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Weapon mounted lights and felony aggravated assault.
- Thread starter yober
- Start date
OldMarksman
Staff
Posted by Mobuck:
Mas mentioned a few possibilities: "a teenager invited in unknown to us by one of our own kids, or a person we had entrusted with a key to our house arriving unannounced, a spouse unexpectedly returning home a night early from a business trip, etc."
More: A person with a wrong address, a visitor who has the wrong date, someone coming in to tell you that there is smoke coming out of your attic, one of your offspring sneaking back in.... Those things happen. That's the real world.
And of course there are civil suits, and one of those could be extremely likely.
Short of that, there are the possibilities of losing a friend, an invitation to a hunting or fishing trip, or a job, depending on at whom you waved your gun.
That would be true even if the person in the house had been a burglar.
A "benign" intruder within your home? Who the heck might THAT be...
Mas mentioned a few possibilities: "a teenager invited in unknown to us by one of our own kids, or a person we had entrusted with a key to our house arriving unannounced, a spouse unexpectedly returning home a night early from a business trip, etc."
More: A person with a wrong address, a visitor who has the wrong date, someone coming in to tell you that there is smoke coming out of your attic, one of your offspring sneaking back in.... Those things happen. That's the real world.
Victims do not file criminal barges. The state does. But if no shots are fired, the question becomes whether the victim will file a report. Don;t bet against it....and how likely would such a person be to file charges against you?
And of course there are civil suits, and one of those could be extremely likely.
Short of that, there are the possibilities of losing a friend, an invitation to a hunting or fishing trip, or a job, depending on at whom you waved your gun.
Everone would be very happy, including the resident and his family.Any intruder who walks away should be positively ecstatic that he's still alive.
That would be true even if the person in the house had been a burglar.
If the light is mounted on a weapon, then anything I cover with the light is being covered by the muzzle. In short, if I'm pointing the light at someone, I'm pointing the gun at someone. Without justification, that can constitute assault.
Nonsense, I have a Tlr-2 and I can hold the muzzle 5 ft to the left and the
cone of light wide enough to see a threat.Even if you point the
muzzle to the floor,you're gonna illuminate a wide area.
Nonsense, I have a Tlr-2 and I can hold the muzzle 5 ft to the left and the
cone of light wide enough to see a threat.Even if you point the
muzzle to the floor,you're gonna illuminate a wide area.
I'm still shaking my head that people are worried about getting sued for "pointing a gun" at an apparent intruder in the house who was not shot because of the same gunlight that makes them worried. Even if you're in a circumstance where you can't control all entry to your home - you rent a room with friends, your kids bring people over without asking (though if it were my kid, that wouldn't happen more than once), etc. - it seems to me infinitely better to not shoot them than to shoot them. Though if I lived in one of those circumstances, I would be doing my utmost to get myself out of it.
If you want to carry a separate flashlight, that's up to you, but it's a lot simpler to marry a light and a laser to a gun, provided you don't go poking around outside with it, where you do lose most of your legal protections certainly in CA where I'm most familiar with the laws. I think it would be foolish to go poking around outside anyways, because at that point you are going to be viewed as a hunter who left the relative safety of your home to seek out a confrontation.
If you want to carry a separate flashlight, that's up to you, but it's a lot simpler to marry a light and a laser to a gun, provided you don't go poking around outside with it, where you do lose most of your legal protections certainly in CA where I'm most familiar with the laws. I think it would be foolish to go poking around outside anyways, because at that point you are going to be viewed as a hunter who left the relative safety of your home to seek out a confrontation.
For perspective, as the guy who wrote the article in question, I have no problem with any householder taking a true "intruder" at gunpoint, and never said otherwise. My point in articles on the topic of WMLs is that using the gun-mounted light for searching points a loaded gun at everything in the light beam.
As the guy who posted about the guy who wrote the article in question, thanks for clarifying your point (I think).
Even if the person pointing the gun keeps their finger out of the trigger guard, pointing a loaded gun at someone is still construable as aggravated assault if it turns out to be someone who had a right to be there.
This still worries me. I think Mas is saying it's always a distinct possibility. What is unanswered is whether the perpetrator's perspective and state of mind come into play during the charging of the individual by the state (and I live in Kalifornia so I do care what they think).
Yober, if the person had a right to be in the house, by definition he's not a "perpetrator."
If his perception is, "Bobby invited me to stay over at his house, and I got up in the night to go to the bathroom, and Bobby's dad pointed a loaded gun at me OMG!" ... well, Bobby's invited guest (and the criminal justice system) may well perceive it as felony aggravated assault. "Bobby's dad pointed a flashlight at me" would have been a whole lot easier to deal with.
If his perception is, "Bobby invited me to stay over at his house, and I got up in the night to go to the bathroom, and Bobby's dad pointed a loaded gun at me OMG!" ... well, Bobby's invited guest (and the criminal justice system) may well perceive it as felony aggravated assault. "Bobby's dad pointed a flashlight at me" would have been a whole lot easier to deal with.
Yober, if the person had a right to be in the house, by definition he's not a "perpetrator."
If his perception is, "Bobby invited me to stay over at his house, and I got up in the night to go to the bathroom, and Bobby's dad pointed a loaded gun at me OMG!" ... well, Bobby's invited guest (and the criminal justice system) may well perceive it as felony aggravated assault. "Bobby's dad pointed a flashlight at me" would have been a whole lot easier to deal with.
By perpetrator, I meant me, not them. Perp in the eyes of the state.
Point well made, regardless. Thanks.
OldMarksman
Staff
Posted by JeffK:
Also, " 'pointing a gun' at" someone is not necessary to bring about such problems. Having it in your hand, touching it, and so on can put you in great difficulty, absent evidence of justification.
That you are "shaking your head" would seem so indicate that you had not been aware of the issues. It is a good thing that you learned of them here rather than as the subject of a criminal investigation or civil proceedings.
Here's more on the subject.
Inside your house? In the linked thread, Frank Ettin said "The short answer is that under the laws in many (probably most) States you should have little or no difficulty establishing justification for the use or threat of lethal force in self defense if you know or have reason to believe that someone has unlawfully and forcefully entered your home." (Emphasis added)
Well, "getting sued" is only part of the problem. There is also the little matter of serious criminal charges.I'm still shaking my head that people are worried about getting sued for "pointing a gun" at an apparent intruder in the house who was not shot because of the same gunlight that makes them worried.
Also, " 'pointing a gun' at" someone is not necessary to bring about such problems. Having it in your hand, touching it, and so on can put you in great difficulty, absent evidence of justification.
That you are "shaking your head" would seem so indicate that you had not been aware of the issues. It is a good thing that you learned of them here rather than as the subject of a criminal investigation or civil proceedings.
Here's more on the subject.
Of course. That goes without saying.Even if you're in a circumstance where you can't control all entry to your home - you rent a room with friends, your kids bring people over without asking (though if it were my kid, that wouldn't happen more than once), etc. - it seems to me infinitely better to not shoot them than to shoot them.
Good thinking.Though if I lived in one of those circumstances, I would be doing my utmost to get myself out of it.
That depends on how you define simplicity. If you wave a gun around in the presence of someone without a basis for lawful justification, things are likely to become very compacted indeed.If you want to carry a separate flashlight, that's up to you, but it's a lot simpler to marry a light and a laser to a gun, provided you don't go poking around outside with it, where you do lose most of your legal protections certainly in CA where I'm most familiar with the laws.
Inside your house? In the linked thread, Frank Ettin said "The short answer is that under the laws in many (probably most) States you should have little or no difficulty establishing justification for the use or threat of lethal force in self defense if you know or have reason to believe that someone has unlawfully and forcefully entered your home." (Emphasis added)
Yes indeed.I think it would be foolish to go poking around outside anyways, because at that point you are going to be viewed as a hunter who left the relative safety of your home to seek out a confrontation.
Absent other witnesses, particularly inside your house, any charges brought by the distressed "intruder" that you threatened them with a weapon, is a matter of their word against yours.
They gain credibility if they can describe the weapon (accurately enough) and by bringing a complaint, first. Also, if you are foolish enough to admit to doing it to investigators. Against that, your word might not be enough to absolve you of all possible charges.
Many places have it broken down in the law, pointing a gun at someone could be "assault". Just having the gun in your hands could be "Brandishing a firearm", etc.
Inside your home, you have a bit of legal protection, and a presumption that you having your own gun inside your own home is not "brandishing" under the law. Outside, even on your own property could be a much different matter.
Check ALL your local laws, CAREFULLY. Also be aware that any complaint made could simply be a lie.
Brother in law wound up in court in a dispute over a boat that both had put money into. Other guy said BIL threatened him with a gun. BIL had been loud and threatening (verbal only). BIL didn't own a gun. While eventually settled, if the BIL had owned a gun, it would have been a much bigger mess.
And yes, the other guy did face penalties for lying, but probably only because BIL didn't have any guns at all, something other people testified to.
They gain credibility if they can describe the weapon (accurately enough) and by bringing a complaint, first. Also, if you are foolish enough to admit to doing it to investigators. Against that, your word might not be enough to absolve you of all possible charges.
Many places have it broken down in the law, pointing a gun at someone could be "assault". Just having the gun in your hands could be "Brandishing a firearm", etc.
Inside your home, you have a bit of legal protection, and a presumption that you having your own gun inside your own home is not "brandishing" under the law. Outside, even on your own property could be a much different matter.
Check ALL your local laws, CAREFULLY. Also be aware that any complaint made could simply be a lie.
Brother in law wound up in court in a dispute over a boat that both had put money into. Other guy said BIL threatened him with a gun. BIL had been loud and threatening (verbal only). BIL didn't own a gun. While eventually settled, if the BIL had owned a gun, it would have been a much bigger mess.
And yes, the other guy did face penalties for lying, but probably only because BIL didn't have any guns at all, something other people testified to.
I think it all comes down to what the homeowner knows (or should have reasonable know).
If i know my kid has a friend over and i hear a bump in the night, its unreasonable to go poking around with only a WML
If i believe there is only me and my wife and and i go poking around with a WML, only to find a friend that got the dates wrong to pick me up (as stated above) then that friend is going to have a VERY hard time getting any charges to stick.
I was REASONABLE in my response and lawful in doing so
If i know my kid has a friend over and i hear a bump in the night, its unreasonable to go poking around with only a WML
If i believe there is only me and my wife and and i go poking around with a WML, only to find a friend that got the dates wrong to pick me up (as stated above) then that friend is going to have a VERY hard time getting any charges to stick.
I was REASONABLE in my response and lawful in doing so
OldMarksman
Staff
Posted by Sharkbite:
The question would be about the basis for your belief that someone had in fact entered unlawfully, or in some jurisdictions unlawfully and with force, and in some places unlawfully with the intent of committing a felony other than the unlawful entry, or in some places with the intent of using force against someone in the house.
I think the question posed by the OP
...has been answered.
There is a more important question, and that has to do with whether one should be "investigating a bump in the night" in the first place.
Every burglary and home invasion reported in our large metropolitan area in the last several years has involved more than one criminal.
It is the one whom you do not see who poses the real threat. Neither your firearm nor the light beam projected from the flashlight on it can protect you against gunfire.
It would not be up to "that friend".If i believe there is only me and my wife and and i go poking around with a WML, only to find a friend that got the dates wrong to pick me up (as stated above) then that friend is going to have a VERY hard time getting any charges to stick.
The question would be about the basis for your belief that someone had in fact entered unlawfully, or in some jurisdictions unlawfully and with force, and in some places unlawfully with the intent of committing a felony other than the unlawful entry, or in some places with the intent of using force against someone in the house.
It would not be you who would decide what had been reasonable.I was REASONABLE in my response and lawful in doing so
I think the question posed by the OP
...if you point it at someone in your house (or anywhere else, I suppose) while investigating a "bump in the night," that you are committing an aggravated assault if the intruder proves to be benign. He can't be serious, right?
...has been answered.
There is a more important question, and that has to do with whether one should be "investigating a bump in the night" in the first place.
Every burglary and home invasion reported in our large metropolitan area in the last several years has involved more than one criminal.
It is the one whom you do not see who poses the real threat. Neither your firearm nor the light beam projected from the flashlight on it can protect you against gunfire.
Quote:
If i believe there is only me and my wife and and i go poking around with a WML, only to find a friend that got the dates wrong to pick me up (as stated above) then that friend is going to have a VERY hard time getting any charges to stick.
It would not be up to "that friend".
It would most definitely be up to that friend to contact Law Enforcement and make a complaint. This stuff does not even begin until that happens. Even if (and its a big if) the responding LEO thought there was enough to make an arrest, i dont see the DA fileing a charge based on the "friend" being in my house by mistake.
Im not debating the use of WML's. Im disputing the act being illegal.
OldMarksman
Staff
Posted by Sharkbite:
As 44AMP pointed out, a report from someone who could describe the firearm could make that happen.
If the charging authority did not believe that the evidence would support the BARD standard, it shouldn't be much of a problem bend that, but you do not want the expense and aggravation.
What you are disputing is the likelihood of being charged.
Again, however, the bigger risks are those of an unintentional discharge or of ambush.
Charges would, of course, depend upon the incident being reported to the police in some way. Your friend's friend, who may faint at the mention of the word "gun" could start the ball rolling.It would most definitely be up to that friend to contact Law Enforcement and make a complaint. This stuff does not even begin until that happens.
Probable cause for an arrest would result from evidence or credible testimony that you had displayed a firearm without justification.Even if (and its a big if) the responding LEO thought there was enough to make an arrest, i dont see the DA fileing a charge based on the "friend" being in my house by mistake.
As 44AMP pointed out, a report from someone who could describe the firearm could make that happen.
If the charging authority did not believe that the evidence would support the BARD standard, it shouldn't be much of a problem bend that, but you do not want the expense and aggravation.
It is illegal unless it is justifiable.Im not debating the use of WML's. Im disputing the act being illegal.
What you are disputing is the likelihood of being charged.
Again, however, the bigger risks are those of an unintentional discharge or of ambush.
Along about Post #70, one contributor to this thread wrote, "Absent other witnesses, particularly inside your house, any charges brought by the distressed 'intruder' that you threatened them with a weapon, is a matter of their word against yours. They gain credibility if they can describe the weapon (accurately enough) and by bringing a complaint, first. Also, if you are foolish enough to admit to doing it to investigators. Against that, your word might not be enough to absolve you of all possible charges."
I can't be sure the poster meant it to sound as it did, but it sounds to me to be awfully close to recommending lying to the investigators after the fact. Three dozen years as an expert witness in weapons/shooting/deadly force cases, and time as arresting officer starting longer ago than that, has taught me that lying to the investigators, judge, and jury is never a smart plan.
As a rule of thumb, anything you're thinking about doing that is going to require you to lie to cover it up, is probably something you should be smart enough not to do in the first place.
I can't be sure the poster meant it to sound as it did, but it sounds to me to be awfully close to recommending lying to the investigators after the fact. Three dozen years as an expert witness in weapons/shooting/deadly force cases, and time as arresting officer starting longer ago than that, has taught me that lying to the investigators, judge, and jury is never a smart plan.
As a rule of thumb, anything you're thinking about doing that is going to require you to lie to cover it up, is probably something you should be smart enough not to do in the first place.
I'm the fellow that said it, and please, let me be clear about this, I was in NO WAY implying that one should lie to the police.
If my choice of phrasing left this in doubt, my apologies.
What I meant by "foolish enough to admit it" was the a reference to the fact that many people will "admit" doing something when talking to the police, that they don't believe is a crime, when in fact, it could be.
Many, many times, I have seen the advice to not talk about what happened until after consulting legal council. While this always seemed excessively paranoid to me, I can see the wisdom in it, because of the way most people talk, and how that can be turned into something other than what they meant in the legal system.
"Mr Homeowner, Mr X claims that during his mistaken entry into your home, you threatened him with a gun. Did you in fact point a gun at him, or in his direction?"
"well, I had to see what was going on, and I didn't SHOOT him!" (here's where the WMLight thing comes into play)
"thank you Mr Homeowner, we'll be in touch." Notebook (and maybe case) snaps shut...
This was the sort of situation I had in mind. What seems like a normal, clear, harmless statement in your mind, COULD be admitting to the crime, in a court setting.
One fine example of this is in the movie My Cousin Vinnie.
The young man, when asked at what point he shot the clerk, replies, "I shot the clerk???", I shot the clerk????" a question, made in an excited tone of voice, in the manner he was used to speaking.
Later, that same statement, read in court by the Sheriff, in a flat tone of voice, comes across as a statement, not a question. "when asked, the suspect replied "I shot the clerk." "
The inference is that the suspect admitted shooting the clerk.
This is the kind of thing I was thinking of. Choosing what you say (or don't say) carefully, to avoid appearing to admit to something you actually did not do.
I hope this clarifies what I meant when I said "foolish enough to admit doing it". I wasn't talking about a deliberate lie, or even a "sin of omission" I was talking about foolishly blathering on, unknowingly setting a legal trap for your self by the words you use.
If my choice of phrasing left this in doubt, my apologies.
What I meant by "foolish enough to admit it" was the a reference to the fact that many people will "admit" doing something when talking to the police, that they don't believe is a crime, when in fact, it could be.
Many, many times, I have seen the advice to not talk about what happened until after consulting legal council. While this always seemed excessively paranoid to me, I can see the wisdom in it, because of the way most people talk, and how that can be turned into something other than what they meant in the legal system.
"Mr Homeowner, Mr X claims that during his mistaken entry into your home, you threatened him with a gun. Did you in fact point a gun at him, or in his direction?"
"well, I had to see what was going on, and I didn't SHOOT him!" (here's where the WMLight thing comes into play)
"thank you Mr Homeowner, we'll be in touch." Notebook (and maybe case) snaps shut...
This was the sort of situation I had in mind. What seems like a normal, clear, harmless statement in your mind, COULD be admitting to the crime, in a court setting.
One fine example of this is in the movie My Cousin Vinnie.
The young man, when asked at what point he shot the clerk, replies, "I shot the clerk???", I shot the clerk????" a question, made in an excited tone of voice, in the manner he was used to speaking.
Later, that same statement, read in court by the Sheriff, in a flat tone of voice, comes across as a statement, not a question. "when asked, the suspect replied "I shot the clerk." "
The inference is that the suspect admitted shooting the clerk.
This is the kind of thing I was thinking of. Choosing what you say (or don't say) carefully, to avoid appearing to admit to something you actually did not do.
I hope this clarifies what I meant when I said "foolish enough to admit doing it". I wasn't talking about a deliberate lie, or even a "sin of omission" I was talking about foolishly blathering on, unknowingly setting a legal trap for your self by the words you use.
OldMarksman
Staff
That is, in essence, an admission. One cannot see someone in the light of a weapon mounted light without having pointed it in his general direction. Not necessarily at him, but that would not have been necessary to constitute assault or a weapons crime, absent justification, in most places.Q: "Did you in fact point a gun at him, or in his direction?"
A: "well, I had to see what was going on, and I didn't SHOOT him!"
What would I say?
Faced with that question, I believe I would have deferred answering until I had discussed it with counsel.
But I would have let the threat come to me, if the event occurred after bed time.
I have a flashlight, but it is not on a firearm.
And we have battery powered LED candles that illuminate just about everywhere in the house.
No, lying is not a good idea at all.
Mr Homeowner, Mr X claims that during his mistaken entry into your home, you threatened him with a gun. Did you in fact point a gun at him, or in his direction?"
" i pointed my pistol at an unknown person IN MY HOME. A person i considered a threat. As soon as i identified that person to be Mr. X, i pointed my pistol in a safe direction"
THAT is the point that seems to not be understood. At the time of the weapon being pointed in the direction of Mr. X, the home owner believed it to be a threat. That dictates self-defense action.
Pointing my pistol at someone in my house, someone i think is there illegally is not a crime. Its a defensive measure. Once i figure out they are there by mistake and not a threat, then the gun goes away and MAYBE an apology is given. But that being something im arrested for? Im not thinking so.
Maybe Mr Ayoob can chime in on this again
Sharkbite, in the hypothetical described the homeowner's actions would certainly be defensible, if charges were lodged. However, legal defense is expensive, and nothing would erase the trauma of our having pointed a loaded gun at a member of the family or the extended family.
It would be much better for all concerned if the homeowner could honestly say, "I simply illuminated him with a hand-held flashlight, and never at any time pointed a lethal weapon in his direction."
Cordially,
Mas
It would be much better for all concerned if the homeowner could honestly say, "I simply illuminated him with a hand-held flashlight, and never at any time pointed a lethal weapon in his direction."
Cordially,
Mas
Ride Madone
New member
Thirty years in law enforcement and that is the dumbest thing I have heard in a long time. If Someone is in my house, it is a sure bet they are going to get a gun pointed at them. If they are no threat, nothing will happen. If they are, well you can guess what will happen.
OldMarksman
Staff
Posted by Sharkbite:
And that will be decided by others.
That's true indoors or out, and whether or not the gun was just shown purposefully, or fired.
But--in most states, the presence of a person whom the actor reasonably believes to have entered a home unlawfully (and perhaps forcibly) will provide a presumption that (to cut to the chase) a reasonable defensive action was justified.
But in law, all such presumptions are rebuttable.
Of course, the homeowner might not be arrested, but he may be. And if he is, he certainly may prevail in a defense of justification. But it is best to avoid having to go through that.
Read the link provided in Post #69--carefully.
If I happened into the position of illuminating someone with a weapon mounted light and the person turned out to not be a threat, the firearm would be out of sight (and therefore not "exhibited", as the law where I lives addresses the issue) before the lights were turned on.
I think we are getting too wrapped up in the legalities. Some years ago, a law enforcement officer heard the noise of an "intruder" in the house. He went forth to investigate, and shot and killed his own daughter. Whether he had a flashlight of any kind. I do not know. He may have, or he may not.
The person who related the story to me was a CCW instructor, who did have a weapon mounted light on the pistol he kept in his bedroom. The reason he told about it was to emphasize the wisdom of letting the threat come to the defender.
There are, of course, some other very good reasons to do that.
As in all cases of mounting a defense of justification, it is not solely a matter of what the actor believed. It is a matter of what a reasonable person, knowing what the actor knew at the time, would have believed.i pointed my pistol at an unknown person IN MY HOME. A person i considered a threat. As soon as i identified that person to be Mr. X, i pointed my pistol in a safe direction"
THAT is the point that seems to not be understood. At the time of the weapon being pointed in the direction of Mr. X, the home owner believed it to be a threat. That dictates self-defense action.
Pointing my pistol at someone in my house, someone i think is there illegally is not a crime.
And that will be decided by others.
That's true indoors or out, and whether or not the gun was just shown purposefully, or fired.
But--in most states, the presence of a person whom the actor reasonably believes to have entered a home unlawfully (and perhaps forcibly) will provide a presumption that (to cut to the chase) a reasonable defensive action was justified.
But in law, all such presumptions are rebuttable.
Hold on a minute. One may not threaten or use force, deadly or otherwise, without lawful justification. Doing so constitutes a crime. Do you think people are arrested for committing crimes?Its a defensive measure. Once i figure out they are there by mistake and not a threat, then the gun goes away and MAYBE an apology is given. But that being something im arrested for? Im not thinking so.
Of course, the homeowner might not be arrested, but he may be. And if he is, he certainly may prevail in a defense of justification. But it is best to avoid having to go through that.
Read the link provided in Post #69--carefully.
If I happened into the position of illuminating someone with a weapon mounted light and the person turned out to not be a threat, the firearm would be out of sight (and therefore not "exhibited", as the law where I lives addresses the issue) before the lights were turned on.
I think we are getting too wrapped up in the legalities. Some years ago, a law enforcement officer heard the noise of an "intruder" in the house. He went forth to investigate, and shot and killed his own daughter. Whether he had a flashlight of any kind. I do not know. He may have, or he may not.
The person who related the story to me was a CCW instructor, who did have a weapon mounted light on the pistol he kept in his bedroom. The reason he told about it was to emphasize the wisdom of letting the threat come to the defender.
There are, of course, some other very good reasons to do that.