question on "brandishing of a firearm"

[jdubois]

I'll just post an excerpt

If what he says is true (merely showing your gun by accident is an assault), then why are all those people coming to him with a revoked LTC instead of a felony assault charge against them? I'd love to see a successfully prosecuted assault case based on the sole act of revealing your firearm...

 

[Half Cocked]

If what he says is true (merely showing your gun by accident is an assault), then why are all those people coming to him with a revoked LTC instead of a felony assault charge against them? I'd love to see a successfully prosecuted assault case based on the sole act of revealing your firearm...

The problem with that excerpt is that it does not clearly indicate whether the brushing back of the jacket to reveal the gun was done accidently or deliberately.

A deliberate brushing back of the jacket to let someone see the gun if done in a way so that person felt threatened or intimidated by it would be an assault with a dangerous weapon.

The intent is the determining factor.

 

[stinx]

In order to use deadly force a person has to be in fear of serious Bodily harm or death and the use of deadly force was the only way you could prevent such harm. Serious bodily harm is an injury that would have a long healing/ recovery period, major broken bones, gushing wounds etc.Broken femur, fractured skull injuries of that type. Could you see there hands? ? the facts that were given you dont have enough to draw a weapon. You would need to articulate more than you were walking towards your car in a public garage and a person was walking towards you and they did not respond to may I help you. could you see there hands? if so where they empty? Did they say anything to you? what was the pace they were walking towards you at? did they appear to be looking around to see if anybody was watching? DId you tell them to Get back in a clear loud voice? if so did they continue to advance on you etc etc was it possible for you to get out of the garage and get away from the person and potential problem altogether?

 

[WayneWong]

This is not directed towards any particular post, I'm just thinking out loud here.

In a worst case court scenario, I could see the prosecution arguing that once you reached towards your weapon, you escalated a confrontation. With a concealed weapon, keeping your hand nonchalantly near your waist or shoulder rig might be the most prudent.

IMHO, the assailant should not know you are intending to shoot him until after he feels the cool rush of air between his eyes.

If you have your gun drawn before the life and death attack, you are sort of in purgatory. Your gun is out hanging in the breeze while you are waiting for the BG to make his next move.

The gun is not meant to deter, threaten, or apprehend. It is meant to defend your life. Once you have made the decision to fire, your actions leading up to that moment must be beyond reproach. There can be nothing - NOTHING - that you do that can be interpreted as the least bit offensive.

 

[Half Cocked]

NOPE! When in doubt, shoot anyone and everyone that looks at you funny. They're ALL out to get you!!

Ladies and Gentlemen of the jury I would like to introduce into evidence prosecution exhibit #1

 

[dwarven1]

Ladies and Gentlemen of the jury I would like to introduce into evidence prosecution exhibit #1

Uh... yeah.

Hopefully if I was on a jury I'd be able to distinguish a joke from a serious threat, though. But given attorney's habits of trying to exclude everyone with a three-digit IQ from juries, I wouldn't want to rely on someone doing that.

 

[Baystatesuks]

Something ain't right. Simply showing your firearm is not necessarily an assault. As stated before, it depends on intent. Assault is a specific intent crime.

For example, if I ask you to show me your gun and you do, you have not assaulted me. I have no reasonable basis to have an apprehension of an imminent and unwanted touching. Also, you had no intent to induce the same.

If however, you walk up on me and state out of the blue "I have a gun and am willing to use it" and show me the gun, then maybe I would reasonably have an apprehension of an imminent and unwanted touching from an intentional act committed by you (I know this repetitive language is annoying but my torts professor made us all repeat it over and over again).

Simply showing someone a weapon in and of itself does not rise to the level of assault. Again, be careful with generalizations.

My guess is GOAL put it in there to scare people. Better safe than sorry. Also, I think you have to parse those words from GOAL very carefully, and they are consistent with the above.

 

[GSG]

Yes, you're right, "brandishing" isn't a crime in MA. The question really was whether revealing the presence of your concealed firearm can be considered assault. As Baystatesuks has rightly pointed out, it really all depends upon the individual situation. The thread seems to have migrated now to a related question, which is whether revealing your firearm is a good way to handle the unfolding of a potentially hostile encounter.

I think it's called thread drift, and generally it's followed by much multi-quoting, which is followed by ruffled feathers.

 

[Baystatesuks]

Ladies and Gentlemen of the jury I would like to introduce into evidence prosecution exhibit #1

Just to stick up for jhblaze1, you ask the judge and not the jury to introduce evidence with a particular marking. Askign the jury won't get you too far as the ones still awake will just look at you funny.

Man, sounds like I am turning in to Scrivener. What the hell?

 

[pdm]

Uh... yeah.

Hopefully if I was on a jury I'd be able to distinguish a joke from a serious threat, though. But given attorney's habits of trying to exclude everyone with a three-digit IQ from juries, I wouldn't want to rely on someone doing that.

They've never excluded me.

HEY WAI--

 

[Lugnut]

You guys need to listen to M1911 and stop arguing with him. Most of you are making up reasons to justify your actions and it's your call but get a good lawyer in case.

And like Jim said- there are other options to consider.

 

[drgrant]

Something ain't right. Simply showing your firearm is not necessarily an assault. As stated before, it depends on intent. Assault is a specific intent crime.

Linda Hamilton got charged with AWDW or somesuch for merely showing her gun to a truck driver that was trying to run her off the road.

Given that, IMHO, such "brandishing" -can- be massaged into an assault charge. Whether or not that will stick, or even be levied in all cases, is a different
story.

-Mike

 

[jhblaze1]

Ladies and Gentlemen of the jury I would like to introduce into evidence prosecution exhibit #1

Some of you guys are paranoid. Pretty clear that that post is a joke.

Half Cocked, I'm willing to bet a lawyer worth half his weight in dog shit could get this message board "evidence" thrown out as the obvious joke that it is. Not to mention the fact that I wouldn't be in court if the first place because I wouldn't have "bransished" my gun as described in the OP.

We all know MA is bad, but it's a bit ridiculous the way people on this board think anytime a firearm is used in a self defense charges are guaranteed. They're not.

Personally this wouldn't be an issue for me because if this guy kept approaching me after I called out to him, my next step would be to tell him to stop and f*** off. If he kept coming at me, he'd be catching my fists with his teeth long before I felt the need to reach for my gun. The only way the gun comes out is if I can either clearly see a weapon in his hands or he picks up his pace toward me while reaching for something himself.

As far as the OP, I would say that assuming as the OP stated, no one saw your firearm then this is a non issue altogether. If no one saw your firearm including the sketchy guy approaching you then WTF is the problem? I would suggest that there's no need to reach for your firearm in the scenario outlined in the OP, but even if you did for some reason, it's pretty unlikely that anything would come of it if no one saw what you were reaching for. Plus, supposing you made the reach, and the guy freaked out running away to call the cops, why the f*ck would you still be there when the cops arrived?

 

[Baystatesuks]

Linda Hamilton got charged with AWDW or somesuch for merely showing her gun to a truck driver that was trying to run her off the road.

Given that, IMHO, such "brandishing" -can- be massaged into an assault charge. Whether or not that will stick, or even be levied in all cases, is a different
story.

-Mike

Clearly what she did is an assault - she showed her firearm with an intent to cause a reasonable apprehension to the truck driver that there was an imminent unwanted touching (e.g., by a bullet). She was trying to get him to leave her alone, so if her actions were reasonable, she may have a defense, but nonetheless she assaulted him.

Why else did she show the gun? Was she modeling it for the truck driver?

These facts are very different than those of the OP. As stated before, specific intent crimes such as assault are factually dependent. So stop the generalizations.

 

[45collector]

thank you for all your replies guys. Like I said, I don't want to come off as paranoid. Just simply wondering if placing my hand on my gun, NOT DRAWING, would be an overreaction. And again it's hard to judge this situation when there are so many variables. The point is you just don't know what you're in for. I liken it to this: If I'm driving down the road and I see someone approach from a side road and it looks like they might just pull right in front of me and cause an accident, I take my foot off the gas and place it over the brake pedal. I don't overreact and slam on my brakes and come to a skidding halt. Obviously slamming on your brakes and drawing your firearm are completely different, but the idea is the same. just being ready. And I'm not missing the point about having less lethal alternatives. There are a million things I would rather do than draw my gun on anybody. If someone approached me, pulled a knife and simply said: "give me your car keys", even if I already had my hand on the grip, I would probably give them up and say "here ya go, go ahead and crash her into a tree so I can get some insurance money." If I don't feel that I'm going to die or be seriously injured, my gun is not coming out. JimConway, thanks for your input here and you will probably here from me in the near future.

 

[M1911]

If what he says is true (merely showing your gun by accident is an assault), then why are all those people coming to him with a revoked LTC instead of a felony assault charge against them? I'd love to see a successfully prosecuted assault case based on the sole act of revealing your firearm...

Perhaps because someone cut them a break and decided not to prosecute, or it was a he-said, he-said situation and the prosecutor decided he did not have enough evidence to prove beyond a shadow of a doubt it court. The licensing officer doesn't need to prove his case to any such standard.

 

[jdubois]

the prosecutor decided he did not have enough evidence to prove beyond a shadow of a doubt it court.

The lawyer from the article said he had 'Many individuals' come to him. It's happening all the time, and nobody gets charged? I suspect you're right, the prosecutors don't have enough evidence to charge them... because assaults had not taken place in many of those cases.

The licensing officer doesn't need to prove his case to any such standard.

Yes, there's no argument there. Revealing your firearm can lead to loss of your license.


I really think we're arguing across each other here. I'm arguing that simply revealing your firearm can not, by itself, be considered assault, and that even if you are fairly charged with assault, 'prevention of crime' is not an unreasonable defense. You're arguing that revealing your firearm is not a good way to de-escalate a situation and will also likely lead to legal hassles. I don't see that our two arguments are mutually exclusive.

 

[M1911]

I'm arguing that simply revealing your firearm can not, by itself, be considered assault,

Well, I think that depends upon the situation and intent. If you and I are at the range talking about guns, I mention that I carry a Kimber, and you ask what the Kimber is like, and I push back my coat to show it to you, clearly that is not assault.

If Mongo is yelling and screaming at me but not hitting me, and I draw back my coat to show him that I have a gun (yes, this is slightly different from the OP's scenario), the intent of my doing so is clearly to cause him fear. I don't think that it matters whether he actually is scared by my action or just laughs at me instead. Is that assault? I suspect it may well be and if I understand it correctly that is what the Attorney Lanzilli is saying as well.

He's an attorney and apparently has direct experience in these matters. I'm not an attorney and I certainly have no direct experience in these matters, thank goodness. So I'll take his advice.

 

[jdubois]

Well, I think that depends upon the situation and intent.

Right, agreed. Revealing your firearm is not an assault. Attempting to intimidate someone by revealing your firearm is an assault. In the original post, when he put his hand on his firearm, it was as a (poor, we've decided) means of being ready for defense, not as a means to intimidate. So, no assault.

 

[M1911]

Right, agreed. Revealing your firearm is not an assault. Attempting to intimidate someone by revealing your firearm is an assault. In the original post, when he put his hand on his firearm, it was as a (poor, we've decided) means of being ready for defense, not as a means to intimidate. So, no assault.

I don't think it is nearly as simple as that. Suppose the perp and/or witness sees the gun. You tell the police that you were getting ready "just in case." What makes you think they will believe you? I could easily see someone get charged and convicted, even though it is just your word against the perps.

 

[jdubois]

I don't think it is nearly as simple as that. Suppose the perp and/or witness sees the gun. You tell the police that you were getting ready "just in case." What makes you think they will believe you? I could easily see someone get charged and convicted, even though it is just your word against the perps.

I was only speaking from the clarity of knowing the situation without a doubt (because it's a hypothetical). You're right, in the real world, there's always the possibility of being charged and convicted of a crime you didn't commit. But I still think the situation would be darn hard to get a conviction from, unless you said something stupid to alleged perp or to the cops afterword.

Anyway, I think we've drawn this discussion out to it's end. Personally, I've enjoyed it though, thanks for being the opposite viewpoint, M1911. Its better to have these discussions with you fine folks here, than with your lawyer after something happens.

 

[drgrant]

These facts are very different than those of the OP.

I'll concede that there is obviously a difference between the two scenarios, the main reason I mentioned hamilton is because although it was implied threat, she didn't directly threaten the truck driver with the firearm, so it was more or less still "display". My point was to illustrate that an action that seems reasonable at the time to one person may not be perceived as such by the law.

As stated before, specific intent crimes such as assault are factually dependent.

"Facts" are rarely the only thing that comes into play in the so called "justice" system. If a cop/prosecutor has a hair across his/her ass or a hidden agenda, (as is common in commie states like MA, or other anti gun locales) then facts sometimes can take a back seat to politics.

I know of one individual in Philiadumpia who put his hand on his holstered gun when a bum accosted him with a knife, and the "system" still tried to rake him across the coals, despite the fact that he was clearly in the right and the perp had a known history of assault/robbery attempts. He was acquitted but the legal battle was expensive and screwed up his life. It also bears mentioning that the individual is a lawyer and had access to the best counsel
possible in the area... but the whole ordeal did not go smoothly due to the poltiical agendas at play in the city. You can still be "right" but that doesn't mean the prosecution won't try to nifong you.

So stop the generalizations.

You might partake in your own advice and not generalize that any attempt to access a firearm will be perceived as completely benign by law enforcement or a court. (especially not in a commie state like MA).

To play devils advocate here, I know several indivduals who have had to brandish a firearm, and none of them have gotten in trouble... some of that is a matter of circumstances, though. Some police will actually give the
victim the benefit of the doubt, especially if the perp is nowhere to be found, etc. That said, I know of one case where a guy basically pulled a "hamilton" and was very lucky that the road rager he did it to didn't call the cops on him.

All this aside, I would not let the possibility of prosecution interfere drastically with how I might defend myself in such a situation, either. If the situation calls for accessing a firearm, then it is what it is, and any of us would just have to deal with it. You can really only pare the decision tree down to simple questions- anything more than that and then we end up compromising the ability to defend ourselves. And as the old saying goes, if you don't live to make it to the courtroom, what difference does it make?

-Mike

 

[Baystatesuks]

You might partake in your own advice and not generalize that any attempt to access a firearm will be perceived as completely benign by law enforcement or a court. (especially not in a commie state like MA).

I am not trying to get into a pissing match here, but what I have said is not a generalization. What was stated is these cases are factually dependent, and may or may not rise to the level of assault, depending on the totality of the cirumstances.

As a lawyer, I would assume the worst - you brandish your gun, you will be charged. That does not automatically mean you will be convicted or even go to trial (big step between being charged and actually making it to trial).

In addition, you better have a defense and/or proper facts to back up your story that you reasonably feared for your life and were left with no other choice but to draw your gun.

And as also stated, under many cirumstances I would draw my gun as well. Better to be alive and on trial then dead and (maybe) have the criminal on trial.

 

[M1911]

Your intent in accessing your gun is not stamped on your forehead for everyone to see. The police and prosecutor will have to make a judgment about what your intent was based on the circumstances, your actions, and what you say. They may come to a very different conclusion about your intent than you would, and you may have a very hard time convincing a court otherwise.

 

[jar]

This is also something they should teach in every driver's ed class! I'm amazed at the number of people who drive around without any awareness of where the other cars are and what they're doing. Talk about an accident waiting to happen.

Yeah, exactly. I've used the concept of defensive driving to explain situational awareness. You make a good point that many drivers these days probably won't have a clue what that means. My driving education was probably not the norm, as my father does CDL training and is also a PA third party tester.

 

[maee]

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.

There are numerous examples of people being beaten to death with little more than fists and feet. But maybe its a good idea to carry a knife for this scenario, in addition to a gun.

 

[Baystatesuks]

There are numerous examples of people being beaten to death with little more than fists and feet. But maybe its a good idea to carry a knife for this scenario, in addition to a gun.

This is true and shod feet are considered a dangerous weapon in many states.

Also, if Mike Tyson (before he went completely crazy) was threatening to beat you to death, arguably his fists are a dangerous weapon and you might be reasonably justified using deadly force on him. Might.

 

[M1911]

There are numerous examples of people being beaten to death with little more than fists and feet.

True. But that doesn't necessarily mean you can use deadly force if someone is hitting and kicking you.

But maybe its a good idea to carry a knife for this scenario, in addition to a gun.

Having more options is almost always a good idea, but just to be clear, a knife is still a dangerous weapon. If you can't legally use your gun then you can't legally use your knife, either.

 

[45collector]

Having more options is almost always a good idea, but just to be clear, a knife is still a dangerous weapon. If you can't legally use your gun then you can't legally use your knife, either.

Absolutely. I'd bet most of us who carry guns also carry a knife. If you are positive your life is in danger, you're going to bring your gun into action, not your knife.
They are both tools, and also weapons. and each serves it's own purpose.

 

[M1911]

One more reference concerning assault. This is from The Law of Self Defense, by Attorney Andrew Branca, pg 79 (I've added the emphasis):

For the armed citizen, there exists a potential for being charged with assault almost any time that they allow a potential attacker to conclude that the citizen is prepared to commit a battery in order to protect himself. The attacker may come to such a conclusion based on the citizen's words alone --- "Step away from my car or I will use force to move you." -- or upon the citizen's demeanor and actions -- adopting some form of recognizable fighting stance, placing one's hand underneath a jacket as if reaching for a weapon, or actually drawing and displaying a deadly or non-deadly contact or projectile weapon.