Weapon mounted lights and felony aggravated assault.

[Sharkbite]

Oldmarksman,

Having spent a bunch of years behind a badge, im VERY aware of when an arrest can be made. Im also aware that a lot of things are "illegal". Shooting anyone is illegal, but may be JUSTIFIED in certain circumstances.

I dont think digging into the weeds over the legal aspects is good for the reader at large. You have asserted that if a homeowner points a gun at someone that turns out not to be an intruder, the homeowner is in some kind of legal trouble and can expect to be arrested.

I beleive this to be false and dont want a reader of this forum to hesitate to do so, based on the false belief its a criminal act.

Lets take the WML out of the equation for a moment.

Its 12noon... Bright, sunny and well lit inside my home. I hear a noise from a spare bedroom and go to investigate. I observe an unknown (to me) male, climbing in a widow. I draw my pistol and yell for him to stop. Wherupon, my Daughter screams "dont shoot...thats my boyfriend!!"

Parenting aside, have i done something that is not justified? Has a crime been commited? If the boyfriend calls 911, can i expect to be arrested? Charged? Convicted? I say NO to all the above.

The situation is the same in the dark with a WML.

Are there other options that might mitigate the possbility of the "boyfriend" calling 911? SURE, but the fact is its not going to end up with me sitting in jail if i point my gun at someone i believe to be an intruder...regardless if that turns out to be a mistake of fact

 

[OldMarksman]

Posted by Sharkbite:

You have asserted that if a homeowner points a gun at someone that turns out not to be an intruder, the homeowner is in some kind of legal trouble and can expect to be arrested.

I have done nothing of the kind.

I have said that if anyone points a gun (or simply displays it purposefully, for that matter) without lawful justification, he will have committed a crime.

The question of lawful justification will hinge upon reasonable belief (decided by others) of immediate necessity.

Whether he can expect to be arrested is another issue.

Lets take the WML out of the equation for a moment.

Good idea.

Its 12noon... Bright, sunny and well lit inside my home. I hear a noise from a spare bedroom and go to investigate.

Legality aside, that's not a good idea.

I observe an unknown (to me) male, climbing in a widow. I draw my pistol ... Wherupon, my Daughter screams "dont shoot...thats my boyfriend!!"

... have i done something that is not justified?

The question goes to reasonable belief of immediate necessity, as decided by others.

...the fact is its not going to end up with me sitting in jail if i point my gun at someone i believe to be an intruder...regardless if that turns out to be a mistake of fact

Has it occurred to you that there was a reason why the Arizona State Legislature amended the law to provide for the defensive display of a firearm in certain cases in which the use of deadly force is not reasonably believed to be immediately necessary?

Well, that reason had to do with people sitting in jail after having been convicted of aggravated assault...

...and, of course, with those who were acquitted after having been charged and tried.

And at least some of those had not even pointed a firearm.

 

[Sharkbite]

Quote:
Its 12noon... Bright, sunny and well lit inside my home. I hear a noise from a spare bedroom and go to investigate.
Legality aside, that's not a good idea.

But it is the REALITY...if i barricaded my self and called 911 everytime the cat knocked something over, id be asked to move out of the city. In the real world, EVERY homeowner goes to see what that noise was.

Did a picture fall off the wall? Did the cat knock over a vase? Both of those happen 1000x more often then an intruder. People WILL go see what that noise was. Being properly prepared to deal with what you find is the key

 

[OldMarksman]

Posted by Sharkbite:

But it is the REALITY...if i barricaded my self and called 911 everytime the cat knocked something over, id be asked to move out of the city.

Of course!

In the real world, EVERY homeowner goes to see what that noise was.

This has been discussed here ad nauseum.

Every homeowner tries to determine whether the noise is indicative of danger. The prudent homeowner does not traipse forward if it is likely that a violent threat is present.

Did a picture fall off the wall? Did the cat knock over a vase? Both of those happen 1000x more often then an intruder.

Yes indeed.

People WILL go see what that noise was.

Some people will, but it is best to do so only after ascertaining as much as possible about the character of the noise.

Being properly prepared to deal with what you find is the key.

Sounds good. But in realistic FoF exercises, he or she who goes hunting almost always loses, even if he or she knows the layout.

I have "cleared" my house successfully more than once. I survived--because there was no one there. That was before I knew better.

I'm reminded of a movie I saw sixty years ago:

"This thing's only got about four inches of armor".

"Oh, yeah? Say, how thick do you think this GI shirt is?"

 

[Mas Ayoob]

Sharkbite, your scenario of a person unknown to you climbing in through a bedroom window makes it easy for the homeowner to defend taking that individual at gunpoint. What's under discussion here, though, is the many cases where the invited guest is already in the house, or was so trusted by you or another family member that you or that family member gave him a key. That will profoundly change the complexion of things.

 

[Sharkbite]

Mr Ayoob,

I respect your wealth of knowledge and background immensely, however this is a subject we are going to have to agree to disagree on.

ANY unknown/unidentified person that is in my home will be meet with a pointed firearm. If its dark that weapon will have a WML. Once that person is identified as non-threatening, i will lower the weapon and apoligize as needed.

Up until that person is ID'ed as a "friendly" they will be held at gunpoint.

Again thhe assertion is that an UNKNOWN person is in my house, without my knowledge. It is only prudent to treat that person as hostile, until found to be otherwise.

Just this humble mans opinion based on my experience.

 

[OldMarksman]

Posted by Sharkbite:

ANY unknown/unidentified person that is in my home will be meet with a pointed firearm.

It would be extremely prudent to have a firearm at hand, but pointing it at someone who is "unknown/unidentified" brings with it risks far beyond the legal ones we have been discussing.

If its dark that weapon will have a WML. Once that person is identified as non-threatening, i will lower the weapon and apoligize as needed.

What good would an apology provide?

If one has assaulted another person, not much at all, in most cases.

Up until that person is ID'ed as a "friendly" they will be held at gunpoint.

That's another issue. There are perhaps some instances in which it might be appropriate to hold someone at gunpoint, but in most cases, the downside far outweighs the upside.

Again thhe assertion is that an UNKNOWN person is in my house, without my knowledge. It is only prudent to treat that person as hostile, until found to be otherwise.

Acting with extreme caution and treating someone as hostile are two different things, both tactically and legally.

Just this humble mans opinion based on my experience.

I do not mean for this to be taken personally, but it is wise to take into account the experience of others. Your opinion does not reflect either the realities of the law, sound risk management, or any indication of quality training.

I will add that in the course of fifty-one years, I have pointed guns directly at three different violent criminal actors engaged in home invasion. There was no question about either their identity or their intent before I did so. What I did was immediately necessary. And I did not go looking for them.

 

[Sharkbite]

Quote:
Just this humble mans opinion based on my experience.
I do not mean for this to be taken personally, but it is wise to take into account the experience of others. Your opinion does not reflect either the realities of the law, sound risk management, or any indication of quality training.

Well with 7 years in LE (5 of them in SWAT). Over 20 years as a professional firearms instructor (7 of those years at one of the largest training facities in the US) and having worked as a Dept of State WPPS contractor since 2007, i have received some of the best "quality of training" around. I cant even BEGIN to count the number of people i have had "at gunpoint"

Am i a Lawyer? No. Am i a professional tactics trainer? Yes.

So, again, we are going to have to agree to disagree on this subject

 

[skizzums]

well, I for one am not going to have a problem with " a teenager invited over" or "someone having a key". at night time, my wife is asleep next to me, and if she's not I am not going to go around pointing a gun around, I will assume it's my wife. I don't even have a WML, but I don't see the concern of lighting a room and not pointing your gun at people. as long as you know it's not someone who should be there. if I had people in and out of my home at nighttime, I would feel different.

 

[OldMarksman]

Posted by Sharkbite:

Well with 7 years in LE (5 of them in SWAT). Over 20 years as a professional firearms instructor (7 of those years at one of the largest training facities in the US) and having worked as a Dept of State WPPS contractor since 2007, i have received some of the best "quality of training" around.

Really?

Really?

And you do not understand the legal risks of pointing a gun at an unidentified someone when a reasonable person, knowing what you knew at the time, might not conclude that you had had a basis for believing that that someone had presented an imminent threat...

...you do not realize that going in search of the source of a noise that seems dangerous is not a generally recommended strategy for home defense...

...you do not underhand the common law definition of assault...

...you somehow believe that an apology will mend all..

...you recommend that a civilian detain a suspect at gunpoint...

..and you for some reason think yourself qualified to disagree with Massad Ayoob?

Sorry, but I really doubt either your qualifications or the seriousness of your posts, or both.

 

[Sharkbite]

You have misunderstood most of my posts.
1. I never advocated going in search of what you suspect is a home intruder. What i did say (refer to my post) is most people WILL go see what a noise was and that it will most likely be the cat knocking something over. That happens more often then not. The blanket statement of "hunker down and call 911" is just not real world.

As to the reasonable person test. I think a reasonable person seeing some strange person in their home might be in fear for their safety. A reasonable response would be to produce a pistol to a ready position (that means pointing it in that persons direction)

Im not going to argue with you about my qualifications. You have attempted to put word in my mouth and misinterpreted my post this entire thread.

Yes, i do disagree with Mr Ayoob in this matter. I think it is ABSOLUTELY within my justifiable use of self-defense critiera to point my pistol (or any other HD weapon) at an UN-identified person in my home, until such time as i can ascertain their intent.

No offense to Mr Ayoob. As stated eariler i respect him greatly, but he is NOT infallible. So we disagree.

As to apologizing to the "boyfriend" after discovering him entering thru the window...thats just good manners. Something you apparently dont understand.

 

[Mas Ayoob]

None of us are infallible, Sharkbite, and we probably have indeed hit the "agree to disagree" stage.

But -- all serious, no snark -- I hope you've informed everyone who has a key to your home or might be a guest there what your rules of engagement are. Family members and friends, landlords and condo superintendents, cleaning ladies, babysitters and pet-sitters may all have keys and show up unexpectedly. A family member may return from a business trip a day earlier than expected, in the dark of night. An invited guest of a family member, unknown to us, may be in the house when we ourselves return home.

Not all of them will be forgiving of loaded guns pointed in their direction when their identity could have been just as easily determined with a hand-held flashlight.

 

[Sharkbite]

No "snark" taken. As i said i know and respect your work. Ive listened to you speak at a number of LE conferences and think the advice you give is spot on 99.9% of the time. Absolutely, the leader in the field.

In reguards to your comments, the Wife is completely aware of my thought process and shares same. So no worry about unannounced early returns. The teenage Daughter knows no one is to be in the house without our permission.

So those bases are covered.

I appreaciates your taking the time to comment on this, obviously contested, topic.

 

[buck460XVR]

In all seriousness, if one really wanted to nit-pic and wear a full face tin foil hat, what are the chances that someone with a hand held light, or even no light at all, will point a gun at a stranger in their house when they are checking out a strange noise? Most folks will have the gun up and at ready and not holstered at their side, when actively seeking the source of a strange noise that alarms them enough to take a firearm with them. Won't they instinctively cover that person until they are identified as a non-threat or at least point the gun in their general direction? How does one get the advantage on the BG any other way?

.....and what happens if you have handloads in the firearm with the WML?

 

[OldMarksman]

Posted by buck460XVR:

....what are the chances that someone with a hand held light, or even no light at all, will point a gun at a stranger in their house when they are checking out a strange noise?

Perhaps higher than they should be.

Won't they instinctively cover that person until they are identified as a non-threat or at least point the gun in their general direction?

Think Rule Number 2.

I would be have the firearm in hand and pointed in a safe direction.

Finger on the side of the gun...

And not for reasons of legality.

If you are going to shoot someone in your house, you want to do it intentionally.

But then, I do not think it is a good idea to "check out a strange noise" that way anyway.

Most, not all, but most, burglaries in our area in the past five plus years have involved two or more criminals. Safer on their part, for several reasons.

I recently said that all of the reports that I had heard involved two or more, but yesterday there was one that apparently involved one criminal.

I would hate to get caught in a cross-fire.

 

[Sharkbite]

I think the dispute come from the idea of JUSTIFICATION.

Clearly, the elements for the crime of Assault are present if i point a loaded firearm at another person. The debate is over that being a justified act based on self-defense needs.

My feeling is that an unknown person in my home constitutes a threat until i know otherwise. That justifies the pointed weapon. At least to me.

 

[OldMarksman]

Posted by Sharkbite:

Clearly, the elements for the crime of Assault are present if i point a loaded firearm at another person. The debate is over that being a justified act based on self-defense needs.

Yep.

My feeling is that an unknown person in my home constitutes a threat until i know otherwise. That justifies the pointed weapon. At least to me

Your feeling is not too far from the way the codes and case law read in many states.

One is generally provided a presumption that an occupant can reasonably believe that someone in the house does constitute an imminent, serious threat, provided that the resident knows, or has reason to believe, that the person had entered unlawfully. But in some places, the occupant must also know or have reason to believe that said unlawful entry hade been made tumultuously or with force; for the purpose of committing a felony other than the act of entering unlawfully; or for the propose of using force against an occupant.

That presumption can be rebutted, depending upon the evidence.

It is important to realize that in most states, the threshold for justification for pointing a firearm at someone is the same as that for firing the gun; law enforcement officers are not held to that standard for obvious reasons.

In those few states in which that is not true, a gun may be presented in some instances in which physical, non-deadly force would be justified.

It is not a good idea to read a statute in isolation, apply dictionary definitions, and conclude what the law means. Any lay person reading Missouri law could easily conclude that it is open season in the house if anyone enters uninvited. But legal scholars and the Supreme Court approved jury instructions tell us otherwise.

 

[Sweet Shooter]

This argument is ridiculous. Anyone, by any means, entering a house, day or night, unannounced, is taking their life in their hands with or without the involvement of a firearm.

If it's a real threat and things go your way, you'll have your day in court.

If it's merely someone who takes exception to you pointing a firearm at them, and they dislike you enough, you'll have your day in court.

What's the difference? What happened to "Judged by twelve vs carried by six"?

Question: Would anyone thinking the WML is a liability like to explain what happens to ones livelihood when a light is not used, and a family member or friend is shot?

-SS-

 

[buck460XVR]

I would be have the firearm in hand and pointed in a safe direction.

Finger on the side of the gun...

....and how do you have the gun in a close ready or low ready position and not sweep a unknown subject below you on a stairs? How is that any different than sweeping the same person with a WML? If you do not know where the subject is, how do you know which direction is the "safe" one? Remember, if we already know exactly where they are and that they are not a threat, why are we going to investigate with a firearm in the first place? The only reason most intelligent folks would ever do that in the first place is because of a high possibility of a threat. Those same intelligent folks are not going to be utterly irresponsible and point a weapon at friends and relatives just for fun.

If you are going to shoot someone in your house, you want to do it intentionally.

No one is arguing that, but what does that have to do with shining a light on someone? What does that have to do with covering someone who is a potential threat until it is known the there is no threat. Why are you assuming folks are going to pull the trigger and shoot without identifying their target?

I don't have a dog in this fight. I don't have any WMLs and as I said, I have a bird dog that is also trained to check out the house(or any other area for that matter) when told. But to think that I'm the one that will be prosecuted when someone uninvited enters my home, and I am doing nuttin' but defending me and mine from harm..........fricken priceless.

 

[OldMarksman]

Posted by Sweet Shooter:

Anyone, by any means, entering a house, day or night, unannounced, is taking their life in their hands with or without the involvement of a firearm.

That is very true.

Sometimes the results are tragic.

The truth of the statement has nothing whatsoever to do with the question of whether or not the occupant would be justified in the use of deadly force.

And unless the shooting of a firearm is intentional, there will be no basis for a defense of justification per se.

If it's a real threat and things go your way, you'll have your day in court.

If it goes that far. It may not.

If it's merely someone who takes exception to you pointing a firearm at them, and they dislike you enough, you'll have your day in court.

That day in court could prove very costly indeed.

What happened to "Judged by twelve vs carried by six"?

A cute and overused cliche; much better to avoid either one.

Would anyone thinking the WML is a liability like to explain what happens to ones livelihood when a light is not used, and a family member or friend is shot?

The family member could be shot unintentionally even when the light is on the gun.

It goes without saying that light should be used--flashlight, floor lamp, whatever.

The risk is not in the light, it is in the handling of the gun.

One more time, Rule Number Two.

We have spoken of three risks here so far:

1. The possibility of assault charges
2. The risk of being ambushed by an accomplice if one goes forth to ivestigate
3. The risk of an untintentional discharge

There is another. First responders summoned by someone else may enter your house in hot pursuit of an armed, dangerous man. The first person whom they come upon with a gun in firing position could be much worse for wear after the incident.

Several years ago, a homeowner with gun in hand was shot by police officers pursing an armed criminal into the house. That was tragic. The officers' actions were consistent with their training and were ruled proper, but that really didn't make much difference to the homeowner.