I don't believe so. If you are in your home and I would think a rented room would fall under the same, could not imagine it would be brandishing.


Z

 

If you draw your pistol with the intent to save your life, it is not brandishing.

Why would you consider it brandishing?

 

The first scenario I'll accept... but in the second, if he's inside his hotel room and there's a guy with a baseball bat outside, well, he's still outside. Toe inside the door or breaks the glass and it's a different story. But he wasn't in fear for his life (or it didn't sound like it as I was reading it): he was just letting the guy know he wasn't to be trifled with. I can see it being effective (not doubting the story), but I thought the only time one pulls one's weapon out is when one is in fear for one's life. (Or to protect property or to stop a felony in some states, I suppose... which I don't see here.)

What indeed was the risk in the second scenario?

And was his action much different than waving a pistol at a roadrager who is honking at you, or waving a rifle at the teenagers next door?

Not trying to be difficult: I just want to stay out of trouble!

 

The man outside was one minor motion from being able to enter the room - a bat against the window, or a kick to the door. The window served both parties well: It kept the outside man from entering un-hindered, and also kept the occupant from brandishing in the sense that he never left his legal (even if temporary) residence - he simply demostrated his ability and willingness to defend himself.
As an alternative ending, would it have been better for him to hunker down behind the bed, and end up possibly having shoot the perp because he kept his self-defence potential secret?
Any time a potentially or impending dangerous situation is defused with an UNFIRED gun and no court-time, it's not "wrong" even if it could have been handled better. After all, the occupant could have avoided the whole scene by staying in a different motel, right? :wink:

 

Some stranger in your room,he would be lucky he wasn't full of holes,the story about being in the wrong room ain't gonna fly

 

It is different. A lot different.

Waving a pistol at a roadrager that is honking at you is aggravated assault or assault with a deadly weapon. No danger there, just your emotion getting the best of you.

Waving a rifle at teenagers next door can also be aggravated assault because you were not in danger.

Pointing or displaying a gun at a man trying to gain illegal entrance into your room that is displaying a weapon (intent) is not even in the same league as what you propose.

What is the risk in the second scenario? Do you think that a man with a ball bat by his side that is trying to lure you into opening the door is up to any good? All the gun did was prevent the scene from getting worse, so displaying the gun did its job.

 

I cannot imagine either situation being considered brandishing, which is an illegal attempt to intimidate another.

Case #1: Someone surreptitiously follows me into my hotel room, and when confronted has a "look" that spells trouble? Darned right I'm going to draw and defend myself in such a situation ... and I hope the intruder gets the immediate impression that his life hangs by a thread. Brandishing? I think not.

Case #2: Someone I don't know is banging on the door, with a large/armed cohort standing outside my window, when I realize that I'm a moment away from being rolled and robbed? At that moment, leaving my firearm "over there" and taking zero precautions would be stupid beyond belief. Yes, I would draw and be ready for an attack. Uncertain what I would say. I suppose I'd be on the phone to hotel security and sit to await entry, which sounds much safer than being anywhere near the door or window. Either way, would this be brandishing, when an obvious robbery is only two shakes from launching? I think not.

What my training has taught me is that the law generally does not support my actually using lethal force to stop an intruder until that person has in fact intruded to a degree that A.O.J. justifies the force be applied. That means, actual firing at the suspects should be done only after actual attempt to enter. In Case #2, all we've got is a tart banging on the door and a behemoth at the window with a baseball bat waiting to kill me once the opportunity presents itself. While the law might not support my firing right then, it would absolutely do so the moment that door or window is broken and the intruders now have nothing between me and my death except my willingness to live.

However, even in Case #2, I cannot fathom how drawing my firearm in a clearly articulable situation of assault with a deadly weapon about to occur can be considered brandishing. Particularly inside my residence (even a temporary one), in which it's assumed that I have nowhere else to "run" if in fact attacked.

 

Isn't this brandishing?

In the two related stories you got in the email, no it is not brandishing. Not in Tennessee anyway.

 

Courts have already ruled that a rented hotel room is your legal residence, albeit a temporary one.
Is there any state, other than perhaps New York, in which doing anything with your own firearm in your own residence, short of discharging that gun, is illegal?
If there is, I'd like to know about it.

No, of course not. The two stories neither imply nor illustrate "brandishing."

 

Nope, it doesn't fit Websters idea of brandishing nor any states definition that I'm aware of.

 

no way this is brandishing, I just recieved the same email from USCCA and read it. the man was in legitimate fear of his life, i mean seriously are you going to give the man with the bat an opportunity to come in and whack you with the bat or are you going to let him know that this kinda stuff doesnt fly. the two perps are lucky the guy didnt blow them to kingdom come. he was within his rights. You might want to rethink your decision to carry if you think this is a case of firearm brandishing, because you may be called on to do the same but may freeze if your views are like they are here, no offense intended but stories like these are a very good wakeup call to people

 

Without knowing where it happened, it's not possible to know. Each state's laws are different........but in the state's with whose laws I am familiar, neither instance would constitute brandishing.

FWIW though, legal or not, he was definitely quicker to draw and display his weapon than I would have been under the circumstances as I understand them. But then, I wasn't there.....

 

If you travel allot you’re going to have thing happen to you.

Back in the 80’s I use to travel over 200 nights a year. And while I stayed at the best hotels, I’ve had just about everything you can imagine happen.

A drunk with his key in my door lock, trying to open my door at around midnight.

Upon peeking out the peep hole, I called the hotel front desk and reported it. They had someone there asap and escorted the gentleman to his room..

I had a college age male appearing all of a sudden in my room at 1 AM.
He came in the balcony door, mind you I was on the 7th floor, and I guess I had forgot to lock the door.

This guy got to see my Walther PPKs, and he got to meet the local police department, and explain to them, that is was just some spring breakers having fun climbing on the hotels balcony.


The worse thing is, you have to be real careful not to stay in the “wrong” neighborhood.

But, even in the right neighborhood, you can run into trouble.

Staying in an Ocean resort, I had two men try to car jack me, or at least that’s what I think they were up to.

As pulled in to the underground parking lot, I noticed an older four door car parked with two guys sitting in it. When I parked they both got out and stated walking toward me, as I was gather my stuff.

One of them spoke to me, “ha buddy” and as I turned around they could see my Walther PPKs in my hand. It was not pointed at them but I held it at my side, and responded with “yes”.

They then just turned around and walked off, never said a word, got in their car and drove off.

I reported it to the front desk, but it did not good. Later that night my car was broke into.

 

If you travel allot you’re going to have thing happen to you.

Boy howdy, are you ever right there!

I once had someone open the locked door and walk into my room at 2 am while I was sound asleep. I snapped awake and ordered "GET OUT, NOW!".........and he did. Turns out the hotel had made a mistake and had given him my room at check in without knowing that it was already occupied.

I was traveling out of state and was unarmed at the time. Had I been armed and too quick on the trigger, it could have been bad.......

 

It's a close call. I fall on the side of thinking, yes, it was a crime; but if it was a crime, it was assault with a deadly weapon. "Brandishing", in Virginia, means doing something to create intimidation or fear, not necessarily pointing it at another person.

Here's the problem - leaving the door open means the other person was not legally an "intruder" - unless you do something to create at least an imaginary barrier around your living space, anyone who wants to can come in. He isn't "breaking the close" to use the technical phrase.

Secondly, the person with the gun had absolutely no objective reason to believe that he was subject to an imminent threat of serious bodily injury. Therefore it was not a defensive move, it was offensive.

Assault is the threat of "the offensive, unprivileged, touching of the person of another without cause, justification or excuse." Battery is when there's actual contact.

Here's what would likely happen in Virginia, more likely in some counties than others: the occupant would have been charged with attempted murder (on the theory that he tried to shoot the other guest, but the latter got away quickly enough to avoid being shot). They'll do that because they can offer jury instructions on "lesser included offenses" such as assault with a deadly weapon, assault, and brandishing. That gives the jury the power to find him guilty of any of those, they're not limited to the original charge - they can find he's not guilty of attempted murder and find that he is guilty of ADW. The prosecutors do things that way because trying cases costs the taxpayers too much money and they want to give the defendant an incentive to do a bit of horse-trading. And if I were representing that room occupant at trial, I'd strongly urge him to accept the plea, and here's what I think would happen. They'd let him plead to a misdemeanor of simple assault, give him five months in jail, all five suspended, a fine of one thousand dollars, six hundred and fifty of which would be suspended, plus court costs, and inactive probation conditioned on his being of good behavior and that he commit no further crimes in the Commonwealth for a period of one year; AND ALSO that he plead guilty to brandishing, as well, with exactly the same punishment.

What??? There was only one thing done, how could he be guilty of two crimes, and why would he agree to such a thing? What's really going on here?

The crimes are different, because each of them requires proof of different elements. And they can do that, because the judge will allow it and the defendant will not object. As long as the charges are all done at the same time, there's no "double jeopardy". What's really going on here is that conviction of two misdemeanors will cause his concealed carry permit to be yanked, and he'll be ineligible to reapply for five years. That's the real reason for the two misdemeanors. The defendant will do it because the jury will fry his arse and the prosecutor will convince them that the guy's a potential killer. So he'd probably be looking at two years of actual time in the state penitentiary upon a conviction.

In my mind, there's really no question about guilt. This is a case of damage control. The plea deal reduces costs for the state and gets the prosecutor what he really wants (yanking the permit) and the defendant gets to go home after the trial.

 

Here's the problem - leaving the door open means the other person was not legally an "intruder" - unless you do something to create at least an imaginary barrier around your living space, anyone who wants to can come in. He isn't "breaking the close" to use the technical phrase.

Wha... Are you kidding? It's your hotel room, and he has no legal right whatsoever to be there. From the description, it is apparent that the "intruder" followed the guy in and caught the door before it closed--it isn't that the resident meant to leave it open or invite the guy in. The guy was an intruder into the resident's living space--a space that only he and the hotel management had a legal right to be in.

Secondly, the person with the gun had absolutely no objective reason to believe that he was subject to an imminent threat of serious bodily injury. Therefore it was not a defensive move, it was offensive.

A strange-acting man sneaks in behind you into your hotel room, and you have "absolutely no objective reason to believe" that there is an imminent threat of serious bodily injury. Sorry, but in that scenario my very first thought would be, "this guy's here to rob me and he's going to hurt me."

Here's what would likely happen in Virginia, more likely in some counties than others: the occupant would have been charged with attempted murder (on the theory that he tried to shoot the other guest, but the latter got away quickly enough to avoid being shot). They'll do that because they can offer jury instructions on "lesser included offenses" such as assault with a deadly weapon, assault, and brandishing. That gives the jury the power to find him guilty of any of those, they're not limited to the original charge - they can find he's not guilty of attempted murder and find that he is guilty of ADW. The prosecutors do things that way because trying cases costs the taxpayers too much money and they want to give the defendant an incentive to do a bit of horse-trading. And if I were representing that room occupant at trial, I'd strongly urge him to accept the plea, and here's what I think would happen. They'd let him plead to a misdemeanor of simple assault, give him five months in jail, all five suspended, a fine of one thousand dollars, six hundred and fifty of which would be suspended, plus court costs, and inactive probation conditioned on his being of good behavior and that he commit no further crimes in the Commonwealth for a period of one year; AND ALSO that he plead guilty to brandishing, as well, with exactly the same punishment.

***

The crimes are different, because each of them requires proof of different elements. And they can do that, because the judge will allow it and the defendant will not object. As long as the charges are all done at the same time, there's no "double jeopardy". What's really going on here is that conviction of two misdemeanors will cause his concealed carry permit to be yanked, and he'll be ineligible to reapply for five years. That's the real reason for the two misdemeanors. The defendant will do it because the jury will fry his arse and the prosecutor will convince them that the guy's a potential killer. So he'd probably be looking at two years of actual time in the state penitentiary upon a conviction..

Good Lord! Remind me to never hire you as my defense counsel! You'd have me pleading to an assault meaning I'd likely lose my concealed-carry permit and risk going to jail for five months for the slightest misstep, for doing absolutely nothing wrong and taking the most natural, self-preservative action I could.

In my mind, there's really no question about guilt. This is a case of damage control. The plea deal reduces costs for the state and gets the prosecutor what he really wants (yanking the permit) and the defendant gets to go home after the trial.

Are you sure you're a defense lawyer? You sure have taken the most extreme position I can imagine a prosecutor taking in these circumstances. In my experience, the actual most likely outcome in either of these scenarios (assuming that the hotel resident's possession of the handgun was not contrary to any statutes in the first place) is that the police would take a report, say, "thank you, and keep you door locked," and that would be it.

Attempted murder?! Good Lord...

 

Not brandishing to me. Now scenario #2 the guy was just being goofy, IMO, as no one was in his room (yet) and he could have easily checked things out and then called the Police or Hotel Security and sat back and waited for the bat boy to enter uninvited.

 

. . .I suppose I'd be on the phone to hotel security and sit to await entry, . . ..

LOL - Hotel Security? - What Hotel Security? . . . might be a long wait!

 

Doesn't sound like brandishing to me. Not in my home state, or the other states I frequent enough to have looked up their laws.

 

Oh… And I meant to say regarding Paymeister original question.

I feel that the subject went too far in the first case, and he is lucky the guy did not run to the police screaming man with a gun.

On the second case, he did good, only instead I would of called 911 and tried my best, to get the couple standing outside my door, to wait. You know “just a minute I have to put some clothing on”. And stay on the line with 911 until the police show up.

 

In both cases you were within your rights. In the first case the guy sounds like a head case and his explanation of being in the wrong room doesn't cut it.
In the second case when you looked out the window and saw the big guy with the bat you did nothing wrong by showing your gun. the big guy and the hooker were up to no good.You don't have to shoot every time you draw the gun. If used with common sense it can stop a bad situation cold.

 

No brandishing. In the first instance perhaps an over reaction. It happens in hotels that folks go to the wrong room. A shout to get out, "you are in the wrong room," while preparing to draw might have been more appropriate. But then, we weren't there to eyeball the guy in the room.

The second scenario is also not brandishing. Why you certainly have the right to fondle your firearm in your own home or equivalent; and if the guy with the bat got a message, all the better. A quick call the front desk to report the attempted roll was in order.

(However, I once was in a large popular hotel and saw something that needed attention by security. A man was wandering the halls disoriented, with no shirt or undershirt on, and his pant (more like flimsy pjs) were half falling down exposing stuff. I was quite surprised that there was NO security other than the bell captain. Also quite surprised that it turned out the management knew about this guy and though he was disturbing, were accommodating him and his antics. (This was near a medical clinic so they probably get a few with old timers and dementia now and again.)

 

Countering the threat of deadly force with your own threat of deadly force is not brandishing. A man standing outside your hotel room ready to bash your head in with a baseball bat clearly is a threat of deadly force. Not unlawful brandishing in either case, in my opinion--but, as always, it would depend on the specific language of the law in the particular jurisdiction.

 

This one, however, sure seems to me like plain-and-simple brandishing, and could have landed the fellow in a fair amount of trouble. Am I seeing this correctly?

And would anyone wish to make any comments about USCCA? (PM me if that's more appropriate.)

Legally speaking in Washington state legal to shoot to stop a felony and flight from a felony.

The first is breaking and entering. Already in my room shoot on sight legal. Officer I turned and saw him coming at me I was in fear for my life. At the very least he would have been ordered on the ground until security arrived one aggressive act on his a part would be fatal or at the least very painful and bloody

Second with a bat waiting to cave my skull in Definite justification to splatter HIS brains all over the landscape. He could have come through the window to kill me. Definite cause to fear for my life. A violent felony in progress. Again at the very least made him lay on the ground until security arrived while I talked to him about his mom. One move any move on his part would get him shot. If he tried to flee since he had a bat I have reason to believe he would be a danger to others he would get shot until he stopped running to victimize someone else. If I had any doubt about my legal standing I'd have opened the door and allowed him to make his intent clear

Thew only mistake is he let the scum bag go to rob someone else.

 

Speaking of WA... I wonder if the hotel room would be considered a your place of "abode" per RCW 9.41.270: Weapons apparently capable of producing bodily harm ? Unlawful carrying or handling ? Penalty ? Exceptions. .

 

This is not exactly what I was looking for. though it covers use of force to detain there is another more specific one



There is another RCW more specific that outlines under what circumstances you may use force to stop a fleeing felon. In short you must be able to articulate that you had reason to believe they would harm others if allowed to flee. If I recall correctly is may be under anyone assisting LEO anyone making a lawful citizens arrest is "assisting LEO" Use the link it will take you to the RCW online. Sorry I should have these book marked, hope it helps a little. I will look later if you can not find it.

Just woke up on my first cup of coffee

Be careful... homicide is only legal in these instances:

RCW 9A.16.050: Homicide ? By other person ? When justifiable.

Homicide — By other person — When justifiable.


Homicide is also justifiable when committed either:

(1) In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother, or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or

(2) In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode, in which he is.

[1975 1st ex.s. c 260 § 9A.16.050.]

Shooting a fleeing felon is not normally going to be covered by this affirmative defense.

This code explains when Police Officers or those aiding them are justified in homicide:

http://apps.leg.wa.gov/RCW/default.aspx?cite=9A.16.040

(sic)
(c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid:

(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony;

(ii) To prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility; or

(iii) To prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony; or

(iv) To lawfully suppress a riot if the actor or another participant is armed with a deadly weapon. (sic)

 

Be careful... homicide is only legal in these instances:

Actually as I said there are several statues that justify use of force and homicide but you are right that is the primary standard there. This is the RCW that I was talking about earlier. As my lawyer explained it to me this applies equally to citizens as stated at the bottom of the RCW the use of force is broader for a citizen that a LEO. In effect this expands the circumstances under which citizens may use lethal force.

Any time if force is justified it naturally includes lethal force if that is the minimum level of force required to achieve the lawful goal.

Meaning if force is permitted to detain a violent criminal and lethal force is the only way to detain a violent criminal than lethal force is justified.
As in this case had the victim attempted the lawful apprehension of a violent and dangerous criminal. That the victim had interrupted in an attempt to commit maim mutilate or murder and rob.
He was caught laying in wait with a baseball bat to crush the victims skull. The victim could reasonably conclude that if not not apprehended, the assailant poses a threat of serious physical harm to harm to others. This fits exactly in the law

Among the circumstances which may be considered by peace officers as a "threat of serious physical harm" are the following:
(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or
(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.


The full RCW is here. Note the bottom line

RCW 9A.16.040
Justifiable homicide or use of deadly force by public officer, peace officer, person aiding.


(1) Homicide or the use of deadly force is justifiable in the following cases:

(a) When a public officer is acting in obedience to the judgment of a competent court; or

(b) When necessarily used by a peace officer to overcome actual resistance to the execution of the legal process, mandate, or order of a court or officer, or in the discharge of a legal duty.

(c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid:

(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony;

(ii) To prevent the escape of a person from a federal or state correctional facility or in retaking a person who escapes from such a facility; or

(iii) To prevent the escape of a person from a county or city jail or holding facility if the person has been arrested for, charged with, or convicted of a felony; or

(iv) To lawfully suppress a riot if the actor or another participant is armed with a deadly weapon.

(2) In considering whether to use deadly force under subsection (1)(c) of this section, to arrest or apprehend any person for the commission of any crime, the peace officer must have probable cause to believe that the suspect, if not apprehended, poses a threat of serious physical harm to the officer or a threat of serious physical harm to others. Among the circumstances which may be considered by peace officers as a "threat of serious physical harm" are the following:

(a) The suspect threatens a peace officer with a weapon or displays a weapon in a manner that could reasonably be construed as threatening; or

(b) There is probable cause to believe that the suspect has committed any crime involving the infliction or threatened infliction of serious physical harm.

Under these circumstances deadly force may also be used if necessary to prevent escape from the officer, where, if feasible, some warning is given.

(3) A public officer or peace officer shall not be held criminally liable for using deadly force without malice and with a good faith belief that such act is justifiable pursuant to this section.

(4) This section shall not be construed as:

(a) Affecting the permissible use of force by a person acting under the authority of RCW 9A.16.020 or 9A.16.050; or

(b) Preventing a law enforcement agency from adopting standards pertaining to its use of deadly force that are more restrictive than this section.

[1986 c 209 § 2; 1975 1st ex.s. c 260 § 9A.16.040.]

Notes:
Legislative recognition: "The legislature recognizes that RCW 9A.16.040 establishes a dual standard with respect to the use of deadly force by peace officers and private citizens, and further recognizes that private citizens' permissible use of deadly force under the authority of RCW 9.01.200, 9A.16.020, or 9A.16.050 is not restricted and remains broader than the limitations imposed on peace officers." [1986 c 209 § 3.]

I have had rather lengthy conversations with my lawyer regarding this topic. Which has led to my current understanding I suggest that you too discuss this with your lawyer.

 

Thank you, Matiki and LongRider.
It was as I had thought:
You cannot use deadly force upon a fleeing felon without a LEO being somehow involved first.
You may use force to accomplish a citizen's arrest, but not deadly force.

Thank you, LongRider, for the reminder that the RCW is available online. I didn't know that.

 

Protecting myself from an unwanted entry into my room is completely up to me and how it scares me. He can leave with a lame excuse, but he better be careful and the cops will be called. Dude with a bat outside will get the cops called upon him and every delaying tactic I can think of to keep them there so they spend at least a little time with the police.

Virginia sounds like another, "it's easier to prosecute the responsible people than the guilty", states. Remind me never to go there again. And no, I wouldn't ever hire that guy as an attorney either. Attorney gets O.J. off for a brutal double murder and this guy wants his clients to suck up that bull? I hope he is as cheap as he is ineffective.

 

LongRider;
Good advice, indeed: Consult my attorney.
I am puzzled about how the following instructs me that using deadly force to stop the escape of a felon is permissible to the citizen acting on his/her own:

RCW 9A.16.040
Justifiable homicide or use of deadly force by public officer, peace officer, person aiding.
(1) Homicide or the use of deadly force is justifiable in the following cases...
(c) When necessarily used by a peace officer or person acting under the officer's command and in the officer's aid:
(i) To arrest or apprehend a person who the officer reasonably believes has committed, has attempted to commit, is committing, or is attempting to commit a felony...[emphasis added]

A bald reading of these sections seems to indicate that the citizen in question must necessarily be acting under the control, or at the behest, of an officer of the law. (Posse Comitatus, for instance?)
Otherwise, the use of deadly force against a fleeing felon, who thus necessarily no longer constitutes a threat, would be impermissible.
Of course, the guy with the bat was an active, deadly threat. He probably could've been justifiably killed out of hand. But that's only because he was actively threatening, rather than escaping after the fact.

I am less familiar with the RCW than I am with California law. I guess I'd better bone up; after all, I've been living here "South of the Border" for 10 years.
(Funny: After living in California for 45 years, and in Washington for 10, I still think of myself as a New Yorker!)