Brandishing a firearm when you're legally authorized to shoot

[Bill Nance]

Ok, here's a question for all of you:

Suppose you're in a situation where deadly force would be lawful. In lots of states this is a fairly low threshold. In Washington for instance,

RCW 9A.16.050
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.

OR

RCW 9A.16.020
Use of force — When lawful.

The use, attempt, or offer to use force upon or toward the person of another is not unlawful in the following cases:

(1) Whenever necessarily used by a public officer in the performance of a legal duty, or a person assisting the officer and acting under the officer's direction;
(2) Whenever necessarily used by a person arresting one who has committed a felony and delivering him or her to a public officer competent to receive him or her into custody;
(3) Whenever used by a party about to be injured, or by another lawfully aiding him or her, in preventing or attempting to prevent an offense against his or her person, or a malicious trespass, or other malicious interference with real or personal property lawfully in his or her possession, in case the force is not more than is necessary;
(4) Whenever reasonably used by a person to detain someone who enters or remains unlawfully in a building or on real property lawfully in the possession of such person, so long as such detention is reasonable in duration and manner to investigate the reason for the detained person's presence on the premises, and so long as the premises in question did not reasonably appear to be intended to be open to members of the public;
(5) Whenever used by a carrier of passengers or the carrier's authorized agent or servant, or other person assisting them at their request in expelling from a carriage, railway car, vessel, or other vehicle, a passenger who refuses to obey a lawful and reasonable regulation prescribed for the conduct of passengers, if such vehicle has first been stopped and the force used is not more than is necessary to expel the offender with reasonable regard to the offender's personal safety;
(6) Whenever used by any person to prevent a mentally ill, mentally incompetent, or mentally disabled person from committing an act dangerous to any person, or in enforcing necessary restraint for the protection or restoration to health of the person, during such period only as is necessary to obtain legal authority for the restraint or custody of the person.

Does anyone know of a case in which someone was charged with brandishing when they could have just shot the guy? Granted in MA you might lose your LTC for unsuitability, but has anyone ever actually been charged with this under those circumstances? There's a lot of FUD out there on this subject and I suspect that most of the cases where someone is charged it's not pulling a gun on a bad guy with a knife or other weapon.

 

[Chris]

Well, the act of drawing will many times stop any kind of assault that would have justified a shooting.

I think the key is to be the 'victim' and make sure to report the attack and demand that the person be arrested and charged. Otherwise, if they report your actions (with them being the innocent of course) you will face the wrath of the political machine known as the District Attorney's Office.

I'm not saying that such actions would keep you out of trouble, but it has a far better chance.

 

[M1911]

I don't think there is any law on "brandishing" in MA. I suspect that the charge would be assault with a dangerous weapon, and plenty of folks have been charged with that.

 

[Bill Nance]

I don't think there is any law on "brandishing" in MA. I suspect that the charge would be assault with a dangerous weapon, and plenty of folks have been charged with that.

ADW for pulling a gun on someone when they would otherwise be legal to use deadly force? Have any examples?

 

[cekim]

ADW for pulling a gun on someone when they would otherwise be legal to use deadly force? Have any examples?

I thought there were also charges of "breach of peace" as well?

I don't know the answer to your question, but this gave me a chuckle:

ground to apprehend a design on the part of the person slain to commit a felony

"honestly officer, he was removing mattress tags right in front of us in the store..."

[sad2] "Felony" has been so ridiculously abused in our modern criminal code.

As a practical matter, it would seem to depend on how the crime is "resolved". If no one but the perp who runs away saw it, then, presuming you call 911 before they do, you should be all set. If there was a third party being assaulted and the assault stopped, you have a witness (either in testimony or injury). If you were injured yourself same thing.

And so on... I doubt there is an answer better than it's a roll of the dice depending on your circumstances. I'd be curious about any examples as well, but I doubt there is any affirmative case law since you won't see the ones that weren't charged.

There certainly isn't an MGL shielding you from anything in this state (it is only an "affirmative defense" to the various charges you face for the use of deadly force) - which is why one was proposed recently.

 

[M1911]

ADW for pulling a gun on someone when they would otherwise be legal to use deadly force?

ADW for pulling a gun on someone when they thought they would otherwise be legally justified to use deadly force.

 

[whatluck]

IANAL, but I think brandishing a firearm is in itself a use of deadly force, so you would be ok as long as the ability opportunity jeopardy standard is met.

 

[wolf223]

cool! another "what if" thread.



IBTL

 

[GLOCK.Perfection]

IANAL, but I think brandishing a firearm is in itself a use of deadly force, so you would be ok as long as the ability opportunity jeopardy standard is met.

brandishing a firearms is not in itself a use of deadly force. Deadly force would be brandishing a firearm, and then shooting with it.

 

[Jose]

The few brandishing laws I have read about specifically exclude the situation you pose as brandishing.

 

[terraformer]

The few brandishing laws I have read about specifically exclude the situation you pose as brandishing.

But not here. It is up to officer/prosecutorial/judicial discretion. Maybe some case law behind it, which is simply citable, it won't necessarily stave off an attempted prosecution.

 

[tuna]

If you have common sense, then you wouldn't be drawing until you were clear to shoot.
As a decent human being with no desire to end another's life, I may forgo a half second of my safety and try to resolve the issue verbally while ready to fire. As the situation unfolds, my assessment would be either "that was stupid, front sight, bang" or "whew, that worked out ok for everyone, now I better call 911 before I wind up losing my LTC".

 

[kevin9]

Applying logic to the suggested question:

If the situation is such that deadly force is allowable,
and if the threatened party draws a gun and does not fire because the threat flees,
and if the threatened party is subsequently charged with a crime for drawing the gun,
then the logical response would be to shoot the threat regardless of their subsequent actions.​

Given the illogic of the above sequence it would seem there is a strong defense if one is confronted with such a situation (ex. "What was I supposed to do, run after him and shoot him?") assuming the first assertion is provably true.

 

[Bill Nance]

But not here. It is up to officer/prosecutorial/judicial discretion. Maybe some case law behind it, which is simply citable, it won't necessarily stave off an attempted prosecution.

This is true in any jurisdiction on almost any charge. Firearm related or not. You can't prevent prosecutorial misconduct or plan your day around it. As long as you're within the law, you should prevail, though no doubt you'll be destroyed financially.

The only solution to this I know of are laws that prevent bringing charges in some instances and even those can be stretched/ignored.

 

[JustEric]

IANAL, but I think brandishing a firearm is in itself a use of deadly force, so you would be ok as long as the ability opportunity jeopardy standard is met.

The few brandishing laws I have read about specifically exclude the situation you pose as brandishing.

I've seen references, and heard during the required training, that the laws in MA are written in such a way that use of deadly force is permissible "to stop the threat." Anything more is considered excessive and can get you in some deep doodoo. That being said, if drawing your weapon in self-defense is considered "deadly force," and the situation can be resolved without a shot being fired, would you not have met the requirement to use deadly force "to stop the threat?"

Food for thought. Oh...and IANAL.


*** I'm going off of what I recall, so there's no need to jump all over me asking for cites and sources, typing in alternating caps, boldface and quotes. If you disagree with me, so be it. If you have something that proves me wrong, good for you. If you happen to be a lawyer and have the irresistible urge to throw your credentials in my face, have at it. (Sorry for the mini rant there; bad experience from a prior thread where I posted my understanding of a situation and was subsequently torn apart by a particular individual as if I had been trying to pass off my post as The Gospel According to St. Eric...figured I'd throw out a disclaimer.)

 

[Jose]

Some of you guys are again overthinking and overanalyzing this to death.

STOP worrying about the legal ramifications of every decision. Get your gun out and stop the threat! SFW if you get charged with brandishing? You lived through a deadly force confrontation. The rest is chicken shit.

Or stand there paralyzed from doubt and indecision wondering what the DA will think while you get shanked by a shitbag.

I'll take door number one and take my chances later on. I have a wife and child to go back to. Alive.

 

[JustEric]

Some of you guys are again overthinking and overanalyzing this to death.

STOP worrying about the legal ramifications of every decision. Get your gun out and stop the threat! SFW if you get charged with brandishing? You lived through a deadly force confrontation. The rest is chicken shit.

Or stand there paralyzed from doubt and indecision wondering what the DA will think while you get shanked by a shitbag.

I'll take door number one and take my chances later on. I have a wife and child to go back to. Alive.

I'm almost certain that no one here is going to be mentally going through the thread if they are ever in this situation.

 

[cekim]

I'm almost certain that no one here is going to be mentally going through the thread if they are ever in this situation.

.

Man found dead with loaded pistol in one hand and iPhone in the other. Last page browsed was NES->MA Laws. Police believe attacker was able to overwhelm the armed subject because the home owner was distracted browsing the internet to understand his legal obligations... Martha Coakley responded with, "it was good that he died so that others would not try to defend themselves either."

 

[GSG]

Does anyone know of a case in which someone was charged with brandishing when they could have just shot the guy?

Yes. I'll PM you with specifics, but to address the crowd, it was a 100% justified case in Mass., and the individual was charged with ADW and had their LTC revoked. The charge was dismissed, and the LTC was ordered re-issued by a judge.

I don't think there is any law on "brandishing" in MA. I suspect that the charge would be assault with a dangerous weapon, and plenty of folks have been charged with that.

Correct on both points.

STOP worrying about the legal ramifications of every decision. Get your gun out and stop the threat! SFW if you get charged with brandishing? You lived through a deadly force confrontation. The rest is chicken shit.

While I agree in general with what you're saying, I think it's more than fair to ask the questions here and not find out the hard way. Hypothetical situations are the backbone of most internet gun forums.

 

[GSG]

Another thing, in Mass. they haven't laid out laws specifically regarding use of force like they have in many other states. Because of this I think you're much more likely to get charged for something like that than you would be in a state where a cop can plainly read what the law does and doesn't allow.

 

[Blitz1]

Some of you guys are again overthinking and overanalyzing this to death.

STOP worrying about the legal ramifications of every decision. Get your gun out and stop the threat! SFW if you get charged with brandishing? You lived through a deadly force confrontation. The rest is chicken shit.

Or stand there paralyzed from doubt and indecision wondering what the DA will think while you get shanked by a shitbag.

I'll take door number one and take my chances later on. I have a wife and child to go back to. Alive.

Jose,

I challenge you to live in MA for 1 year. I'll put you up, you'll need to find a job and get your LTC, don't worry I'm in a green town.

Or Maybe you would prefer to live in Fall River, Lawrence, Lowell?

Really though, it's all fine for you to sit out there and judge the rest of us here. Why don't you come here and see what it's like.

You won't. You would just rather spout off on the internet about how we are Sheeple.

Meh.

Really My offer stands.

Um, In case you don't get it some people are here due to family, jobs, real estate holdings etc. Not everyone can just move away.

 

[GSG]

I just posted this in the other "brandishing" thread as well, the Linda Hamilton case.

http://billstclair.com/LindaHamilton/index.html

 

[wolf223]

Some of you guys are again overthinking and overanalyzing this to death.

STOP worrying about the legal ramifications of every decision. Get your gun out and stop the threat! SFW if you get charged with brandishing? You lived through a deadly force confrontation. The rest is chicken shit.

Or stand there paralyzed from doubt and indecision wondering what the DA will think while you get shanked by a shitbag.

I'll take door number one and take my chances later on. I have a wife and child to go back to. Alive.

+1

Jose,

I challenge you to live in MA for 1 year. I'll put you up, you'll need to find a job and get your LTC, don't worry I'm in a green town.

Or Maybe you would prefer to live in Fall River, Lawrence, Lowell?

Really though, it's all fine for you to sit out there and judge the rest of us here. Why don't you come here and see what it's like.

You won't. You would just rather spout off on the internet about how we are Sheeple.

Meh.

Really My offer stands.

Um, In case you don't get it some people are here due to family, jobs, real estate holdings etc. Not everyone can just move away.

STFU.... seriously.... go hide in your cave....

 

[Jose]

Jose,

I challenge you to live in MA for 1 year. I'll put you up, you'll need to find a job and get your LTC, don't worry I'm in a green town.

Or Maybe you would prefer to live in Fall River, Lawrence, Lowell?

Really though, it's all fine for you to sit out there and judge the rest of us here. Why don't you come here and see what it's like.

You won't. You would just rather spout off on the internet about how we are Sheeple.

Meh.

Really My offer stands.

Um, In case you don't get it some people are here due to family, jobs, real estate holdings etc. Not everyone can just move away.

I know all too well the legal hell you and others who live in MA have to deal with.

I also understand that not everyone can or wants to sacrifice what is necessary to uproot and go.

None of that, however, was the point of my post. The point is simply this: discussion about what is and what is not legal is a good thing. But when such a discussion develops here there is an undercurrent of delving in minute detail over every angle that the law could be applied to you in the aftermath.

THAT is not productive. It only creates confusion and doubt because everyone has a different take on statute, case law, and what has happened in prosecution A, B, C, etc...... One has zero control over any of that. So in my opinion it is not worth to even spend a second on the subject.

Set clear thresholds for a violent response that are congruent with the laws of your state. Make sure you understand and are able to articulate how your action were taken because you reasonably felt in danger of death or severe injury, you didn't start, provoke, or escalate the problem, and that you had no other reasonable course of action to end the threat.

Then lawyer up.

In this thread, we are discussing the charge of brandishing being brought against a person who DID have reason to believe he was under threat of deadly force, brought a handgun to bear, and stopped the threat without firing a shot. It is pointless to argue such a scenario because one has absolutely zero control over prosecutorial misconduct or discretion. One did everything right and still gets charged. So lawyer up and fight it.

In case you think that can't happen in NH, OH, TX, or any other place, guess what? It can. And I don't lose one second of sleep over it.

 

[GSG]

The point is simply this: discussion about what is and what is not legal is a good thing. But when such a discussion develops here there is an undercurrent of delving in minute detail over every angle that the law could be applied to you in the aftermath.

THAT is not productive. It only creates confusion and doubt because everyone has a different take on statute, case law, and what has happened in prosecution A, B, C, etc...... One has zero control over any of that. So in my opinion it is not worth to even spend a second on the subject.

Nuances like that are why I think it's so important to pick things apart in advance. That way you won't have to fumble over words when calling 911 wondering if what you said could get you charged criminally.

In case you think that can't happen in NH, OH, TX, or any other place, guess what? It can. And I don't lose one second of sleep over it.

Neither do I.

 

[JustEric]

The point is simply this: discussion about what is and what is not legal is a good thing. But when such a discussion develops here there is an undercurrent of delving in minute detail over every angle that the law could be applied to you in the aftermath.

If the laws were clear-cut, there would be no need for a discussion. The confusing, convoluted, asinine makeup of the laws is what makes it necessary to have these discussions. We're all law-abiding citizens here, and we're doing our best to hash out the laws so that we don't inadvertently break them.

 

[Blitz1]

I know all too well the legal hell you and others who live in MA have to deal with.

I also understand that not everyone can or wants to sacrifice what is necessary to uproot and go.

None of that, however, was the point of my post. The point is simply this: discussion about what is and what is not legal is a good thing. But when such a discussion develops here there is an undercurrent of delving in minute detail over every angle that the law could be applied to you in the aftermath.

THAT is not productive. It only creates confusion and doubt because everyone has a different take on statute, case law, and what has happened in prosecution A, B, C, etc...... One has zero control over any of that. So in my opinion it is not worth to even spend a second on the subject.

Set clear thresholds for a violent response that are congruent with the laws of your state. Make sure you understand and are able to articulate how your action were taken because you reasonably felt in danger of death or severe injury, you didn't start, provoke, or escalate the problem, and that you had no other reasonable course of action to end the threat.

Then lawyer up.

In this thread, we are discussing the charge of brandishing being brought against a person who DID have reason to believe he was under threat of deadly force, brought a handgun to bear, and stopped the threat without firing a shot. It is pointless to argue such a scenario because one has absolutely zero control over prosecutorial misconduct or discretion. One did everything right and still gets charged. So lawyer up and fight it.

In case you think that can't happen in NH, OH, TX, or any other place, guess what? It can. And I don't lose one second of sleep over it.

I hear you. I guess I just want you to be as miserable as us. That's all.