Gun brandishing for self defense

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Originally Posted by OldVet

78% of people make up 83% of their statistics 98% of the time.

If you draw your firearm to protect yourself, it's not brandishing--it's self-defense. No law requires your firearm to be fired to be used in defense.

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Actually until very recently that was the law in Kansas.
http://volokh.com/2010/02/12/if-you-...best-shoot-it/

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Defending Yourself Against Attack by Threatening Force Is a Crime in Kansas


That’s what the Kansas Supreme Court just held, interpreting Kansas Stats. § 21–3211. The statute reads,
(a) A person is justified in the use of force against another when and to the extent it appears to such person and such person reasonably believes that such force is necessary to defend such person or a third person against such other’s imminent use of unlawful force.


(b) A person is justified in the use of deadly force under circumstances described in subsection (a) if such person reasonably believes deadly force is necessary to prevent imminent death or great bodily harm to such person or a third person.

(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person or a third person.

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And the court concluded that while this allows self-defense that involves an actual attack on the attacker — for instance, hitting, shooting, or stabbing the attacker — it does not allow self-defense that merely involves a threat of violence against the attacker.

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Michael

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Originally Posted by Harryball

You must also remember that if you do draw down on someone and they turn tail and run, that you cannot shoot them in the back...

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Some states like Texas allow the shooting of someone in the back in certain situations. A fleeing felon or thief at night is two examples
TX pc 9.31, 32, 33, and 41.
Texas Penal Code - Section 9.31. Self-Defense - Texas Attorney Resources - Texas Laws

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Originally Posted by ksholder

Well, MadMac, feel free to shoot the guy after he has thrown his hands up. In my worldview, if the perp just throws his hands up and gives up, I can't shoot him. We can either stand there and look at each other or I put him in a position that disadvantages him so he can't attack me easily or quickly. Proning him out with his feet toward me and nose on the rug while I hold him at gun point, while not ideal, sure beats the heck out of us looking at each other while he is standing. I am not sure I would call this a citizen's arrest so much as continuing to defend myself as if I quit paying attention to the perp, I may well be back in an at risk situation.

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I certainly didn't say I would shoot a man who has "surrendered". I hold your same worldview in that regard. However, I have no legal ability to detain anyone else - especially by force. Read that as: at gunpoint. I am not going to hang around to stare at him. If the guy wants to lay there with his nose on the concrete and wait for the cops, I'm OK with that. If he is laying there at my command, and doing what I tell him under the threat of death (my gun pointed at him), the situation has evolved from self defense to enforced detainment.

If I detain someone against their will (with a gun pointed at them), I am "arresting" them. (Please note, IANAL). I am also pretty certain a jury would see it that way. I will put distance between me and the (former) attacker and retreat to safety. What he does after that is up to him. If he runs/walks/ambles away, then I left him, and give my statement to the cops. If he returns to engage me, then we go for Round 2. YMMV.

That said, I find this a VERY unlikely scenario. I would bet the far greater number of failed attackers would simply seek to run away.

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Originally Posted by barstoolguru

Some states like Texas allow the shooting of someone in the back in certain situations. A fleeing felon or thief at night is two examples
TX pc 9.31, 32, 33, and 41.
Texas Penal Code - Section 9.31. Self-Defense - Texas Attorney Resources - Texas Laws

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I realize some states allow it. However it shouldnt be common practice. If the perp gives up or runs away, the threat is over......and a lot less paper work....

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Originally Posted by Harryball

I realize some states allow it. However it shouldnt be common practice. If the perp gives up or runs away, the threat is over......and a lot less paper work....

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this is agreed but if the thief is taking stuff had just committed a felony there may be no chance of recovery or catching the BG. Texas law is structured to protect the rural areas of Texas were the law is hours away and trust me that can be right here is the suburbs. No one wants to be a vigilante but if every time we have to second guess a decision because of paperwork; it’s time to leave the gun in the vault.

edit :How do you know he will not come back with a weapon of his own or is just circling the building and getting a better shot at you?

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Originally Posted by barstoolguru

this is agreed but if the thief is taking stuff had just committed a felony there may be no chance of recovery or catching the BG. Texas law is structured to protect the rural areas of Texas were the law is hours away and trust me that can be right here is the suburbs. No one wants to be a vigilante but if every time we have to second guess a decision because of paperwork; it’s time to leave the gun in the vault.

edit :How do you know he will not come back with a weapon of his own or is just circling the building and getting a better shot at you?

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Bottom line: you don't. Use the time to retreat to a safe or tactically defensive position. Better yet, leave the area while notifying the authorities.

The current legal standard in ALMOST every state is a reasonable expectation of death, grave bodily harm and/or sexual assault. That's the reason this website is called DEFENSIVE Carry. Sadly, we don't have the legal luxury of doing anything preemptive with our firearms. Detaining someone because of what he *might* do is simply not a legally defensible option for non-LEOs.

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Originally Posted by mlr1m

Actually until very recently that was the law in Kansas.
The Volokh Conspiracy » If You Brandish a Gun in Self-Defense in Kansas, You’d Best Shoot It



Michael

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So, in KS, if you are justified in pulling it you have to shoot it? I wonder how they will deal with the first case where the CCW pulls and shoots immediately, but the perp turns to run and is shot in the back. Sounds FUBAR to me.

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Originally Posted by MadMac

I certainly didn't say I would shoot a man who has "surrendered". I hold your same worldview in that regard. However, I have no legal ability to detain anyone else - especially by force. Read that as: at gunpoint. I am not going to hang around to stare at him. If the guy wants to lay there with his nose on the concrete and wait for the cops, I'm OK with that. If he is laying there at my command, and doing what I tell him under the threat of death (my gun pointed at him), the situation has evolved from self defense to enforced detainment.

If I detain someone against their will (with a gun pointed at them), I am "arresting" them. (Please note, IANAL). I am also pretty certain a jury would see it that way. I will put distance between me and the (former) attacker and retreat to safety. What he does after that is up to him. If he runs/walks/ambles away, then I left him, and give my statement to the cops. If he returns to engage me, then we go for Round 2. YMMV.

That said, I find this a VERY unlikely scenario. I would bet the far greater number of failed attackers would simply seek to run away.

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I hear what you are saying and this is not an argument but a question on tactics. Let's assume we can't retreat (you are at home) and we have found the weird perp who just gives up and throws his hands up after you have drawn down on him. We agree we can't shoot. In NC, you can't detain, but if the guy is just standing there because you drew down on him, what do you do now? Reholster? Keep standing there looking at each other? Something else. If you stand there looking at each other, how do you ensure that the criminal does not decide to take his chances going at you even if H2H? I am just curious.

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Originally Posted by barstoolguru

this is agreed but if the thief is taking stuff had just committed a felony there may be no chance of recovery or catching the BG. Texas law is structured to protect the rural areas of Texas were the law is hours away and trust me that can be right here is the suburbs. No one wants to be a vigilante but if every time we have to second guess a decision because of paperwork; it’s time to leave the gun in the vault.

edit :How do you know he will not come back with a weapon of his own or is just circling the building and getting a better shot at you?

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I understand what you are saying, however shooting someone in the back because they are taking my PS3 is not right.. I can not justify that. Full front on attack is a different story..If you want to deal with the courts on it you can, but in my state, I would be prosecuted to the end of the law..

Now, if he does a belly flop, I will hold him for the police...

VCR - $50; Legal fees - $Thousands. My property or not, I might just have to give up the VCR if it came down to shoot or no shoot.

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Originally Posted by ksholder

I hear what you are saying and this is not an argument but a question on tactics. Let's assume we can't retreat (you are at home) and we have found the weird perp who just gives up and throws his hands up after you have drawn down on him. We agree we can't shoot. In NC, you can't detain, but if the guy is just standing there because you drew down on him, what do you do now? Reholster? Keep standing there looking at each other? Something else. If you stand there looking at each other, how do you ensure that the criminal does not decide to take his chances going at you even if H2H? I am just curious.

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Keep torturing and twisting this lame scenario all you'd like, but I'm done playing, my friend.

If I have to draw down on someone in my own home, it's near 100% I'll be pulling the trigger repeatedly.

As I said, if I'm at some place like a gas staion or a Stab-and-Grab convenience store, I will retreat to safety after the person "surrenders". In my home, he loses as long as he's not literally running out the door. If I am face-to-face with a guy who has forced his way into my home, I now have the castle doctrine to legally defend my use of deadly force.

I am not a LEO, nor do I want to be one. I have no legal right to detain anyone by threat of deadly force. Period. Within my home, the laws allows me to drop the intruder. If he has a leg out the door and his back to me, I let him go.

As others have stated, no TV, VCR, guitar, silverware, car, motorcycle, or any other material possession is worth the risk to my freedom and safety.

If I draw and the BG runs away, Thank god! That's the way I prefer it to be.

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Originally Posted by MadMac

The current legal standard in ALMOST every state is a reasonable expectation of death, grave bodily harm and/or sexual assault. That's the reason this website is called DEFENSIVE Carry. Sadly, we don't have the legal luxury of doing anything preemptive with our firearms. Detaining someone because of what he *might* do is simply not a legally defensible option for non-LEOs.

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You are taking what I said in parts and not the whole. So go back and read what I wrote. We in the state of Texas have a right to use deadly force in a lot of situations other states do not allow so everyone needs to understand what their own state allows.

Just to keep this on topic the subject is brandishing, let’s face it if and when you have to brandish a firearm there would be all kinds of paperwork. What if the other party calls the cops and says YOU pulled the gun and threatened them. You better have a bus load of nuns there by your side because it is going to be hard to prove otherwise unless there is some form of physical damage.

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Originally Posted by barstoolguru

You are taking what I said in parts and not the whole. So go back and read what I wrote. We in the state of Texas have a right to use deadly force in a lot of situations other states do not allow so everyone needs to understand what their own state allows.

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Feel free to go back and read what I wrote. Most posters don't live in Texas. We all know you have different laws there. I used to live there.

Just to pass this on for everyone to consider ....
Most gun laws , such as Castle Doctrines, say ... "you can SHOOT someone if your life is in immediate danger... blah blah blah". However, what occurs when you pull your gun, and because of that fact..... the threat ceases ?

In Kansas, a man with a knife threatened to kill and was trying to attack a man with CC, and he pulled his gun, at which point the man with the knife ceased his attack and left in a hurry. The CC holder was arrested for "making a threat with a weapon" and "brandishing". Both are crimes. The JUDGE ruled, this is NOT covered by the law which says "you can shoot" , but it does not protect someone from "showing or brandishing" their weapon. He also ruled..... he COULD NOT use self-defense in his defense or even bring it up in front of the jury.

He was found guilty and sentenced to several years in prison.

It was "appealed", and the Supreme Court ruled.... the Judge had ruled the case properly and upheld the conviction.

The Legislature, in their wisdom (which I applaud them) , quickly passed an amendment to the law.... stating that if "by displaying a gun the threat ceases.... this is NOT a crime " , and ..... "this act would be retroactive to ANYONE ever charged or found guilty of such ". So, they included anyone previously to the law becoming effective, who had been convicted, the crime be erased and them to be set free. And, he was.

Be sure not to make "assumptions" about laws and what they DON'T say, and what they DO say. If the Castle Doctrine in your state says ... "You can shoot to protect yourself" , it may be thats literaly ALL IT MEANS. Common sense, has nothing to do with the law.