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New York man fires gun, arrested in dispute on his lawn

eye95

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Jan 6, 2010
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Fairborn, Ohio, USA
Unless you are a speed draw champion, waiting to draw until you are about to fire is a bad idea. But we should not draw our guns unless we are facing a situation which warrants deadly force. Drawing your gun is an action with more consequences than using harsh words, but with fewer consequences than firing the gun. Especially if you fire the gun before you draw it.

Laws vary from State to State, however it seems that there is generally a two-pronged test for an action to be assault: There has to be an unlawful threat, and there has to be the present ability to carry out that threat. Having the gun, drawn or not, meets the second criteria. The question is, "Does the act of drawing the firearm (or holding it in a safe position) constitute a threat?" The answer would depend upon the context.

If you draw your weapon and hold it safely at your side while a man walks past your house just because you think he is acting hinky, he'd have a case for your having assaulted him.

If you draw your weapon and hold it safely at your side as a dozen or more folks walk into your yard, saying angry things, then you'd probably have a case that they were committing assault! I'd call their behavior a threat, and a dozen against two sure amounts to "present ability." If you are acting out of genuine and reasonable fear for your safety, then your threat is lawful and does not constitute assault.

IANAL.
 

eye95

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IANAL means "I am not a lawyer."

When saying something that someone might erroneously construe as legal advice, this caveat explains that I am stating my layman's interpretation of the matter. No one should rely on it as professional legal advice. If one's situation dictates the need for legal advice, he should seek out a lawyer, which I am not.
 

45acpForMe

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Nov 21, 2008
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Yorktown, Virginia, USA
In my opinion it was his property and they refused to leave so they were tresspassing with criminal intent. He "should" be allowed to count to 3 and then start dropping gang-bangers. In reality he should have stood there waiting for police as long as they didn't advance on him or his cousin. I am sure the Pieces of Sh1t would have lost their bravado and dispersed once police showed up. Gang-intimidation works because our laws only restrict the law abiding.

Warning shots waste bullets.
 

Johnny W

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CT
Laws vary from State to State, however it seems that there is generally a two-pronged test for an action to be assault: There has to be an unlawful threat, and there has to be the present ability to carry out that threat. Having the gun, drawn or not, meets the second criteria. The question is, "Does the act of drawing the firearm (or holding it in a safe position) constitute a threat?" The answer would depend upon the context.

If you draw your weapon and hold it safely at your side while a man walks past your house just because you think he is acting hinky, he'd have a case for your having assaulted him.

If you draw your weapon and hold it safely at your side as a dozen or more folks walk into your yard, saying angry things, then you'd probably have a case that they were committing assault! I'd call their behavior a threat, and a dozen against two sure amounts to "present ability." If you are acting out of genuine and reasonable fear for your safety, then your threat is lawful and does not constitute assault.

IANAL.

Yes, I would agree that drawing a firearm is not necessarily a threat, but I would say it is not a threat if a reasonable person would believe you are not intending to convey that you will use the firearm. If you are at a gun store and ask to see a gun from the case, the employee pulling it out of the case is not a threat. However if your intention in exposing, drawing, or otherwise bringing attention to the firearm is to notify someone that you are willing to use it, you have threatened or "assaulted" that person. The assault may be justified, just as using the gun to stop an attacker in a way that results in the attacker's death may be justifiable homicide, covered by the affirmative defense of "self defense". But it is still assault. If an ambulance with lights and sirens on runs a red light, they have still run a red light, but it is justified and permitted by law. The actions are the same. If a person randomly draws a gun from a holster and points it at whatever is in front of them, that person will be guilty of assaulting whatever is in front of them. If they happen to draw when someone is threatening them, they will be justified in only that case, even though the actions are exactly the same. Obviously I am not advocating randomly drawing guns because it is very likely to be illegal and dangerous.

A threat is always a threat, and violence is always violence. The reasons for these actions may justify them in some circumstances, namely when used as a response to similar actions.

I am also not a lawyer, just a citizen trying to understand the law. I know that the laws vary from state to state, as well as the language those laws use, but the principles are somewhat similar in many cases.
 
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eye95

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Yes, I would agree that drawing a firearm is not necessarily a threat, but I would say it is not a threat if a reasonable person would believe you are not intending to convey that you will use the firearm. If you are at a gun store and ask to see a gun from the case, the employee pulling it out of the case is not a threat. However if your intention in exposing, drawing, or otherwise bringing attention to the firearm is to notify someone that you are willing to use it, you have threatened or "assaulted" that person. The assault may be justified, just as using the gun to stop an attacker in a way that results in the attacker's death may be justifiable homicide, covered by the affirmative defense of "self defense". But it is still assault. If an ambulance with lights and sirens on runs a red light, they have still run a red light, but it is justified and permitted by law. The actions are the same. If a person randomly draws a gun from a holster and points it at whatever is in front of them, that person will be guilty of assaulting whatever is in front of them. If they happen to draw when someone is threatening them, they will be justified in only that case, even though the actions are exactly the same. Obviously I am not advocating randomly drawing guns because it is very likely to be illegal and dangerous.

A threat is always a threat, and violence is always violence. The reasons for these actions may justify them in some circumstances, namely when used as a response to similar actions.

I am also not a lawyer, just a citizen trying to understand the law. I know that the laws vary from state to state, as well as the language those laws use, but the principles are somewhat similar in many cases.

Of course it is a threat. The question was, "Is it an unlawful threat." If you are being threatened unlawfully, you, of course, may lawfully take steps to stop the threat--which includes being threatening.
 

acmariner99

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Feb 12, 2010
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Location
Renton, Wa
Warning shot = bad

A decent DA will light you up for doing that. He had time to go back into the house and grab the weapon too. If the gun is coming out, there will be an imminent need to use it to shoot to kill.
 

lil_freak_66

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Sep 8, 2008
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Mason, Michigan
im not saying this regarding any legal matters,just my own personal views.

I personally think warning shots arent always bad,though shooting them into the air is always dangerous though.

Into his yard probably wasnt too dangerous,its a soft ground with no rocks above the surface,and even in the event of a ricochet,theres a wall of targets in front of him.

Him doing that probably made it so we arent hearing a story about how "a deranged homeowner opened fire on a group of young men with an AK47,killing 11,many more injured,sent neighborhood into panic"
Continued on page 3A....
"Claims self defense,authorities believe him"


 

45acpForMe

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Nov 21, 2008
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Yorktown, Virginia, USA
snip...

Him doing that probably made it so we arent hearing a story about how "a deranged homeowner opened fire on a group of young men with an AK47,killing 11,many more injured,sent neighborhood into panic"
Continued on page 3A...."Claims self defense,authorities believe him"

That is why I don't buy newspapers. Too much biased coverage. Your hypothetical example made me laugh though. :lol:
 

5o56x45

Regular Member
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Sep 26, 2010
Messages
51
Location
CA
With this new information I think the homeowner was justified, even if he should of shot all his warning shots in the ground(or into some gang-bangers). He has every right to go assist his family member.

Furthermore, this never pull until your gonna shoot stuff is a double standard.
If brandishing were never appropriate then LEOs would never do it. If brandishing can de-escilate then that would be better than having to shoot someone 30 seconds later.


20 gang members surround and start a fight with my cousin on my property? = DISPARITY OF FORCE. This guy SHOWED RESTRAINT.

I would've shot quite a few of them.

http://newyork.cbslocal.com/2010/09/07/long-island-man-arrested-for-defending-home-with-ak-47/
His lawyer says in the news clip that the shots were fired into the ground.
The article states that he did this with the knowledge of the ShotSpoter technology that the police have that pinpoints where a gun shot was fired within 35 feet. Either way he should not be expected to leave a family member to defend himself against 20 + MS-13 gang members (so called).
The article has a picture of seven AK 47s lined up in a row with the rifle on each end partiality out of the frame as if the police confiscated 7+ AK 47s from this guy, but the article and the news clip make no mention of there being more than one. I find the picture to be very suggestive.
 
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COMMANDER1911

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Sep 18, 2010
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Flintstone, GA
Warning shots are a no no. Especially if the 15+ intruders are suspected gang bangers and probably all packing illegal weapons. in a situation of this magnitude I would draw my weapon, flip the safety off, drag my family member inside and wait for police. It's a lot easier to hit intruders funneling in through a narrow doorwayor window, than 15+ intruders in the open.Thats just my Marine training taking over. Find cover, get a tactical advantage over the enemy.
 

KansasMustang

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Sep 9, 2008
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Herington, Kansas, USA
Hard to say how a fella would react to this. Myself I live in the country and in Kansas I have the right to clear my land by any means necessary. If I announce leave my property or be fired upon, and then start shooting it's a done deal. No gang-bangers here.
 

frommycolddeadhands

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Sep 3, 2008
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Knob Noster, MO
Not to bad..

I really can't nit-pick this story too much. 15 MS13 gangmembers were fighting on his lawn, and then they surrounded his cousin who pulled up in the car.

He armed himself and got 9-1-1 on the line. His cousin was still in the fray, so he couldn't just hole up in the house. He goes back out to get his cousin. Having the gun out as a deterrent to keep them at bay or facilitate quick action was perfectly reasonable in my opinion due to the large number he was facing.

As far as the warning shots, well, warning shots are a bad idea in general and I don't recommend them in most situations. Putting a controlled round in the dirt to try and scare folks off is a weird thing. First, they already see you have a gun, and they aren't scared. Discharging a round might scare them off, it might not, or it might incite them to start shooting at you- and they would be justified. You fired first and now THEY'RE justifiably in fear of their life.

On a good day a warning shot into the dirt will scare the bg's away and maybe you'll get a ticket, but at least nobody got hurt. On a bad day you fire a warning shot and then you get filled full of lead by a gang of BG's. Risky business.
 

rscottie

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Jun 29, 2008
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Location
Ashland, Kentucky, USA
I totally agree that warning shots are not advisable.

If you are justified in pulling the trigger, don't waste the ammo! Drop a few BG's instead.

The problem I have with this story is that, well, this one story does not tell it all, but after reading multiple different sources and also hearing from the man that did the shooting himself, it appears he was justified in bringing out his gun.

The news has sensationalized this story to the point of absurd. The man used an AK47. One news source published a picture of about a dozen AK-47's all lined up, intentional or not, the story insinuated that this man was a dangerous kook with a dozen AK's. Turns out the picture was one of ALL the AK's confiscated over a period of time.

The point is, none of us were there. This man was in fear of his life as well as his cousin's, who just happened to be surrounded by the mob. Unfortunately, he was in the state of NY, where self-defense is frowned upon. In KY, he would not be in trouble.
 

Aaron1124

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Jul 5, 2009
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Kent, Washington, USA
Yeah, I think the last two posts are right on. Warning shots are a bad idea.

Note that 1245A and I were responding to the fact that this story sounds eerily like a scene out of Gran Torino.

Only in that case, Clint didn't fire off warning shots. He just drew his M1 on the punks. Justified, imo.
 

PT111

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Jul 31, 2007
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Location
, South Carolina, USA
Gang surrounds his cousin and is on his property.

Man draws gun just in case - I have no problems with that at all, probably a good idea and I would give him a pat on the back.

Man fires warning shot into the ground - Warning shots are a bad idea so no good on that. He fired it into the ground rather than the air so I at least give his props on that. Still not a good idea to waste ammo.

Man lives in New York - Very bad and I advise him to move to some place that either doesn't have gangs or at least allows you to shoot them. In some places "He needed killing" is still an adequate defense in certain cases. ;)
 
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JoeSparky

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Jun 20, 2008
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Pleasant Grove, Utah, USA
Couldn't the fact that one fired a warning shot be used as an argument that he did not really feel his life was in danger thereby set themselves up for a negligent discharge, discharge in city limits, assault type charges?
 
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