Law question

[divemedic]

On another board (unrelated to firearms) on of the posters said this:

you should feel lucky that you are in Virginia. Many other states say that it is unlawful to brandish a weapon and that non law enforcement need to fire if they draw.

If that is true, then if I draw on a person who is about to shoot another unlawfully, and he drops his weapon, the law would require that I shoot him, even though he has stopped being a deadly threat. I am not aware of any state that has such a law. Is anyone here aware of one?

 

[Dark Skies]

That sounds like a load of old rubbish. Substitute citizen for law enforcement officer and see how that'd fly in court once it was established that an officer had executed a person that had laid down their gun. Then X2 that if it were a private citizen.

 

[Rmeju]

I think it's pretty clear that once someone stops being a threat that they don't have to be shot, even if someone was "required to shoot" if they drew. I think it's fairly safe to say that the person quoted wasn't implying otherwise, at least the way I read it.

I think what the person from the other board was trying to say is that in order to brandish in the first place, use of deadly force must also already be allowed under the law as well. In other words, you can't brandish unless you can also shoot. However, I don't think that's the case in all places.

Good thing everyone here knows not to get their legal advice off of the internet.

 

[Oro]

unlawful to brandish a weapon

This is indeed true, and the law in most states I know of. But that isn't the same as drawing a weapon. This is a common misunderstanding, and where having English as a first language (or the ability to use a dictionary) comes in handy. (Note: I'm not being harsh on you, divemedic, as I know you, based on your posts in the past, are a thoughtful gun owner. I'm harshing on that original poster you quoted).

"Brandishing" a weapon is unholstering/unsheathing/etc. and waving it about in an attempt to intimidate another party. That is distinctly different than producing a weapon in fear. That is how it is, in most states, legally defined. But most people in common usage do not understand that and equate "brandishing" to "unholstering" without bothering to check it out. They are not at all the same thing.

As to the part about "must fire" - well, that's just ignorance, and as Ron White says:

You can't fix "stupid."

 

[TexasRifleman]

If that is true, then if I draw on a person who is about to shoot another unlawfully, and he drops his weapon, the law would require that I shoot him, even though he has stopped being a deadly threat. I am not aware of any state that has such a law. Is anyone here aware of one?

What you describe here is not "brandishing".

There is absolutely no truth to the idea that "if you draw it you have to shoot it". In fact what you describe here will get you charged with murder almost certainly.

Brandishing is something different entirely. Brandishing is showing the gun when it is not yet time for legal self defense, as an intimidation technique etc.
Some states broaden the definition to mean any unintended exposing of the weapon but that's a bit extreme.

Texas law in particular contains a section where drawing a gun as a deterrent is specifically allowed and NOT considered the use of deadly force. That's unique in the 50 states as far as I know however.

 

[Hungry Seagull]

...And that non-LEO need to fire if they draw....

BULL.

Let's say.... Im in a pet store, the stranger draws and looks sure as about to shoot the cashier.

I draw because right that second he is full of intent to pull trigger on that cashier.

He sees me draw, puts down his gun and totally not show shoot.

I AINT PULLING MY TRIGGER!!!!!

But I will be calling 911 because someone drew on someone and I drew on that person right that second.

Im not ragging on anyone, that one sentence about subjects and Citizens NEED TO FIRE after drawing... jumped out at me as totally wrong.

 

[Kleanbore]

Texas law in particular contains a section where drawing a gun as a deterrent is specifically allowed and NOT considered the use of deadly force. That's unique in the 50 states as far as I know however.

I am also unaware of any similar wording in the criminal codes of any other states. However, case law may exist that establishes a similar proviso.

Attorney Michael Anthony prepared an excellent white paper that is contained on the Arizona CCW website. In one of the examples discussed, it is said that if one draws when not justified--and in the example cited, pushing and threats had occurred--one would be guilty of aggravated assault. The legislature voted to amend the law but then Gov. Napolitano vetoed the bill.

There's a specific firearms law violation in MO for "exhibiting...in an angry or threatening manner." Like the VA brandishing issue, it is classified as misdemeanor under most circumstances. However, I've been told that more serious charges are also possible in MO.

As TR says, if a circumstance arises in which force is permitted in Texas, the code reads that merely drawing a gun to dissuade the perp does not constitute the use of deadly force. That's good of 'em.

 

[divemedic]

I am also unaware of any similar wording in the criminal codes of any other states. However, case law may exist that establishes a similar proviso.

Actually, in Florida the display of a weapon is not considered to be deadly force. Only the discharge of a weapon always constitutes "deadly force." In the state of Florida, merely pointing a gun at someone is, as a matter of law, non-deadly force. (see Riviero v. State, 871 So.2d 953 (Fla. 3DCA, 2004)).

Since, as a matter of state law, one can use non-deadly force to protect property (ss 776.031), a person would be justified in drawing a weapon to prevent a person from say, vandalizing his automobile, but would not be authorized to use deadly force (meaning discharging the weapon) unless the situation escalated.

This is what I mean about the laws being different from state to state.

 

[mljdeckard]

Like they say, brandishing and drawing for legitimate self-defense are two different things. Brandishing is basically giving a non-verbal threat. The vast majority of incidents involving the defensive use of the firearm end with no shots fired. This doesn't mean that the defender wasn't justified in drawing in the first place.

It goes to INTENT. Did you pull the gun intending to protect your life, or just scare someone?

 

[mgkdrgn]

On another board (unrelated to firearms) on of the posters said this:

If that is true, then if I draw on a person who is about to shoot another unlawfully, and he drops his weapon, the law would require that I shoot him, even though he has stopped being a deadly threat. I am not aware of any state that has such a law. Is anyone here aware of one?

It's a gun, not a samurai sword.

Once the threat is gone, shooting is no longer justified.