My friend pulled his gun and is now scared

renoglock22 said:

My friend was followed home by some guy. After they got to my friend's house the guy was threatening to beat his ass and was a well built guy. After this guy started yelling my friend grabbed his gun from his car and headed to the house. The guy followed him and was trying to get into the house. My friend's dad was trying to keep this guy out but since he just broke his back he couldn't do much against this guy. At this point my friend racked his gun (should have been racked before this point IMO) and the guy said he was calling the cops and left. The police showed up and took a report ad confiscated his gun. Now his family is telling him to take anger management classes and his brother never wants to see him again because his wife and kid witnessed the whole thing. What is messed up about that is his brother carries everyday as well. Anyway, my friend is afraid that he could get charged with brandishing. I told him that if they had anything to charge him with they would have arrested him on the spot. He is still scared. Any advise I could give him to deal with his family or the law? BTW he lives in Dayton, I know it's the same laws but he says the DA is a real dick.

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Laws vary state to state, not familiar with laws in that state, but in general, if you have reasonable cause to believe you are in danger, then you aren't "brandishing" if you display your firearm, draw it, etc.

Prosecutors, in deciding whether to charge consider BOTH sides of the story - your friends, and the other guys. Imo and Ime, based on scores of cases, that's why if you do act in self defense, it's best to give at least a brief account to the cops and then say you will give a full account once you get your lawyer. Fwiw, last night there was a guy in maple valley who fired at some home invasion robbers after they robbed him and were loading stuff (including his rifles) into their car. He was questioned at the scene by the cops, gave his side of the story, and that was that. I will bet anybody on this website no charges will be filed. Granted, he was a victim of a home invasion, much more severe than the above mentioned case, but by giving his "story" he will not be arrested or charged as in the overwhelming # of cases of self defense in my jurisdiction

http://www.komonews.com/news/crime/...pects-in-home-invasion-robbery-219596551.html

The "racked the gun thing" blows my mind. Does he carry his gun w.o a round in the chamber?

Was the guy standing at the threshold of his residence when he racked the gun? fwiw, in WA you CAN'T be charged with brandishing IF it occurs at your abode. Can't speak for the statute of the above jurisidiction, though. But likely the prosecutor will be much more sympathetic to your friend if he was standing at or near the threshold and simply defending it from entry, etc.

I don't know what you mean by the guys were trying to get into the house, and of course that's hugely relevant. Were they literally at the door, pushing the door in against resistance? etc. etc.

Nevada does not use the term "brandishing". But we do have - NRS 202.320  Drawing deadly weapon in threatening manner. In order to be in violation of the law, there are criteria that have to be met. I've bolded two of them in the context of the NRS below.

NRS 202.320  Drawing deadly weapon in threatening manner.

1.  Unless a greater penalty is provided in NRS 202.287, a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.

2.  A sheriff, deputy sheriff, marshal, constable or other peace officer shall not be held to answer, under the provisions of subsection 1, for drawing or exhibiting any of the weapons mentioned therein while in the lawful discharge of his or her duties.

[1911 C&P § 174; RL § 6439; NCL § 10121]—(NRS A 1967, 486; 1989, 1240)

FallonJeeper said:

Nevada does not use the term "brandishing". But we do have - NRS 202.320  Drawing deadly weapon in threatening manner. In order to be in violation of the law, there are criteria that have to be met. I've bolded two of them in the context of the NRS below.

NRS 202.320  Drawing deadly weapon in threatening manner.

1.  Unless a greater penalty is provided in NRS 202.287, a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.

2.  A sheriff, deputy sheriff, marshal, constable or other peace officer shall not be held to answer, under the provisions of subsection 1, for drawing or exhibiting any of the weapons mentioned therein while in the lawful discharge of his or her duties.

[1911 C&P § 174; RL § 6439; NCL § 10121]—(NRS A 1967, 486; 1989, 1240)

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Thanks. That's pretty consistent with model penal code, and consistent with how most states cosndier "brandishing". Iow, as I said, it's never brandishing if done in valid self defense, based on the reasonable person standard. Iow, did the actor reasonably fear imminent harm. If so, his brandishing/drawing/display etc. of his firearm is entirely legal.

and of course if somebody is trying to forcefully enter your home, it is presumed (in most every state) that they intend to do you physical harm. That's why in pretty much every state a resident can shoot a burglar without first having to DETERMINE that they are armed and/or intending them harm. It's a presumption when an actor breaks into an occupied residence
thanks for the cite

Lawyer up and get back to us.

NRS said:

...
1.  ...a person ... who ... draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.

2.  A sheriff, deputy sheriff, marshal, constable or other peace officer shall not be held to answer, under the provisions of subsection 1, for drawing or exhibiting any of the weapons mentioned therein while in the lawful discharge of his or her duties....

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So the law says that drawing and exhibiting deadly weapons in a threatening manner when not in necessary self defense is part of the lawful job of a cop. Cool.

Any follow up yet

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Utah_Patriot said:

Any follow up yet

Sent from my Galaxy Nexus using Tapatalk 4

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He was just arrested Friday and is being charged with pointing a firearm at a person or something along those lines. When he was arrested he was never read his rights. He was on his way to turn himself in as soon as he heard about the warrant and was pulled over. He told me that the cop that arrested him said this was all BS and that he was within his right to pull the gun on the guy forcing himself into my friends house. Right now he is trying to find a lawyer for fairly cheap.

Just curious, how old is this friend?

LeMat said:

Just curious, how old is this friend?

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23

Well,,,

Citizen said:

I can't help but wonder if we've got the whole story here.

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renoglock22 said:

Apparently the guy that was trying to force his way into the house, his dad is a cop. I think that might be why my friends gun got taken away.

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renoglock22 said:

He was just arrested Friday and is being charged with pointing a firearm at a person or something along those lines. When he was arrested he was never read his rights. He was on his way to turn himself in as soon as he heard about the warrant and was pulled over. He told me that the cop that arrested him said this was all BS and that he was within his right to pull the gun on the guy forcing himself into my friends house. Right now he is trying to find a lawyer for fairly cheap.

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Was, Is, the bad guy arrested, jailed, charged with the crime, breaking into the house???

renoglock22 said:

He was just arrested Friday and is being charged with pointing a firearm at a person or something along those lines. When he was arrested he was never read his rights. He was on his way to turn himself in as soon as he heard about the warrant and was pulled over. He told me that the cop that arrested him said this was all BS and that he was within his right to pull the gun on the guy forcing himself into my friends house. Right now he is trying to find a lawyer for fairly cheap.

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You do know that there is no requirement to have your Miranda rights recited to you at the time of arrest, don't you? it's only when the cops begin interrogating you that you need to be advised to keep your big mouth shut and say "I want to talk to a lawyer". And asking for/verifying booking information is not an interrogation.

Lots of folks who thought the cops had blown the case on a technicality by not informing them of their rights at the moment they were placed in custodial detention ended up having many years to indulge in self recrimination.

stay safe.

1245A Defender said:

Was, Is, the bad guy arrested, jailed, charged with the crime, breaking into the house???

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The other guy was not arrested or charged with anything. Apparently daddy is a retired cop in that town.

Citizen said:

I can't help but wonder if we've got the whole story here.

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It sounds like we don't have the entire story. On top of that it seems like there are bigger problems the OP's friend needs to worry about if his family hates him for trying to protect himself and them. I recommend seeing a family therapist. They need to talk about what the real reason is for hating him that much and not blaming it on him drawing a firearm.

Jamesm760 said:

It sounds like we don't have the entire story. On top of that it seems like there are bigger problems the OP's friend needs to worry about if his family hates him for trying to protect himself and them. I recommend seeing a family therapist. They need to talk about what the real reason is for hating him that much and not blaming it on him drawing a firearm.

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Considering the brother carries and is apparently part of the pile-on, it might not be the simple fact of his drawing the firearm over which they are expressing their displeasure. It might be the circumstances in which that firearm was drawn.

Jamesm760 said:

It sounds like we don't have the entire story. On top of that it seems like there are bigger problems the OP's friend needs to worry about if his family hates him for trying to protect himself and them. I recommend seeing a family therapist. They need to talk about what the real reason is for hating him that much and not blaming it on him drawing a firearm.

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The family is coming around. His dad is starting to realize that he did the right thing. His brother is mostly pissed because his daughter was in the room when this happened. Everything I have said is the story I have gotten. I am not sure if I have the whole story either but this is what I am going on.

Unfortunate it happened, but in this case he shouldn't be charged.

Logan 5 said:

Unfortunate it happened, but in this case he should be charged.

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Who should be charged?

Typo. Sorry about that.

Logan 5 said:

Typo. Sorry about that.

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Ok.