Defensive Draw vs Brandishing

[OldMarksman]

Posted by armed: Really counselor…is that really your argument?

Not to pile on, and not to answer for Frank, but it is crystal clear that your proposed methods for making someone understand that you "possess superior firepower" that you will use unless they "comply with your demands" would constitute a crime in any US jurisdiction. Of course, self defense is a defense against such charges.

So, that "burst presentation", as described, is not something that one could lawfully undertake without a basis for lawful justification. The operative and problematic term is "presentation".

Getting ready without indicating that you are armed would constitute a quite different story.

The effect would differ--the latter would decrease reaction time, but it would not and could not be done for the purpose of influencing someone else.

This has now been said several times and in several ways. Is it sufficiently clear?

 

[.22lr]

The potential victim yelled “STOP STAY BACK” and withdrew 10 feet from the threat, at which point the threat continued to advance, moving another 5 feet closer (as in closing with the enemy for a climax of attack).

1) The actions of the "potential victim" don't matter nearly as much as the actions of the suspected aggressor. It could be the "aggressor" is insulted by the wild over reaction of the "potential victim" and just wants to get closer to tell them to get bent but quietly enough to not be heard by others.

2) "Climax" of the attack eh? Rather dramatic.

While I commend you on the respectful reverence, you should always consider contrasting parallels; Respectful Irreverence

You say you "always turn here for keeping it real." but when faced with the reality of the legal system...

Attempting to cast me as a fanboi because I have read Fiddletown's well thought out and grounded in the law posts over the years is an swipe at me, one I do not appreciate. It is also wholly irrelevant.

What IS relevant is that:

It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply with your demands.

IS assault with a deadly weapon! The intent is CLEARLY to convey a threat of lethal force.

"burst presentation" (which sounds like "gun poetry that’s being touted these days by trainers with...") is merely a interrupted draw. If there was a reasonable threat of death or grave bodily injury, WHY THE HECK would anyone slow down their draw? Style points?

As for displaying my possession of superior firepower, my goal is to go home at the end of the day, not to win the bravado wars.

If there isn't a reason to shoot, there isn't a reason to draw.

 

[Frank Ettin]

...The actions of the "potential victim" don't matter nearly as much as the actions of the suspected aggressor...

Very true. It will be up to the "potential victim" to be able to articulate why, based on the actions of the "suspected aggressor" a reasonable person would have concluded that the threat or use of lethal force was necessary to (in the most general terms) prevent otherwise unavoidable, immediate death or grave bodily injury to an innocent. (Of course the exact terminology of the standards for justifying a threat or use of lethal force will vary from jurisdiction to jurisdiction. But in all cases, an objective reasonable person standard drawing inferences from the manifest conduct of the person against whom force would be threatened or used will apply.)

 

[pax]

Deleted an off-topic post. Please keep replies in this thread limited to the topic of the thread: Defensive Draw vs Brandishing.

Anything else, take it to PM.

pax

 

[Koda94]

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?

correct me if Im wrong but in the context of self defense aren't they both the same thing?
Perhaps the thing to remember here is if your justified to brandish your justified to shoot. I think we tend to separate the brandishing part with the shooting part but perhaps we shouldn't? In a righteous use of force the only difference between shooting and brandishing is the jeopardy ceased before you had to fire or perhaps even clear leather. The tactic of only presenting the firearm is only because the situation is one where there is time to get the message across, but the threat is no less than deadly.

They are both forms of assault justified or not and so as pointed out in any case you will be required to prove your actions were justified.

 

[Hook686]

I think it depends upon your jurisdiction, and you really need to check yours. In California it is published in the DOJ handbook that you are expected to take a beatdown before resorting to lethal force, so display under a mere threat of a fist fight would most likely be prosecuted as brandishing.

 

[guruatbol]

I usually don't like to get involved in these topics, and I must say it is a good one, I will put forth my .02.

An intoxicated individual goes out of control and hits a mail box and his lowered car becomes stuck on the curb. You are in your home and the owner of the mailbox. You go out with your weapon to investigate this is a rough neighborhood with a known drug house across the street and gang members frequently seen there.

You find the drunk trying to get hit vehicle off the curb. You take the keys while your spouse calls 911. This way he can not go forth and injure anyone else.

He punches you in the face.

Do you draw?

The homeowner did. The drunk ran away. The spouse reported this to 911. The weapon was holstered and cops arrive.

The drunk returns telling the cops the homeowner drew a gun on him.

The homeowner happened to be an off duty cop.

The result was the drunk taken off, car impounded, and charges were DUI, assaulting a peace officer and disorderly conduct.

The homeowner charged with nothing.

Would this in light of this discussion been different had the homeowner not been an off duty cop?

Mel

 

[OldMarksman]

Posted by Hook686: I think it depends upon your jurisdiction, and you really need to check yours.

Yes indeed, and one should not rely solely upon statutes as codified to determine what the laws mean.

In the OP's home state of Florida, one may lawfully threaten the use of force or deadly force if and only if the actual use of such force would be lawfully justified. That was formally codified not long ago, but it had actually been true before that.

In Arizona, the defensive display of a firearm is permitted under circumstances in which physical, non deadly force would be justified.

The are similar provisions in several other states; Texas and Washington State come readily to mind, and if I recall correctly, there are others.

However, one should not be looking for ways to justify pulling a gun, or lifting one's cover garment, or otherwise indicating that one is armed. If it is immediately necessary, do it, Do it before it is too late, and avoid doing so within or close to arms reach of a violent criminal actor.

Otherwise, do not do it. I often put it this way: before reaching for a firearm, one should know the answer to the obvious question, "what is it that I intend to do with this thing"?

Of course, and this goes without saying, whether immediate necessity existed will be determined after the fact by others based on the totality of the evidence pieced together.

How serious is running afoul of the law in this area? Well, the reason the Arizona legislature amended the law to provide for the lawful defensive display of a firearm was because a number of citizens had been charged with, and in some cases convicted of, the serious crime of aggravated assault after having done such things as touching their firearms or lifting their cover garments to let potential attackers know that they "possessed firepower". And the law in Florida was recently amended to allow the judicial system to apply some judgment, rather than requiring long mandatory sentences.

 

[Frank Ettin]

...I often put it this way: before reaching for a firearm, one should know the answer to the obvious question, "what is it that I intend to do with this thing"?...

An important point and especially worthwhile to consider in jurisdictions in which a defensive display of a gun may be legally justified under circumstances in which lethal force would not be justified. If you show your gun and don't get the response you want, you're all dressed up with no place to go.

...Would this in light of this discussion been different had the homeowner not been an off duty cop?

Hard to say, but any difference might not have anything to do with this discussion.

An off-duty police officer in most jurisdictions continues to have the full legal authority and responsibilities of a police officer. He might also have responsibilities under his employing department's policies. So on one hand we could have a cop doing what is required to do as a cop. On the other hand, we could have a private citizen getting involved in a situation he could have avoided.

Of course whether or not the outcome would be different is highly speculative. But if it would have been, the difference would most likely have been related to that distinction.

But a further discussion along those lines would be off-topic for this thread.

 

[Jim Watson]

In the OP's home state of Florida, one may lawfully threaten the use of force or deadly force if and only if the actual use of such force would be lawfully justified.

Is a cold hearted person to conclude that if he draws his gun he had just as well shoot, since the justification is the same?

 

[Hook686]

Is a cold hearted person to conclude that if he draws his gun he had just as well shoot, since the justification is the same?

Jim each of us is responsible for our own actions, reactions and in-actions. Conclude what you wish. In California it is my understanding that drawing a firearm is only justifiable if one is in fear of personal injury, or death. It is not the victim that determines that level of threat, it is the jury. In California I suspect the same incident will elicit totally opposite outcomes in San Francisco County, as opposed to Alpine County. If the DA decides to prosecute I doubt he will try to seat 12 liberals.

 

[OldMarksman]

Posted by Jim Watson: Is a cold hearted person to conclude that if he draws his gun he had just as well shoot, since the justification is the same?

The draw precedes the shot. What justifies drawing would justify shooting at that point in time, but the situation may change instantly, and shooting may no longer be justified.

The point of a gun may change the intention of the aggressor, removing jeopardy from the list of justifying conditions.

 

[Jim Watson]

Just speaking as that hypothetical cold hearted person in Florida where the justification for shooting is the same as for drawing; I can draw and fire pretty quickly, an assailant would have to surrender or flee "instantly."

I take that as an indication of the illogic of the law, not saying I am out to kill somebody. After all, we read that only one in eleven instances when a gun is drawn does it have to be fired. Why should that not be recognized?

One instructor said that the match conditioned "stroke" to draw and fire immediately could be a liability in a self defense court case because it gives the opponent no opportunity to modify his behavior upon meeting resistance.

In my jurisdiction, I may use deadly force on another person if:
He is using or about to use "unlawful deadly force."
He is using physical force against an occupant during burglary of the dwelling.
Committing or about to commit kidnapping, assault in the first or second degree, burglary, robbery, forceable rape or forceable sodomy.

 

[OldMarksman]

Posted by Jim Watson: Just speaking as that hypothetical cold hearted person in Florida where the justification for shooting is the same as for drawing;

That's probably the same in 45 states, plus or minus one or two.

I can draw and fire pretty quickly, an assailant would have to surrender or flee "instantly."

Yep.

I take that as an indication of the illogic of the law, not saying I am out to kill somebody. After all, we read that only one in eleven instances when a gun is drawn does it have to be fired. Why should that not be recognized?

Well. it really is, but what you need to ask is just what should the threshold of justification for presenting a weapon be?

I have had to point a gun in earnest three times, and in all three instances, the threat dissipated instantly. All were indoors.

In my jurisdiction, I may use deadly force on another person if:
He is using or about to use "unlawful deadly force."
He is using physical force against an occupant during burglary of the dwelling.
Committing or about to commit kidnapping, assault in the first or second degree, burglary, robbery, forceable rape or forceable sodomy.

I think tat is probably pretty much the case in every state. Do not, however, leave out the concept of immediate necessity.

 

[OldMarksman]

Posted by Jim Watson: Just speaking as that hypothetical cold hearted person in Florida where the justification for shooting is the same as for drawing;

That's probably the same in 45 states, plus or minus one or two.

I can draw and fire pretty quickly, an assailant would have to surrender or flee "instantly."

Yep, or just cease and desist.

I take that as an indication of the illogic of the law, not saying I am out to kill somebody. After all, we read that only one in eleven instances when a gun is drawn does it have to be fired. Why should that not be recognized?

Well. it really is, but what you need to ask is just what should the threshold of justification for presenting a weapon be?

I have had to point a gun in earnest three times, and in all three instances, the threat dissipated instantly. All were indoors.

In my jurisdiction, I may use deadly force on another person if:
He is using or about to use "unlawful deadly force."
He is using physical force against an occupant during burglary of the dwelling.
Committing or about to commit kidnapping, assault in the first or second degree, burglary, robbery, forceable rape or forceable sodomy.

I think tat is probably pretty much the case in every state. Do not, however, leave out the concept of immediate necessity.

 

[armed]

And and I reject as "grievous error" the assertion by Armed that what he calls a "burst presentation" is not:

...Brandishing and/or a Defensive Display of a firearm...
​

As he, himself, described it, it is undoubtedly displaying a gun in a threatening manner (emphasis added):

...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply with your demands...​

His stated purpose in executing a "burst presentation" is to cause the person to whom the act is directed to fear that the actor will use the gun against him.

And the assertion that a "burst presentation" is somehow not:

...Brandishing and/or a Defensive Display of a firearm...​

can not stand in light of the discussion of the Common Law definition of assault and both FS 790.10 and FS 776.12.

So considering that background, and considering the avowed intent behind the so called "burst presentation", i. e., to strike fear in the heart of a possible assailant that you will shoot him if he doesn't withdraw, how can a "burst presentation" be anything other than a threat. That is not fairly debatable.

So if one performs a "burst presentation" under circumstances in which he would not be justified to threaten lethal force, he will be subject to prosecution for assault, or menacing, or brandishing, as the case may be in the jurisdiction. But if one performs the "burst presentation" under circumstances in which he would be justified to threaten lethal force in self defense, his defense against prosecution for assault, or menacing, or brandishing, as the case may be in the jurisdiction, will be justification.

Threatening someone with a gun is prima facie a crime, no matter how you do it. Justified self defense is a defense to that crime.

I come before all of you seeking forgiveness, for I am only simple man with no legal background who can only speak in the plain language.

Please take special note of the prosecutions own words, where he says that I,

“undoubtedly displayed a gun in a threatening manner.”

He then sets before your eyes my written admission and bellows these are undisputed facts that cannot be called into question.

...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply with your demands…​

I ask that you examine my admission and take note of the prosecutors wordplay through his selective emphasis, which reads:

“…show someone that you possess superior firepower, and that you will use it if they don’t comply…”

YES. If these are the only words that you must consider then lock me up and let me rot. But now YOU MUST rely on ALL THE EVIDENCE IN ITS ENTIRETY, and not what is spoon fed to you by the prosecution as the most desirable.

A true and complete reading of my admission with (emphasis added):

...It is designed to show someone who is unarmed, but who you believe intends to inflict grave bodily harm or death, that you possess superior firepower, and that you will use it if they don’t comply[/B] with your demands…​

The prosecution has told you this

“can not stand in light of the discussion of the Common Law definition of assault and both FS 790.10 and FS 776.12.”

Let’s turn our attention to these common laws, that the prosecutor implies that I seek to hide in the shadows of, and let me stand before all of you in its reflected glory:

776.012 Use or threatened use of force in defense of person.—
(2) 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. A person who uses or threatens to use deadly force in accordance with this subsection does not have a duty to retreat and has the right to stand his or her ground if the person using or threatening to use the deadly force is not engaged in a criminal activity and is in a place where he or she has a right to be.

The wording is plain and simple, I am justified in in threatening to use deadly force if I REASONABLY believe it’s necessary to prevent death or great bodily.

BURSTING is consistent with threatening behavior which would cause a person of ordinary sensibilities to fear death.

Ladies and Gentleman please note that I did not gloss over that my justification had to be REASONABLE - and you are the the only ones who may judge that.

The Reasonable Standard Instruction is that you must consider my "state of mind" and "perceptions" under the circumstances at the time. You must recognize that my surrounding events are relevant when assessing if Bursting was reasonable and necessary to prevent harm or death.

The facts in evidence have been stipulated to:

I am 5 feet 9 inches tall and weigh only 155 pounds

In the video, the assailant is 6 feet 1 inches tall and weighs 230 lbs.

He was facing me and there was no eye contact. It was as like his mind was elsewhere. It appeared to me that he was looking for an escape route or psyching himself up to act. Like he was mentally processing the situation. He appeared extremely agitated.

He was pacing, bouncing up and down, and rocking back and forth like in the ring, when boxers are warming up right before the fight. He just appeared to have that adrenaline pump going.

I was looking at him, not staring, hoping for that subtle unconscious friendly glance of acknowledgement, but it was the opposite. He was not only not making eye contact but consciously making an effort not to look at me by hiding his face with facial wipes, and slicking back his hair, and looking up into the air.

Every so often, when he stopped moving, he dropped into a boxers stance. To me that was a solid indicator of trouble, because that’s a fundamental defensive shooting position all conceal carriers are taught when drawing and shooting their guns during training. It’s in preparation for a defensive gunfight. He was doing the same thing; feet positioned shoulder-width apart, knees bent slightly, a "nose over toes" lean indicating preparation to launch.

He was clenching fists, popping knuckles, and rubbing and wringing his hands together. It was just so obvious to me that he was warming up, loosening his muscles and tendons, getting ready for a fight.

And then there was that thousand yard stare. Unnerving by itself, but in totality of everything else that was going on, well, it just made all my bells and whistles ring. He was looking right through me, never at me. It was that "faraway look”, like he had put himself in that "angry place". I could sense he was dehumanizing me.

And then he hovered like a linebacker. My conscious mind shut down and my gut instinct told me he was just a second away from hitting the launch button. That's when I yelled:

“STOP STAY BACK STAY BACK STOP DON’T COME ANY CLOSER”.

I wanted to gain distance immediately. He was about 25 feet from me. I dare not take eyes off him by turning around and running. I’m not fast, and I didn’t want him to sense fear. So I walked backwards - slowly - for fear of tripping. For a second I had to turn to get my bearings.

THAT’S WHEN I SAW IT.

He sprinted forward. I retreated about 10 feet but he was much closer now -about 20 feet between us.

May I approach the jury your Honor?

Pax: You may.

Ladies and Gentleman, of what I’m about to say, I stand before each and everyone of you so that you may look into the window’s of my soul. At that very moment I was in fear of imminent death or great bodily harm - and it was logical - and it was rational - and it was sound - and I will prove it was REASONABLE.

[Tick Tock Tick Tock Tick Tock Tick Tock Tick Tock Tick TockTick Tock Tick Tock]

Frank: Objection Your Honor! How long will the defendant stand silently before the jury.

Pax: armed?

Yes your honor.

Pax: Can you please turn from the jury and face me?

No your honor.

Pax: May I ask why?

They are still searching my soul

Frank: OBJECTION YOUR HONOR.

Pax: armed, please step away from the jury box and proceed with your case.

Yes - I’m sorry your Honor.

Ladies and Gentleman before turning your attention to FS 790.10, let me introduce what the prosecutor himself has described as the “Tueller data”:

Dennis Tueller (a Salt Lake City police officer) developed the exercise to test at what distances an assailant with a contact weapon could be a credible threat. But folks seem perversely want not to understand the real meaning of the Tueller data (and it is not a "rule").

The point Tueller was trying to make with his exercises is that an assailant 21(+/-) feet away with a contact weapon needs to be taken seriously as a threat. You need to take him seriously as a threat because (1) he can cover the distance between you and him in a short time; and (2) it will take you a roughly comparable amount of time to draw and fire your gun.

Your Honor, may we break for dinner?

Pax: Frank?

Frank: That’s fine your Honor.

Pax: Let’s convene in two hours.

 

[Frank Ettin]

I'll make this brief for now, since I'm with my group putting on our monthly NRA Basic Handgun class.

But I just want to remind everyone of the first principle, the so called burst presentation is threatening someone with a gun and prima facie a crime.

If it is performed under circumstances in which the actor would be justified to threaten lethal force, that would be a good defense to a criminal charge for the burst presentation.

I offer no opinion as to whether or not in the "scenario" described threatening someone with lethal force would be justified. That is a separate and significantly more complex question. There are frequently holes in any description of a hypothetical scenario, and details matter. In our experience it is usually unproductive to try to decide categorically that lethal force would or would not be justified in a particular assumed scenario.

However, if the OP wants, and if we have settled the point that the burst presentation is threatening someone with lethal force and would need to be legally justified to avoid criminal liability, we can consider in detail those factors in the scenario which might help establish justification, and those factors which might not.

But the starting point is that the burst presentation is a threat to unleash lethal force.

 

[OldMarksman]

Posted by armed: The wording is plain and simple, I am justified in in threatening to use deadly force if I REASONABLY believe it’s necessary to prevent death or great bodily.

Yeah--and someone else will decide, on the basis of the evidence provided after the fact, whether a reasonable person, knowing what you knew at the time, would have believed that, and whether you did in fact believe that.

I am 5 feet 9 inches tall and weigh only 155 pounds

You should know that disparity of force is usually a very tough one. I refer you again to Marty Hayes' website, on which he describes the case of one armed man defending himself against three unarmed persons who were actually beating him. It dragged on for a very long time, and while the defendant was not convicted in two trials, he was not acquitted. The ordeal it bankrupted the defendant.

He was facing me ... no eye contact. .... It appeared to me ...appeared extremely agitated...pacing, bouncing up and down, and rocking back and forth ..... hiding his face with facial wipes, and slicking back his hair, and looking into the air... clenching fists, popping knuckles, and rubbing and wringing his hands together.... thousand yard stare. ...hovered like a linebacker.

But did he threaten you--did say or do anything specific to the effect that he intended to harm you then and there?

I don't want to play fantasy games or get into hypotheticals, but the cross examination on that subject might well spell the end for the hypothetical you.

I do strongly recommend (1) that you carefully review what Mary Hayes has to offer, and (2) find out when and where the next MAG-20 session will be presented in reasonable proximity to you. MAG-20 will tell you more than any other resource I know of about use of force law.

 

[Frank Ettin]

The video identifies certain visual clues called pre-incident indicators. Such concepts can be useful, but before they can necessarily be relied upon to help establish one's justification, their significance would probably need to be validated. In other words, can you demonstrate that such "clues" reasonably mean what you say they mean?

And the video has been staged so everything looks sufficiently evil. Like many hypotheticals, it has been constructed to lead one to the conclusion you want. If staged a bit differently no eye contact could look like deference or a manifestation of shyness. Staged differently a wringing of hands becomes a manifestation of anxiety.

People are always looking for a formula, but there really isn't one. We need to understand the general principles and study the cases to help understand how those principles can apply in real life.

 

[armed]

The video identifies certain visual clues called pre-incident indicators.

We are instructors, whether gun or legal, and it’s our duty to ensure that what we do, and what we say, is most favorable to the law abiding gunfighter, so they may take it with them and shed light upon it when they have to.

The video identifies certain THREAT cues, also called pre-ASSAULT indicators. This is standard nomenclature throughout the gun culture, and it’s testimony that could sway LEO's, DA's, jurors, etc., when repeated in its proper form.

Just a suggestion.