Brandishing - Stand Your Ground – Castle Doctrine Laws

Discussion in 'Legal' started by Gary Slider, Jul 21, 2020.

  1. Gary Slider

    Gary Slider Member

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    Handgunlaw.us has always gotten a lot of questions about the Brandishing, Stand Your Ground, Castle Doctrine etc. With the virus, heat wave and other things that have slowed us down we have had time to put together a couple documents that puts info on these issue for all the states in one place. We started out with the idea of placing the information about Brandishing on each states page in the Misc Information section. That is the reason for the layout of that doc and it makes it easy to copy and paste it into each states page. It has morphed into the collection of the Stand Your Ground etc as we were looking at all the states statutes.

    We would appreciate any feedback on additions etc. to these listings You can also email us at [email protected]. Thank you for any assistance you can give us. Stay Safe!
     

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  2. JTHunter

    JTHunter Member

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    Considering the political fiasco occurring in St. Louis, this information can be a help.
    Thanks.
     
  3. tommy.duncan

    tommy.duncan Member

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    Thanks Gary, I recommend your page often.
     
  4. Gary Slider

    Gary Slider Member

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    Updated Files
     

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  5. TRX

    TRX Member

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    Having kept much smaller, simpler lists for a few years back in the day, I have some faint idea of how much work you put into keeping handgunlaw.us current. Again, thanks for doing it; it has helped me often.
     
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  6. Gary Slider

    Gary Slider Member

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  7. Jim Rau

    Jim Rau member

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    What I teach is to base any and all SD actions you take 'on a reasonable, articulateable FEAR of serious injury or death to you or others' regardless of the criminal statues where you are! That said I do support ALL the statues which give those involved in SD incidents more legal standing. There are two different/separate 'legal' systems in this country, Criminal, and Civil. Just becasue you do not get 'prosecuted or persecuted' does not mean you will not be sued. I also teach not to 'point' a gun an anyone unless you feel the need to actually shoot. You can have your hand on the gun or the gun in your hand w/o pointing it at the attacker until you need to. If the incident is stable enough I tell people to issue a verbal challenge "I am armed and I will defend myself"! This will help you legally, tactically, and for safety reasons.
     
    Last edited: Jul 24, 2020
  8. Kleanbore

    Kleanbore Moderator Staff Member

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    In some states, one may do that if the immediate use of force is justified. In most, only if deadly force is justified.
     
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  9. Jim Rau

    Jim Rau member

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    You can do that ANY TIME you feel threatened, period. That is just COMMON SENSE.
     
  10. Frank Ettin

    Frank Ettin Moderator Staff Member

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    Cite legal authority for that statement.
     
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  11. Kleanbore

    Kleanbore Moderator Staff Member

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    No one could do so. It is not true.
     
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  12. Frank Ettin

    Frank Ettin Moderator Staff Member

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    That’s exactly the point. It is a misstatement of the law and therefore can not be supported with legal authority.

    If one is in court I he will need to support his position with actual, applicable legal authority. “Common sense” will be insufficient.
     
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  13. Jim Rau

    Jim Rau member

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    LOL,
    The Second Amendment to the Constitution of the United States of America. Your question show that common sense is truly dead in this country!:(
     
  14. Kleanbore

    Kleanbore Moderator Staff Member

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    Nope. That simply affirms the right to keep and bear arms.

    It does not empower anyone to commit crimes with weapons.

    There have been laws against assault, battery, and murder, committed with weapons or without, at least since the days of the Code of Hammurabi.

    The interpretation of those laws is not left to what individuals may see as common sense.

    The common law definition of assault is willfully causing another to fear harm. It is a crime.

    That can be done by pointing a gun, showing a gun, indicating the possession of a gun, or even mentioning a gun for the purpose of persuading someone to do something--or not to do something

    Such behavior, and actually shooting someone, for that matter, may be justified through a legal defense of self defense.

    Simply articulating a reasonable fear of serious harm will not suffice. One must present some evidence supporting that fear.

    Others will then decide, based on the totality evidence, whether a reasonable person in similar circumstances would have done the same thing.

    Regarding the display or mention of a weapon, in most states, those who decide that will be instructed that the defender must have had a basis for a reasonable belief serious harm had been imminent, that the use of deadly force would itself be justified.

    In a handful of states, the display or mention of a firearm can be legally justified in circumstances in which the use of non-deadly physical force would be justified.

    If you have been teaching something else, you have been misleading your students.
     
  15. Frank Ettin

    Frank Ettin Moderator Staff Member

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    That is one of the most preposterous responses I've ever seen here.

    First, "common sense" is not a substitute for knowledge. You plead "common sense" here because you don't actually know what you are talking about. You do not understand the law or how the law works.

    Second, legal authority is:


    So when has the Second Amendment ever been the basis for a court's decision that one can be justified in pointing a gun at someone, "..ANY TIME you feel threatened...."?
     
  16. gunlaw

    gunlaw Member

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    In Missouri the castle doctrine and stand your ground are affirmative defenses to other weapons offenses and must be asserted by the defendant.
     
  17. Kleanbore

    Kleanbore Moderator Staff Member

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    The legal defense of self defense is an affirmative defense. The defendant must acknowledge having committed the act, and must provide some evidence for a defense of justification.

    "Stand your ground" is a concept outlined in the part of the law that obviates a legal duty to retreat. "Castle doctrine" has to do with exceptions to certain prohibitions on the use of deadly force that would apply in places not covered by that doctrine.

    None of this is unique to Missouri, but details vary among jurisdictions.
     
  18. gunlaw

    gunlaw Member

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    Not saying it is unique to Missouri. I can only speak to Missouri because I don’t practice law in the other 49 states. 452.350(6) clearly states that the defendant has the burden of injecting the issue of justification of the use of force. My point is don’t rely on a prosecutor to do this for you.
     
  19. Kleanbore

    Kleanbore Moderator Staff Member

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    That's an excellent pint.

    And I would not expect police arriving at the scene to be looking diligently for evidence that would indicate self defense.
     
  20. Craig_VA
    • Contributing Member

    Craig_VA Contributing Member

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    Recall that the phrase "common sense gun control laws" is one of the most consistently overused and annoyingly misleading PR terms used daily by the anti-2A community and politicians. 2A supporters should avoid the term like the plague.
     
  21. marsofold

    marsofold Member

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    If I were on the jury, then my view of common sense WOULD be enforced.
     
  22. Kleanbore

    Kleanbore Moderator Staff Member

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    What are you trying to say?
     
  23. marsofold

    marsofold Member

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    I'm saying (not trying) that as a member of the jury I WOULD have the power to enforce my common sense by my power as a jury member. voting my views regardless of any judge's instructions, as the constitution intended.
     
  24. Frank Ettin

    Frank Ettin Moderator Staff Member

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    You might be saying that, but what you are saying isn't true.

    You have no power to enforce your views, because you have no power to require that the other jurors adopt, or acquiesce to, your views. You only have the power to state, argue, and vote your views. Each other person on the jury has the same powers.

    So if you vote to acquit the defendant, and not all of the other jurors agree, the result will be a hung jury and a mistrial. A mistrial allows the prosecution to retry the defendant with a different jury.

    As for your opinion about what the Constitution intended, no one cares.

    The Founding Fathers assigned the job of deciding what the Constitution means and how it applies to the federal courts (Constitution of the United States, Article III, Sections 1 and 2):

    The exercise of judicial power and the deciding of cases arising under the Constitution necessarily involves interpreting and applying the Constitution to the circumstances of the matter in controversy in order to decide the dispute. Many of the Founding Fathers were lawyers and well understood what the exercise of judicial power meant and entailed. In fact, of the 56 signers of the Declaration of Independence, 25 were lawyers: and of the 55 framers of the Constitution, 32 were lawyers.

    What our Constitution says and how it applies has been a matter for dispute almost as soon as the ink was dry. Hylton v. United States in 1796 appears to be the first major litigation involving a question of the interpretation and application of the Constitution. Then came Marbury v. Madison decided in 1803; and McCulloch v. Maryland was decided 10 years later, in 1813.

    So, as the Founding Fathers provided in the Constitution, if there is disagreement about whether a law is constitutional, the matter is one within the province of the federal courts to decide. As the Supreme Court ruled back in 1803 (Marbury v. Madison, 5 U.S. 137, 2 L. Ed. 60, 1 Cranch 137 (1803), 1 Cranch at 177 -- 178):
     
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  25. wgp

    wgp Member

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    The gentleman might be wise to find a way to watch a good litigator pick a jury. I doubt he would make it to the jury.
     
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