question on "brandishing of a firearm"

[45collector]

I'm fully aware that if you're going to draw your weapon on someone, you better be in fear of your life or grave bodily injury. Any other circumstances and you will probably be charged with assault with a deadly weapon. But my question here is: what about the not-so-sure area? hypothetical scenario: You're walking to your parked car and someone is approaching you and you have no idea what their intentions are. They have made no apparent threat toward you but are very near your close proximity. Lets say you asked: "Can I help you?" when they were 15 feet from you. If they didn't answer and kept coming toward you, It would be my instinct to turn my strong side away from them and at least get a firm grip on my gun. If you haven't shown that person your gun but have made it pretty clear that you've reached for something, could that be considered brandishing your firearm? If it turned out the person was just going to ask for directions, or thought you were someone else, and freaked out because you're reaching for something that is most likely a weapon, would they be able to have charges brought against you for assault? I might come off as being paranoid, but really I'm not. A guy quietly approached me late one night while I was walking to my car and as I turned to face him he said "oh, sorry, you're not Dan" or something like that. He had gotten too close for my comfort and I still wonder what his intentions really were. I didn't reach for my gun because my hands were full of groceries. What would you do in this case? Is it considered assault to just "get ready"?

 

[jhblaze1]

IANAL, but I don't see how you could be charged with "brandishing" if the gun was never visible. If the moron freaked out because you were reaching for something and called the police on you, I think any LEO who is not a complete douchebag would buy your explaination. You could always just tell the responding LEO that you were positioning your body to be ready for a potential threat while simulaneously reaching for your keys. Since the gun wasn't drawn or shown there is no real reason for anyone to assume you even have a gun. Chances are, telling the LEO that you were reaching for your keys or whatever would be the end of it.

I'm fully aware that if you're going to draw your weapon on someone, you better be in fear of your life or grave bodily injury. Any other circumstances and you will probably be charged with assault with a deadly weapon. But my question here is: what about the not-so-sure area? hypothetical scenario: You're walking to your parked car and someone is approaching you and you have no idea what their intentions are. They have made no apparent threat toward you but are very near your close proximity. Lets say you asked: "Can I help you?" when they were 15 feet from you. If they didn't answer and kept coming toward you, It would be my instinct to turn my strong side away from them and at least get a firm grip on my gun. If you haven't shown that person your gun but have made it pretty clear that you've reached for something, could that be considered brandishing your firearm? If it turned out the person was just going to ask for directions, or thought you were someone else, and freaked out because you're reaching for something that is most likely a weapon, would they be able to have charges brought against you for assault? I might come off as being paranoid, but really I'm not. A guy quietly approached me late one night while I was walking to my car and as I turned to face him he said "oh, sorry, you're not Dan" or something like that. He had gotten too close for my comfort and I still wonder what his intentions really were. I didn't reach for my gun because my hands were full of groceries. What would you do in this case? Is it considered assault to just "get ready"?

 

[Baystatesuks]

You have a right to protect yourself if you were in "immediate fear or apprehension of a harmful or unwanted touching" - an assault. I am not saying you have a right to use a gun (unless the other guy has one pointing at you), but you can take a defensive position in preparation for a potential battery (the actual harmful or unwanted touching).

If he has heckyl and jeckyl (his two fists) with him only, not sure pulling a gun would be a reasonable response. It could be or it couldn't be depending on the exact facts. Tough one to judge without being there and knowing everything that was going on.

How about a warning - "Stop, I have a gun." Note that I didn't say "Stop, I have a gun and will blast your ass with it."

 

[M1911]

It is my understanding that people in MA have been charged with assault for displaying a gun (whether in their hand or in their holster).

In the situation as described, I think you would have a hard time explaining a cogent reason why you felt threatened to the point of death or grave bodily injury. People get close to you every day. Mere proximity is not enough to justify displaying a gun. Also, while the potential perp might not have seen the gun if you position your body just right, chances are other people around will.

As for claiming you were reaching for your keys, I think that is unlikely to fly. Stepping back with your strong foot and reaching for your gun is a pretty distinctive movement.

If all you did was say "can I help you" and if they don't respond you're reaching for a gun, I think you could find yourself in hot water. If you tell them "leave me alone", "don't get any closer", have your hands out in a stop position, start backing away, then you have a stronger position that they actually meant you harm (but still nothing that shows the level of threat had risen to death or grave bodily injury).

Realize as well that when you are outside of your home, you must retreat if it is safe to do so. Here in MA you can only use deadly force to defend yourself against an immediate threat of death or grave bodily injury. I don't see anything in your description that rises to the level of death or grave bodily injury.

Your gun is your last chance weapon. It should not be the first thing you reach for unless the fecal matter truly has hit the rotating device.

 

[jdubois]

You have a right to protect yourself if you were in "immediate fear or apprehension of a harmful or unwanted touching" - an assault.

That was my belief, that you can use "prevention of crime" as a defense to an assault charge. Assault requires the intent to cause harm, so you claim that your intent was to prevent a crime not to cause harm.

 

[M1911]

That was my belief, that you can use "prevention of crime" as a defense to an assault charge. Assault requires the intent to cause harm, so you claim that your intent was to prevent a crime not to cause harm.

I'm not sure that I'm following you. Are you suggesting that it is ok to draw a gun to prevent someone from assaulting you?

If so, that is not my understanding. Not at all. Even if you are the victim of assault and battery, there is a good chance that the battery may not rise to such a level that are justified in drawing or displaying a gun.

If you can't legally shoot the perp, then don't draw the gun or display it.

 

[45collector]

Realize as well that when you are outside of your home, you must retreat if it is safe to do so. Here in MA you can only use deadly force to defend yourself against an immediate threat of death or grave bodily injury. I don't see anything in your description that rises to the level of death or grave bodily injury.

Your gun is your last chance weapon. It should not be the first thing you reach for unless the fecal matter truly has hit the rotating device.

Absolutely understood and agreed.
I'm just curious as to the legality of getting into that "readiness" position, because when someone is so close to you, you don't know how quick they might be able to brandish their possible weapon.

 

[jdubois]

I'm not sure that I'm following you. Are you suggesting that it is ok to draw a gun to prevent someone from assaulting you?

If you drew your gun because someone was verbally threatening you and coming at you with a knife, and that made them stop before you had to fire, would you be arrested for assault? (I suppose in this state, anything is possible )

 

[M1911]

If you drew your gun because someone was verbally threatening you and coming at you with a knife, and that made them stop before you had to fire, would you be arrested for assault? (I suppose in this state, anything is possible )

That is ENTIRELY different. If someone has a knife and is coming at you in a threatening manner, then you are in immediate danger of death or grave bodily injury and deadly force is justified.

In the case described above, no weapons were shown and no threatening actions made.

And it is my understanding, btw, that "Assault with a Deadly Weapon" is quite different from simple "Assault".

 

[M1911]

Absolutely understood and agreed.
I'm just curious as to the legality of getting into that "readiness" position, because when someone is so close to you, you don't know how quick they might be able to brandish their possible weapon.

Everyone has a possible hidden weapon. So by that logic could you put your hand on your gun anytime someone gets in an elevator with you? You have little evidence that they have planned any kind of assault and none that they plan to use a deadly weapon as you have seen no evidence of such a weapon. And without them having such a weapon you are unlikely to be justified in using yours.

Btw, one advantage of pocket carry is that you can actually grip the gun and no one is the wiser

 

[jdubois]

In the case described above, no weapons were shown and no threatening actions made.

And in the case above, he didn't draw his gun, he merely placed his hand upon it. My point was that 'prevention of crime' can be used as a defense for a charge of assault. If your actions are grossly inappropriate for the crime allegedly being committed, it would likely be a poor defense.

And it is my understanding, btw, that "Assault with a Deadly Weapon" is quite different from simple "Assault".

It's actually "Assault with a Dangerous Weapon" in MA.

 

[M1911]

And in the case above, he didn't draw his gun, he merely placed his hand upon it.

And that is different in what way? Either can be interpreted by the perp as a threatening action, meant to instill fear in him.

 

[Baystatesuks]

Determining whether an intentional tort was committed and the proper defense for such is tough. It is so fact dependent and small factual differences can lead to different results.

You do have a right to defend yourself with comparable force that is threatening/harming you. So, if your wife has a rolling pin and is hitting you with it, you can't break out the AK-47. Get your own rolling pin and have at it.

 

[jdubois]

And that is different in what way? Either can be interpreted by the perp as a threatening action, meant to instill fear in him.

Doesn't matter how the perp interprets it, it's how the jury interprets it. Which sounds worse to a jury:

"I saw him reach for a gun."
"Did you actually see a gun?"
"Um, No."

or

"The guy pulled out a gun and pointed it at me."
"Did you actually see a gun?"
"Hell, yes. It was aimed right at me."

 

[dwarven1]

So by that logic could you put your hand on your gun anytime someone gets in an elevator with you? You have little evidence that they have planned any kind of assault and none that they plan to use a deadly weapon as you have seen no evidence of such a weapon.

There's a world of difference between someone coming up, quietly, to you in a dark parking lot at night and someone getting on the same elevator you're on. Stop trying to split hairs.

Btw, one advantage of pocket carry is that you can actually grip the gun and no one is the wiser

Excellent point! All anyone sees is your hand in your pocket - they don't see the 5 rounds of .38 Special thug repellent.

 

[M1911]

There's a world of difference between someone coming up, quietly, to you in a dark parking lot at night and someone getting on the same elevator you're on. Stop trying to split hairs.

I think determining whether deadly force is justified is all about splitting hairs.

 

[45collector]

There's a world of difference between someone coming up, quietly, to you in a dark parking lot at night and someone getting on the same elevator you're on. Stop trying to split hairs.

Exactly. I realize we are in close proximity to people many times during the day. I'm not worried about those folks. I'm worried about the guy that has no reason to be approaching me so closely on a dark, empty street when no one else is around to witness whether or not he did, or didn't mean me any harm. I'm just considering the fact that he may be a very calm, sneaky psychopath who might whip out a knife and swing at me and if he's only a few feet away, there's not going to be much time to back away, retreat, say "halt" or whatever have you. it's that tiny moment of fight or flight that seems to take over in any situation where you are caught off guard and are not 100% sure what the other guy is doing. I just want to be ready.
I'd rather be judged by 12 than carried out by 6

 

[M1911]

I strongly suspect that if you draw a gun before you perceive a threat of death or grave bodily injury you would be placing yourself in legal jeopardy. Your best course of action would be to verbally challenge them and start backing away immediately. Even if they escalate to throwing punches, you are still probably not justified in drawing your gun. Which is a good reason to have a less-lethal alternative at the ready.

 

[45collector]

I strongly suspect that if you draw a gun before you perceive a threat of death or grave bodily injury you would be placing yourself in legal jeopardy. Your best course of action would be to verbally challenge them and start backing away immediately. Even if they escalate to throwing punches, you are still probably not justified in drawing your gun. Which is a good reason to have a less-lethal alternative at the ready.

but if I'm not actually drawing my gun, just getting my hand on it just in case, is that considered going too far?
I know we're not all lawyers here, but I'm interested in knowing what all the rest of you would do in this situation. I'm pretty confident that no matter how taken by suprise I was, I would not just clear leather and draw on someone for just getting too close.

 

[dwarven1]

M1911, you keep escalating the circumstances. Please go back and READ the original post, OK? He didn't draw - he was wondering if he could position himself and maybe put his hand on his gun.

 

[JimConway]

45 collector
The scenario that you listed is well covered in some of our classes and covered in detail in the Southnarc class in September. If you contact me by phone at 603-673-6105 (days) or , even better, come to Westford Sportsmen's club on a Sunday afternoon, I will discuss the situation with you. Just as a hint, your gun is way down on the list of ways to cope.

 

[dwarven1]

I'm interested in knowing what all the rest of you would do in this situation. I'm pretty confident that no matter how taken by suprise I was, I would not just clear leather and draw on someone for just getting too close.

Well, for starters, I'd have had one hand free, and have my keychain in it. If fact, I'd be holding it by my Sabre pepper spray kubotan. That's SOP for me walking to my car. At least, it is now that I have the OC, anyway.

the other thing is that I try to always scan my surroundings and know where the nearest people to me are - watch shadows (if it's late in the day), watch reflections in windows - know where everyone is. Four lbs of prevention (IE, not having to pull a trigger!) is worth a ton of cure. Or a ton of legal bills.

 

[M1911]

He didn't draw - he was wondering if he could position himself and maybe put his hand on his gun.

Position your body in an interview stance with your hands up in a stop position, palms facing out (not clenched fists)? Sure.

Put your hand on your gun that is in a belt holster (which will likely be perceived as such by the perp), even though you have not seen any weapons and the perp has not made any verbal threats or physical threats (outside of moving towards you)? Sorry, but I don't see how you could justify that in court or to your licensing officer.

 

[dwarven1]

It wasn't even determined if it was a perp. If it was, he'd have more problems than brandishing!

Now, if it was merely J. Q. Citizen and he put a hand on his gun (and where was it, anyway? Pocket? Under jacket?) and JQC realized that he was close to drawing a gun, then yes, he might have a problem. One reason I like pocket carry...

 

[45collector]

45 collector
The scenario that you listed is well covered in some of our classes and covered in detail in the Southnarc class in September. If you contact me by phone at 603-673-6105 (days) or , even better, come to Westford Sportsmen's club on a Sunday afternoon, I will discuss the situation with you. Just as a hint, your gun is way down on the list of ways to cope.

Thank you Jim, I could probably use a course or two. (couldn't we all?)
As far as the gun being way down on the list in this particular situation, it's true that other non-lethal means of confrontation would be better, but no matter how aware of our surrounding we may be, if it came down to that short window of opportunity where we may have to fight for life and limb, the handle of my gun in it's IWB is much more of a comfort than the can of pepper spray somewhere in my coat pocket.
Other ways to cope, backing away, verbal deterrant, yelling loudly, may work, but is it going to put me in jail to have my hand under my coat and gripping my gun while I'm doing all that?

 

[clinotus]

What about for the smaller person though? If I stand 5 feet tall and 120 soaking wet and am approached by a larger person who was say 6 feet and 250...I would be in the wrong for de-escalating the situation by means of display? Any hit from a person outclassing you by 70+ pounds has great potential to be a fatal hit.

I lean on the Junta scenario, big guy + small guy = small guy brain dead.

 

[Baystatesuks]

What about for the smaller person though? If I stand 5 feet tall and 120 soaking wet and am approached by a larger person who was say 6 feet and 250...I would be in the wrong for de-escalating the situation by means of display? Any hit from a person outclassing you by 70+ pounds has great potential to be a fatal hit.

I lean on the Junta scenario, big guy + small guy = small guy brain dead.

This boils down to what level of force is reasonable under the circumstances. It is factually dependent on a lot of things. Thus, difficult to predict a priori what a suitable response may be for every possible situation.

For example, you may be five feet tall, but you could be a martial arts expert. Whereas I am 6"3' and can barely tie my shoes or hit the toilet.

 

[jdubois]

Put your hand on your gun that is in a belt holster (which will likely be perceived as such by the perp), even though you have not seen any weapons and the perp has not made any verbal threats or physical threats (outside of moving towards you)? Sorry, but I don't see how you could justify that in court or to your licensing officer.

I think most people are agreeing that reaching for your gun might not be justified in this situation, but I'm just not buying that holding your holstered gun could be considered an assault with a dangerous weapon. For it to be assault, you need an actual unlawful attempt to cause harm.

 

[jdubois]

Thus, difficult to predict a priori what a suitable response may be for every possible situation.

Oh, sure, throw that in our face.

 

[M1911]

Other ways to cope, backing away, verbal deterrant, yelling loudly, may work, but is it going to put me in jail to have my hand under my coat and gripping my gun while I'm doing all that?

IANAL. But it seems to me that you could be in legal jeopardy for doing in the situation as described (no weapons shown by the per, no blows being thrown).