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Pointing a gun at someone vs. pointing away.

Discussion in 'Legal' started by johntaylorny, Apr 16, 2010.

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  1. johntaylorny

    johntaylorny member

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    Would law enforcement or the law in general see a different between the following actions...

    1. You feel threatened by someone's physical advancement toward you. You draw your weapon and point it at them finger on trigger.

    2. Same thing as above BUT you take your gun out of your holdster, finger is off trigger, the gun is pointed at the ground, you give verbal commands to back away.
     
  2. CWL

    CWL Member

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    If you are justified in pulling a firearm out, you had better be in fear for your life or serious bodily harm and are justified to shoot the threat, otherwise you are just brandishing a weapon.
     
  3. kingpin008

    kingpin008 Member

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    Totally depends on location. In some places either of those actions would be considered legal, in others, they're considered Brandishing.

    You're going to have to be a little more specific if you want a clearer answer.
     
  4. brboyer

    brboyer Member

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    In Florida, if you are justified in using deadly force in self defense (or defense of another), it does not matter if you point it at the ground, the perp's head or shoot him.
     
  5. benEzra

    benEzra Moderator Emeritus

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    If you merely "feel threatened", #1 will get you in big trouble in many cases, and #2 might. You need more than feeling threatened; there has to be a reasonable belief that you are under an unlawful, imminent threat of death, serious bodily injury, or a forcible felony ("reasonable" being defined as "the average person of ordinary mental firmness would have seen the situation the same way", more or less). That may be what you were thinking of, but one can "feel threatened" in many situations in which use of a firearm would not be legally justified.

    Again, with the proviso that you must be in *reasonable* fear of imminent death, serious bodily injury, or forcible felony as defined by statute, unless an intruder is trying to force unlawful entry into your residence or occupied vehicle.
     
  6. danprkr

    danprkr Member

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    BTDT - if you need to pull your weapon you need to get it on target. Hopefully you won't need to fire, but you need to be ready to do so on a split second's notice. If you're morally justified you can worry about the legalities later. If not you probably shouldn't have pulled your weapon in the first place.
     
  7. General Geoff

    General Geoff Member

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    Drawing your weapon in public and not immediately placing it on target makes very little sense. The only time I could think of doing something like that would be if a known deadly melee threat is quickly advancing from a distance, and you want to draw your weapon both to ready yourself, and to deter them before you're absolutely certain they will not back off.
     
  8. KyJim

    KyJim Member

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    If you weren't justified in drawing the weapon but did so anyway, pointing or not pointing the gun could make a difference in Kentucky. If you didn't point the gun, it might be considered terroristic threatening, a misdemeanor. If you pointed it at someone, it might be considered wanton endangerment, a felony. Obviously, there's discretion involved and police/prosecutors may handle it differently in different communities.
     
  9. TexasRifleman

    TexasRifleman Moderator Emeritus

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    Depends on state law. Texas for example has a provision whereby pointing a gun at someone is not necessarily considered deadly force.

    But in general, pointing it at someone or just holding at a low ready kind of thing isn't likely to matter much.

    Gonna vary widely place to place.
     
  10. bob.a

    bob.a Member

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    "If you are justified" is a tough one.

    I myself am an old guy on blood-thinner meds. A solid punch to the head would likely kill me due to uncontrolled cranial bleeding. Is it likely that a DA and Grand Jury would consider that the threat of physical violence could put me at mortal risk?

    I don't want to hide out in the house for the rest of my life, but I don't want to be in the position of potentially killing someone whose threat to my person might not seem, to him, to be at the same level as it is to me. And ending my days in prisn is also unacceptable.

    Any thoughts?
     
  11. rugerman07

    rugerman07 Member

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  12. Gouranga

    Gouranga Member

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    We actually covered this a bit in out CCW class. First #1, in NC pointing the weapon at someone equates to the use of deadly force. So if you do not have legal cause to pull the trigger you just committed a felony.

    #2 is trickier. In almost any case I would not advise pulling the gun out of the holster unless you are already in a situation meeting the use of deadly force, in which case it should be on target NOT pointed away.

    The type of examples in our CCW class that the instructor said might call for #2, you come out into your garage and there is a person stealing your car. In NC you CANNOT use deadly force to protect property do pointing the gun at him is not legal. However, you would also be in a pretty threatening situation having you gun our of the holster pointed down COULD be construed as an acceptable escalation of force to ensure the criminal does not come after you.
     
  13. husbandofaromanian

    husbandofaromanian Member

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    Uh, for me this is not theory. I own a retail store. After closing a man pulled to the front of the store asking me if I had a battery. I told him I didn't know and that I was in a hurry & had to leave. He got very verbally aggressive and followed me to the back of my store as I walked to my car. As I got in my car he had just about caught up to me (I was walking verry quickly). I waived as I started driving off with him standing there. Suddenly I hear a loud thud on my car. I didn't know if he hit or shot the car. I pulled forward about 20 yards (a block wall is in front of me instead of the exit), pulled my pistol, opened my door & looked back at him prepared to shoot I WAS POINTING MY PISTOL AT MY CAR DOOR INSTEAD OF AT HIM he continued to ask about this battery. I called 911 with my left hand as I held my pistol in my right. During the call with 911 he took off running.
    To me it was very important not to go all the way and point the pistol at him. I still don't know if he was simply mentally unstable or trying to rob me, because the technique he was using would be ideal for a robbery. There is still a dent on my back panel where he hit it with his hand.
     
  14. divemedic

    divemedic Member

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    There is a lot of misinformation in this thread, especially concerning Florida law.

    In Florida, the mere pointing of a gun at someone is, as a matter of law, NOT deadly force. It may not be in other states, either. Remember that deadly force is force that is LIKELY to cause death or serious bodily injury. Pointing a gun without firing it does not even come close to that level.

    For Florida, see: Riviero v State, 871 So.2d 953 (Fla. 3DCA 2004)

    It is likely not brandishing, either. In every state of which I am aware, brandishing has a self defense exception. There are many more times where the mere presence of a firearm deters a would be attacker without a shot being fired than there are cases where shots ARE fired. For example:

    790.10 Improper exhibition of dangerous weapons or firearms.--If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
     
  15. rugerman07

    rugerman07 Member

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    Yeah, but what about, you put your hand on your gun, but don't draw, leave it holstered and give a verbal command to back away? I can't see where that would be considered brandishing in any state that allows concealed carry.
     
  16. mljdeckard

    mljdeckard Member

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    Fortunately for us, Utah's law has been clarified. As it has been changed, simply holding or showing your gun is not in and of itself brandishing or making a threat. This was grey area that had caused a few problems.

    Having said that, it is a bad idea to draw before you know you need to fire. Do you draw, and.....wait...for.....next thing you know, you are the idiot standing there with a gun in your hand WAITING for the next guy to make a move, trying to decide what to do. Wrongo. You don't decide AFTER you draw. You don't decide right BEFORE you draw. You must have already decided what you are going to do in training. If you wait until the gun is in your hand to decide, you are putting the attacker in the position of deciding what YOU are going to do next. Hesitation, more bad things happening, indecision, nothing good follows.

    This is not to say that you MUST fire once you draw. The vast majority of armed encounters end with no shots fired. The BG will likely run or surrender. But that doesn't make it a good idea to draw to SCARE. If you think that's a good idea, you might as well draw an empty gun. I don't hear anyone suggesting THAT is a good idea.
     
  17. ChristopherG

    ChristopherG Member

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    Know your state law.

    In Washington State: yes, potentially.
     
  18. brboyer

    brboyer Member

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    What the court actually said in that case was that the 'discharge' of a firearm is always deadly force, as a matter of law. The pointing of a firearm is a matter of fact that must be determined by a jury supported by the facts of the situation. For example pointed in some one's face (is agg assault) vs in the air (maybe).

    They did not say pointing is never deadly force, rather discharging is always deadly force.
     
  19. Cosmoline

    Cosmoline Member

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    That's right, otherwise you could not claim self defense after having a firearm pointed at you.
     
  20. divemedic

    divemedic Member

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    Incorrect. Read (directly from the opinion)(emphasis in the original)

    In the present case the evidence showed that the defendant
    pointed the gun without firing it. The use-of-force statute looks
    to the amount of force which is actually used. Pointing a firearm
    (without firing it) amounts to the use of nondeadly force. See
    Stewart v. State, 672 So. 2d 865, 868 (Fla. 2d DCA 1996) (waving a
    gun in the air did not amount to the use of deadly force). By
    contrast, firing a firearm in the vicinity of human beings
    constitutes the use of deadly force as a matter of law . Miller v.
    State, 613 So. 2d 530, 531 (Fla. 3d DCA 1993).
     
  21. brboyer

    brboyer Member

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    You need to go read the referenced cases to understand that comment in context.
     
  22. razorback2003

    razorback2003 Member

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    I live in TN like the gentleman who previously posted in Nashville. I don't know of a law in TN that would prevent us here from unholstering a handgun and pointing it at the ground in the event we feel the need like in his incident in Nashville. We are given 'carry permits' by the state and do not have to conceal. I assume it would be up to use of common sense when and where to draw a handgun in TN and point to the ground and keep it ready....such as you have a little advance warning of a possible threat. We do not have a 'brandishing' law in TN. I also see no problems with putting hands on a holstered handgun, concealed or unconcealed...again because we do not have a brandishing law and we are not required to conceal...and say telling someone who appears threatening to back away. Everything is a judgement call.
     
  23. divemedic

    divemedic Member

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    You are going to have to do better than that. I have provided a legal basis for my opinion, all you have provided is "nuh-uh, you don't understand"

    What, specifically, in ANY of those cases proves me wrong? My case specifically says:

    In the present case the evidence showed that the defendant
    pointed the gun without firing it. The use-of-force statute looks
    to the amount of force which is actually used. Pointing a firearm
    (without firing it) amounts to the use of nondeadly force. Riviero v State, 871 So.2d 953 (Fla. 3DCA 2004)
     
  24. brboyer

    brboyer Member

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    I've already made my point, no need to restate it.
     
  25. divemedic

    divemedic Member

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    So you've got nothing. Understood.

    Money quotes from Riviero v State, 871 So.2d 953 (Fla. 3DCA 2004)


    In the present case the evidence showed that the defendant pointed the gun without firing it. The use-of-force statute looks to the amount of force which is actually used. Pointing a firearm (without firing it) amounts to the use of nondeadly force.

    Because the defendant pointed the gun without firing it, this was nondeadly force.
     
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