December 9th, 2012 01:46 PM
Recent pistol incidents.
Greetings! My first post and I am quite new to concealed carry and guns in general.
My question is aren't some of these gun incidents by the CCW's brandishing or assault in the eyes of the law? For example, the bank executive follow the robber out of the bank and holds him at gunpoint - the banker was not in danger when he followed the robber outside. What about the Autozone guy? He was out of danger then went back into the dangerous situation with is gun.
Don't flame me. I agree that the bad guys need someone to take charge like this. My question is, what does the law think? Wouldn't this be brandishing or assault if you were not in danger and then put yourself in these situations?
With everything I have read, when the threat is over, *legally* you no longer have the green light to pull your weapon.
December 9th, 2012 01:56 PM
Your question is much too broad to answer specifically, but the answer lies in state law, wherever it happened.
My general feeling is, though maybe not the smartest action, both men were stopping a "forcible felony" under state law (in FL) and there would be no "brandishing," which is often misused by definition. Someone robbing a business is not a "victim" but an assailant, and deadly force may or may not be called for--depending on state law and the situation at the time.
Clear enough? I doubt it, as there are so many variances in states' laws.
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December 9th, 2012 02:08 PM
Could they be breaking the law?
Would the DA decide to prosecute someone for it?
Maybe yes, maybe no. Depends on how the incident is spun in the news and how it looks when law enforcement arrives.
Would I bet the rest of my life on this and draw when questionable?
Not a chance in ......
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December 9th, 2012 02:09 PM
welcome to the forum
I agree with OldVet. Too many variables between states to have precise answers; for example, many states, including mine, do not have the word "brandish" anywhere in the statutes. Within a state, circumstances differ as well. Pointing a firearm at someone is likely assault, but whether it's a felon pointing the gun or an intended victim pointing the gun makes a big difference. Some DAs want to crucify an armed citizen, some want to buy him lunch.
December 9th, 2012 02:30 PM
Brandishing is one of the most understood terms of the gun culture that there is.
Detaining someone that has committed a felony is not brandishing. It is used in the context of a citizens arrest, and is still legal in most states. I say most, because I do not know how the laws of the 50 states apply here, what it perfectly legal in one state might not be legal in another. Since we have members from all 50 states here, one needs to be aware of that.
Holding someone that has committed a felony at gun point is not "assault", contrary to what many misinformed people would have you believe.
Brandishing a firearm is a reckless act that is meant to intimidate, harass or scare someone. For instance, someone cuts in line in front of you in a supermarket, and you lift your shirt to show your concealed .45 Colt sitting in IWB holster. You did that because you wanted to intimidate the dude that cut in front of you and let him know that you are a bad-ass.You displayed intent and it was used in an unlawful manner.
Showing your gun because you fear for your life to make a threat cease is not brandishing.
Intentionally showing your gun when you did not fear for your life could be depending on where you are located in accordance with state law.
Inadvertently showing your gun, say, your shirt rides up over your carry gun and you are filling up your plate at the buffet line, generally is not brandishing because there was no intent involved. Someone might rat you out, but any cop worth his salt will realize that it was a simple mistake, admonish you to pay more attention to how you carry and go on about his business.
Anytime that the you have an assailant detained and waiting on the police to formally arrest them, is not brandishing. Any one that is detained by citizens arrest, (if legal to do so in your state) is to be considered a threat until the police have control of the situation.
Of course, the responsibility is on you to know the law in your state. What I say might apply, or it might not, so be sure that you understand that any advice you get here(even mine) is mostly opinion and not law.
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December 9th, 2012 03:23 PM
Strange topic for someone's first post.
Laws differ from State to State so you might want to hire an attorney to interpret your local laws for you.
My question is aren't some of these gun incidents by the CCW's brandishing or assault in the eyes of the law?
All of us law abiding citizens here were not involved in the incidents you mentioned so all we can do is speculate about what might have happened based on the limited amount of facts that are shared with the general public. Sometimes we discuss what some of the pros and cons might be if the scenarios were to unfold in a certain way so that we can all try to learn from studying the incident from various angles while applying our individual knowledge and experiences.
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December 9th, 2012 04:08 PM
First off, welcome to the forum.
While I remember the bank incident, I don't remember where it happened, so I won't attempt to comment on their laws. The second incident, the Autozone employee, happened here in Virginia. What the employee did was not brandishing, nor was it an assault. Contrary to comments made posted the article about it, the employee was not breaking the law, or company policy by having the gun in his vehicle. Company policy forbids employees from having guns in the store, not in the parking lot. When he re-entered the store is when he violated company policy and was wired. A cvustomer in the store with a gun is not against company policy.
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December 9th, 2012 05:21 PM
First off IANAL and I don't know enough about the bank incident to offer a really informed opinion but here in Oregon the law states that pointing your firearm at someone is ADW, Assault with a Deadly Weapon unless you have determined that you or those around you are in fear of death or grave bodily harm. The Deadly Force Triangle, Ability/Opportunity/Jeopardy (AOJ) is generally how it's taught: Does your assailant have the Ability to kill or harm you? Does your assailant have the Opportunity to kill or harm you? Are you in Jeopardy of death or harm based on the actions of your assailant(s)? If you're missing any of the 3 then you're putting yourself in danger of being prosecuted for a crime if you discharge or even display your weapon.
In the Autozone case the CHL holder took himself out of danger, retrieved his weapon and then put himself back in to jeopardy to try to protect his coworkers. Hard to say how a DA would see it. I think it could be called either way depending on the DA.
Chasing someone down is almost never a good idea. Someone running away from you can't possibly be construed as a threat unless of course they're chasing after someone else to do them harm in which case it's appropriate to engage them even if that means shooting them in the back. The goal of self defense is just that: defense of yourself or other people, not animals, not property, not your ego. Carrying a firearm doesn't make you a LEO, you're not expected to prevent crime, you're expected to protect yourself and other innocents.
December 9th, 2012 05:34 PM
Welcome to the forum, here is a link that will allow you to research the use of force laws in all states, also a good place to research before traveling.
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December 9th, 2012 05:43 PM
I vaguely remember the bank incident. IIRC, it would have been best to let the perp go and let the cops play cops and robbers with him. In the Autozone case, the employee was legally and per company procedure properly storing his weapon. In VA, he is allowed to come to the aid of another and stand in his shoes. This is what he did under the law. Autozone policy as stated and applied basically says "let your boss die, let other customers get shot, but don't you dare attempt to save lives by bringing a gun into our property." The guy made the right choice and was fired for his efforts.
Now, welcome to the forum. Let's discuss the Autozone incident, or rather coming to the aid of another. In the Autozone incident, the fired employee had full knowledge of the facts of the confrontation. This is incredibly important. In this case, he knew all the facts and could properly step into the shoes of his boss and protect him.
Now, let's say you are walking down the street and you see a woman who appears to be being accosted by a man. The man has a gun and he has it pointed at the woman. He is yelling at her and may even be hitting her. Seeing this, you come to the conclusion that you need to help this poor, helpless woman. You go up to the man, pull your weapon and take a nice aimed head shot. Remember that you did not know what precipitated the event. You may have:
1. Shot her husband who was abusing her - which may or may not result in her accusing you rather than thanking you.
2. Shot a bona fide perp who was trying to rape her - kudos to you and thanks from her and her husband, if she has one.
3. Shot an undercover cop arresting a violent felon - murder 1, life in prison, possibly the death sentence.
I say all this to let you know that you need to be very, very careful in stepping into the shoes of another. In most cases, you will not have all the facts and it is not wise to so do. There can be times, like the Autozone robbery, when you do have all the facts, then you have to make some decisions.
Welcome to the forum, stick around and read. If you are like most of us, you will learn - a lot!!!
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December 10th, 2012 07:51 AM
It's an awkward thing at times. Being prosecuted for rescuing someone would be hard to do. Not likely a DA will have the robber on the stand saying he had to halt the robbery because he was scared of the guy behind the counter brandishing his firearm.
Once, wife and I both drew on two cops dressed for undercover work outside my place of business in a high crime area. THAT was awkward and tense. It was NOT considered brandishing though and LEO's said we handled it right even though they were held at 'not quite' gunpoint while producing their ID.
It will always comes down the the situation as described by 'Hotguns'.
December 10th, 2012 09:34 AM
Regardless of the "maybe's & Maybe not"...One thing is almost certain when you draw your weapon for any reason in the context of self defense; there will be contact with the law.
How it ultimately pans out depends on many variables.
Firing your weapon in a self defense context is a whole new story; your life will never be the same. Even in a justified "clean" self defense shooting, your life will change forever emotionally, not to mention legal & financial problems.
"When those who are governed do too little, those who govern can, and will, do too much." Ronald Reagan
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December 10th, 2012 09:38 AM
IMO, ^^^this^^^ is good advice, no matter what state you live in. The DA in one county may have a different agenda or view than one in the next county. Once the threat to life and limb has ended, so should a response with deadly means. Chasing down a perp to recover property could cost one dearly, in many ways. Of course, to each his own...
Originally Posted by Billb1960
Last edited by sliponby; December 10th, 2012 at 11:04 AM.
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December 10th, 2012 11:33 AM
A long reply but a good reply. As to citizens arrest, I might add that in SC we have an old law on the books that basically says that AT NIGHT, if you presume a felony has been committed, you can affect a citizens arrest and can use any means INCLUDING DEATH to stop the BG from evading your citizens arrest. In simple terms--you commit a felony at night in SC and someone catches you for the purpose of a citizens arrest and you decide to run for it, you can be shot in the back for trying to run away from the citizens arrest. The law is clear and case law is clear.
Originally Posted by HotGuns
December 10th, 2012 11:48 AM
In the end, it comes down to the specific wording of the state's statutes where it occurs.
Originally Posted by johnaengus
IMO, brandishing/menacing is the unjustifiable act of deliberate criminal threatening or intimidation of a person. Which by definition has nothing whatsoever to do with stopping a criminal in a criminal act. Of course, the statutes define the standards to which a person's going to be held, and whether the situation of capturing a fleeing felon or stopping a crime that hasn't yet involved harm to the intended victims is going to be deemed lawful if the would-be victim ends up being the one left standing. In large part, here's why the SYG type laws came about, where an otherwise upstanding citizen is acknowledged to be in a place he has every right to be, to stand up to criminal threats, using whatever force is deemed reasonably necessary to halt the crimes, even if that includes the threatened use of deadly force, or even the actual use of deadly force.
Are some instances of such encounters held to be unlawful? Sure, given the typical "reasonable man" language used in the statutes ... as in, one is legally justified in taking reasonable actions to stop impending violence, etc. Of course, what that ultimately means is that others get to determine the reasonableness of those actions, afterwards (via the GJ's review, for example).
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