Defensive Draw vs Brandishing

[armed]

Defensive Display, Brandishing, and Burst Presentation

This examines an instructor demonstrating a pre-emptive defensive display maneuver.

Threat Scenario

You are 5’9” male with a slim build weighing 155 lbs. You have issued verbal commands, “STOP STAY BACK”. There are pre-assault threat cues present but there is distance of 25 feet between you and the threat.There is no option for avoidance or cover. When you retreat 10 feet the threat advances 15 and the gap has now closed to 20 feet. You have reasonable belief that imminent death or great bodily harm is about to occur but no weapon is present (yet) except disparity in size.

To illustrate size and threat cues.

To countermeasure, the instructor demonstrates a "Burst Presentation" (don't laugh) by issuing verbal commands while simultaneously sweeping or lifting the cover garment, and obtaining a solid firing grip on the gun.

Threat leaves the scene w/o gun being drawn.

The Issues

There's disagreement amongst a group of instructors Some are advising this is Brandishing, as there's no provision for Defensive Display in Florida (a bill is pending- I think). Some believe this has no application, as standard protocol dictates that once you go for the gun you draw.

I believe events determine movement and the burst presentation is an appropriate countermeasure for the account given. My concern is the erroneous conception that this is somehow brandishing.

Your thoughts?

 

[jmtbiggin]

I am curious as well. I never understood why "brandising" is bad if threat is nuetralized w/o harm. When I was a MP the last levels of force were presentation of deadly force,then finally use of deadly force. Presentation is a very effective deterrent taught by the Army.Curios to see what others opine

 

[Frank Ettin]

....There's disagreement amongst a group of instructors Some are advising this is Brandishing, as there's no provision for Defensive Display in Florida (a bill is pending- I think). Some believe this has no application, as standard protocol dictates that once you go for the gun you draw.

I believe events determine movement and the burst presentation is an appropriate countermeasure for the account given. My main concern is the belief that this is brandishing....

Basically you're talking about displaying a weapon defensively, so it becomes a matter of legal justification.

The usual definition of assault, based on the Common Law is:

an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

In the laws of some States this crime might be given another name. For example, in Alabama it's called "menacing." But by whatever name it is called, it is a crime in every State.

So a display of a firearm, when done for the purposes of intimidation, or to secure compliance, or to convince someone to keep his distance, or in response to a perceived threat is, in all States, an assault of some type. You are effectively putting someone in fear of an imminent harmful or offensive contact, i. e., getting shot.

Now in all States it will be a defense against a charge of assault (or any similar crime) if you establish that your assault satisfied the applicable legal standard for justification.

In most States the standard for justifying a threat of lethal force is the same as for justifying the use of lethal force in self defense. In a few, it's a somewhat lesser standard. So in all States if you threaten lethal force you will need to be able to at least show prima facie such threat was legally justified, that is if you want to avoid a conviction for assault.

 

[armed]

There's disagreement amongst a group of instructors Some are advising this is Brandishing, as there's no provision for Defensive Display in Florida (a bill is pending- I think). Some believe this has no application, as standard protocol dictates that once you go for the gun you draw.

I believe events determine movement and the burst presentation is an appropriate countermeasure for the account given. My concern is the erroneous conception that this is somehow brandishing.

Basically you're talking about displaying a weapon defensively…

I was talking about a 5’9” male with a slim build weighing 155 lbs who reasonably believed an imminent threat of death or grave bodily harm existed, who had no means of retreat or cover and could not avoid the threat, who went for the draw to defend himself, and at the sight of a firing grip wrapped around his holstered gun the potential threat threw up his hands and ran away.

5’9” male is well read on FS 790.10 and could not have possibly “displayed a weapon defensively” since there’s no provision in FS 790.10 for “Defensive Display”.

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.​

So a display of a firearm, when done for the purposes of intimidation, or to secure compliance, or to convince someone to keep his distance, or in response to a perceived threat is, in all States, an assault of some type. You are effectively putting someone in fear of an imminent harmful or offensive contact, i. e., getting shot.

Is that how the Threat Scenario reads to you, or are you just playing devils advocate?

 

[OldMarksman]

Posted by armed: 5’9” male is well read on FS 790.10 and could not have possibly “displayed a weapon defensively” since there’s no provision in FS 790.10 for “Defensive Display”.

What do you think "not in necessary self-defense" means?

For that, look to 776.12:

A person is justified in using or threatening to use deadly force if he or she reasonably believes that using or threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony.

Emphasis added.

 

[Mobuck]

If it never left the holster, how could it be "brandished" or displayed?

 

[OldMarksman]

Posted by Mobuck: If it never left the holster, how could it be "brandished" or displayed?

Well, you do not have to exhibit the entire firearm.

But as Frank pointed out, the real issue is not the misdemeanor firearms charge. It is the risk of a felony aggravated assault charge or something similar.

And one need not draw, or even show, the gun to run afoul of the law.

Marty Hayes has a pretty good video on the subject. You may have to get a premium subscription to the Personal Defense Network to see it. I would direct your attention to "even implying."

In the mean time, see this.

 

[kraigwy]

The Personal Defense Network has a great video covering this, its about "Active Shooter Situations".

An example: Assume you're in a mall during an active shooter incident and are carrying.

First choice of course would be to "de de" the area. Baring that, if you arnt in immediate danger, you should hunker down and wait since few are trained to engage active shooters.

While hunkered down you should be prepared to either produce you weapon (if the bandit shows) or produce empty hands if LE shows.

You have a split second to make that decision and act.

The dangers of active shooting is, the bandit, the police, or some other private citizen with a gun. The bandit presents one danger. If you have you gun out then the LE or other CCW may take you as a threat.

Whats the answer. Presentation. You should be able to draw (from concealed carry) in less then 1/2 second.

Then you have the option during that period of producing a weapon or producing empty hands depending on who confronts you.

I pocket carry and by habit always have my hands in my pocket. It would be difficult to accuse me of brandishing but in fact I may be.

The thing is, no one knows but me.

 

[2ndsojourn]

armed, I think Frank Ettin explained it well.

Also, the excerpt of the law you quoted specifically mentions self defense.

 

[James K]

When you put a hand on your gun, or draw your gun, you are certainly putting someone in fear of death or grievous bodily harm; that is the whole idea. If the aggressor weren't fearful of being killed or wounded, there would be no point in drawing the gun.

The question would be whether the circumstances are such that the person with the gun is justified in drawing/displaying it, and Frank Ettin covers that very well.

Jim

 

[madmo44mag]

I always have to ask; if you felt your life was in danger or perceived a possible threat to your person or life why would you worry about brandishing or showing a holstered firearm if it would defuse the problem?

I myself of 3 occasion know I prevented getting robed by doing nothing more than lifting my shirt and placing my hand on the butt of my pistol. The gun never left the holster.

Twice there were two youths and when the one facing me saw the gun he shouted to the one coming up from behind “GUN – HE HAS A GUN” and both jumped back in their car and sped away. The other time the perp approached me face on with what appeared to be a gun in his hoodie pocket; saw the gun and turned and ran.

I believe in an old saying “rather be judged by 12 than carried by 6”

 

[OldMarksman]

Posted by James K: When you put a hand on your gun, or draw your gun, you are certainly putting someone in fear of death or grievous bodily harm; that is the whole idea. If the aggressor weren't fearful of being killed or wounded, there would be no point in drawing the gun.

The question would be whether the circumstances are such that the person with the gun is justified in drawing/displaying it, and Frank Ettin covers that very well.

Yes indeed.

The key word is justified.

 

[OldMarksman]

Posted by madmo44mag: I always have to ask; if you felt your life was in danger or perceived a possible threat to your person or life why would you worry about brandishing or showing a holstered firearm if it would defuse the problem?

Simply because what you "felt" is not sufficient for justification. You have to provide at least some evidence supporting a basis for your having had a reasonable belief that the circumstances called for displaying the firearm. What is reasonable would be judged by others.

In Texas, one may lawfully draw a firearm for defense if one has reason to believe that force is justified. In many other states, the threshold is deadly force.

I myself of 3 occasion know I prevented getting robed by doing nothing more than lifting my shirt and placing my hand on the butt of my pistol. The gun never left the holster.

Twice there were two youths and when the one facing me saw the gun he shouted to the one coming up from behind “GUN – HE HAS A GUN” and both jumped back in their car and sped away. The other time the perp approached me face on with what appeared to be a gun in his hoodie pocket; saw the gun and turned and ran.

The problem arises when they or someone else report the incident before you do and can describe how you carry your gun. That has happened.

I believe in an old saying “rather be judged by 12 than carried by 6”

That's a neat cliche, but don't put too much stock in it.

 

[.22lr]

There are pre-assault threat cues present

I'm pretty sure not a single one of those cues (presented in the video) would qualify in court as a reasonable fear of death or grave bodily injury. Walking towards someone while being told to stop doesn't seem to qualify either. It seems that further retreat is the best option.

And, as always, I will continue to hold Mr Ettin's words in high regard.

 

[Frank Ettin]

There's disagreement amongst a group of instructors Some are advising this is Brandishing, as there's no provision for Defensive Display in Florida (a bill is pending- I think). Some believe this has no application, as standard protocol dictates that once you go for the gun you draw.

I believe events determine movement and the burst presentation is an appropriate countermeasure for the account given. My concern is the erroneous conception that this is somehow brandishing.

Basically you're talking about displaying a weapon defensively…

I was talking about a 5’9” male with a slim build weighing 155 lbs who reasonably believed an imminent threat of death or grave bodily harm existed, who had no means of retreat or cover and could not avoid the threat, who went for the draw to defend himself, and at the sight of a firing grip wrapped around his holstered gun the potential threat threw up his hands and ran away.

5’9” male is well read on FS 790.10 and could not have possibly “displayed a weapon defensively” since there’s no provision in FS 790.10 for “Defensive Display”.

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.​

OldMarksman, in post 5, answered you drawing our attention to certain language in FS 790.10 and by pointing out FS 776.12. But let's also look again at FS 790.10 (emphasis added):

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

So an element of crime described in 790.10 is that the weapon is not displayed in necessary self defense.

...Is that how the Threat Scenario reads to you,...

I'm not responding to the Scenario. I'm discussing general legal principles that apply to the use of, or the threat of the use of, force.

And in general terms a legal defense to a charge of any crime the elements of which include the use of force or the threat of the use of force would be that the use or threat was justified. The legal standards for justification may vary, and in any such situation whether or not those standards for justification have been met becomes a pivotal issue.

That principle is reflected in both FS 790.10 and 776.12.

 

[madmo44mag]

To Oldmarkman

Not trying to be a wise arse here ok.
Have you ever been mugged, robbed, or shot during a robbery?

I’ve been mugged twice, robbed 3 times, and shot once during a robbery.
This was long before Texas allowed CCW.

I’d much rather take my chance is court that a visit to the undertaker!

Now with that said I gave the readers digest version of what happened.
I feel I could easily defend myself based on the circumstances.

My main point is simple.
If you feel a threat is eminent don’t hesitate.
That hesitation could cost you your life or property.

I understand that may perception my not match a courts perception but is it worth risking your life?

 

[Frank Ettin]

...I understand that may perception my not match a courts perception but is it worth risking your life?

But please understand clearly that our purpose here is to give people tools which can help them survive both on the street and in the legal system.

So ignoring the legal standards for justification will not further our purposes here. And if your view of matters is at odds with the legal standards and how a court is likely to see things, we will point that out for the benefit of others.

 

[OldMarksman]

Posted by madmo44mag: Now with that said I gave the readers digest version of what happened.
I feel I could easily defend myself based on the circumstances.

Good.

This has ben discussed here an on other boards before, and it is a point made by the best known istructors, and it is covered in the link provided in Post 7: "As in any use of force incident involving self-defense, it is very important to be the first to report the incident to the police. One more time: if you ever pull your gun on anyone for any reason, it is very important to be the first to report the incident to the police."

Failure to do so can destroy your defense.

 

[madmo44mag]

Agreed, calling the cops 1st is a must.
Its best they get your story 1st.

Too add:

To Frank

I understand all too well.
Under stress your perception may not always be in line with that of a court or the literal intent of the law.
This is part of the tight rope a person has to walk when carrying a firearm.
Those perceptions may not always be right but not acting on them could be lethal.
You MUST know the laws and limitations under your CCW permit.
My point being; know the law, understand it but don’t be so afraid of the law that fear of prosecution puts your life or a loved one life in jeopardy.

To the OP question I know that the display of a holster gun prevented a situation.
Is that brandishing?
I think that could be argued both ways but what matters is, you walked away unhurt.
If you are prosecuted then you have to prove to the court you were justified.

 

[tirod]

What an LEO is required to do, and trained to accomplish, vs what the citizen can do, are two different areas of responsibility and can have different courses of action.

Is his opponent identical in build, larger, or smaller? What sex? Lots of things are still in the air in determining whether brandishing has occurred to menace the opponent, or simply even up a disparity in force. "Threat" is completely undefined, when that is precisely what determines brandishing. Not the gun.

The differences in the instructor's opinions are exactly why a judge would take all that in as evidence in weighing a determination in a truly fair trial. The scenario as described doesn't tell us enough, which is the point. If it did, then we'd likely all be in agreement.

More specific information might spoil the discussion, tho.

Insert the following and see where it goes:

Homeless guy scrounging for aluminum cans after dark.
Teenager stealing a beer dispenser for his new bong.
Female who got lost looking for the air hose who is now in Red trying to escape.

Taking just the defensive cues as presented and discarding the grappling scene as not part of the printed setting, there's still too many variables to determine brandishing or not. It's dependent on WHO you present the gun to, and WHY you were there at all.

Got lost looking for the air hose, too.
Looking to steal what you can, and found the store owner back there.
Taking a jog after work thru that part of town and trying to avoid the large gang of thugs out front.

Now we have six different situations where it would or wouldn't be brandishing.