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Thread: Livitup's lesson on brandishing

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    I havea friend who is new to personal defense firearms and is eager to learn about firearms related laws, OC, CC, etc. He and I toss around ideas with the hope to educate eachother.

    Reciently he asked me the following question. As I have learned to do from this forum, I prepared a well researched response, laden with citations. Since it is a good, and common question, and since I don't have a blog, I figured I would post it here in case it helps someone else. Comments are, of course, welcome.

    First, his question:

    Code:
    If you're in an uncomfortable situation (run into teen vandals, semi-tame road rage, etc) and you're concealed carrying... It might be a deterrent to show that you are armed. As in:
    
    GG: Hey pesky kids, you shouldn't be here doing this.
    BG: Oh yeah old man? Come on gangstas, lets kick his ass.
    GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)
    BG:Lets get out of here!
    
    This effectively moves you from a CC to an OC situation; neither is illegal. But at the same time, you're making your situation MORE visible, and in a way, threatening. Could this be seen as brandishing?
    Here is my response:

    As always in these kinds of situations, I prefer to start by looking at the actual laws on the books:

    § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

    A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

    Ok, let's break that down and apply it to your scenario.

    Did you "point, hold, or brandish any firearm"?

    Let's define brandish. It's not defined in the Virginia code anywhere. However, the Virginia Court of Appeals has done so. Donovan Morris was a drunk who threatened a good guy and his wife with a flare gun. There's a lot of discussion about if a flare gun is a gun, which is not important to this discussion. But luckily for us, Morris lifted his shirt to reveal the flare gun in his waistband while making threatening comments at good guy's wife. So that's basically what we are doing here, right? Unconcealing a previously concealed firearm. Morris was charged with violating 18.2-282, specifically the brandishing component. In response to the appeal, the court wrote: http://caselaw.lp.findlaw.com/script...14&invol=1 (the quote below is from the bottom of the opinion)

    We disagree with Morris. "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd] like that," and then pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner. And Morris brandished the weapon in such a manner as to reasonably induce fear in the mind of Peter Molina. Although Molina may not have said he was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is sufficient to prove the "induced fear" element of a conviction for brandishing a firearm under Code 18.2-282.

    So, yeah, I'd say you're guilty of brandishing in the scenario you describe. You did "exhibit or expose in an ... agressive manner" and you did do it to "induce fear in the mind of another". Granted that fear was designed to keep them from kicking your ass, but it's still fear.

    Finally, let's take the situation one step further. Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts. It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event. So lets say you show the piece, and things escalate, and you end up shooting a badguy.

    From: Darryl Carneal Law v. Commonwealth, Va. App.(2001)

    Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958) (citations omitted). If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985) (citing Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933)).

    So yeah, you're screwed.

    So what would I do in your situation? After telling them to knock it off, and they start advancing on me:

    1) Run like hell
    2) Run some more
    3) If I can't run any more, they catch me, or I am backed into a corner
    4) Draw, point, and shoot to stop the threat.

    Note that draw, point, and shoot are all one step.

    IANAL.

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    Regular Member TFred's Avatar
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    The scenario and your thesis are very interesting, and you present a lot of facts, but I don't agree with your conclusion. IANAL, so I'll let some of the more lawyerly types weigh in. I don't think they will agree with your conclusion either, but of course I could be wrong.

    TFred


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    I disagree with the conclusion that it is brandishing. I think the line from the Code totally covers the person in this instance - However, this section shall not apply to any person engaged in excusable or justifiable self-defense. The victim in this case did not initiate the action against him.

    Facing a threat of physical assault by multiple attackers is generally viewed by the legal system as an acceptable reason to use deadly force (my opinion and view based on my experience watching/participating in criminal trials, dont ask me for a cite.)

    We talk about this in our class all the time. Another good example is height/weight/age disparity.
    James Reynolds

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    livitup wrote:
    Note that draw, point, and shoot are all one step.

    I also wanted to comment on this - it doesnt have to all be one step. You may draw your firearm in a defensive manner and allow the actors to make the decision to retreat. That is a textbook perfect use of deadly force, no one got shot. You have to allow them the opportunity to recognize the level of force you are using and to seek safe harbor.
    James Reynolds

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    ProShooter wrote:
    livitup wrote:
    Note that draw, point, and shoot are all one step.

    I also wanted to comment on this - it doesnt have to all be one step. You may draw your firearm in a defensive manner and allow the actors to make the decision to retreat. That is a textbook perfect use of deadly force, no one got shot. You have to allow them the opportunity to recognize the level of force you are using and to seek safe harbor.
    I disagree. Someone (BG) pulls a gun, I'm dead if I allow time for it to sink in that I'm also armed...

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    SaltH2OHokie wrote:
    I disagree. Someone (BG) pulls a gun, I'm dead if I allow time for it to sink in that I'm also armed...
    His situation didnt involve a gun. My response was specific to the situation presented....a group of people approaching you to inflict physical violence.
    James Reynolds

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    10-4, in which case I'm on board. Disregard my previous statement.

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    SaltH2OHokie wrote:
    10-4, in which case I'm on board. Disregard my previous statement.
    If someone presented a gun, your response is of course correct.
    James Reynolds

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    This response is going to be a jumbled up response to all the comments left so far. So instead of quoting everybody, I'll quote nobody.

    Proshooter, I'm well aware of the concept of disparity of force. I would reasonably expect things would turn out OK for you at the end of the scenario given. If you have to shoot, 3 bulky bad guys provides sufficient force to make soft ole' me afraid for my life.

    Where I thought there would be a problem is with the actions leading up to the shooting. If I can paraphrase what you are saying in order to make sure I understand it:

    Brandishing is OK, if it is one step in a self defense ladder. So assume you have time, the BGs have non-projectile weapons, and the distance is sufficient. Once they start advancing on you (and possibly you have nowhere left to run), you can draw down and tell them "stop or I'll shoot". If they turn and run, you have committed the act of brandishing, but it is not an illegal act because the code excuses any person engaged in excusable or justifiable self-defense.

    But what about Darryl Carneal Law v. Commonwealth, Va. App.? Since "excusable or jusifiable self-defense" isn't defined anywhere in the code, we're left to let the courts decide that issue. And I'm nervous that they would view the display or drawing of a weapon as fault on his part in provoking or bringing on the difficulty.

    Proshooter, I am also a former LEO. The reason I want to be so precice about this is that we were taught in the academy, and practiced for many years, that the gun was just another tool on our belt. Now, I need to transition to a different role where I can be accused of a crime just for looking at it funny in a supermarket check out lane. The "rules of engagement" (if you will) have changed, and I want to make sure I am up to speed on the new rules. Of course the government doesn't do a very good job of making them clear.

    P.S. My G23 and I are getting along a little better so I'll keep 'er for now.

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    This question was asked during the CC course I just finished. According to the instructor, who is a retired Newport News cop, flashing a gun without fearing for your life with the intent to scare is brandishing. Evening telling someone you have a gun with the purpose of scaring them is considered brandishing. It's not the act of showing the gun. It's the purpose behind the act.

    According to the instructor the legal justification for brandishing is the same as the legal justification for actually shooting. You have to feel your life or the life of others is being threatened with death or serious bodily harm.

    That being said. He also mentioned a group of thugs approaching you with intent to harm would definitely justify a draw of a weapon. One person, no, but a group yes.

    This is one reason why I like the OC movement so much. If the gun is already out there you get the same effect of brandishing without breaking any laws.

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    ravonaf wrote:
    snip........This is one reason why I like the OC movement so much. If the gun is already out there you get the same effect of brandishing without breaking any laws.
    +1

    Yata hey
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    Old and treacherous will beat young and skilled every time. Yata hey.

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    livitup wrote:
    This response is going to be a jumbled up response to all the comments left so far. So instead of quoting everybody, I'll quote nobody.

    Proshooter, I'm well aware of the concept of disparity of force. I would reasonably expect things would turn out OK for you at the end of the scenario given. If you have to shoot, 3 bulky bad guys provides sufficient force to make soft ole' me afraid for my life.

    Where I thought there would be a problem is with the actions leading up to the shooting. If I can paraphrase what you are saying in order to make sure I understand it:

    Brandishing is OK, if it is one step in a self defense ladder. So assume you have time, the BGs have non-projectile weapons, and the distance is sufficient. Once they start advancing on you (and possibly you have nowhere left to run), you can draw down and tell them "stop or I'll shoot". If they turn and run, you have committed the act of brandishing, but it is not an illegal act because the code excuses any person engaged in excusable or justifiable self-defense.


    P.S. My G23 and I are getting along a little better so I'll keep 'er for now.
    First off, I'm glad to see that you and the G23are getting along better. Accept the fact that she's always right, you just have to say you're sorry and move on.

    Your interpretations of what I said seem to be correct, but I want to correct something in the manner of how you explained it.

    You said : Brandishing is OK, if it is one step in a self defense ladder.No, Brandishing is never ok because brandishing is a criminal act. There is a difference between brandishing and using your defensive firearm in a self-defense situation...understand? Its semantics....

    You also said: If they turn and run, you have committed the act of brandishing, but it is not an illegal act. Wrong, again Brandishing is illegal. Using your handgun defensively is not.

    Remember the stories we always hear when a caller dials 911 and says a man is "brandishing a gun" and its really just an OC'er eating lunch? The public tends to use the term brandishing for everything, waving it around, pointing it, carrying it, looking at it, hell even owning one.

    Think of it this way. If you walk up to someone and initiate a negative situation in which you display your handgun through some overt act, that's probably going to be brandishing. For example - you walk up to someone and say "give me your money" and then you pull back your coat to reveal a handgun tucked in your waistband. That action makes a person feel like they will be shot or injured if they dont comply with your demand. That's the illegal act of brandishing.

    If you are responding to the potential violent actions of another and you did not instigate the situation, then you are using your handgun in a self defense manner. Example - You are walking down the street and someone gets out of a car with a baseball bat and begins walking towards you quickly shouting threats of violence against you. You draw your handgun to a ready position and advise them to back off and leave you alone. That is not brandishing but rather isthe legal use of your defensive firearm to defend your life against what you perceived to be an imminentthreat of assault on your person.

    Again, I'm not a lawyer and the above is my opinion and interpretationbased on my training, knowledge and experience. If you have any questions regarding this or any other legal matter, please contact competant and capable legal counsel.
    James Reynolds

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    Perceived threat, intent and "what would a reasonable man do....... all play a part in this. Since the terms being discussed are not part of statute law but case law, we must decide for ourselves based on the circumstances at hand.

    Analyze the level of threat, determine options, chose best course of action, respond - do so correctly in a matter of seconds. Pop quiz possible when least expected.

    This is why this type of dialog and practice is so beneficial. You cannot, dare not wait until the SHTF to begin the process. As you practice/train so shall you respond.

    Yata hey


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    Old and treacherous will beat young and skilled every time. Yata hey.

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    Your friend's scenarios are placing him at risk of being convicted for brandishing. Especially

    GG: Hey pesky kids, you shouldn't be here doing this.
    BG: Oh yeah old man? Come on gangstas, lets kick his ass.
    GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)


    Read Morris v. Commonwealth at http://www.courts.state.va.us/opinio...wp/1032714.pdf. Morris was convicted of brandishing for exactly what your friend is suggesting - merely lifting up his shirt to show he had a gun -- except Morris 1) had a flare gun and 2) was a convicted felon attempting to intimidate two elderly folks. Despite those minor issues, it is, AFAIK, still the controlling case law on plain brandishing. There are other cases that get into the fine points of the difference between brandishing and allowable use of deadly force. See www.virginia1774.org under the heading "Modern Law on Self Defense" for examples. The first one there is a case of brandishing in defense of property that resulted in a conviction for doing so.

    IANAL but the general understanding is that Virginia does not recognize the "defensive display of a firearm or other weapon", unlike some other states. If you reveal a previously concealed handgun, put your hand on your opebly carried handgun, or draw your handgun (openly carried or carried concealed) you are considered to be using deadly force and must meet the criteria eatablished by law for the affirmative defense of such action.

    stay safe. Know more about the law than merely the sections of the Code of Virginia.

    skidmark

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    Regular Member TFred's Avatar
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    skidmark wrote:
    Your friend's scenarios are placing him at risk of being convicted for brandishing. Especially

    GG: Hey pesky kids, you shouldn't be here doing this.
    BG: Oh yeah old man? Come on gangstas, lets kick his ass.
    GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)


    Read Morris v. Commonwealth at http://www.courts.state.va.us/opinio...wp/1032714.pdf. Morris was convicted of brandishing for exactly what your friend is suggesting - merely lifting up his shirt to show he had a gun -- except Morris 1) had a flare gun and 2) was a convicted felon attempting to intimidate two elderly folks. Despite those minor issues, it is, AFAIK, still the controlling case law on plain brandishing. There are other cases that get into the fine points of the difference between brandishing and allowable use of deadly force. See http://www.virginia1774.org under the heading "Modern Law on Self Defense" for examples. The first one there is a case of brandishing in defense of property that resulted in a conviction for doing so.

    IANAL but the general understanding is that Virginia does not recognize the "defensive display of a firearm or other weapon", unlike some other states. If you reveal a previously concealed handgun, put your hand on your opebly carried handgun, or draw your handgun (openly carried or carried concealed) you are considered to be using deadly force and must meet the criteria eatablished by law for the affirmative defense of such action.

    stay safe. Know more about the law than merely the sections of the Code of Virginia.

    skidmark
    How can you say the Morris case is exactly the same when Morris was drunk, and made what was interpreted to be an aggressive remark to Molina's wife? The hypothetical situation presented here has multiple aggressors approaching a sober, law-abiding citizen, who then advises the would be criminals that they are about to be repelled by superior force.

    I see no similarity at all in these two scenarios.

    TFred

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    Regular Member SouthernBoy's Avatar
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    "Finally, let's take the situation one step further. Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts. It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event. So lets say you show the piece, and things escalate, and you end up shooting a badguy."

    This part is not true as I understand it since Virginia does not have a duty to retreat law. Simply put, this means if you havea legal right to be where you are and are not party to the threat in any way (initialization, precipitation, escalation), youwear the vail of innocense and do not have to retreat.

    However, prudence would dictate that retreat is better when available in order to either keep a situation from becoming a real threat or to help de-escalate a threat in progress. One should only consider such retreat if and when it can be carried out safely to oneself and others in one's party.


    Now the issue the OP raised also introduces another question. Suppose the incident goes down as described. I believe in most states, the laws regarding the use of defensive force, up to and including deadly force, say something on the order of this. You may use whatever force is necessary to stop the attack against yourself but it must be the minimum force needed to carry this out. In other words, you may not viciously respond to a pushing incident with blows serious enough to break bones, blind your attacker, and/or cause massive and permanent damage. Please correct me here if I am wrong.

    In the OP's example, the GG raises his shirt to display a weapon to some BG's who are advancing on him in a threatening manner. At that point the BG's had not visited any harm against the GG and neither had the GG responded with force of any kind. So in a way, it was tit-for-tat. A verbalized andvisualthreat was met with a verbalize and visual response. One might say the two actions cancelled one another out.


    Corrections where applicable are welcome.



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    SouthernBoy wrote:
    "Finally, let's take the situation one step further. Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts. It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event. So lets say you show the piece, and things escalate, and you end up shooting a badguy."

    This part is not true as I understand it since Virginia does not have a duty to retreat law. Simply put, this means if you havea legal right to be where you are and are not party to the threat in any way (initialization, precipitation, escalation), youwear the vail of innocense and do not have to retreat.

    However, prudence would dictate that retreat is better when available in order to either keep a situation from becoming a real threat or to help de-escalate a threat in progress. One should only consider such retreat if and when it can be carried out safely to oneself and others in one's party.


    Now the issue the OP raised also introduces another question. Suppose the incident goes down as described. I believe in most states, the laws regarding the use of defensive force, up to and including deadly force, say something on the order of this. You may use whatever force is necessary to stop the attack against yourself but it must be the minimum force needed to carry this out. In other words, you may not viciously respond to a pushing incident with blows serious enough to break bones, blind your attacker, and/or cause massive and permanent damage. Please correct me here if I am wrong.

    In the OP's example, the GG raises his shirt to display a weapon to some BG's who are advancing on him in a threatening manner. At that point the BG's had not visited any harm against the GG and neither had the GG responded with force of any kind. So in a way, it was tit-for-tat. A verbalized andvisualthreat was met with a verbalize and visual response. One might say the two actions cancelled one another out.
    There's also the case of Harold Fish. From what I've read it was justifiable homicide, but that's not what the jury thought. His choice of 10mm hollow point bullets is just one of many things that may have contributed to the jury finding him guilty.

    Reference: http://www.google.com/search?hl=en&q...mp;btnG=Search
    In case anyone has issue with google ad's policy that forbids promotion of weapons of any kind, here's yahoo:
    http://search.yahoo.com/search?p=harold+fish
    Though I don't know what yahoo's policy is.


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    In your scenario it went something like this:


    GG: Hey pesky kids, you shouldn't be here doing this.
    BG: Oh yeah old man? Come on gangstas, lets kick his ass.
    GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)
    BG:Lets get out of here!


    Now, let’s say a neighbor watching this exchange calls the local constabulary, or you do the responsible thing and report it after it happens as a CYA move.

    Officer1: So sir you’re telling me you exposed a handgun.

    You: I was outnumbered 4:1 and the juveniles were advancing on me. Due to the disparity of force, their demeanor and their size I believed I was in immediate danger of grievous bodily injury and/or death. I simply wanted to stop and control the situation.

    Officer1: (Knowing the complainant just recited verbatim what he was trained to say after the lawful deployment of a firearm) So if you thought they were going to kill you, why didn’t you shoot?

    You: As soon as they saw my firearm, they ran. At that point I was no longer in fear for my life. I would not have been justified in deploying deadly force.

    Officer1: Have a nice day.

    Right smack-dab in the middle of § 18.2-282. It states “However, this section shall not apply to any person engaged in excusable or justifiable self-defense.”

    4 against 1 odds is textbook disparity of force. Thus producing a handgun while being engaged is justifiable self defense does not brandishing make!


    (IANAL but I stayed in a Holiday Inn last night)

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    Livitup is right.

    I cover this topic as part of my standard "firearms law" lecture that I give in helping out other NRA instructors. The way I explain it is in terms of intimidation. If you've got a gun, and use it for the purpose of intimidation, regardless of how you're holding it, then you're guilty of "brandishing".

    There's a picture in the NRA book that comes with the Personal Protection Outside the Home course that I think makes this point really clearly, though in a negative sort of way. Three young nasty boys are approaching the older well dressed man near a car. The man is pulling back his jacket to show that he's got a gun, though it's still in the holster and he's not making any move to pull it out. That, in my opinion, is "brandishing", under Virginia law, because he's using his gun to intimidate. If he really has a good faith belief that there is an imminent threat of serious bodily harm, based on objective facts, then he can pull the gun out and shoot, but he's not allowed to threaten.

    What cops call "defensive use of firearms" is actually an offensive use. It's just as much a crime for them to do it as it is for anyone else, and occasionally gets them shot. I suggest that the same results can obtain for us. The defensive use of a firearm consists solely of defending ones' self or another innocent third party from an attack likely to result in serious bodily injury, death, or to stop a serious felony (it's serious if it involves serious bodily injury, not a threat to property).
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  20. #20
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    virginiatuck wrote:
    SouthernBoy wrote:
    "Finally, let's take the situation one step further.Â* Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts.Â* It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event.Â* So lets say you show the piece, and things escalate, and you end up shooting a badguy."

    This part is not true as I understand it since Virginia does not have a duty to retreat law. Simply put, this means if you haveÂ*a legal right to be where you are and are not party to the threat in any way (initialization, precipitation, escalation), youÂ*wear the vail of innocense and do not have to retreat.
    ...
    There's also the case of Harold Fish.Â* From what I've read it was justifiable homicide, but that's not what the jury thought.Â* His choice of 10mm hollow point bullets is just one of many things that may have contributed to the jury finding him guilty.
    ......
    The Virginia Code is not "the law". It is part of "the law". Most of "the law" is in court decisions and acts of parliament dating back to 1066. It's a common law jurisdiction, except to the extent modified by the Constitution and Laws of the Commonwealth. So there is no statute relating to a duty to retreat. There is no such duty.

    Furthermore, the phrase, "justifiable homicide" means a killing done in the course of one's duty while acting as an agent of the Sovereign. When a cop shoots a bad guy who's holding the baby hostage and threatening other people with death, that's justifiable homicide. When the Virginia Guardsman shoots an Iraqi "freedom fighter" who's been lobbing grenades at his position, that's justifiable homicide.

    When one citizen kills another because of a need for self defense, defense of others, or to prevent a serious felony, that's "excusable homicide".

    Finally, when one is at trial on a charge of any level of homicide, the critical factor is not what kind of ammunition was used. The critical factor is that the defendant shot and killed someone. Unless he can meet one of the three criteria for excusable homicide, he's going to be SOL (and I am not referring to the Statute of Limitations). Whether he had a modified weapon or bullets specifically designed to kill is perhaps icing on the cake for the prosecutor. I'm kind of surprised when that comes in as evidence at all, since it's totally irrelevant to the charge.

    When necessary to protect life and limb, shoot to kill. In all other circumstances, keep your gun in its holster and don't touch it. Don't use it for intimidation, or wave it around to protect property.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  21. #21
    Regular Member virginiatuck's Avatar
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    I didn't realize there was a legal distinction between 'justifiable homicide' and 'excusable homicide'.Thanks for clearing that up.

    user wrote:
    When necessary to protect life and limb, shoot to kill. In all other circumstances, keep your gun in its holster and don't touch it. Don't use it for intimidation, or wave it around to protect property
    FWIW, I carry hollow points despite what I've read about the Fish case. I completely agree with you and understand that the type of ammunition is not the critical factor. I was just relaying what I have read, second-hand, about the Fish case. I probably shouldn't do that, eh?

    Still, aren't juries fickle? Whether you have any kind of law to back you up, if it's up to a jury it could go any way.

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    OK... it seems, perhaps unsurprisingly, that there are two strong arguments, on both sides of the brandishing issue.

    I can read the code as well as the rest of you, and I know about the exemption for brandishing in case of self defense.

    But is that written so that they can't charge you with brandishing if you draw and fire, or so that you can display your firearm in a legitimate attempt to end a situation?

    I don't want to be the one to find out.

    What about when the badguys start advancing, you state, calmly and loudly, "I am armed and I will shoot, if you don't stop RIGHT NOW!!!"

    I think I'll personally start with brandishing my voice.

  23. #23
    Regular Member razor_baghdad's Avatar
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    ChinChin wrote:
    In your scenario it went something like this:

    GG: Hey pesky kids, you shouldn't be here doing this.
    BG: Oh yeah old man? Come on gangstas, lets kick his ass.
    GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)
    BG:Lets get out of here!


    Now, let’s say a neighbor watching this exchange calls the local constabulary, or you do the responsible thing and report it after it happens as a CYA move.

    Mine would go something like this:
    Officer1: So sir you’re telling me you exposed a handgun.

    You: I was outnumbered 4:1 and the juveniles were advancing on me.I believed I was in immediate danger and in fear for my life and the life of my wife. I'd liketo call my lawyer now.....(and ****).

    Officer1: (Knowing the complainant just recited verbatim what he was trained to say after the lawful deployment of a firearm) So if you thought they were going to kill you, why didn’t you shoot?

    You:

    Officer1: Have a nice day.

    Also, depending on the 21' assessment, actually drawing the weapon with the same intention as I stated above does not meet the 'brandishing' criteria as cited.

    Remember 'I was in fear for my life' as quoted by Chin,ProShooter, and Grapeshot.

    $00.02

  24. #24
    Regular Member SouthernBoy's Avatar
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    Just like to say thanks to the OP for starting this thread. These kinds of discussions about this and related topics are very important to people who carry a firearm for their protection. A great service is rendered by those who post with knowledge, experience, and opinions grounded in fact.

    Once again, thanks and hopefully these types of discussions will remain respectful as well as helpful.

    In the final seconds of your life, just before your killer is about to dispatch you to that great eternal darkness, what would you rather have in your hand? A cell phone or a gun?

    Si vis pacem, para bellum.

    America First!

  25. #25
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    A brandishing charge for presenting your weapon when in fear for your life will not stick, in my opinion,because your are using it for lawful self defense,but IANAL or a judge.

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