"Brandishing" from inside a vehicle

This is a discussion on "Brandishing" from inside a vehicle within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; It was suggested that I post this as a standalone topic for responses. Thanks for that, better not to detract from the other thread: I ...

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Thread: "Brandishing" from inside a vehicle

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    VIP Member Array 9MMare's Avatar
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    "Brandishing" from inside a vehicle

    It was suggested that I post this as a standalone topic for responses. Thanks for that, better not to detract from the other thread:

    I realize that 'brandishing' and related legal terms have different meanings in different states, but in the situation of being seated in a vehicle....would it necessarily be considered that? Because you could make the case that you needed to have the weapon ready to use if needed. You had a threat, maybe not lethal yet, and need to have the weapon ready to employ if necessary.

    Most men are practically sitting on theirs and mine is in a purse on the seat next to me. "Hiding" it after getting it out seems stupidly anti-productive. (And there would be limited places to hide it where it was still quickly accessible).

    I know many of you practice drawing in such situations, but I'm thinking more about the ridiculousness of having to hide your weapon in a situation where you might need it. Wonder if most jurisdictions and juries would see it that way?

    Note: hiding it because you didnt want to escalate a situation is different, that's not really what I'm referring to here. I'm more discussing 'brandishing' and similar where there is usually an intent to intimidate attached to the meaning.
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    In Florida, you don't have to have a CCW permit to have a loaded firearm in the car...it needs to be in a holster and in the glove box or console...that'll work for ya'.
    If you have a CCW permit, then it must not be seen from outside of the vehicle. It can be on your person...on the seat next to you with your hat over it, between the console and seat with a cloth over it, etc.
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    VIP Member Array Old School's Avatar
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    My wife has a Coronado Leather purse with a built in holster that is accessed from the side.

    She has her Florida CCW but that purse would surffice as a gun case/bag if it was kept in the car.

    She has on several occasions placed the purse on her lap and had her hand on her S&W 638 while it was still in the purse.

    The gun is very quick to access from that posistion.

    http://coronadoleather.com/i-6630792-american-hobo.html

    The zipper access on the side of the purse is where the holster is located.


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    VIP Member Array 9MMare's Avatar
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    Just to clarify, I mean if there is some type of confrontation, like a verbally abusive person outside your car window. (But not someone with a gun because it's pretty black and white there that you have the legal right to draw). But just about anything in-between.
    Fortune favors the bold.

    Freedom doesn't mean safe, it means free.

    The thing about "defense" is that it has practically nothing to do with guns. (As passed on by CCW9MM)

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    VIP Member Array Old School's Avatar
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    Quote Originally Posted by 9MMare View Post
    Just to clarify, I mean if there is some type of confrontation, like a verbally abusive person outside your car window. (But not someone with a gun because it's pretty black and white there that you have the legal right to draw). But just about anything in-between.
    That's why I suggested this type of purse.

    Immediate access to your firearm but not visible.

    OS
    "Violence is seldom the answer, but when it is the answer it is the only answer".

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    Distinguished Member Array Fitch's Avatar
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    I like the topic. It seems to me like there is a difference between brandishing and showing an assailant your weapon as a step to end the situation if possible has merit some times, but not all the time. I also think that there are very few hard and fast rules when one is being attacked. The one of interest here is should you show them your gun in an attempt to de-escalate the situation as long as doing that doesn't take away your chance to actually fire if you have to. In otherwords, you have the time to do it with out it reducing your chances to avoid death or grevious injury, should you?

    IMO it depends on the situation. With respect to being attacked in my vehicle there are several possibilities. The big difference between being outside the car and inside the car is that from inside with the windows up I may have more time between the recognition of the threat (the guy is banging on the wondow trying to break it, goes to his vehicle and comes back with a tire iron, or something like that) and when he can lay hands on me. The challenge is to use that time to somehow de-escelate or end the conflict with out sacrificing any of the protection from being in the vehicle with the window rolled up.

    One way would be to drive away if that is possible. In the other thread, it wasn't. And for now, lets assume one can't drive away for some reason or other because if one can drive away there are too many variables to discuss what comes next. So if you can leave with out injury, do it.

    So to set the scenario for my first discussion, we are blocked in by the attacker, he's exited his vehicle and is banging on ours, the window is up, and the attacker is violently trying to get at us. We have some options to de-escalate or end the confrontation, my goal would be to figure out what they are (I'm hoping people will add more options):
    1. We can get out our cellphone and let the attacker see we are taking a picture, then get on the cell phone calling 911, and clearly making the 911 call would be a good idea if we have reception. Put it on speaker so the 911 operator can hear the attacker. There is at least some chance the fact that we are doing that will cause the attacker to come to his senses and leave. If they leave I'd take a picture of the vehicle if I could do so with out hanging up on the 911 operator, and ask where to send the picture(s).
    2. However, if the cell phone doesn't work, or the guy is going back to his car and reaching for something, we are about out of options. At that point drawing the weapon and letting it be seen is about the only non-lethal option available to the vehicle occupant for adjusting attackers expectations before he breaks the window or gets out a gun of his own. To say don't draw the weapon with out firing gives up a perfectly good option for ending the incident with out property damage or bloodshed and pretty much guarentees you will be in court (he didn't actually harm you, hadn't even broken the window, and you shot him dead you blood thirsty villan you?). You may win, but it won't be cheap. Why not take a perfectly good option? Being tried for murder is not better than being tried for brandishing. I can see making a good argument that showing the gun was using the least effective level of force to end the situation. If it works fine, ...
    3. If he sees the gun and continues the attack, he's pretty much made your case for you. Point the gun in his face, if he breaks the window or even cracks it, or raises a tool that might break it and cause you grevious injury or death, or to fear them, then shoot to prevent death or grevious injury.
    Ok, now, change the scenario just a little. This time we are still blocked in, but the attacker exits his vehicle with a baseball bat or tire iron and heads in our direction. Now what?

    This happened to a male student trying to find his way in a strange town at or just before the beginning of the school year. As I recall, the student had been driving slower than traffic, the guy following him was getting agitated. The student pulled into a parking lot to study his map, the agitated guy pulls in after him, gestures, jumps out with a baseball bat and heads in the student's direction. The student pulls a Glock out of his glove compartment, shows it to the assailant who immediately stops, lowers his bat, returns to his car, and quickly drives away. Student immediately calls 911 to report the incident. The student had no legal issues as a result of his conduct that I read about. The event was on this site in "In The News:" two or three years ago. Seems like as good an ending as was possible under the circumstances.

    So, should the student have shot him instead of just pulling the Glock and showing it to him? There are those on here who say they would have because they never would draw with out firing. Should the student have waited till the guy whacked him or his car with the ball bat and then shot him? I think the student did just fine.

    OK, I've run dry for the moment. I haven't attached any indispensible ego to any of this, so have at it.

    Fitch
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    VIP Member Array Guantes's Avatar
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    I don't believe there is a single answer to answer your question, as there are so many variables involved.

    First, it depends on how the "brandishing" statute is written. Some include an exemption for self defense, others do not.

    Second, it depends on if the statute includes anything on the intent to intimidate or create fear. If the statute merely has wording such as "rude or threatening manner" there is no requirement of intent, merely the exhibition.

    Third, statements, such as in the thread referenced could change an non brandishing incident into one of brandishing by the threat stated or implied in the statement.

    Fourth, the DA's interpretation of the actions in the incident, relative to the statute involved.

    Those are just some examples.
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    Brandishing, generally illegal, can mean displaying a gun in a careless, menacing, or threatening manner. The defensive display of a firearm, legal in some states, may be excused as non lethal force in self defense, but not always. It can be viewed by a jury as assault. IMO the use or threat of deadly force is a last resort when necessary to prevent or stop great bodily harm or death. To me, the word "necessary" implies retreat and less than lethal action when possible and safe. With available verbal and non verbal tools for disengagement, I have to strain to visualize a situation where an opponent could see my gun, before it is fired.
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    There was a video of a LEO that was shot by an "old feller" near the on-ramp (IIRC) to a major hiway. The LEO had pulled him over, the old feller went to the insode of his vehicle and pulled out a long gun... started shooting the LEO. LEO was out of his vehicle, on the radio... LEO didn't make it.

    So, my question is, what's he going back to his vehicle for? Is it to get in? Is it to reach in and get a weapon?

    But the above is sorta related, but happens somewhere later in the continuum of the OPs scenario.

    So let me try to answer the OP's question.

    Guy comes to my door, screaming and banging on the side window (slapping rather than punching. Punching indicates to me a REAL DESIRE to get at me because punching tempered glass is painful), I'm not going to show my weapon, yet. Taking his picture is a novel idea, but might be considered "escalating" I'm not sure... so I probably wouldn't.. but I would get on the phone to 911. speaker phone.

    If I can't drive around him...because we're bumper to bumper, as in the other post, I'l wait a beat... If I can't back up a bit and get out of there right away, in my experience, the average joe behind me doesn't want to get involved... he'll go around if he has room 'cause he's got somewhere else to be. So, as soon as that happens, I'll back up and book.

    If, on backing, I see the guy has no back plate... then either he's just purchased this vehicle and has a paper plate (in my state) or some other cause for not having a plate... maybe he likes to go around giving grief to fellow travellers (who knows). But, that means that whatever damage he's done to my car, I ain't gonna collect on except through my own full coverage anyway. So, I'm outta there if at all possible.

    In the mean time, I've called 911, I'm giving a description of his vehicle and the guy... and I'm driving away...

    Now, let's go to the next step.

    Guy screaming, banging on my car. I'm trapped and average joe isn't behind me, the one behind me thinks this'll make a great you tube video... and he's close enough I can't get out... I'm on 911 as before... guy is really angry, and starts punching on my car, and kicking it... and then, since he can't get to the back end of his escalade with it on my bumper... he goes to his back door and leans in.... I'm drawing my weapon, and waiting... if there's time before he comes back, I've probably stuck it between my seats (60/40 split) with the grip well up and accessible.

    If the you tube idiot behind me sees the guy come out with a tire iron.. or a baseball bat... he ain't movin' ("this is gonna be suhweeeet").

    If BG comes out with a gun... you tube idiot might decide he's seen enough... and burn rubber... Now, I'm in a gunfight. Don't know how that's gonna end, But BG's gonna feel my pain, too.

    If it's a baseball bat, pipe wrench, tire iron; well, I always heard that rock beats scissors... and my gun is the rock to his scissors. But he ain't gonna see it until he's on the back swing. If that doesn't cause a check swing.... then well... Here I am, still buckled in, and he's swinging for my melon... that, in my mind, is disparity of force. I have no means of retreat, I have no other option... I'm gonna suffer permanent hearing loss.
    It could be worse.
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    This is the best I can get, concerning brandishing, in Georgia. No, I am not a lawyer, and I almost never stay at a Holiday Inn.

    From: Georgia Gun Laws in Plain English on GeorgiaPacking.org

    "Georgia Gun Laws In Plain English"

    Deadly Force

    There are 3 code sections that govern when lethal or deadly force may lawfully be used.

    Defense from a forcible felony; A person is justified in using threats or force to the degree they reasonably believe it is necessary to stop another person's imminent use of unlawful force. A person is justified in using deadly force which may harm or kill 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 (unless it is regarding defense of habitation, which has it's own requirements below). You are not justified if you were the aggressor or you are/were/on-the-way-to committing a felony. (The state has pre-empted local cities and counties from further restricting this defense.)(16-3-21)

    Defense of habitation; (here habitation means dwelling, motor vehicle, or place of business) A person is justified in the use of force which is intended or likely to cause death or great bodily harm only if:

    A person is breaking\has broken into your home in a violent and tumultuous manner, and you think that the intruder is going to assault you or someone else living there.
    A person who is not a member of the family or household and who unlawfully and forcibly enters the residence and you know it is an unlawful entry.
    The person using such force reasonably believes that the entry is made or attempted for the purpose of committing a felony therein and that such force is necessary to prevent the commission of the felony.

    (16-3-23)

    Defense of property other than habitation; Lethal force cannot be used to protect real property unless the person using such force reasonably believes that it is necessary to prevent the commission of a forcible felony.(16-3-24)

    (Stand Your Ground/Shoot First/License To Murder - went into effect July 1st, 2006) If you have determined you need to use lethal force (as stated in one of the underlined "Defense" sections immediately above) you do not have to try to retreat before using that force. If your defense is valid, you are immune from criminal prosecution (unless it is illegal to carry that weapon where you used it) and civil liability actions.(16-3-23.1, 16-3-24.2, 51-11-9)
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    Quote Originally Posted by 9MMare View Post
    It was suggested that I post this as a standalone topic for responses. Thanks for that, better not to detract from the other thread:

    I realize that 'brandishing' and related legal terms have different meanings in different states, but in the situation of being seated in a vehicle....would it necessarily be considered that? Because you could make the case that you needed to have the weapon ready to use if needed. You had a threat, maybe not lethal yet, and need to have the weapon ready to employ if necessary.

    Most men are practically sitting on theirs and mine is in a purse on the seat next to me. "Hiding" it after getting it out seems stupidly anti-productive. (And there would be limited places to hide it where it was still quickly accessible).

    I know many of you practice drawing in such situations, but I'm thinking more about the ridiculousness of having to hide your weapon in a situation where you might need it. Wonder if most jurisdictions and juries would see it that way?

    Note: hiding it because you didnt want to escalate a situation is different, that's not really what I'm referring to here. I'm more discussing 'brandishing' and similar where there is usually an intent to intimidate attached to the meaning.
    Lots of assumptions and add on perceptions to the ops question have been put forward.

    Brandishing, the legal definition of, what constitutes, and what the penalaties are vary from state to state. It is best to consult an experienced lawyer familiar with the WA state laws.

    In the situation described, and clarified in the followup post, does not meet the requirement for lethal self-defense. The perp is outside the vehicle and abusive. They have not shown a weapon or broken into the vehicle assaulting you or attempting to pull you out of the vehicle. Are they aggressive, you bet. Should the perp be considered a threat, definitely. Does the perp constitute a lethal threat? No, not based on what the op posted. The prudent thing to do is drive away quickly. Place your hand on your weapon if you are unable to drive away or otherwise trapped in the vehicle. Showing the weapon to the perp, even if you don't point it at them would be considered brandishing in many states.

    I also agree with the comments about a concealment purse. They allow you to appear to be getting a cell phone to call the police, while in reality your hand can be on your weapon without anyone seeing the weapon.

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    Wouldn't it be interesting to see how a road rager would react by holding up to the window an 8 X 10 photo of your gun?
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    Fighting in and around vehicles. That is what this all boils down to.

    If I can drive away - I drive away.

    If I cannot drive away - I get the heck OUT of my vehicle. A vehicle is a bullet magnet, and will NOT protect you from fire. I'm going to assume the aggressor is armed, whether I see a gun or not. Get out. Move to cover. Deal with the situation as appropriate - but do NOT get trapped inside the vehicle if it is immobile. Don't waste time deciding whether to draw, or "brandish," or whatever. GET OUT.

    If I cannot drive away, and I cannot get out in time - I have a Level III ballistic insert in my briefcase, which is usually on the seat next to me. I can throw that against the side window, and use it for cover - it will stop all common handgun rounds. I can then either return fire, or attempt to escape, or whatever.

    That's my take on this.
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    Good post!

    I'm with Guantes. I don't think there is any good single answer. Too many variables and too many definitions by state as to what it means to be brandishing.

    We all know the general dictionary definition:
    1. To wave or flourish (a weapon, for example) menacingly.
    2. To display ostentatiously.

    But how individual states tend to incorporate that into their weapons laws tends to be vague in some states and very narrow and specific in other states.

    Basically, I'm gonna do what I'm gonna do and rely on the fact that along with my attorney, I feel I can articulate my reasons for doing what I did in a way to satisfy most authorities. I'll have to deal with any negative consequences as they develop with the help of my attorney.
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    I think I know what you are getting at 9MMMare.

    I AM NOT A LAWYER - know your state laws on the matter and consult with an attorney before using the following as a defensive method!

    IMO, display of firearm would be acceptable at that point where a reasonable person believes that JAM is about to be met. IMO females have a fair chunk more leeway in these matters.

    Are you in Jeapordy?
    Does the aggressor have the Ability?
    Does the aggressor have the Means?

    Have you exhausted any and all available methods of defusing or avoiding/escaping the situation? [Lets not get into the whole "Duty to retreat" hoopla. Regardless if you don't have to, it's still best that you try to some extent. It's better than dropping the hammer on an idiot.]

    I am not going to fill a page with different types of possibilities surrounding you sitting in your vehicle and the aggressor approaching or standing outside your door. I'll just state that, yes to any two of the three and the third is very, very near to being met, then yes, display of your firearm in a manner other than taking aim at the aggressors COM would be acceptable. Know that this must be immediately followed with a call to 911 if you have not already done so.

    Presuming you have done this, the situation is absolutely not over until the aggressor leaves entirely, or the LEOs arrive. You may very well end up in a standoff with said idiot still standing outside your door, JAM still not met 100% and the aggressor daring you to shoot them. The aggressor may return to their vehicle and produce their own weapon if they don't all ready have it on them. Very shaky ground indeed.
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