Would this be brandishing?

[Kleanbore]

If you live in a liberal state, then ...

These generalizations are often repeated and often wrong.

New York State law provides somewhat more more leeway in the use of deadly force against perpetrators of serious crime than do the laws of many other states. California, Illinois, and Washington State have castle doctrine laws, but Nebraska and Virginia do not. Wisconsin allows open carry, but Florida and Texas do not. In Florida, CCW instructors warn against "printing."

Recently in Arizona (gun friendly, no duty to retreat, defensive display permitted, protection against civil suits, not a "liberal state") a citizen was set upon by three people who beat him; he could not retreat; he fired as a last resort and wounded one person; he spent several months in jail without bond; he incurred major losses in a civil suit; the evidence was not ambiguous; he was tried more than once; and it took the efforts of Massad Ayoob and Marty Hayes to get him freed.

Probably a good idea to throw this misconception away.

 

[HOWARD J]

[URL=http://img8.imageshack.us/i/brandishing.jpg/][/URL]

Michigan is an open carry state---How is some pandhandle going to
prove that I threatened him by opening my jacket.

If you were around these stores & had to deal with these creeps--you would have a different opinion.

 

[Kleanbore]

Michigan is an open carry state---How is some pandhandle going to
prove that I threatened him by opening my jacket.

From my prior posts:

Whether it is illegal in Michigan, I do not know.

It all depends on the state law and court interpretations thereof. ....

Practically speaking, it also depends on the evidence. ...

Same thing for the outdoor scenarios mentioned here. Is open carry prohibited? Is there a provision in law such as Arizona's "Defensive Display" law, and have the prescribed conditions been met? Who has more supporting witnesses?

So, if the guy perceives a threat, the question may come down to your word versus his and that of any witnesses who do not support your story.

For your information, there's a citizen in open carry New Hampshire who is serving three to six years for having pointed a gun at a trespasser on his own property. The trespasser says she was threatened. The now convicted offender's wife says he never would have pointed a gun at anyone. It was her word against his.

http://www.thehighroad.org/showthread.php?t=556901

But again, this is off topic. The OP discussed showing a gun to someone who is trying to break into his house.

 

[oldbanjo]

There's more to that story, I think he was called ahead an told that the Lady was lost. In this State SC if someone had a crow bar and was braking in, I'd shoot them thru the door, ask them to leave then call 911.

 

[SuperNaut]

I was in a situation where I suppose it could be argued by a determined lawyer that I brandished my pistol, I believe it also may have saved my life.

 

[David E]

Ok, many posts here say that showing a gun to a burglar actively trying to break into the owners house may be brandishing...........

Let's see how that would play out:

Homeowner shows his gun to the Bad Guy (BG.)

BG sees the gun and runs away, then reports it to the cops and says:

"Hell, all I was doing was breaking the guy's door down, telling him I was going to kill him, his wife, his kids and their little dog, too, and THAT bonehead had the audacity to 'brandish' his gun at me thru the window! Can you believe that? I mean, he has no respect for the gun laws of the great state of Maryland. Go arrest that little twerp !"

I think I'll take my chances and "brandish" my gun at a guy who is actively trying to break down my door if it'll keep me from killing him.

 

[Kleanbore]

I was in a situation where I suppose it could be argued by a determined lawyer that I brandished my pistol, I believe it also may have saved my life.

The OP spoke of someone trying to break into the house. Some states have a "castle doctrine" in place, but the devil is in the details. The law may provide for the use of deadly force (or the display of a weapon) to prevent unlawful entry; the attempt at unlawful entry may have to be made "tumultuously" or with force; the entry may have may have to have been completed.

The defender should be able to produce evidence in such cases--broken glass, tool marks, whatever. I did--a couple of days later. It should also be rather clear who is the defender.

Outside, it's a different story. Who is the 'good guy' will likely be in question from the outset.

"Brandishing" may or may not be addressed in the law in a particular jurisdiction. The seriousness of the charge may vary. Where I live, the crime is one of " exhibiting" a firearm in a threatening manner. It's a felony. The term "exhibit" is not defined in the law, but the law has been upheld in court and people have been convicted of breaking it.

Usually, the more serious issue is assault.

I'm going out to the car in a parking lot. Some fellow walks up and starts with a story about needing money for baby formula. It's dark and I am alone.

I may not be comfortable, and I may properly be in Condition Orange, but I have no articulable basis for having a reasonable belief that I am in imminent danger of death or serious bodily injury. I cannot justify the use of force of any kind, or even the threat thereof.

On the other hand, if I intentionally do anything to give the guy reason to believe that he is in imminent danger of harm, then it is I who will be in trouble. I'm reasonably certain that showing a gun intentionally would pass that test.

It is when the elements of justifiable self defense materialize that one can resort to the display or use of a deadly weapon. In some states the threshold is higher than in others. Where I live, I may not do so unless I am engaged in a lawful act of self defense. Arizona, on the other hand, provides for the defensive display of a firearm--putting one's hand on it or exposing it, etc., for example. That would not be something to try just because a panhandler come along. That right is limited to dealing with an aggressor who is using or attempting to use unlawful or deadly force.

We need to know the laws in our jurisdictions and in any others in which we may be carrying.

What we all need to keep in mind is that (1) the gun we carry and the records check that was current at some time in the past do not give us the automatic title of "good guy" when something happens; (2) the other guy has equal right to that title unless he has done something to clearly divest himself of it; and (3) prevailing in a defense of justification requires that some supporting evidence be provided.

No, you do not want to be injured or killed, but you do not want to be without a gun for the rest of your life should a real need later arise. Best to avoid trouble whenever you can.

 

[Coyote3855]

The OP's scenario happened to my Daughter in Law while living in Phoenix. My son was on a forest fire. She heard noises from the guest bedroom. Three guys were trying to force the window with a screwdriver. She turned on the lights, pointed to her cell phone and dialed 911. They smiled. She retrieved my son's KelTec P11, re-entered the bedroom. The guys immediately split. Cops showed up about 15 minutes later. Commended her on a reasonable response the threat. And of course the guys were never apprehended that we know of.

 

[cesarv]

From California Penal Code, Section 417

(2) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a firearm in any fight or quarrel is
punishable as follows:...

Now, I'm no lawyer, but it seems that in your case, it would not be punishable by law, because you are acting in self-defense.

 

[Kleanbore]

Posted by csarv: From California Penal Code, Section 417...Now, I'm no lawyer, but it seems that in your case, it would not be punishable by law, because you are acting in self-defense.

Is he? Basis for that?

The CA law really doesn't apply, because the OP is in MD.

But if it did---might that opinion not be supported by the part of the code that says

...homicide is also justifiable when committed by any person ...in defense of habitation, property, or person, against one who ...manifestly intends and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein...

Probably, I think, but I don't know. Let's not answer because we are not qualified.

That's why we do not want to rely on cutting and pasting from statutes and lay interpretation .

Personally, I cannot see anything wrong with showing a gun to someone who is trying to breach the door of one's house. I have done so myself. Had I not done so after the time, things might have turned out far worse for the burglar.

I don't think that "brandishing" is an issue, but regardless of whether something might be OK in one state, it might not be in another. Let's learn what we need to know.

 

[seal]

I dont know that you can brandish from inside of your own home. It would be like someone seeing your rifle through your window while your cleaning it or moving it around the home. you are not publicly displaying.

however if people are breaking into your how call 911.
i would make them aware of my presence on the property. the perps that is.
if they continued into my home before police show up i can only assume at that point that they have the intention of killing me.

 

[cesarv]

Posted by Kleanbore: The CA law really doesn't apply, because the OP is in MD.

Sorry. This was also in response to someone who said something about liberal states. I was letting the OP know what the law said about my state.

 

[Cosmoline]

Look up your code.

Read it.

Every state is different.

 

[Grey_Mana]

Every home needs two signs "NO TRESPASSING" and "NO SOLICITING".

If you need to shoot someone to protect your life, your case will be stronger because they were breaking the law by being on your property illegally.

 

[Kleanbore]

Grey_Mana: Every home needs two signs "NO TRESPASSING" and "NO SOLICITING".

If you need to shoot someone to protect your life, your case will be stronger because they were breaking the law by being on your property illegally.

I strongly suggest that you consult with an experienced criminal defense attorney in your jurisdiction.

Generally speaking, if the use of deadly force in a particular circumstance is lawful on your property, it is lawful on the town square, and if it is not lawful on the town square, it is not lawful on your property.

For reasons I cannot understand, the subject of trespass seems to be very widely misunderstood. See the link in post #32.

Hoever, one more time, the OP referred to someone tying to break into his occupied home. That's usually a quite different ball game, but as Cosmoline pointed out, every state is different.

 

[shiftyer1]

Hide at the side of the door and rack the slide of your shotgun(out of sight). Your not brandishing and everyone knows the sound will make them run away!!!

In the circumstances the op stated I really don't think I would even THINK about any of this. If them seeing your gun while breaking in is brandishing then telling them you have it and threatening to use it would be terroristic threats.

My duty is to protect my family and to be honest i'd rather my children are alive and well then raped or worse because I was scared showing my gun was not legal.

 

[ChCx2744]

If an intruder is actively trying to break in, I'm not going to want to be hanging around the area where they break in; I'm grabbing the SG and bunkering down in the corner of my room with 911 on speaker and my front bead sight chest level at the door. If, for some reason, the BG makes entry into my room, the only thing s/he is going to see is a bright muzzle flash...Dunno what they see after that, though, lol.

In all honesty, bunkering down in a safe location, rather than waiting near the entrance seems to be a better idea, tactically IMHO.

 

[david58]

Like the other posters on this thread, I ain't no lawyer. But here in Oregon, there is no such thing (legally) as "brandishing." But if you point a gun at someone, you can go to jail - unless you are doing it in self-defense. In short, the criteria for pointing my gun at someone is the same as shooting - I have to be in fear for my life.

To the OP, I'd apply several grains of salt to the opinions herein - nonlawyers, sometimes testosterone-influenced opinions are easy to come up with - I wouldn't want to base my possible acquisition of three-hots-and-a-cot on internet opinions. I LOVE THR, but my (non-legal) counsel would be talk to someone in your state that knows the lay - a lawyer, not a cop - if you want the definitive opinion.

Frankly, I think that if the BG(s) discover you are home they will depart - if not, it's likely to be the kind of night you've always hoped you wouldn't experience.

 

[Ryder]

Announcing works very good at scaring prowlers away. I believe showing yourself (or a gun) is very dangerous. What makes you think they don't have a gun also?

 

[Grey_Mana]

I strongly suggest that you consult with an experienced criminal defense attorney in your jurisdiction.

Generally speaking, if the use of deadly force in a particular circumstance is lawful on your property, it is lawful on the town square, and if it is not lawful on the town square, it is not lawful on your property.

For reasons I cannot understand, the subject of trespass seems to be very widely misunderstood. See the link in post #32.

Hoever, one more time, the OP referred to someone tying to break into his occupied home. That's usually a quite different ball game, but as Cosmoline pointed out, every state is different.

First, there is no link in your post #32, it is just underlined text.

Second, "§ 6-402. Trespass on posted property.
(a) Prohibited.- A person may not enter or trespass on property that is posted conspicuously against trespass by: (1) signs placed where they reasonably may be seen..." is a misdemeanor. Without posting, the standard is wanton trespass.

In my jurisdiction, a non-law officer cannot claim self-defense while in the commission of a crime, and also cannot seek civil remedies for injuries sustained while in commission of a crime. Thugs who are shot by homeowners always claim innocence and/or self defense; it is quite handy to have their claims statutorily dismissed. I'm not sure what you think I'm thinking - of course it isn't legal to shoot someone just for trespassing.

Regardless of where I am, in my jurisdiction, I would need to mount an affirmative defense that I could not flee in complete safety (case law). Additionally, depending on the judge, I might not be allowed to mention in my defense that the thugs had broken into my home without the no trespass sign (although a no trespass sign is no guarantee). In that case, the jury would only hear that thugs were in my home (and be left to guess whether I had invited them in or whether they had some legitimate reason to be in my home).

So yes, anything one can do to persuade a judge not to screw the homeowner, is worth considering. Homeowners who protect themselves with firearms generally get 5 years more than armed robbers and armed rapists. For context, the local state university just reported that drunk drivers without insurance or license here get less time than drunk drivers with a valid license and insurance.

[Yes, I know I need to move. Working on it.]

 

[Full Metal Jacket]

Whether it is illegal in Michigan, I do not know. It is not permitted where I live.

open carry is indeed legal in michigan. if someone were to open their jacket and exposing a pistol, they would be breaking no laws (assuming they have a CCW permit for it).

if you live in MI and don't have a CCW, you can open carry all day long, as long you're legally able to own that firearm. you can even OC a rifle if you really wanted to (i don't).

there's always 2A picnics in public parks here with guys packing pistols and rifles openly.

 

[Kleanbore]

open carry is indeed legal in michigan.

True fact.

if someone were to open their jacket and exposing a pistol, they would be breaking no laws (assuming they have a CCW permit for it).

Generally speaking, true, but it might well hinge on the intent and circumstance.

 

[Kleanbore]

First, there is no link in your post #32, it is just underlined text.

Post #28. Sorry.

I'm not sure what you think I'm thinking - of course it isn't legal to shoot someone just for trespassing.

The original question was about whether one can lawfully show a gun for the purpose of influencing someone who is breaking into an occupied domicile.

In many places, it would be lawful to do so if someone were attempting to enter an occupied domicile unlawfully and with force. In others, no.

Nor would it be lawful in most places in the event of trespass, as the gentleman in New Hampshire found to his most unpleasant surprise.

 

[reuben mishler]

First, the definition of brandishing is, "to wave or flourish (a weapon) in a triumphant, threatening, or ostentatious way".

Merely showing your firearm, even in public just by holding it, is not brandishing. It must be in a threatening manner. I'm sure that it might be perceived as menacing by civilians and other individuals against firearms.

Showing your firearm to an intruder who has forcibly entered into your house, is not brandishing. You are in a defensive posture, also, it is private property, and you have the right to have a firearm in your house. He's on your terms once he enters that door. If you are pointing it at him while he is outside, this could be argued as brandishing in a court. Meaning...wait till he comes inside. I know this isn't a pleasant thought.

You are not required to speak to the intruder before you shoot them. But there is one warning, know your target! I've read too many stories of people shooting family members in the house. One man, shot his fiancee after she had gotten up in the middle of the night to get a drink of water. Shot her in the middle of the chest...she died. Very sad story. Moving on though, as long as you know it is an intruder, they present a hostile threat, and by law, you are protected to defend your house, as long as they have entered your premises. As far as discharging a firearm within city limits and all that jargon...I'm a firm believer in, "It's better to be judged by 12 then carried by 6. You would never forgive yourself if your kids or wife got hurt.

This also means though, that if they turn to run, you need to resist shooting someone in the back. This won't go over well in court.

Like everyone else is saying though...checking with a lawyer would be good to do.

 

[Kleanbore]

Posted by reuben mishler: First, the definition of brandishing is, "to wave or flourish (a weapon) in a triumphant, threatening, or ostentatious way".

That's one dictionary definition.

Merely showing your firearm, even in public just by holding it, is not brandishing. It must be in a threatening manner. I'm sure that it might be perceived as menacing by civilians and other individuals against firearms.

I think it comes down to a matter of circumstance and intent. In the case of showing it to a panhandler on the street, the crucial question would be "why did you do that?", and what witnesses observed could be very important.

The term "brandishing" does not appear in the law everywhere. Where I live, the offense is to "exhibit...in a dangerous or threatening manner." There was a conviction that was appealed; the state supreme court considered several varying dictionary definitions of the word "exhibit" and upheld the conviction. The victim did not even see the weapon; the defendant had made her aware that he had a firearm by firing it within hearing distance earlier. The crux of the matter was the defendant's intent, and his word on that did not carry the day.

In some other states, there is no analogous law. The crime is assault. Again, it comes down to intent and circumstance. I once saw a blurb on the website of a law firm that said that most people charged with assault had no idea that their alleged actions might constitute assault.

Showing your firearm to an intruder who has forcibly entered into your house, is not brandishing. ... If you are pointing it at him while he is outside, this could be argued as brandishing in a court. .... Moving on though, as long as you know it is an intruder, they present a hostile threat, and by law, you are protected to defend your house, as long as they have entered your premises.

There's really far too much variation among state laws and relevant case law to make such a blanket conclusion.

Cosmoline gave this advice:

Look up your code.

Read it.

Every state is different.

Good advice indeed, but looking up the code may not be sufficient. Most lay people cannot look up or fully comprehend case law, and as it happens, in the OP's home state of Maryland, that's where the answers will likely be found.

That's one thing that attorneys are for.