Legal Question - Where's the line?

[CanDo]

Sorry that I'm very new to this gun thing, and the answer is obvious, but reading a post I thought of a question:

Say you are in a situation where your life is endangered, but you are not being immediately threatened. The quote from Crocodilo in the "why do you carry?" thread was:
Are three guys with sticks a menace enough to bring it on? How about a junkey facing you with a needle in hand? Is a gun proportional response to these situations?

So something like this, you (obviously) don't shoot. Are there any places in the U.S. or elsewhere where it would be legal to draw (never mind that it may make the situation itself worse)? If you have a gun on your belt, would it be legal to move a jacket so as to make it highly visible?

[Grits]

Better to be judged by 12 than carried by 6.

True situation. My wife was taking a walk one evening trying to get some exercise. A car load of young male pukes come by and start giving her a hard time. She put her hand in a pocket and pulls out a Colt Detective Special .38 revolver and those pukes make the best decisions of their young lives. They get the heck out of dodge and leave her alone. This takes place in a state in the mid 1980's when there is no legal concealed weapons permits available.

One does not know what physical limitations a person has so reasonable fear can have a wide area of latitude.

As for me and the wife, we'll worry about the jury later, we'll take care of our lives first.

[CanDo]

Better to be judged by 12 than carried by 6.

True situation. My wife was taking a walk one evening trying to get some exercise. A car load of young male pukes come by and start giving her a hard time. She put her hand in a pocket and pulls out a Colt Detective Special .38 revolver and those pukes make the best decisions of their young lives. They get the heck out of dodge and leave her alone. This takes place in a state in the mid 1980's when there is no legal concealed weapons permits available.

One does not know what physical limitations a person has so reasonable fear can have a wide area of latitude.

As for me and the wife, we'll worry about the jury later, we'll take care of our lives first.


Glad to hear it all worked out.

This made me realize something. Someone who gives you cause to show/draw your gun is more likely to run away than call their lawyer :lolhammer:

[Lunal_Tic]

Are there any places in the U.S. or elsewhere where it would be legal to draw (never mind that it may make the situation itself worse)? If you have a gun on your belt, would it be legal to move a jacket so as to make it highly visible?


Since you are asking specifically about the legal ramifications, it would probably be more helpful to seek out the laws in your particular area.* I'm not certain that EDCF has all that many lawyers on board with a specific background in this area.* :)

In Texas, where I used to live, it was illegal to wave about a gun in a threatening manner (just pulling it out is considered threatening)* IIRC, even if you had a license to carry.* I don't remember the legalese associated with it but it was a big no-no.* Since it has been a number of years since I lived there it may have changed.*

It is quite likely that the training required to get a concealed carry permit in your area would cover the dos and don'ts as well.

-LT

[tvodrd]

That's called "brandishing," and if done to intimidate can constitute "assault." (Your State's legal definitions may vary!) Just opening your jacket to display a firearm in an argumentitave situation, unless your life was in immediate danger, could get you in trouble! But I live in the People's Republik of CA, and YMMV. I have a couple acquaintances with CCW permits, and the flaming hoops which must be jumped through to get one have removed it from my list of things to do!

I don't carry, but there are a couple loaded 1911s stratiegically-located in my home. While I actually do not feel the need to EDC a firearm, I'd want one if I had to walk to the nearest street corner right now, (7:51PM) but I never walk to the nearest street corner after dark. It's not fear, it's common sense avoidance! I live in a bad neighborhood, and my house has been tagged twice in the past two years!

Deadly force is a last resort, but it never hurts to be prepared to use it if the necessity arises! What the BGs don't know works in your favor, should that need arise!

Larry

[gearloose]

Almost every state has a different definition of self defense and some states have recently removed their rules of retreat(if you can you must) Florida and a couple of other states have extended castle doctrine to one's person, calling it stand your ground. With fifty different interpretations of self defense I suggest you visit Packing.org for the latest information.

[VWTim]

The main thing that applies here are the AOJ's.

Do the attacker(s) have the ABILITY to cripple or cause grave bodily harm?
Do they have the OPPORTUNITY to pull this off?
Are you in JEOPARDY of being harmed?

So assuming no castle doctorine or anything like that. Man with a stick? Maybe, man with a stick screaming "I'M GONNA KILL YOU SOB" that raises the threat level. Is the person yelling from a moving bus passing you by? Or are they 10 feet away?

Plus when you get into numbers or old vs. young, male vs. female. There's disparity of force. Me being a 250 lb 25 year old male with a stick can cause grave bodily harm to a 80 year old lady, so then her shotgun against my stick could be justified.

*No senior citizens were harmed in the making of this post* :idiot2:

[Lightfantastic]

You are generally safe from suit if you follow the LEO guidelines on Use Of Force, which simply states that you are OK using one level of force higher than that which you perceive being used on you. To put it in normal terms, if someone is not threatening you physically, it is considered bad form to shoot them dead. Even in states with the Castle Doctrine, there are many gray areas.

That said, it is common for situations to escalate faster than the guidelines recommend. In most situations you would be safe if you move away, then verbally defend yourself, and then use a non-lethal intermediate weapon, such as pepper spray. This is a reasonable and prudent use of force. Very rarely is deadly force considered a reasonable early option, and then only if you genuinely believe you are in imminent danger of bodily harm or death. The Castle Doctrine is predicated on your home being inviolate and any unauthorized entry is a threat on your life.

A firearm is considered a deadly weapon, therefore its use in a less-than-deadly situation would be excessive use of force. A FAR better weapon for normal carry is 10% OC spray. If you doubt this, let someone you love and trust give you a faceful, and see how ready you are to continue any nefarious actions. OC use is MUCH more legally defensible, less permanent, and equally incapacitating as a firearm.

Just my 2¢.

[Goldtanker]

Hi Lightfantastic - and welcome to EDCF!

Denny

[Lightfantastic]

Thank You. I have joined because I am searching for the ever-elusive perfect flashlight for LEO use. The 3 watters seem pretty good, IE the MAGLED 3C/D, but I am truly looking for something a bit brighter and smaller. I am interested in the 18650 and CR123 rechargeables in a configuration to give a 2 hour runtime at 60-100 lumens. I also want to be tall and handsome. :D

[Hannibal Lecter]

My Dear Friend,


Are there any places in the U.S. or elsewhere where it would be legal to draw (never mind that it may make the situation itself worse)? If you have a gun on your belt, would it be legal to move a jacket so as to make it highly visible?

(FWIW, I have been an NRA-Certified Pistol/Personal Protection Instructor for over a decade.)

A clarification of other things in this thread, and a few thoughts about your question:

I have a slightly different take on the three things that must be present to constitute use of deadly force - ability, opportunity, and intent.* Ability implies the assailant is capable of doing you grievous bodily harm; opportunity implies that you are within his/her proximity to do such harm (someone armed with a baseball bat 100 yards away from you is not an immediate threat - they might have the ability, but proximity robs them of the opportunity).* The third factor, intent, is the hardest thing to prove - unless they outright say, "I am going to kill you," you generally must rely on non-verbal indicators and the "reasonable man" doctrine; a man approaching you at an ATM at midnight with a knife is probably not interested in making small talk - his actions are not what* a "reasonable person" would do were they not intent on doing harm, and so you may generally use potentially deadly force to stop him.

As far as brandishing goes as a deterrent, I would shy away from it if at all possible.* If all three above indicators are present, you had better clear leather and move to stop the threat quickly.* If these three indicators are not present, you will be in the wrong.

To paraphrase Clint Smith, Director of Thunder Ranch Shooting Academy, "Don't use a gun to scare someone.* If you want to scare him, put on an ugly mask."

I will state that if ever this regrettable scenario ever occurs and you DO deter further violence through brandishing (I assume you are otherwise carrying legally, etc.), call the police and report the incident immediately.* Law enforcement has a tendency, right or wrong, to believe the first story they are told, presumably assuming that the person in the right would be the first one to call the authorities (not that I necessarily disagree with this view).* Do not let a criminal get the jump on you.

Don't laugh - it happens.* I saved my own bacon once in this very way.

Remember: ability, opportunity, and intent.* All must be present to permit potentially deadly force to be used.

(For the record, several good witnesses and an excellent attorney will also greatly increase your chances of surviving the aftermath of an incident.)

Probably the single most important thing to remember following a shooting incident is the single word STOP.* You did not shoot to kill your assailant; you did not shoot to wound.* You shot only to STOP the threat, and used only as much force as was absolutely necessary to do so.* When law enforcement officers arrive this is the ONLY thing you are to tell them until you have counsel present: you were in immediate fear of your life and shot only to STOP your assailant from killing you.* Running your head to a LEO when you are excited, upset, nervous and pumped with adrenaline immediately following a violent incident can get you jail time if things you say are taken out of context. And they will be.

When in doubt, shut up until you have had time to calm down and think clearly.

(On a personal note, yes, generally speaking in my view, three guys with sticks that are bent on my undoing will warrant deadly force on my part.

A junkie with a needle?* HIV positive, perchance?* Ask yourself if the three aforementioned factors are present and decide...)

------------
Hannibal

(The above is based on my personal training and experience and is in no way to be misconstrued as legal advice.* Further questions, comments or flames may be directed to: doctor.hannibal.lecter.md@gmail.com )

[enine]

Glad to hear it all worked out.

This made me realize something. Someone who gives you cause to show/draw your gun is more likely to run away than call their lawyer :lolhammer:


"That guy pulled out an unlicensed gun when I tried to rob him" probably wouldn't get very far.
There was a thread on another forum though where someone went to trial for shooting someone else who held him up at gun point and was judged innocent but still had to have his gun destroyed :broke: so the anti's will do anything to keep you helpless. Kind of like the person who gets hurt trying to break into your house and sues you, the courts value human life over an stuff even if that human live was trying to take your stuff. My thought though is is someone's morals are already low enough to rob you then how do I know that person will draw the line at robbery and not cause harm to me. Its a simple question in my mind, but the laws and courts send very mixed messages.

[JonSidneyB]

That really depends on what county you live it. My county was very kind to me and supportive.

[Gakker]

Since nobody has mentioned it yet, packing.org has lots of information on a per state basis. You can easily view the laws in your neck of the woods. :popcorn:

[22-rimfire]

I would suggest that you not rely exclusively on information presented in packing.org. The site is not being updated. There is another site that is being develped called http://www.handgunlaw.us/ that may be more current. I was checking PA's receprocity CCW permit list and noticed that packing.org shows my state's permit being honored. Handgun law did not. Called the PA attorney general's office and they confirmed that my state has no recepricity with PA (but my state honors the PA permit which is very easy to obtain??).

In a dangerous situation, my first instinct is to fight back; my first instinct should be to run.

[mightysparrow]

I believe ability, opportunity and intent are not enough to justify use of deadly force in many jurisdictions-- you also have to be in imminent danger of serious bodily harm without means of avoiding the harm. (the "no escape" doctrine). While the burden of proof for the "self defense" defense has been eroded in many places in recent years, in many other places it has not.

[Hannibal Lecter]

My Dear Friend,



I believe ability, opportunity and intent are not enough to justify use of deadly force in many jurisdictions-- you also have to be in imminent danger of serious bodily harm without means of avoiding the harm.* (the "no escape" doctrine).* While the burden of proof for the "self defense" defense has been eroded in many places in recent years, in many other places it has not.


I am glad you brought up that particular little wrinkle in the law. The "requirement to retreat" should be obvious - if you *can* avoid the conflict, do so.

Some jurisdictions even require you to retreat in your own home if it is invaded by a criminal; thankfully mine is not one of them.

------------
Hannibal

[jtice]

""" Imminent danger of severe bodily harm or death, to you or a loved one"""

That is the rule of thumb, and sums it up very well.
People dont have to have a "weapon" do be a threat to you.
A group of 4 guys ready to beat you to death counts, (black eyes, busted lips dont count)
a guy with a large stick, a shovel, a needle, that all counts.

Even if you have a CCW you are not allowed to brandish your weapon.
This means you are not allowed to draw it, point it at them, and yell, get the hell away from me.
If you draw, you fire.
Now, in the real world, sure, thats not always the case, or how it happens, but legally, you cannot brandish the gun.

You are to avoid shooting at all cost,
that includes running away like a chicken sh*t.

A good way to think about it is,
Have it set in your mind, that any time you draw your gun, you will be killing another individual.
There is no going back, no second chances, make sure it HAD to be done.

"""If you have a gun on your belt, would it be legal to move a jacket so as to make it highly visible?"""
First off, even here in WV where its LEGAL to carry a gun on your belt, where its visable, you wont get away with it.
Yes, its LEGAL, but you WILL get harrassed by the cops, to the point they basically tell you to stop carrying the gun.
They will tell you to get a CCW and conceal it.

Now, that being said, even if you could get away with it,
if you had a coat covering the gun (thats concealing BTW and would be Illegal with out a CCW)
if you were to pull the coat back to show the gun to the bad guy, that would be stupid, and ILLEGAL.
That would be brandishing a weapon.

~John

[BurkC]

Here is a quote from the Oklahoma Self defense Act:

TITLE 21 § 1289.25. Physical or deadly force against intruder
G. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

O0

BC

[0dBm]

Are there any places in the U.S. or elsewhere where it would be legal to draw (never mind that it may make the situation itself worse)? If you have a gun on your belt, would it be legal to move a jacket so as to make it highly visible?

Yes, IN the confines of MY home! If an UNinvited visitor at MY door were to place me in grave danger, I highly believe that it IS lawful for me to brandish and, if necessary, draw.

[man-in-black]

There has been a fair amount of discussion here on this. I almost hesitate to weigh in a bit, but I guess I might as well. As noted by some, the law is different in every state. It has a great deal to do with what your particular state considers 'justification' for either the use of lethal force or the threat of lethal force. Some states allow a person to use the threat of lethal force in certain limited circumstances.

In general, I would say that in order to be justified in using the threat of lethal force (displaying a firearm or 'brandishing' as some call it), you must be justified to actually USE lethal force. I kind of agree with Clint Smith...you never use a firearm to 'scare' someone. You use it to stop a lethal threat. The rule of thumb that I use is when someone's life is 'immediately and illegally threatened', I would consider myself justified in using lethal force to stop it. Until that point, I would never disclose that I am armed and prepared to use force.

In Arizona, displaying a firearm in a threatening manner without justification is considered Aggravated Assault and that is justification for someone to use lethal threat to stop YOU.

In my considered opinion, you only want to go down the path of using a firearm when you or a loved one is being threatened with lethal force. There are a lot of other issues to consider as well...commonly known as 'disparity of force' issues. How many adversaries do you have? What is their size vs. yours? What is their sex vs. yours (male vs female). Are they in possession of any dangerous instruments (sticks, pipes, baseball bats, etc.). Are they under the influence of drugs or alcohol? Are there any physical disabilities on the part of any potential victims (wheelchair, can't run away, etc.).

All of these factors go the the 'reasonableness' theory that Hannibal brought up...you need to be very careful about tipping your hand up to the point where there is a lethal threat, but once that line has been crossed, I am of the opinion that they brought the fight to me, now I am going to end it.

I'd suggest that you speak to an attorney in your state of residence or at the very least talk to a concealed carry instructor (a good one...) where you live. It's a really tough call to make and one that can have a significant impact on you. A buddy of mine was charged with aggravated assault for simply having someone 'say' that he inappropriately displayed a firearm. He plead it down to a misconduct charge (felony to misdemeanor), but still has a record now. All because some 'citizen' lied about what he did...

Good food for thought here...no good pat answers though. LOTS of gray areas to consider... :brickwall:

Cheers,

Doug