Defensive Draw vs Brandishing

[OldMarksman]

Posted by armed: I can think of no error more fundamental than to misinform and strike unnecessary fear into the hearts of conceal carriers. Fear that would deprive them of a sound tactical maneuver that could save their lives without a gun being drawn.

WHAT???

Now, just an aside: do you still believe that "tactical maneuver" that involved letting someone know that you were armed would differ from one that involved "a gun being drawn"? If so, why?

The established principles of law hold there can be no crime if there’s no factual basis for the prima facie elements of an offense charged.

Yeah, but evidence that one had done something like giving a person reason to believe that you might harm him unless he were to do something would certainly serve as the "factual basis for the prima facie elements of an offense charged", and would require a defense of justification, which would also require you to present evidence.

Shall I continue presenting my case?

I believe your time would be much better spent pursuing the advice I provided in Post # 58.

 

[armed]

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.

Will do, thanks for the referral.

 

[Frank Ettin]

...and it’s our duty to ensure that what we do, and what we say, is most favorable to the law abiding gunfighter,...

"Law abiding gunfighter"? I prefer to look at my efforts as offering useful tools to the law abiding, ordinary private citizen who wishes to be able to effectively assume a measure of responsibility for his, and his family's, protection.

In any case --

...The video identifies certain THREAT cues, also called pre-ASSAULT indicators...

Yes, but my point is that they are not automatically indicative of a threat and must be understood in the context of the totality of the circumstances. In a person generally acting belligerently, not making eye contact and rubbing the hands might well indicate a high likelihood of an imminent attack. In a person generally acting passively or withdrawn, not so much.

 

[armed]

Now, just an aside: do you still believe that "tactical maneuver" that involved letting someone know that you were armed would differ from one that involved "a gun being drawn"? If so, why?

Bursting is NOT to inform that you’re bearing arms, it’s a threat to kill.

Tactical Value: Equivalent, whether the gun is on target or holstered - under proper conditions.

Administrative Value: HUGE big plus. You are managing and regulating affairs without pointing a gun at someone. Once it comes into play, we all know that’s bad juju for all around.

Once this issue is settled, I was hoping maybe we could all come together and discuss it’s practical application, from there maybe improve on the maneuver, then develop boundaries, limits, context, rules, nomenclature…you know…to make it viable technique for the conceal carriers tool box. This is how ideas are born - when like minded people come together.

Did I answer your question?

 

[Frank Ettin]

...Once this issue is settled, I was hoping maybe we could all come together and discuss it’s practical application, from there maybe improve on the maneuver, then develop boundaries, limits, context, rules, nomenclature…you know…to make it viable technique for the conceal carriers tool box. This is how ideas are born -....

But what's really new here? A defensive display of a gun, with or without presentation and with or without actually pointing the gun, has pretty much always been a part of a gun carrier's tool box for years. Putting one's hand on his holstered gun in a manner which would communicate a warning sure doesn't strike me as a new idea. There was an interesting discussion of the general topic in a thread entitled "Safe, Legal way to inform an aggressor you are carrying" some 18 months ago on THR.

As for rules, boundaries, limits, etc., those will basically revolve around the law in the particular jurisdiction regarding when one may justify a threat of lethal force.

Other considerations (in connection with any defensive display of a gun) could include --

1. Can you really convince a perceived assailant that you can and will use the gun. Massad Ayoob has said, in effect, that a criminal isn't afraid of a gun; he is afraid of a person with a gun who he believes can and will use it effectively.
   
   
2. If your warning doesn't work, do you have the ability to quickly draw and accurately fire the gun if that becomes necessary, and if you decided you needed to do so, would the circumstances be such that the use of lethal force could be justified.

 

[armed]

...and it’s our duty to ensure that what we do, and what we say, is most favorable to the law abiding gunfighter,…

"Law abiding gunfighter"? I prefer to look at my efforts as offering useful tools to the law abiding, ordinary private citizen who wishes to be able to effectively assume a measure of responsibility for his, and his family's, protection.

If you teaching skills are as good as your legal mind, then those "ordinary citizens" are highly skilled with a gun. In my neck of the woods we call 'em gunfighters.

In any case --

...The video identifies certain THREAT cues, also called pre-ASSAULT indicators...

Yes, but my point is that they are not automatically indicative of a threat and must be understood in the context of the totality of the circumstances.

You are correct. I word it differently and tell my clients the totality of threat indicators and other relevant circumstances must be understood when considering action. You say tomato, I say tomahto.

In a person generally acting belligerently, not making eye contact and rubbing the hands might well indicate a high likelihood of an imminent attack. In a person generally acting passively or withdrawn, not so much.

Again, correct…I’d pay a million bucks to see what passive or withdrawn threat cues look like. That made me laugh.

How was your class - did you get flagged?

Are you gonna help me write a general, systematic, and written statement of legal rules and principles applicable to the Burst Presentation? The conceal carry community sure could use one.

 

[armed]

Frank,

About those rules, I'm not articulating that correctly. I'll explain later today.

 

[OldMarksman]

Posted by armed: Bursting is NOT to inform that you’re bearing arms,....

I was paraphrasing your post #25:

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....

...it’s a threat to kill.

I surely hope not!

Did I answer your question?

No. My question was framed in the context of the legal distinction that we had been discussing.

And I have no idea what you mean by "Administrative Value".

Look, one more time: the laws, including the case law, on the presentation of a firearm differ among US jurisdictions. There is a sticky in L&CR on the subject, and it necessarily covers only the general aspects.

It would be a very unrewarding and fruitless undertaking to try to go into any depth on the "legal rules and principles" that would apply to all jurisdictions. But where you live, it has been done rather recently--by the legislature.

And we've covered that.

 

[.22lr]

As much as I liked watching law and order (I was in college, that wasn't my worst decision of the time):

1) I can't stand it now.
2) I'm shocked it is still on the air.
3) I will refrain from pretending I am in a courtroom.

It all boils down to this:

If you are in immediate jeopardy of an obvious-to-anyone threat of death or grave bodily injury the use of deadly force can be viewed by the legal system as justified / lawful.

If you have the time to draw your gun and then deploy bravado-fu the imminence and jeopardy of the situation becomes suspect.

If you have legal justification to draw (and the threat is still present) then there is legal justification to shoot.

If there is legal justification to draw, your life is in immediate danger RIGHT NOW. Save yourself; Shoot!

"Burst presentation" is a overly dramatic way of referring to hesitating in a life and death situation. Life and death situations are different from heavily choreographed YouTube videos.

 

[.22lr]

There's disagreement amongst a group of instructors

Who are they, why are their views valid? What are the arguments for and against?

Do they have any relevant experience in training citizen self defense or knowledge of the law?

Heck, what even makes these folks instructors?

 

[Frank Ettin]

...I’d pay a million bucks to see what passive or withdrawn threat cues look like...

That's sort of my point. In someone whose overall demeanor is passive or withdrawn body language like not making eye contact or wringing one's hands aren't "threat cues."

 

[Ruger480]

Wow, this is one of the best threads I've read in a while.

 

[Ruger480]

Deleted. I'll start a new thread if I can't find the answer in other posts.

 

[armed]

...it’s a threat to kill.

I surely hope not!

Why are you doing that? We have settled the legal issue, correct? Let’s move on. If I’ve offended you - anyone, I apologize.

Bursting is a threat to kill, said otherwise and it would be brandishing. If motives are examined, I advise my clients to be firmly resolved in their answers, e.g:

Authorities: Why did you Burst?

Client: I was going to kill X.

Authorities: Why were going to kill X?

Client: To prevent my imminent death or great bodily harm?

Authorities: But X was unarmed, how did you feel your death or great bodily harm was imminent?

Client: [Elaborate on the reasonable person construct when you state your case]

Authorities: So you thought displaying a gun would prevent your imminent death or great bodily harm?

Client: No, I was going to kill X, therefore, I was acquiring proper readiness to do so.

Authorities: Proper readiness…kill…preparedness…? These are military terms. Did you believe yourself to be a soldier in combat when you were getting ready to kill X?

Client: I am a law abiding citizen. Those “military” terms are used within a specific training group.

Authorities: What group is that?

Client: The group that trains in the use of deadly force, be it LEO’s, soldiers, citizens…

Authorities: You train with soldiers and police?

Client: Formally, sometimes. Informally, it’s an unavoidable interaction when doing range work.

Authorities: We have multiple witnesses statements relating to the fact that you brandished your weapon at X who was unarmed?

Authorities: When I depose them, they will state otherwise, i.e, that they heard loud commands, and they will agree that it appeared I was going to kill X. Anything short of that will show that you violated rules designed to prejudice the jury.

To all conceal carriers,

I’ve been interrogated by seasoned detectives. There’s over 40 hours my videotaped depositions showing the best lawyers in town trying to break me. I’ve looked into the eye’s of jurors who were there to decide my fate. I work for the Law firm of Bradley Conway, a criminal defense attorney. We’ve handled two civilian shootings and both were no billed.

I train with Bob Capps, a great firearms instructor and Patrol Sargent with the sheriff’s office.

The last time my gun pointed at someone was when I assisted Florida Highway Patrol, Trooper, Green, at Yeehaw Junction on the Florida turnpike, when he lost control of Derrico Miller, who I had to draw upon. Mr. Conway was a witness.

I list these names for vetting purposes only. I will never reveal the name of my school. I don’t need or want your business. I am only here to impart my knowledge.

My specialty is Simple Crisis Management as it relates to Use of Force and Rules of Engagement. It’s when you’re a Cornered Cat (not stroking you for leniency Kathy - facts are facts). This is self appointed. I’m very good at what I do through plain speak and direct approach. It comes across as arrogant and insolent but skilled, letting the other party know they are dealing with a formidable opponent. You be the judge.

The scholars and critics will be along shortly to call all this balderdash. Again, judge for yourself.

What was played out above is true and real. Remember, my training is from a crisis perspective. In other words, you should not act this way with on scene authorities. The crisis is over and now it's time to assist. Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree, yada yada…If there's a problem you will see it slowly evolve into a crisis again.

I want you to stay safe.

 

[Frank Ettin]

...Bursting is a threat to kill, said otherwise and it would be brandishing. If motives are examined, I advise my clients to be firmly resolved in their answers, e.g:

Authorities: Why did you Burst?

Client: I was going to kill X.

Authorities: Why were going to kill X?

Client: To prevent my imminent death or great bodily harm?...

Oh my! How awful. Admitting as the very first answer an intent to kill would be a terrible idea.

The law allows one to justify an act of violence against another human if necessary to stop that other human from hurting you (or another innocent person). The operative word is "stop." Our intent is to stop a threat. If as an unavoidable consequence of our use of a degree of force reasonably necessary to stop an attacker the attacker dies, so be it. But his death is not our goal. Our goal is to stop him.

So --

• Cop, "Why did you go for your gun?"
  
  
• Victim, "To stop him from killing me."

 

[Frank Ettin]

Let me add an anecdote.

When I took LFI-1 from Massad Ayoob, he related a brief part of a cross examination of a defendant on trial for manslaughter following the defendant's shooting of a person in what he claimed was self defense.

The brief segment of the cross examination, as the story was told by Mas went like this --

• Prosecutor to defendant on the witness stand, "Did you shoot to kill?"
  
  
• Defendant, looking at the jury and answering in a calm, soft voice, "No. I shot to live."

The defendant was acquitted.

If someone having used force in self defense winds up in court, his legal defense presents some knotty problems. It is, in a self defense case, very different from ordinary criminal defense.

Several years ago a lawyer by the name of Lisa Steele wrote an excellent article for lawyers on defending a self defense case. The article was entitled "Defending a Self Defense Case" and published in the March, 2007, edition of the journal of the National Association of Criminal Defense Lawyers, The Champion. It was republished in four parts, with permission, on the website, Truth About Guns. The article as republished can be read here: Part 1; Part 2; Part 3; and Part 4.

As Ms. Steele explains the unique character of a self defense case in Part 1:

...Self-defense is all-or-nothing. In order to establish it, the client has to admit being at the crime scene, with a weapon, which he or she used to intentionally harm the aggressor. The client has to admit that he injured the aggressor. The client has to convince the jury that if a reasonable person had been standing in his shoes, the reasonable person would have done the same thing. In effect, the aggressor invited his fate by threatening or inflicting serious bodily harm, or by threatening to kill the client.

In one fell swoop, the client has given up alibi and mistaken identity defenses. He or she has given up any claim that the wound was made by accident. Generally, the client must give up provocation (heat of passion or extreme emotional disturbance). Logically, provocation implies an unreasonable response to a situation, and mitigates murder to manslaughter. Self-defense implies a rational response to a very dangerous situation and, if successful, results in an acquittal. Similarly, the client must give up claims of mental illness or insanity and defenses based on intoxication or drug use....

 

[OldMarksman]

Armed, please read and heed Frank's responses.

One does not shoot "to kill".

One shoots when and only when it is immediately to prevent someone else from seriously harming someone. Shooting may well result in the death of the assailant, but that is not the lawful objective.

One of the things pointed out by Lisa Steele is that one may lawfully use no more force than is necessary to defend oneself. If one shoots and the assailant falls unconscious or drops his gun and runs, one may not shoot again--period.

A pharmacist who did shoot a person on the ground after he no longer constituted a threat was charged with and convicted of first degree murder in Oklahoma City not too long ago. Research the Jerome Ersland case.

 

[JohnKSa]

Why are you doing that? We have settled the legal issue, correct?

TX law allows a person to display a firearm legally at a lower threshold of justification than the justification for deadly force. If force (a lower standard than deadly force) is justified under the TX Penal Code, a person may display a firearm.

The purpose is clearly stated:

Sec. 9.04. THREATS AS JUSTIFIABLE FORCE. The threat of force is justified when the use of force is justified by this chapter. For purposes of this section, a threat to cause death or serious bodily injury by the production of a weapon or otherwise, as long as the actor's purpose is limited to creating an apprehension that he will use deadly force if necessary, does not constitute the use of deadly force.​

While it is reasonable to state that the display of a firearm may be viewed as a threat to cause death, that doesn't mean that a defender would be well-advised to state that his purpose was to kill the attacker.

Assuming the proper justification exists, the defender has the right to use deadly force to prevent or stop certain violent crimes with the understanding that the death of the attacker may result, but that is not equivalent to being given the right to kill. If the attack ceases and the attacker is still alive that is irrelevant—the justification for deadly force no longer exists even though the attacker has survived.

Justifiable deadly force is about preventing killing, not about killing. Sometimes death is an unavoidable consequence, but it is never the goal.

 

[armed]

Oh my! How awful.

Admitting as the very first answer an intent to kill would be a terrible idea.

For clarity:

What was played out above is true and real. Remember, my training is from a crisis perspective. In other words, you should not act this way with on scene authorities. The crisis is over and now it's time to assist. Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree, yada yada…If there's a problem you will see it slowly evolve into a crisis again.

When I said, “In other words, you should not act this way with on scene authorities.” That meant “Admitting as the very first answer an intent to kill would be a terrible idea.”

When I said “The crisis is over and now it's time to assist.” That meant the bursting/shooting event is over and it’s now time to assist the authorities in their investigation.

When I said, "Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree…” That meant you wrote excellent pieces on how someone should assist first responders in their investigation, i.e, how someone should act humble, cooperate, and aid investigators, but only to a limited degree.

 

[Frank Ettin]

Oh my! How awful.

Admitting as the very first answer an intent to kill would be a terrible idea.

For clarity:

What was played out above is true and real. Remember, my training is from a crisis perspective. In other words, you should not act this way with on scene authorities. The crisis is over and now it's time to assist. Frank Ettis has posted some good stuff on that, i.e., humble, cooperate, assist, to a limited degree, yada yada…If there's a problem you will see it slowly evolve into a crisis again.

When I said, “In other words, you should not act this way with on scene authorities.” That meant “Admitting as the very first answer an intent to kill would be a terrible idea.”

When I said “The crisis is over and now it's time to assist.” That meant the bursting/shooting event is over and it’s now time to assist the authorities in their investigation....

Your fantasy "interrogation" is still hooey and lousy advice. Again see my alternate.

Another example of a very poorly thought out proposed response from that post:

...Authorities: So you thought displaying a gun would prevent your imminent death or great bodily harm?

Client: No, I was going to kill X, therefore, I was acquiring proper readiness to do so....

A better plan:

• Cop, "So you thought displaying a gun would prevent your imminent death or great bodily harm?"
  
  
• Victim, "Yes."