Gun brandishing for self defense - Page 4

Gun brandishing for self defense

This is a discussion on Gun brandishing for self defense within the Carry & Defensive Scenarios forums, part of the Defensive Carry Discussions category; Reading through this thread, it appears (IANAL) that either a lot of you live in really screwed-up states... or your understanding of your state's law ...

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Thread: Gun brandishing for self defense

  1. #46
    Distinguished Member Array Madcap_Magician's Avatar
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    Reading through this thread, it appears (IANAL) that either a lot of you live in really screwed-up states... or your understanding of your state's law is in error.

    Please understanding that "brandishing" is a term that does not have legal meaning in every state, and in those where it does, it generally means displaying a gun in a threatening or reckless manner.

    Also, the threat of deadly force and the use of deadly force are not the same thing in ANY jurisdiction. I suggest if anyone has questions about the use of force in their state, that they review the applicable statutes.

    Professor Lott is correct when he states that the vast majority of defensive gun uses only involve the victim stating that he or she is armed, or the perpetrator seeing that the victim is armed.

    I sincerely doubt that there is anywhere in the United States a law that says that display of a weapon is never an appropriate self-defense measure.
    Tally XD likes this.
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  2. #47
    VIP Member Array Eagleks's Avatar
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    Quote Originally Posted by RKM;
    So if you can convince the judge or jury that you had a reasonable belief that they were about to kill or cripple you, then your scaring them was justified, since it prevented a murder or serious injuries. It shouldn't be too hard when you can prove the BG had a weapon.
    Quote Originally Posted by SamRudolph;
    I sincerely doubt that there is anywhere in the United States a law that says that display of a weapon is never an appropriate self-defense measure.
    I invite both of you to read my previous post..... it sure happened in Kansas, because the law said "you can shoot someone in self-defense" .... but never addressed pulling a gun and the threat stopping. This guy was charged with "aggravated assault (with a weapon)" This poor guy went thru a legal nightmare and was sentenced to numerous years in prison, and the State Supreme Court upheld the conviction. It wasn't until the Legislature changed the law and made it retroactive, did it fix the situation. But, that didn't save him being in jail and prison and losing 2 yrs of his life, as well as one huge attorney bill.

    Reading laws in other areas, on castle doctrine and self-defense, it is NOT covered in many cases if you were "justified " in pulling the gun to defend yourself. Some people in the legal system will argue otherwise that you are not covered by the law, and .... that obviously you did not need it if you didn't have to shoot. As in this case, the Judge ruled he could not even present "self-defense" into the case or to the jury in his defense.

    I believe you are trying to use "logic" , as we did here, until we saw what can happen.... and "logic" doesn't matter when it comes to the legal system. That's one of the problems people have, is saying.... well "logically" that means.... need to go purely by what it says, not what someone may think it implies.

    So you might be wondering at this point how such a seemingly backward result occurred. It’s because the Kansas Court of Appeals was upholding a previous ruling by the Kansas Supreme Court on a case called State v. Hendrix where the court took a literal interpretation of the Kansas statute on self-defense. Basically the court said because the statute only allows self-defense claims when a person uses force and makes no mention of using the threat of force, then self-defense is only allowed in Kansas when a person actually uses force on their attacker and nothing less.
    Here is how the KEY section was BEFORE the law was then changed : "

    Someone is justified in using deadly force when he reasonably believes it is necessary to prevent imminent death or great bodily harm to himself or another person.

    A person is justified in using force if he reasonably believes such force is necessary to prevent someone else's unlawful entry into his dwelling or occupied vehicle.

    A person is justified in using deadly force to prevent unlawful entry into any dwelling or occupied vehicle if he reasonably believes deadly force is necessary to prevent imminent death or great bodily harm
    ."

    ADDED as a fix (added) :
    Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor’s purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another or to affect a lawful arrest.
    Last edited by Eagleks; December 11th, 2011 at 02:45 AM.
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  3. #48
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    The last thing I want to do is shoot someone, so if I am threatened to the point that I have to drawn down (and have a chance to do so before physical contact), and they turn and run -- thats the best possible outcome. I would report this to police and try to give them as good of a description as possible, and tell them what happened. I wouldn't be able to forgive myself if I hadn't reported the incident, and 2 hours later this scumbag kills someone across town in a similar incident.

    Lastly, someone breaks into my house while I'm there, I go into preservation mode of myself and my family. Unless that person runs very fast and gets the hell out of dodge, I'm doing everything I can to take him/them out. I will never a take a chance to try and calculate the value of whats being stolen during a home invasion. Look what happened to that family in CT... its not about the TV or the "stuff", its about what else these scumbags might consider doing. In my opinion, showing anything less than immediate and violent/deadly response to their presence is asking for trouble.

  4. #49
    RKM
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    Quote Originally Posted by Eagleks View Post
    I invite both of you to read my previous post..... it sure happened in Kansas, because the law said "you can shoot someone in self-defense" .... but never addressed pulling a gun and the threat stopping. This guy was charged with "aggravated assault (with a weapon)" This poor guy went thru a legal nightmare and was sentenced to numerous years in prison, and the State Supreme Court upheld the conviction. It wasn't until the Legislature changed the law and made it retroactive, did it fix the situation. But, that didn't save him being in jail and prison and losing 2 yrs of his life, as well as one huge attorney bill.

    Reading laws in other areas, on castle doctrine and self-defense, it is NOT covered in many cases if you were "justified " in pulling the gun to defend yourself. Some people in the legal system will argue otherwise that you are not covered by the law, and .... that obviously you did not need it if you didn't have to shoot. As in this case, the Judge ruled he could not even present "self-defense" into the case or to the jury in his defense.

    I believe you are trying to use "logic" , as we did here, until we saw what can happen.... and "logic" doesn't matter when it comes to the legal system. That's one of the problems people have, is saying.... well "logically" that means.... need to go purely by what it says, not what someone may think it implies.



    Here is how the KEY section was BEFORE the law was then changed : "

    Someone is justified in using deadly force when he reasonably believes it is necessary to prevent imminent death or great bodily harm to himself or another person.

    A person is justified in using force if he reasonably believes such force is necessary to prevent someone else's unlawful entry into his dwelling or occupied vehicle.

    A person is justified in using deadly force to prevent unlawful entry into any dwelling or occupied vehicle if he reasonably believes deadly force is necessary to prevent imminent death or great bodily harm
    ."

    ADDED as a fix (added) :
    Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor’s purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another or to affect a lawful arrest.
    I DID read your post. And if you read mine, I agreed that yes it CAN happen. I never disagreed with you. Besides, I don't live in Kansas.

    Quote Originally Posted by RKM View Post
    Of course, there is a story of this going in the wrong direction for somebody. There always will be. ANYthing can happen. Plenty of people have gone to prison for justifiably defending themselves whether they had to shoot, or just scare a BG away. I can't give any statistics to back this up, but I'm willing to bet that the vast majority of self defense shootings or "brandishing's" mostly fall into the victims favor. I can say though, if I'm ever taken to court for defending myself in any manor, I'll be expecting the worst, and hoping for the best.

  5. #50
    Distinguished Member Array kelcarry's Avatar
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    Presumption of imminent danger to a reasonable person is usually the precursor for someone to use their firearm in defense. It, therefore, is the precursor to defining brandishing. If you or witnesses cannot clearly show or confirm that you have done everything you can to avoid a confrontation (retreating, yelling etal) and found yourself in imminent danger, you are brandishing and it is illegal, at least in SC. There are all those instances during that mini-second before you actually discharge your firearm that the BG "gets the point" and the situation changes where that "imminent" has disappeared---that would not be brandishing IMO.

  6. #51
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    Quote Originally Posted by MadMac View Post
    Perhaps you are a LEO. I'm not. I cannot legally detain someone "until the cops get there." I know some states have arcane citizen's arrest laws, but mine does not. I either luck out and he runs away (or in some way stops being a threat), or I have have to shoot. I'm not commanding anyone to do diddly-squat.
    I wonder how often a person that orders a mugger or attacker to get on his knees with his hands behind his back gets prosecuted?

    I actually have been compiling a list of questions to ask during the legal review portion of my CPL renewal. I think I will add this one to my list. I realize that just because the DA that teaches the legal portion of the class says he wouldn't charge a person for this, it doesn't mean that another DA would let it go.

    I really don't see it happening. I suppose though that you could tell the perp to get on his knees, then you could flee the scene and hope he doesn't call the police on you, get your license plate number.
    That would be a funny call to 911 though.

    "Hello, 911, I was trying to rob this guy and he pulled a gun, told me to get down on the ground and made me stay there until he left! How am I suppose to make a living lying down in the parking lot of walmart, while all these soft targets are walking by?"

  7. #52
    Ex Member Array MadMac's Avatar
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    Quote Originally Posted by TedBeau View Post
    I wonder how often a person that orders a mugger or attacker to get on his knees with his hands behind his back gets prosecuted?
    Probably about as often as a mugger or attacker who decides to drop to his knees and put his hands behind his back and surrended to Joe Blow.

    P.S. You don't want anyone like that to face you with his hands behind his back. You always need to see the hands.
    Last edited by MadMac; December 12th, 2011 at 10:42 AM.

  8. #53
    VIP Member Array TedBeau's Avatar
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    Quote Originally Posted by mlr1m View Post
    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
    Yeah Michael, but no where does it say that just drawing your firearm in not legal, that you HAVE to use force, just that the use of force would be justified, just as just showing your firearm MAY be legal if justified.

  9. #54
    VIP Member Array TedBeau's Avatar
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    Quote Originally Posted by Eagleks View Post
    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.
    Thanks for the better explination Eagleks. All I cna say is, I hope you get some better judges on you benches, and you state supreme court. I can't believe the original judge would not allow self-defense to be brought up.
    Was the CCW holder a known drug dealer or something that prompted such a harsh ruling?

  10. #55
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    While taking my CWP class one of the instructor a retired LEO came up with a scenario that made me think and how you only have seconds to decide what to do... His scenario was would you shot him in the back.... if in your home a BG approaches you and has a large knife you draw your weapon on him and he runs to get away from you ... But here is the part that makes you think ... The only way he can retreat to exit the house is by going by your young Childs room and the door is open to the child room do you shot him in the back or hope he runs out of the house .... Me he done before he get by the door....
    Son remeber this and you will go far ........

    "The gunfight is in the head, not in the hands."
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  11. #56
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    I can't believe the debate on this matter. Being able to articulate the situation is key. Folks in LE aren't stupid. We have experience in the changing dynamics of confrontations. It happens all the time. If an officer shot everyone that they put a bead on in a carrear, then the body count would stack higher than all the BS in this thread.

    Situations can change. People, of good moral character and sound judgement can and do compensate for this. If an attacker ceases his actions or advance after a weapon is brought against him, and the intended victim recognizes this, then a choice is available dependent on the good will of the intended victim.

    After such an incident, it is very doubtful any commonly known street thug that you are likely to encounter will one to stick around or plan a counter attack/ ambush. Anyone who thinks different has an over active imagination or doesn't understand the common thug mindset.

    It is a simple matter of immediatly calling the police and reporting the incident. Common sense measure here.

    I also believe attempting to hold a perp until police arrive if you are not an LE is stupid. Why would you want to do this? Tell them to beat it before they get an ass full of lead. Avoid any further conversation or potential physical contact, and make visual notes for a description.

    Then go about your life and don't make things so damn complicated.
    Ignorance is a long way from stupid, but left unchecked, can get there real fast.

  12. #57
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    Statistics can be made to lie, facts can’t.

    John Adams once said “Facts are stubborn things and
    whatever ours wishes, our inclinations or the dictates
    of our passion, they cannot alter the state of facts
    and evidence".

    What I have seen John R. Lott, Jr. uses statistics to report facts.

    Presence of guns reduce crime, fact.

  13. #58
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    I keep remembering the words of Paco "The Rat" in The Good, The Bad and The Ugly , "If you're gonna shoot, SHOOT, don't talk!" I have no intention of threatening or of playing lawman. I think when it is time to do it, the BG should feel the burn of being hit and hear the shots before he sees the gun. Pulling a gun to threaten is really trusting that an assailent isn't going to continue with dangerous actions. SD is totally different from the SOP for a LEO to stop a crime or arrest somebody. I am not a wannabe cop, I am just a guy trying to stay alive. No brandishing, just draw and fire. Surprise, surprise, surprise !
    Retired Marine, Retired School Teacher, Independent voter, Goldwater Conservative.

  14. #59
    VIP Member Array Eagleks's Avatar
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    Quote Originally Posted by TedBeau View Post
    Thanks for the better explination Eagleks. All I cna say is, I hope you get some better judges on you benches, and you state supreme court. I can't believe the original judge would not allow self-defense to be brought up.
    Was the CCW holder a known drug dealer or something that prompted such a harsh ruling?
    None, nothing !!

    They charged him with "aggravated assault with a weapon" , because he pulled the gun and said something along the line of "stop or I'll shoot". That was considered a threat with the weapon, even though he was being attacked with a knife. We would assume it's a warning, but they (LEO"s) didn't... it was a "threat" in their eyes. They NEVER questioned that he would have been justified in shooting the guy.

    All goes to how things can be perceived from different points of view, and how someone my want to view it. The AG interpretation of the revision of the law made after that is (now), that if a gun is pulled in self-defense and the threat ceases..... it is not "illegal".

    Quote Originally Posted by TedBeau;
    Yeah Michael, but no where does it say that just drawing your firearm in not legal, that you HAVE to use force, just that the use of force would be justified, just as just showing your firearm MAY be legal if justified.
    Yes it does, "aggravated assault with a weapon" laws.... and "brandishing" laws . Aggravated assault , displaying a weapon and making a threat with it. Brandishing ; displaying a gun in a menacing manner. They determined saying " stop or I"ll shoot" was a threat, even though the other guy was attacking him with a knife. The self-defense laws did not say in them anywhere, that it was ok to do anything other than use force to stop the attack or the threat on one's life or that of another. Period.

    If you "read into" the law, or what you think is "implied" , or is "common sense", you are destined to be a test case. The Judge's decision was simple.... if the Legislature thought it was OK, they ... being intelligent men and women, would have included it in the law when they wrote it and they hadn't.
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  15. #60
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    Back on the topic and away from this brandishing in self defense is (or at least was) a crime in some states...

    Here's a recent case in which brandishing had the desired outcome... and I hope the lady isn't charged with "threatening".

    Merrimack,NH story
    Rats!
    It could be worse!
    I suppose

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