Livitup's lesson on brandishing

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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

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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.

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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.

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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 stfu).

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.

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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

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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.

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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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I am going to address this from a little different perspective. I take issue with the language used in the example and I think that if a neighbor had overheard it, it could be construed in the worst light against the GG:

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!

So the GG initiates the interaction. Being that the kids are presumably doing something illegal probably not a problem although the addition of "pesky" could be construed by some to be confrontational, but then they were breaking the law tagging and such so it would be arguable. However, "pesky" could give ammunition to a prosecutor if a neighborhood witness sympathetic to the kids heard it.

Next GG response has sort of a cocky tone to it. When I first read it, my reaction was to envision some tough guy scene from a movie where the armed guy in a tough voice says his line while casually flashing his gun. And frankly, that made me think brandishing. It sounds overly casual and cocky. Now we reading this are hearing these comments in our own heads in voices we choose to use so said by someone else with a different tone than I heard in my head I could have a very different response.

If say the GG while pulling up his shirt and assuming a draw position yelled, "Stop!! I will defend myself!" I would have likely immediately had a thought of self-defense. Heck, he even used the word defend. Obviously he felt threatened and wasn't just playing tough guy to a bunch of kids.

Maybe it's just me but that is my take on it. Brandishing, not brandishing, IANAL and only know VA law from OCDO, so I'll not even try to argue from a legal perspective. But I know that I wouldn't want to be the guy going in front of a jury on a brandishing charge having been quoted saying, "I wouldn't do that if I were you."

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Double post - browser hung up on me

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Darnit - triple tap ... sorry

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Perhaps the simplest answer is to tuck your shirt in before you say "Hey you pesky kids, you shouldn't be here doing this" ?

TFred

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virginiatuck wrote:

...
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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The real question in my mind is whether information like that ought to be presented to the jury in a way that is prejudicial, and is presented intentionally to lead the jury to false conclusions. A good defense attorney will object like crazy, informing the jury as he does so that it is an attempt to trick them. And at the least, the defendant will have a good appealable issue.

Juries, being comprised mainly of humans, are often easily mislead. The technique to use at trial is to inform the jury all the time, through whatever means are available (like during statements of objection) that they are being mislead and to show them exactly how it's being done. People don't like to be hornswaggled, and there are always a couple of folks on the jury who will be reasonable regardless of the emotional ravings the others put on.

Remember the defendant doesn't have to "win"; he just has to "not lose".

And you don't really need any "law to back you up" - most of the time, the system actually prevents the jury from actually knowing what the law is. They get it filtered through official jury instructions given by the judge. They're not allowed to actually read a statute and figure out for themselves what it means.

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livitup wrote:

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.

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The way I put it is this: if you have a state of necessity such that you have to pull out a gun, that's all you need; you can always decide the problem's been resolved and put your gun, unfired, back in its holster. That's not brandishing, because you had reason to believe you needed to defend yourself before you pulled the gun out.

The way you describe your new approach makes sense, because it is a conditional statement. I'd suggest the use of the word, "if", however, such as, "If you boys don't back off and leave me and my wife alone, I'm going to be forced to believe that you intend us bodily injury, pull my gun out and blow you all away."

A conditional statement can never be construed as assault because it does not represent an "imminent" or "immediate" threat.

And it's not brandishing because you never took any action related to the gun, itself; just talking about it isn't brandishing.

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By the way, "feeling in fear for one's life" is legally irrelevant to the defense of excusable homicide. Your feelings and emotions are of no consequence. You have to have a reasonable, good-faith belief that you are faced with an imminent and immediate threat of serious bodily injury to your self or another innocent third party, based on objective fact. "Fear" has no part in it whatsoever. It's the apprehension of the threat that counts.

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user wrote:

By the way, "feeling in fear for one's life" is legally irrelevant to the defense of excusable homicide. Your feelings and emotions are of no consequence. You have to have a reasonable, good-faith belief that you are faced with an imminent and immediate threat of serious bodily injury to your self or another innocent third party, based on objective fact. "Fear" has no part in it whatsoever. It's the apprehension of the threat that counts.

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I disagree. If you review court decisions such as http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1032714&invol=1

You'll see the courts do in fact give consideration to "fear" throughout; both in offenisve and defensive considerations.

SENIOR JUSTICE HARRY L. CARRICO in his opinion directly references "induced fear" as an element of Code  18.2-282.


Thus I do not agree with your statement that "Fear" has no part in it whatsoever.

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user wrote:

By the way, "feeling in fear for one's life" is legally irrelevant to the defense of excusable homicide. Your feelings and emotions are of no consequence. You have to have a reasonable, good-faith belief that you are faced with an imminent and immediate threat of serious bodily injury to your self or another innocent third party, based on objective fact. "Fear" has no part in it whatsoever. It's the apprehension of the threat that counts.

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You may be right but I was taught it makes a big difference when you state it to the police making the report.

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sudden valley gunner wrote:

user wrote:

By the way, "feeling in fear for one's life" is legally irrelevant to the defense of excusable homicide. Your feelings and emotions are of no consequence. You have to have a reasonable, good-faith belief that you are faced with an imminent and immediate threat of serious bodily injury to your self or another innocent third party, based on objective fact. "Fear" has no part in it whatsoever. It's the apprehension of the threat that counts.

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You may be right but I was taught it makes a big difference when you state it to the police making the report.

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You should say nothing to the police unless your lawyer thinks it's a good idea. Until then, your lawyer can do the talking.

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To me, regardless of the law, it just comes down to common sense.

Don't shoot to kill unless you feel that you may be killed otherwise. If you do not want to kill him/her but only want to stop the situation (which is hopefully why we all have our guns)...do the minimum necessary to give him/her the opportunity to flee. At the same time be prepared for them not to flee and to use deadly force.

When your life is hanging by a split decision I doubt the average person is going to be able to recite all of this code in their head. You have to do what you have to do but on the smallest scale necessary to prevent harm.

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Yea I agree not talking to police but if there is an intruder or for some reason you are making the 911 call I think its pretty important to state you are in fear.

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Is there a definition of serious bodily harm? People have been killed and grievously injured in fistfights.

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paramedic70002 wrote:

Is there a definition of serious bodily harm? People have been killed and grievously injured in fistfights.

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Sure - it means bodily injuries that are not trivial. I apologize, that was a feeble attempt at humor. Actually, it's going to be up to a jury to decide whether the threat was "serious" or "trivial". It's a question of fact that will be decided on a case by case basis, and possibly with inconsistent results.

And the question, for the application of the defense of self-defense to apply, is whether there was a good faith belief that there was a threat of a serious bodily injury. If the result was actually trivial, that doesn't really matter, if when the defendant resisted with deadly force, he had a reason to think there would be a serious bodily injury.

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paramedic70002 wrote:

Is there a definition of serious bodily harm? People have been killed and grievously injured in fistfights.

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We usually use this one:

Serious bodily injury is defined as bodily injury that involves a substantial risk of death, unconsciousness, extreme physical pain, protracted and obvious disfigurement, or protracted loss or impairment of the function of a bodily member, organ, or mental faculty.