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Thread: Incident at walmart

  1. #1
    Regular Member Sc0tt's Avatar
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    Incident at walmart

    ...Yeah yeah yeah I get it I F'D Up....
    Last edited by Sc0tt; 12-07-2010 at 07:45 PM.
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    Embarrased

    From his tags it indicates he is military, but I'm embarrased by his spelling/grammer. I thought I was bad.
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    Regular Member Sc0tt's Avatar
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    I posted the above from my mobile device which makes proofing and spell checking quite difficult. Sorry for the mistakes
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    "A government that is big enough to give you everything you need is beg enough to take everything you have, the course of history shows that as government incresses - liberty decreases."


    LEGAL NOTICE: I am not a lawyer, no content in the above post should considered legal advice

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    Regular Member HeroHog's Avatar
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    My spelling sux too! That's why ieSpell is my best friend!
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    Nicely done sCOtt.
    I was in Walmart the other day and the most dangerous guys I ran into were the church missionaries LOL
    Stay calm and carry on.

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    Regular Member Jack House's Avatar
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    Quote Originally Posted by navylt View Post
    ummmmm..... I hate to point this out to you..... But, ..... Respectfully,..... And you are self-admittedly "bad"......

    Embarrased = embarrassed
    grammer = grammar



    I'm sorry, i just couldn't resist....
    heil grammar!

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    Regular Member VAopencarry's Avatar
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    Why did you interject yourself into a situation that wasn't any of your business?

    Why were you preparing to draw on an unarmed person?
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by VAopencarry View Post
    Why did you interject yourself into a situation that wasn't any of your business?

    Why were you preparing to draw on an unarmed person?
    Ditto ....

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    We weren't there and couldn't read the signs the OP did. He didn't draw, but was prepared to if the need arose.

    I don't know if the assault rose to the point where I'd've intervened as the OP did. However, if I felt there was a legitimate threat to the life or limb of another, I'd like to think that I'd have the stones to try to do something.

    The OP measured his response and defused the situation without the need for escalation. That is good.

  10. #10
    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by eye95 View Post
    We weren't there and couldn't read the signs the OP did. He didn't draw, but was prepared to if the need arose.

    I don't know if the assault rose to the point where I'd've intervened as the OP did. However, if I felt there was a legitimate threat to the life or limb of another, I'd like to think that I'd have the stones to try to do something.

    The OP measured his response and defused the situation without the need for escalation. That is good.
    There was no indication in the OP's account that there was any deadly force being used and the proportionality was 3-1 against the "assaulter." The OP brandished and he was lucky the police gave him a pass.

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    Quote Originally Posted by JamesCanby View Post
    There was no indication in the OP's account that there was any deadly force being used and the proportionality was 3-1 against the "assaulter." The OP brandished and he was lucky the police gave him a pass.
    Reread the account. The OP did not brandish. He increased his level of readiness.

    Unless you think that releasing the holster lock or touching the firearm is brandishing. In that case, I suggest you look up brandishing. The word has a very clear meaning and what the OP said he did does not qualify as brandishing.

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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by eye95 View Post
    Reread the account. The OP did not brandish. He increased his level of readiness.

    Unless you think that releasing the holster lock or touching the firearm is brandishing. In that case, I suggest you look up brandishing. The word has a very clear meaning and what the OP said he did does not qualify as brandishing.
    He "increased his level of readiness" without justification. In Virginia, the law says:

    � 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

    In defining "brandishing" the Virginia code (as explained by my instructor on legal issues) can be an action as simple as pulling one's coat aside to reveal a handgun. Actually gripping a handgun is a clear intent to induce fear in the mind of another of being shot or injured. Brandishing is excusable IF the person is engaged in excusable or justifiable self-defense, both of which are legal terms that describe a situation where the brandisher is in actual fear of severe bodily harm or death. The OP's description of the situation does not, IMHO, rise to that level.

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    Quote Originally Posted by JamesCanby View Post
    He "increased his level of readiness" without justification. In Virginia, the law says:

    � 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

    In defining "brandishing" the Virginia code (as explained by my instructor on legal issues) can be an action as simple as pulling one's coat aside to reveal a handgun. Actually gripping a handgun is a clear intent to induce fear in the mind of another of being shot or injured. Brandishing is excusable IF the person is engaged in excusable or justifiable self-defense, both of which are legal terms that describe a situation where the brandisher is in actual fear of severe bodily harm or death. The OP's description of the situation does not, IMHO, rise to that level.
    The poster is in NC.

    Please cite case law or the code that defines brandish in the way you claim it does. (Preferably for NC, not for VA.)

    The OP did not "grip" the firearm.

    Sorry, your assertion fails on every point.

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    Quote Originally Posted by NavyLT View Post
    North Carolina statute:
    Given ALL the circumstances of the encounter, I would have no problem finding the OP guilty of the above statute if sitting on a jury. From the OP's description of the incident, I fully believe he threatened the hothead and since it was three against one in a Wal Mart parking lot, when the "one" had not presented any weapons, I don't buy the "self defense" justification. This was not an incident that the OP accidentally found himself in - it was an incident that he purposely and willfully injected himself into.

    All the police would have to do was ask the hothead, "did you see him reach for his gun?"
    "Yes"
    "did you think he was going to shoot you?"
    "yes"

    Case closed.
    I would have a problem finding him guilty as there had already been an assault and threats uttered. The OP showed restraint, only raising his level of readiness to be able to defend himself if the need arose. It didn't.

    Did you hear the man threaten to kill the defendant?

    Yes.

    Did you see the man advance on the defendant?

    Yes.

    What did the defendant do?

    He flipped some kind of switch on his holster and put his hand by his firearm.

    Did he draw the firearm or make any move to make you think he was actually going to draw the weapon?

    No. The guy who threatened to kill him walked away, and that was the end of it.

    Did you think he was going to draw the firear?

    No. He didn't. I didn't think he would unless the man tried to carry through on his threat to kill him.

    Thank you.

    Hung jury so far. Case far from closed.

    Charges likely won't even be brought. Oh, wait, they weren't.

    The OP was measured in his actions. I don't think the threat mounted to the point that I would have done anything other than monitor the situation and call 911, but taking a defensive posture after a threat of deadly force is not criminal.

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    Regular Member CenTex's Avatar
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    Eye95: "The OP did not "grip" the firearm."
    OP: "I put my hand on my firearm and depressed the lock so it would be ready to draw"

    We don't know that he didn't grip the firearm. He said he put his hand on his firearm. He did not say how he put it on there.

    Did he draw the firearm or make any move to make you think he was actually going to draw the weapon?

    Ans. Yes, he had his hand on the gun and released the latch used for holding the gun in the holster.

    OP: "He had already threated to kill me."

    Did the man who was assaulted or the man from Walmart hear the man threaten to kill you?

    ??? We don't know. Yet. We were not told. OP will have to give more information.

    Personally, I think he entered an incident he had no business getting involved in. There were two men against one already. The one man may have been able to easily handle the two...we don't know because of the injection of the OP into the encounter.

    Now, I am waiting to hear more on this debate these two: NavyLt Eye95.
    Last edited by CenTex; 11-26-2010 at 12:01 AM.
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    No one is dead.
    No one is facing charges except the man who left.
    And we're all armchair-quarterbacking.

    A good outcome, considering. The OP will have time to consider his actions before "next time". He can learn and grow from the encounter, as can we all.
    Last edited by Kirbinator; 11-26-2010 at 06:14 AM.
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    Quote Originally Posted by NavyLT View Post
    The OP put himself into a situation he had no business being in to begin with. That was the first act of escalation on the OPs part. What if the OP had felt the need to draw his weapon and shoot the hothead because the hothead did not turn around and leave when he put his hand on his gun? Three men against one unarmed assailant. Self defense? "I don't think so, Tim."

    Especially when I am open carrying my gun I don't put my nose in business where it doesn't belong. I don't carry my gun to break up petty fights in Wal Mart parking lots. AND I certainly don't "ready" my gun to be drawn. If I put my hand on my gun and unsnap the retention device it's because I feel that my life is threatened and is only going to be part of the motion to draw my weapon, and unless the situation drastically changes in the next 2 seconds, a round is going to exit the barrel at high velocity. Somebody who says they are going to kill me, without presenting a means available to do so and when it is 3 against 1, warrants a 911 call.

    An incident like this is almost justification for a Brady Campaigner to point to and say, "SEE! We told you so!"
    Wow. You're castigating the OP based on a lot of what ifs!

    I agree that he likely inserted himself in the situation too early. I wouldn't have.

    He apparently thought that the threat to he life warranted a heightened state of readiness, but did not rise to the level of drawing a firearm. One might question what he did as a half-step that shouldn't be taken in favor of a full-step or no-step, but neither of of us was there. The person who threatened to kill the OP left without following through on the threat. The police had no problem with the OP's actions. That is a good outcome.

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    When some neanderthal decides to spread his testosterone out in my vicinity I feel threatened. The assailant could have quickly redirected his energy on anyone in the area.

    The OP pretty much knew who the aggressor was since he witnessed the incident unfold. It's not like he walked up into the middle of an UC LEO making an arrest.

    While I prefer to create distance, be a witness and call 911, it would really turn my stomach to watch while somebody gets the snot beaten out of them and not help. Unarmed assaults can be deadly. This could have been an ideal scenario for the widespread application of pepper spray.

    I will not fault the OP. Just realize that when you interject yourself in a situation you run the risk of being hurt, arrested, even killed. Only you can decide if it is the appropriate thing to do.
    Last edited by paramedic70002; 11-26-2010 at 08:47 AM.
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    Activist Member JamesCanby's Avatar
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    Quote Originally Posted by eye95 View Post
    The poster is NC.

    Please cite case law or the code that defines brandish in the way you claim it does. (Preferably for NC, not for VA.)

    The OP did not "grip" the firearm.

    Sorry, your assertion fails on every point.
    I have already provided the code section that provides the definition of brandishing. The attorney who instructed the class on Virginia firearm legality was quite specific regarding any display or touching one's weapon during an altercation in which there was not an excusable or justifiable reason to do so.

    As for case law, consider:
    "This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).

    In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm." (Emphasis mine.) (Cited from http://www.virginia1774.org/Page5.html)


    The OP says he put his hand on his firearm and the "assaulter" became apprehensive of bodily harm by the OP's brandishing of his firearm -- that's why he left the scene.


    The laws on brandishing may vary from state to state. If this incident had happened in Virginia and the "assaulter" had filed a complaint, the OP would have been charged with brandishing. While there may not be specific code in NC regarding brandishing, that is exactly what he did and, in my opinion, unjustifiably so.

    You might also see this forum's thread at http://forum.opencarry.org/forums/sh...84#post1408884 for more discussion on brandishing.
    Last edited by JamesCanby; 11-26-2010 at 08:56 AM.

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    Quote Originally Posted by JamesCanby View Post
    I have already provided the code section that provides the definition of brandishing. You did no such thing. You posted the VA code section outlawing brandishing, not the definition. The poster is in NC. Also, the only reference you made to a definition of brandishing was what you recollected from some lecture. Yeah, that's a good source! The attorney who instructed the class on Virginia firearm legality was quite specific regarding any display or touching one's weapon during an altercation in which there was not an excusable or justifiable reason to do so.

    As for case law, consider:
    "This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original).

    In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm." (Emphasis mine.) (Cited from http://www.virginia1774.org/Page5.html)

    I added the bolding to indicate why your cites aren't on point.

    The OP says he put his hand on his firearm and the "assaulter" became apprehensive of bodily harm by the OP's brandishing of his firearm The OP said no such thing. [Again, I bolded the words that make you so wrong.] -- that's why he left the scene.


    The laws on brandishing may vary from state to state. If this incident had happened in Virginia and the "assaulter" had filed a complaint, the OP would have been charged with brandishing. While there may not be specific code in NC regarding brandishing, that is exactly what he did and, in my opinion, unjustifiably so.

    You might also see this forum's thread at http://forum.opencarry.org/forums/sh...84#post1408884 for more discussion on brandishing.
    Some of my replies are embedded above in navy.

    For the love of all that's holy, PLEASE look up an actual definition of "brandishing." You are demonstrating an incredible lack of understanding of the term. Barring black-letter law (from NC, where this happened) defining brandishing otherwise, or case law (again, from NC) which defines brandishing (the one cite above that does clearly demonstrates one key facet of brandishing: that the gun is out), the common definition of brandishing applies. Look it up!

    Enough of this distraction. Either put up a definition of brandishing that supports you contention, or I will move on and not bother to reply.

    The OP did not brandish.
    Last edited by eye95; 11-26-2010 at 09:28 AM.

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    Embarrassed

    Quote Originally Posted by NavyLT View Post
    ummmmm..... I hate to point this out to you..... but, ..... respectfully,..... and you are self-admittedly "bad"......

    embarrased = embarrassed
    grammer = grammar



    I'm sorry, I just couldn't resist....
    You go LT, I like it.

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    Heres a great idea quit armchair commando-ing'the man considering NO ONE else was there beside the OP.
    The woulda, shoulda, coulda crowd drive me nuts, if the cop was going to arrest him they would have. In most cases just showing a firearm scares off criminals like it did here. Showing a firearm does not necessary mean drawing a firearm sat the perp, if it requires further action by drawing it then so be.


    Now my personal opine
    Having your hand on your firearm in the ready position is not brandishing. Our laws arer similar to the OP and all the times as an armed guard I had my hand on my firearm during several nasty incidents and each time I have had to go to court for them the Judge has said I was NOT in the wrong nor was I ever charged.
    Last edited by zack991; 11-26-2010 at 10:56 AM.

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    Agree with NavyLT

    I'd have called 911, watched, maybe even yelled that I had PD on the phone, but nothing more. It was the Wally Worlds AM who had the responsibility to act, not the OPs. If the situation grew more violent, then the response would need to be reevaluated.

    IMHO the OP was lucky not have a brandishing charge.
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    Heres a great idea quit armchair commando-ing'the man considering NO ONE else was there beside the OP.
    The woulda, shoulda, coulda crowd drive me nuts, if the cop was going to arrest him they would have. In most cases just showing a firearm scares off criminals like it did here.


    Now my personal court experiences with this.

    Having your hand on your firearm in the ready position is not brandishing. Our laws our similar to the OP and all the times as a armed guard I had my hand on my firearm during several nasty incidents. Each time I have had to go to court for them the Judge has said I was NOT in the wrong in having my hand on my weapon in the ready.
    Last edited by zack991; 11-26-2010 at 11:43 AM.

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    Quote Originally Posted by Average Dad View Post
    IMHO the OP was lucky not have a brandishing charge.
    Does no one know the meaning of the word "brandish"?

    Barring black-letter law from NC or case law from NC defining brandish differently, the common definition applies and the OP did NOT brandish! Look it up!!!
    Last edited by eye95; 11-26-2010 at 11:28 AM.

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