committed. That kind of stuff runs the gamut. Consult your local attorney.

 

[primetime]

I ask because in the event that you don't need to fire at him but you're unsure, it could be classified as brandishing the weapon since you didn't fire at him...I sure as hell am not going to point it at him unless i intend to fire...You really think you have time to decide, "Well, i'm not sure if he's a true problem or not, since I can't "see" him holding a weapon but I have no clue what he's got under his shirt or in his pockets, and the guy won't comply with my requests for him to leave and he is threatening, so I'm not gonna draw my piece until he attacks me?!"...Cmon..

so thats why I ask you guys who have knowledge I'd like to gain. Its completely possible that you may feel threatened enough to draw your weapon, but for whatever reason (it could be anything) you dont end up firing at him, and he leaves..And it doesn't have to be the situation I describe above...It might be similar where you felt the need to draw your weapon just in case, but didn't end up needing to use it. Then where does that leave you legally speaking?

 

[shockwave]

If someone is on your unfenced front lawn, next to the public sidewalk, and you brandish a firearm, you are likely giving him justification to draw and shoot you.

Very important point. Presentation of a firearm means "I am prepared to kill you." This gives the person you are drawing on every right to kill you in self-defense. A lot of people miss this fact and it's worth pondering if you don't get it. Far as I know, the law makes no distinction about where your gun is pointed. If you pull it, that's the issue.

In my state, when you receive your CCW permit, you get a pamphlet that explicitly states: "If you produce a firearm during a heated argument in order to make your point stronger, you will be arrested and go to jail for 3 years. There are no exceptions and the sentence is mandatory." They give a case of a housewife doing 3 years over some altercation she had with a neighbor.

But let's go to the original problem: Guy on your property who won't leave when asked. That's trespass and you can call the cops and have him arrested. So let him stay on your property. Go inside, turn on the TV, make a sandwich. Cops show up, book the clown, and he'll be in a world of pain and hurt trying to extricate himself from the criminal justice system.

 

[ArmedBear]

where does that leave you legally speaking?

Like I said, that varies WIDELY from state to state (see also shockwave above). You need to find out what laws and case law applies to you -- AND you need to use common sense.

If you are still standing there talking to the guy who is trespassing but has not actually threatened you, instead of calling the cops from inside, you have already abandoned common sense, and invited legal trouble -- or even guaranteed jail time -- if you draw a gun. You have also deliberately put yourself in danger, without any need to do so. As you said, "Come on!" You already know that. You're not stupid.

Also, opting to put yourself into a situation where you have to use deadly force in self-defense does not bode well for your criminal or civil case, i.e. even if you "win", it could get expensive.

 

[Frank Ettin]

In most places I believe "brandishing" is defined along the lines of displaying a weapon for the purpose of intimidating or threatening. It doesn't matter if it's pointed at someone or not. In many places brandishing is a crime.

If the OP's idea is that by displaying a firearm he is more strongly making his point the the trespasser must leave, well that sounds to me like using the gun to intimate. So in places that use something like the forgoing definition and where brandishing is illegal, the OP by displaying his weapon in the manner described would be asking for an invitation to jail.

And if you display a gun for the purposes of intimidation under the circumstances posited by the OP, and the trespasser calls your bluff, what are you going to do? Even if you can show him the gun, you can't shoot him.

A good rule of thumb is that you may use or threaten lethal force only when a reasonable and prudent person, in the same situation and knowing what you know, would have concluded that lethal force was necessary to prevent otherwise unavoidable immediate death or grave bodily injury to an innocent. And you will need to be able to convincingly articulate why a reasonable and prudent person would have concluded that.

Of course, this all varies from State to State, and one usually has a little more leeway on his own property. But even in the more defense friendly States you would have to be able to convincingly articulate why a reasonable and prudent person would have concluded that the intruder had manifest an intent at least to commit a felony.

I doubt that the OP's hypothetical would pass muster under either rule.

Now it is possible that a someone could say things and do things that a reasonable and prudent person would conclude manifested an intent and the present ability to do you harm, thus justifying your drawing your gun. And it's also possible that upon seeing your gun the other guy suddenly remembers an urgent appointment elsewhere. So you could end the lethal threat without having to fire you gun, and that is a good result.

But the bottom line is that, at least in most States, simple trespass without a whole lot more will not justify your displaying a gun.

 

[Buck Snort]

Primetime wrote: "Armed bear, "Uninvited" meaning someone who is on your property for unknown reasons, and will not leave after you verbally ask them to leave your property. Say they do not show a firearm, that you can see or any weapon in plain sight, but they are clearly on your property and they will not comply with your requests to leave.."

Just call the fuzz and save yourself a lot of hassel. The cops are PAID to deal with trespassers and using that service could save you a lot of legal expense and maybe a trip to the slammer.

 

[OLD LAWMAN]

This discussion is worthwhile, but clearly the laws vary greatly from state to state. Further, each situation is equally dependant on the facts at hand, and how those facts are interpreted by the police on scene.

Whatever the case, one is likely to encounter a legal nightmare. Recently, in our county, a 73 year old retired marine war veteran who was having drinks at a restaurant/bar was jumped by a drunk 37 year old lumberjack and beaten to the ground. The marine was injured and dazed but managed to pull his handgun (licensed) and shot the lumber jack as he moved to attack again.

The lumberjack, a known trouble maker with a record, left the scene due to warrants. The police arrived and promptly arrested the marine for felony assault! He was jailed and is spending his meager retirement to pay his own medical bills, bail and significant legal expences. Everyone involved believes he is getting screwed by a prosecutor with political aspirations.

So, "goes to show you never can tell."

 

[Hoxviii]

You in KCMO or KCK (add to your profile, it'll help and DOES make a difference)

Under MO statutes, once he is uninvited he is officially UNINVITED. If you feel he is a threat to your health and wellbeing(weapon, disparity of force, breaking a door/window), especially confirmed by a witness, it falls under the castle doctrine where you can draw on him and be shielded from liability under a forcible felony which includes "(3) "Forcible felony", any felony involving the use or threat of physical force or violence against any individual, including but not limited to murder, robbery, burglary, arson, kidnapping, assault, and any forcible sexual offense;"
http://www.learntocarry.com/docs/CastleDoctrine.html

In kansas it would fall under an "attack upon a dwelling," if initially invited. The wording is murky.
http://www.kslegislature.org/legsrv-statutes/getStatute.do?number=11742

 

[primetime]

Thanks guys..I realize i failed to clearly define the situation above and apologies for that. And I appreciate all the feedback regardless of negativity. I'm a simple guy, I don't look for trouble but sometimes as we all know trouble can find us. I've read everyones respones very closely and these are the things that I like to read and see peoples opinions.

Thingster i'm in KCK, and my home is in the kansas side. So it appears the ks link is the one I should look at closely. thanks for the links..It helps a great deal.

It appears that on the KS link that thingster provided, says that basically it is permissable to use deadly force if i'm threatened in such a manner that the person involved (me) is convinced that deadly force is needed, on my property or in my vehicle. But it says unlawful entry to my property or vehicle. So basically if he's on my lawn or your lawn if you live in KS that you pretty much better not draw on him in the eyes of the law. but if he breaks in to your house or car, then you can use deadly force if necessary... I feel much more comfortable now having this confirmed, however it still doesn't touch upon the "brandishing" issue.. BUT, upon reading responses above, i've learned its probably safe to say brandishing isn't a good idea unless you intend to use deadly force, which implies a threat to your life...But in any case, it makes for decent discussion and as i said, your feedback is much appreciated.

 

[wishin]

As I believe someone else mentioned here, a fence that requires breaching by a gate or by scaling could constitute unlawful entry in many jurisdictions.

 

[Harley Rider 55]

In Texas, crossing into "posted" property, will get a firearm pointed at you.

 

[beatcop]

Armed bear seems to have made some great points....re-read them. Common sense is the active ingredient here.

-do not introduce firearms into minor bs