The Armed Citizen vs. Brandishing

[Kristensdaddy]

I'm reading "The Armed Citizen" section of the new NRA magazine and I re-read the note box in the bottom right. It says, to paraphrase, that studies show guns to be used 2,500,000 times per year to prevent crimes.

Further research and reading of their study indicates that shots are very seldom fired. OK, so let say that 20% of self defense situations involve firing a shot, that leaves 2,000,000 times per year that the gun is presented in self defense and not fired.

After reading many responses on this and other forums, many say "don't draw unless you are going to fire" the common disclaimer being that you will get busted for "brandishing." (Yes, state laws vary) Seems to me there would be an awful lot of people, per year, getting busted for brandishing, yet I never see it in the news.

Seems to me that a lot of folks who carry are still willing to become victims of crime because they are concerned about being victimized a second time by law enforcement. Me, I'll take my chances with the civil authorities, who are bound by law, rather than a street thug who is bound by nothing.

Nomex suit and fire extinguisher standing by......

 

[Jim NE]

I don't know much about law, and even less about gun law, but isn't it a matter of intent? Or perceived intent?

When I hear about people being arrested for brandishing a weapon around here (which isn't often), it's usually some drunk at a party arguing over a woman or something. It's never a legal concealed permit holder who drew his weapon because a stranger was about to attack him.

 

[Trebor]

A better way to look at is, "Don't draw unless you are willing to fire." Often the presence of the gun deters the criminal and then it does not actually become necessary to fire.

You were willing and planning to fire, but the situation changed once you drew the gun, and the neccesity to fire vanished when the threat retreated.

(In other words, you were planning to shoot, you drew the gun, and the bad guy ran away, so now there was no need to actually shoot)

 

[BIGBANG]

I agree with you kristensdaddy, I work in a really bad part of town and often I leave around or after midnight. It's our stores policy not to allow cc but I definitely park close to the entrance. About a month ago a woman was stopped in the middle of the street dragged outta her car and beaten by 2 young thugs. So I'm not takin' chances, I'd rather pull as soon as I felt threatened than wait for them to already pull then
i'm behind the eight ball so to speak. As soon as I "brandished" and hopefully it would deter them I'd call the police. Heck the police station is a block away from my store so I could just drive there lol. but I feel I'ts better to be alive and fighting than dead.

 

[NavyLCDR]

Exactly what Trebor said. If I draw my gun it is going to be with the intent of shooting it immediately. If the threat runs away between the time my gun comes out and my finger pulls the trigger, then my intent, at that moment, will change.

Then the next step is to ALWAYS be the person to call the police first.

 

[ldhulk]

Normally the incident would take place in a somewhat secluded setting like a parking lot. If the person being aggressive sees a weapon and backs off, he is usually not the sort of person who wants any contact with law enforcement, because he is probably drunk and may have a history of misbehavior; so the police never become aware of the incident.

 

[Scimmia]

When people say "don't draw unless you are going to fire", it means the threat has to be great enough to justify firing. If the threat isn't enough to justify firing, it isn't enough to justify drawing your weapon. It doesn't mean you HAVE to fire.

 

[Kristensdaddy]

"A better way to look at is, "Don't draw unless you are willing to fire." Often the presence of the gun deters the criminal and then it does not actually become necessary to fire.

You were willing and planning to fire, but the situation changed once you drew the gun, and the neccesity to fire vanished when the threat retreated.

(In other words, you were planning to shoot, you drew the gun, and the bad guy ran away, so now there was no need to actually shoot)"


I guess this is where the question comes up to me. Scenario - Walking in down a legal street, legally carrying a weapon, with my legal family and a "mugger" jumps out of a doorway and demands my wallet and my wifes purse. Should I just become a victim because he doesn't "present" a weapon? Or do I present my weapon and "escallate" or worse yet "brandish" my weapon. Now we are at the point where he has to make the next move, attack an armed guy or run. I'll hope he runs, but if he attacks I shoot.

Reminder, I was engaged in 100% legal activity until confronted by the "mugger." He changed the game.

I guess I don't understand the reason to become not just a victim, but an armed victim who did nothing.

 

[Frank Ettin]

A better way to look at is, "Don't draw unless you are willing to fire." Often the presence of the gun deters the criminal and then it does not actually become necessary to fire....

Exactly what Trebor said. If I draw my gun it is going to be with the intent of shooting it immediately. If the threat runs away between the time my gun comes out and my finger pulls the trigger, then my intent, at that moment, will change....

Or to look at it another way, the gun is drawn if one would be justified in firing...unless something changes. And often the appearance of your gun does change the situation. While at first, you may have faced an immediate and grave threat, the appearance of your gun causes the assailant to back off.

 

[quatin]

I'm reading "The Armed Citizen" section of the new NRA magazine and I re-read the note box in the bottom right. It says, to paraphrase, that studies show guns to be used 2,500,000 times per year to prevent crimes.

Further research and reading of their study indicates that shots are very seldom fired. OK, so let say that 20% of self defense situations involve firing a shot, that leaves 2,000,000 times per year that the gun is presented in self defense and not fired.

After reading many responses on this and other forums, many say "don't draw unless you are going to fire" the common disclaimer being that you will get busted for "brandishing." (Yes, state laws vary) Seems to me there would be an awful lot of people, per year, getting busted for brandishing, yet I never see it in the news.

Seems to me that a lot of folks who carry are still willing to become victims of crime because they are concerned about being victimized a second time by law enforcement. Me, I'll take my chances with the civil authorities, who are bound by law, rather than a street thug who is bound by nothing.

Nomex suit and fire extinguisher standing by......

There's certain people on the forum who will advise you to basically never use a firearm, because there is a possibility of facing legal consequences in almost all instances of firearm use. However, you can make your own decision about what level risk you're willing to take. We're all just piping up with our opinions. Your threshold for lethal force is different from others. It sucks that the law isn't more protective about self-defense.

 

[Scimmia]

If you pull your gun in that situation, you have now responded to a minor threat with deadly force. Cops can and will nail you for it.

 

[Frank Ettin]

...If the person being aggressive sees a weapon and backs off, he is usually not the sort of person who wants any contact with law enforcement, because he is probably drunk and may have a history of misbehavior; so the police never become aware of the incident.

Personally, I'm not going to count on that. You have no control over the other guy and you don't know what he will or won't do.

...It sucks that the law isn't more protective about self-defense....

Nonetheless, it is what it is. Our rules on self defense are pretty firmly grounded in several hundred years of Common Law.

 

[Kristensdaddy]

"If you pull your gun in that situation, you have now responded to a minor threat with deadly force. Cops can and will nail you for it."

This is my point - rather than "The Armed Citizen" because of fear of the police, we should become "The Armed Victim."

No flame intended, I'm serious about the issue.

 

[quatin]

I guess this is where the question comes up to me. Scenario - Walking in down a legal street, legally carrying a weapon, with my legal family and a "mugger" jumps out of a doorway and demands my wallet and my wifes purse. Should I just become a victim because he doesn't "present" a weapon? Or do I present my weapon and "escallate" or worse yet "brandish" my weapon. Now we are at the point where he has to make the next move, attack an armed guy or run. I'll hope he runs, but if he attacks I shoot.

Reminder, I was engaged in 100% legal activity until confronted by the "mugger." He changed the game.

I guess I don't understand the reason to become not just a victim, but an armed victim who did nothing.

It depends on which state you're in, but in general robbery is technically a forcible felony so you're technically allowed to use lethal force to prevent forcible felonies.

However, using lethal force on an unarmed criminal is risky. Public opinion and therefore juries will look down upon these situations. I would lean more towards using OC, maybe kick in the groin/knee and run away.

 

[Scimmia]

It doesn't mean you have to be a victim. At this point, he hasn't made much of a threat. I would put my hand near or on the butt of my gun without showing it to him and just say "we aren't looking for any trouble" and back away. If he then pulls a weapon or starts coming at you, you could be justified in drawing.

edited for spelling

 

[Kleanbore]

Taking the questions in a different order...

Posted by Kristensdaddy: After reading many responses on this and other forums, many say "don't draw unless you are going to fire" the common disclaimer being that you will get busted for "brandishing." (Yes, state laws vary)

First, a much better and more accurate way to put it is "don't draw unless you are justified in using deadly force. And yes, the laws in at least a couple of states are somewhat different.

The term "brandishing" is used in some jurisdictions but not in all. Even if there is no law that specifically addresses brandishing, or that defines the unlawful display or exhibition of a firearm as a weapons offense, the crime of assault or aggravated assault will likely apply to the unlawful production (display) of a weapon of any kind.

...that leaves 2,000,000 times per year that the gun is presented in self defense and not fired.

As others have said, one may lawfully present a weapon because one reasonably believes that deadly force is lawfully justified, but things often change very rapidly indeed. A violent criminal actor who presents a clear condition of imminent danger of death or serious injury, or who is about to commit a forcible felony, will usually cease and desist upon the mere presentation of a weapon. That happens all the time. I have had violent criminal actors change their minds very quickly after my having lawfully presented a firearm on three different occasions.

Seems to me there would be an awful lot of people, per year, getting busted for brandishing, yet I never see it in the news.

First, drawing lawfully and not firing is not brandishing; second, one does not see many arrests for assault covered in the news, but there are many such occurrences in most major urban areas.

Seems to me that a lot of folks who carry are still willing to become victims of crime because they are concerned about being victimized a second time by law enforcement.

I'm not sure where you get that idea.

If one faces imminent danger of death or serious bodily injury, and one cannot otherwise avoid that danger, one should draw and be ready to fire if necessary.

If one does not face imminent danger, why would one draw? To threaten someone? That's the definition of assault; it is a crime.

I like to put it this way: before drawing a gun, one should know the answer to the following question: "just what is it that I intend to do with this thing?".

One should be very aware that, if one (other than a sworn officer whose duty is to enforce the law) draws and points a gun at someone who is not actually presenting an imminent threat, he may actually give that someone (or a policeman or another armed citizen, for that matter) the legal justification for drawing and shooting him.

Good questions. I hope this helped.

 

[M-Cameron]

there a difference between pulling a gun to defend yourself, and brandishing.......

if you pull a gun in a defensive situation, and the bad guy runs away......thats perfectly legal.

however, if you and your neighbor get into an verbal argument, and you pull your gun, thats a crime.....and i believe that is the "brandishing" most people refer to

 

[Jim NE]

Scenario - Walking in down a legal street, legally carrying a weapon, with my legal family and a "mugger" jumps out of a doorway and demands my wallet and my wifes purse. Should I just become a victim because he doesn't "present" a weapon? Or do I present my weapon and "escallate" or worse yet "brandish" my weapon.

Again, I state my point - do you actually KNOW of a case where someone was actually ARRESTED for drawing a gun in a scenario just like this?? (Not shooting, but drawing as you originally stated.) Or is it something you just heard about on the internet 3rd or 4th hand?

I've NEVER heard of a person being arrested for that. I'm talking about a person who can LEGALLY carry. I'm NOT saying it's never happened, I've just never heard of it. It doesn't happen where I live. But I live in a relatively conservative area.

On the other hand, (and not to be political) the more liberal an area is, the more likely "community" activists will come to the aid of every 3rd rate common criminal who gets arrested or shot, so in areas like that, I guess it could be a problem.

Honestly, I think you might be talking the wrong people. Maybe the local police or lawyers in your area would be able to give you an idea of what the outcome in a scenario like that would be. "Don't draw unless you're willing to fire" sounds more like a philosophy than an actual law.

 

[dirtykid]

I have detered a potentially dangerous situation by simply swiping-my shirt back to expose my holster and un-snapping strap (not drawing), We can carry openly here so by me putting my hand on my weapon-holster implies (dont tread on me) it would be hard for perp to prove i DREW my weapon.
In most cases BG isint gonna want inter-action with LE anyway,,

 

[Sam1911]

"Don't draw unless you're willing to fire" sounds more like a philosophy than an actual law.

When you say "willing to fire" it may be considered a philosophical point.

However, when we say that you should not draw until you are legally justified in using force, that would be a point of law.

Read this from Kleanbore again:

First, a much better and more accurate way to put it is "don't draw unless you are justified in using deadly force. And yes, the laws in at least a couple of states are somewhat different.

The term "brandishing" is used in some jurisdictions but not in all. Even if there is no law that specifically addresses brandishing, or that defines the unlawful display or exhibition of a firearm as a weapons offense, the crime of assault or aggravated assault will likely apply to the unlawful production (display) of a weapon of any kind.

Did the "brandisher" have a clear, articulable, reasonable fear of death or grave bodily harm, from this specific attacker, at that very moment? If so, drawing the weapon would be (most probably be determined to be) lawful. By most definitions, that isn't "brandishing" in the sense of a criminal act.

If not -- if the threat wasn't immediate, wasn't realistic, or a "reasonable person" would not have felt his/her life was actually in absolute peril -- then the act of visibly drawing or indicating a weapon is no more justifiable than a physical counterattack would be.

If you aren't legally justified to hit, kick, punch, mace (spray), or otherwise physically assault someone (to include shooting them), then you aren't legally justified to make a visual threat with your weapon, either.

(Generally, and in most states...)

 

[Jim NE]

Sam1911, "willing to fire" is indeed very different from "legally justified."

The OP asked some very serious questions that are, in my opinion, beyond the pervue of internet advice. Hopefully the questions were posed more for conversation than to gain actual legal knowledge.

He seems confused, and I'm not sure we're helping. He should probably talk to his local police. (And be sure to get the name of the officer who gives out that information. )

 

[Sam1911]

Better like this...

"He should probably talk to his local [strike]police[/strike] EXPERIENCED DEFENSE ATTORNEY. (And be sure to [strike]get the name of the officer [/strike] carry the card and cell phone number of the attorney who gives out that information. )"

The legal advice you're likely to get from a local law enforcement officer is likely worth about as much as you paid for it. Maybe less.

 

[Kleanbore]

Posted by Jim NE: "Don't draw unless you're willing to fire" sounds more like a philosophy than an actual law.

As Sam1911 points out,

When you say "willing to fire" it may be considered a philosophical point.

And on the philosophical point, one must ask, "why would one ever draw unless one were willing to fire?".

Personally, I cannot imagine many things more foolhardy than pulling a gun without being willing to use it.

And, as Sam continues:

...when we say that you should not draw until you are legally justified in using force, that would be a point of law.

So...here is one "actual law":

A person commits the offense of aggravated assault when he or she assaults [i.e., commits an act which places another in reasonable apprehension of immediately receiving a violent injury]:...

(2) With a deadly weapon or with any object, device, or instrument which, when used offensively against a person, is likely to or actually does result in serious bodily injury; ...

However, a person is justified in using force which is intended or likely to cause death or great bodily harm only if he or she reasonably believes that such force is necessary to prevent death or great bodily injury to himself or herself or a third person or to prevent the commission of a forcible felony.

Here is another:

A person commits the crime of unlawful use of weapons if he or she knowingly....

(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner;

5. Subdivision(s) ... (4)... shall not apply to persons who are engaged in a lawful act of defense.

And here is an attorney's explanation of another, as posted on a state's website:

In simple terms, whenever someone uses or threatens to use a firearm against another person, without legal justification, he is violating a criminal law, and the state can prosecute him.

....

Therefore, under most circumstances, the CCW permittee should refrain from actually drawing a gun in self-defense, unless faced with an imminent threat of serious bodily injury or death.

The last example involves a state that now allows the defensive display of a firearm under certain circumstances, hence the use of the phrase "should refrain"; the earlier version was much more restrictive, and spoke of prosecution for aggravated assault.

In case it is not sufficiently clear, if one is engaged in a lawful act of defense, or if one is faced with an imminent threat of serious bodily injury or death, ONE MAY SHOOT.

So, one more time, the "actual law" in most jurisdictions is "don't draw unless you are justified in firing"; and the only reasonable philosophy I can think of is "don't introduce a firearm into a situation unless you are willing to use it".

Now, to the qustion "has it happened?". Yes indeed; there are appellate cases for which one can search; and the Arizona defensive display of a firearm amendment was codified as the direct result of actual convictions that many thought to have been unjustified.

One last thing: I'm beginning to think that one cannot repeat too often that the law does not say that if one has drawn a firearm, he must use it.

 

[hermannr]

Think about it this way.

If you are actually confronted: Would a "reasonable person" have fear that he/she may have a felony committed on his/her person if they did not act?

Second, if that reasonable person were to "show" his/her firearm...do you really think that person comtemplating that potential felony would call the cops and complain that someone pulled a gun on him?

No, because he has no idea that you are not an undercover cop yourself, and probably has a rap sheet a mile long and is on probation already.

You guys analyze things too much. No felon will call the cops, and if you pull the gun on someone not intent on doing you or yours harm, that is where you get in trouble.

If you are aware of what is going on around you it should be very apparent if you have a real problem, or not. Just becasue a person is different than you are does not mean he/she is a felon, that is not a proper observation. You need to see signs of intent...another reason to just OC, then it is obvious that you can, and intend to defend yourself.

Just like muggers do not try to mug LEOs in uniform, they also will not try to mug someone that OCs. First thing in a felons mind is when they see the gun is: Is that person a cop? If so I need to get out of here fast.

BTW: This is not speculation. They have done psycological studies of hardened violent criminals in jail that say if they know there is a self defence weapon, they will go other places for easier pickings. They do not want the potential of getting shot, which would end them up in hospital minimum, and caught.

 

[Jim NE]

"He should probably talk to his local police [scratch] EXPERIENCED DEFENSE ATTORNEY. "

And we are neither.