bom1911
Regular Member
Well, that was painful to read.
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Incident at walmart
- Thread starter Sc0tt
- Start date
Dreamer
Regular Member
Technically, you are correct. The OP did not commit the violation of "Brandishing". But NOT for the reasons you give.
The REAL reason he did not commit the violation of "brandishing" is because in NC, there is NO SUCH VIOLATION.
Let me repeat that for the hard-of-thinking...
In NC, there is NO SUCH VIOLATION as "brandishing". Period...
The only non-assault charge we have that involved displaying a firearm in an inappropriate, threatening, or willfully confrontational manner is called "Going Armed to the Terror of the People". It is NOT a Statutory violation. It is not part of any municipal code. It is a COMMON LAW violation, and is rooted in about 160 years of NC Case Law. The principle case that established this common law violation used as it's primary case law-precedent an instance of English Law from the 1200s--a Statute of King Edward III...
As defined in "State vs. Huntley" (1843) it is the INTENT of the person carrying a firearm that determines whether he shall be judged guilty of the offense of GAttTotP.
Under "Huntley", the guilt or innocence of a person being accused of GAttTotP hinges ENTIRELY on the intent of the person in their display of a firearm. If they display a firearm with the INTENT of causing fear, alarm, or to terrify, they are guilty.
The OP did this. He is technically guilty. His manipulation of his holster and handgun--even if he NEVER unholstered it--was done SPECIFICALLY with the intent to show another person that he was armed, to intimidate that other person (who was, BTW, unarmed), and stop a verbal confrontation.
"Putting someone in their place" is NOT a justifiable reason under NC law to use, or threaten to use deadly force.
"Huntley" is the case which codified GAttTotP in case law in NC. Read up on it. This case also established the precedent that OC is legal, so it's a pretty important bit of Case Law to us here in NC...
http://www.guncite.com/court/state/25nc418.html
"eye95", you usually post some pretty thought-provoking essays on this forum. I like reading your contributions. But on this one, you are flat-out wrong. Admit that, and move on...
Technically, the OP didn't "brandish", because there is NO SUCH violation in NC. But he did tread DANGEROUSLY close to the true spirit of the GAttTotP violation, if not jump with both feet right over the line...
It would be like saying that someone who (for whatever reason) illegally had ammo in their possession in NC wasn't guilty of "possessing unregistered ammunition", like they have in Washington DC Code. There is no such law in NC, so there is no such violation. They might be guilty of some other infraction, but since that particular violation doesn't exist here, they can't be in violation of it.
But I remain steadfast in asserting that he did cross the line toward committing a GAttTotP violation, and he is VERY lucky he wasn't "cuffed and stuffed" for his trouble.
He's a Security Guard, and has Army EOD background. He is obviously capable and willing to use his firearm in high-pressure situations. HOWEVER, he apparently doesn't understand NC Self-Defense law very well, and I suggest that the OP consult a qualified civilian instructor as his earliest opportunity.
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Sc0tt
Regular Member
Dreamer
Regular Member
You were not acting as a security guard during this incident, so your security training should have NOTHING to do with your thought process with regards to your duty or obligation. In fact, MANY of the things that you CAN legally do as an armed security guard are flat-out illegal for a citizen to do.
Get some training in NC Self-defense law, Scott...
It is ALSO quite easy to post an unverified, uncorroborated "tale" on a forum tooting your own horn on how much of a hero you were by flashing your holstered gun at some stupid punk hothead in a WalMart parking lot...
If you expected us to all pat you on the back for being such a brave, manly vigilante in your reckless actions to inject yourself into a situation that did not concern you, you are sadly mistaken.
There are a LOT of people on here who have spent a LOT of time and money getting proper training, consulting with attorneys, researching NC Statutes, and collecting information on this very topic. The true power of this forum is that it allows for a lot of different people of different experience levels to interact, swap information, and hash out these issues when they are confusing, questionable, or unclear.
If you post an experience that was righteous, we are more than happy to give you kudos.
But when you post an account of actions that were so egregiously wrong on your part that its a miracle you weren't arrested, you've got to expect that SOMEONE might try and show you the error of your ways.
We aren't "armchair quarterbacking" here--we aren't slamming you or attacking you. We're just saying that you handled this situation the wrong way, and you were VERY lucky that you didn't--at the very least--get charged with GAttTotP, and have your firearm seized.
We're trying to help you avoid getting into a potentially BAD situation in the future. You're obviously functioning under some sort of thought process that doesn't understand there are HUGE legal differences between what Soldiers, Security Guards, and citizens can and cannot do in situations like this.
You are NOT in Kandahar anymore. It is NOT your job to come rushing to the aid of the downtrodden, the victimized, and random people who have no relation to you. You are a CITIZEN, and your PRIMARY duty is to protect YOUR OWN safety. Inserting yourself into unclear situations involving unrelated third parties IS NOT within your duties as a citizen.
Maybe the guy who threw the punch was trying to apologize to the guy who honked his horn, and the honker said something REALLY rude about his mother, a kennel full of Siberian Huskeys and a Costco-sized jar of Peanut Butter. You don't know. Anyone willing to get involved in a shouting match over a parking spot at WalMart probably isn't the most reliable source of information--on EITHER side of the argument. Think about it...
You dodged a SERIOUS legal bullet with this one. Count your blessings.
And take the legal fees you aren't going to have to spend defending yourself against a GAttTotP charge, and GET SOME TRAINING with a qualified NC CHP instructor. You REALLY need to have a better grasp of the law in NC.
Because if you don't get it straight, you are going to get arrested or perhaps even shot by a cop in the very near future.
Say for instance that an off-duty Sheriff's Deputy had been walking across the parking lot when you flashed your firearm at this screaming yahoo. What do you think he would have done? Probably drawn on you, ordered you to the ground, and disarmed and cuffed you, while he sorting things out. As well he should have...
If you're OCing, you need to be VERY careful about situational awareness. And inserting yourself intentionally into a volatile situation that does not concern you, because you are armed and think you can defuse the situation is just plain reckless and irresponsible.
Get some training... Please... I beg you...
Nobody here wants to be reading your arrest announcement or obituary in the future. We're just trying to help you avoid a VERY bad situation, because the rules are VERY different for citizens than they are for soldiers and security guards.
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eye95
Well-known member
You stated that the BG threatened your life. That makes the subtle action you took purely an act of self-defense. This is the right place.
Your action was neither brandishing (legally or common-sensically) nor was it outside the normal parameters of self-defense.
While I have said many times that I probably would not have stepped in, I wasn't there. This situation may have developed around you, and I might have indeed felt forced to step in. There is no way any of us could know.
That being said, whether or not I agree with how you handled the situation, I must say that I find the way that you have been treated by two or three of the posters in this thread to be reprehensible.
My advice: just stay matter of fact and consider those who are giving you advice with respect. This thread, if some will allow it to be, could be a learning experience for all of us.
Dreamer
Regular Member
EVERYONE in NC who carries--OC or CC--needs to read, study and understand the material in the "Huntley" case, as well as the NC AG's "Firearms Laws" booklet.
Please, if you haven't printed these out and read them, DO SO, TODAY!!!
NC firearms law is notoriously squirrelly. Walking around thinking you can act in the same manner as an active-duty soldier in a combat zone, or like an armed security guard, when you are in fact, a citizen, is a VERY dangerous mindset.
PLEASE, everyone hit these links if you haven't already, and STUDY the material. It may save your life someday...
"State vs. Huntley":
http://www.guncite.com/court/state/25nc418.html
NC AG's Firearms Law Booklet:
(HTML version)
http://www.grnc.org/guns.htm
(PDF Version)
http://www.ncdoj.com/getdoc/32344299-a2a7-4ae5-99fd-9018262f64ac/2007-NC-Firearms-gun-Laws.aspx
Or if you're the type of person who need a printed and bound book, order a copy of attorney Thomas Faulk Jr.'s book "Firearms Laws of North Carolina"
http://grnc.org/book_sales.htm
Please, if you haven't printed these out and read them, DO SO, TODAY!!!
NC firearms law is notoriously squirrelly. Walking around thinking you can act in the same manner as an active-duty soldier in a combat zone, or like an armed security guard, when you are in fact, a citizen, is a VERY dangerous mindset.
PLEASE, everyone hit these links if you haven't already, and STUDY the material. It may save your life someday...
"State vs. Huntley":
http://www.guncite.com/court/state/25nc418.html
NC AG's Firearms Law Booklet:
(HTML version)
http://www.grnc.org/guns.htm
(PDF Version)
http://www.ncdoj.com/getdoc/32344299-a2a7-4ae5-99fd-9018262f64ac/2007-NC-Firearms-gun-Laws.aspx
Or if you're the type of person who need a printed and bound book, order a copy of attorney Thomas Faulk Jr.'s book "Firearms Laws of North Carolina"
http://grnc.org/book_sales.htm
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Sounds like plausible self defense to me
The assailant ignored a probably calmly but sternly worded warning to go away. The assailant continued to advance toward a group of people and was apparently quite willing to take them all on. We don't know what the bad guy had up his sleeve, or stuck in his belt, to make him think he would prevail. The OP, having witnessed an act of assault perpetrated by this guy, having heard a verbal threat from him to commit murder, and having seen the bad guy keep advancing despite a couple of warnings, took what seems to be quite reasonable and restrained action.
The bad guy went away. No further injury occurred. The police didn't see fit to arrest anybody but the assailant, if they could find him, who HAD struck a victim and HAD threatened others with permanent harm.
The OP stopped the fight. Yes, there could have been more to the story that the OP didn't see. And yes, the OP probably could have been hassled by the police. He might or might not have have crossed some vague legal line. The fine nuances of the law aren't black and white at all. As it happened, the assault got stopped, everybody walked away, nobody got shot.
I think the OP did just fine.
The assailant ignored a probably calmly but sternly worded warning to go away. The assailant continued to advance toward a group of people and was apparently quite willing to take them all on. We don't know what the bad guy had up his sleeve, or stuck in his belt, to make him think he would prevail. The OP, having witnessed an act of assault perpetrated by this guy, having heard a verbal threat from him to commit murder, and having seen the bad guy keep advancing despite a couple of warnings, took what seems to be quite reasonable and restrained action.
The bad guy went away. No further injury occurred. The police didn't see fit to arrest anybody but the assailant, if they could find him, who HAD struck a victim and HAD threatened others with permanent harm.
The OP stopped the fight. Yes, there could have been more to the story that the OP didn't see. And yes, the OP probably could have been hassled by the police. He might or might not have have crossed some vague legal line. The fine nuances of the law aren't black and white at all. As it happened, the assault got stopped, everybody walked away, nobody got shot.
I think the OP did just fine.
Dreamer
Regular Member
You may want to re-think your position.
You see, although we don't have a statutory prohibition on "brandishing" in NC, you DO in VA, and if this event had happened in VA, the police would have been perfectly within their right to charge you with "brandishing"...
The OP was lucky. Lucky the assailant wasn't armed. Lucky a cop didn't see him unsnapping his holster. Lucky nobody pressed charges. And lucky he lives in a state where "Brandishing" isn't statutorily defined.
But YOU live in a state where "brandishing" is on the books. I'd suggest you look into the exact wording and the case law of the VA statutes. If you were to try something like this in VA, you'd most likely get a citation (at the very least).
It isn't his property. The offended party was a stranger. The OP was not under any direct threat until he intentionally inserted himself into the situation. If he had just minded his own business, the police would have eventually arrived and the same result would have occurred.
But by inserting himself into this situation, he now has a hotshot story to tell, and the false sense of security that this sort of behavior is legal and acceptable.
The OC Movement doesn't need "cowboys" who think that combat experience and security guard jobs qualify them as "personal protectors of the people". We need people who KNOW the law, and abide by it. If he keeps this sort of behavior up, he's going to end up getting cited, arrested, or shot.
We're just trying to help him avoid that...
Kirbinator
Regular Member
OP didn't brandish. Brandishing requires pulling the gun from the holster. We've already had the Hitler reference EARLY on in the thread, Godwin's Law dictates this thread be locked. Mods!
Sc0tt
Regular Member
basically I see it like this, My stepping in prevented further injury to the AM and the asulted party, after reviewing the case with the responding officer and his capt there was no reason to charge me and I was auctually thanked for my actions.
According to some people in need training, and the 3 years of military training and 2 years of security training doesn't count.
I do not care about laws about other states laws, or any other arguments I feel I did the right thing, and I did not post the story on here to gloat over yay I'm a hero bu to get feedback. as on now all I have is criticism.
This is the end of my posting here.
(oh and I was promissed as to got going GTToTP, since my interventions were to protect lives and property and not simply to terrorize somone)
According to some people in need training, and the 3 years of military training and 2 years of security training doesn't count.
I do not care about laws about other states laws, or any other arguments I feel I did the right thing, and I did not post the story on here to gloat over yay I'm a hero bu to get feedback. as on now all I have is criticism.
This is the end of my posting here.
(oh and I was promissed as to got going GTToTP, since my interventions were to protect lives and property and not simply to terrorize somone)
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I'll stick with justifiable self defense
I've heard nothing to change my mind. OP acted with admirable restraint and self control. Bad guy ran away. Victim stopped getting beat up. Nobody got killed. Everybody walked away. What's wrong with this picture? Nothing. The OP did just fine. Police agreed. Case closed.
As for the legal wrangling about whether "brandishing" took place or not, or whether the same act would have been illegal in VA, here's our statute:
� 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.
I've heard nothing to change my mind. OP acted with admirable restraint and self control. Bad guy ran away. Victim stopped getting beat up. Nobody got killed. Everybody walked away. What's wrong with this picture? Nothing. The OP did just fine. Police agreed. Case closed.
As for the legal wrangling about whether "brandishing" took place or not, or whether the same act would have been illegal in VA, here's our statute:
� 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.
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Sc0tt
Regular Member
thamk you
CharleyMarbles
Regular Member
ok I can now toss my unneeded humble oppinion in the mix and it closely resembls the quoted section. I have on many occasions intervined where I thought someone was being victomized. Sometimes I was right and sometimes I was wrong, but I have never after all parties cooled down been domonized for it. In fact on a few occasions have had what I took to be the aggressor thank me for my concern of their loved ones safety. I commend you Scott on your concern for your fellow man and your service to your fellow man. Both in life and in your Military service.
buster81
Regular Member
So, your loking four positave fedbuck only.
KansasMustang
Regular Member
I know, it's just me, but I think that OP did the right thing, deadly force maybe not but threats of violence nonetheless. I despise bullies and the fella seemed a bully to me. I think you done good. Now how's that for grammar?
hogeaterf6
Regular Member
Good job. You get praise from me and i would have probally done the same thing.
To everyone else. Brandishing? Come on. It was holstered. If I sling back my coat to get my wallet is that brandishing? His gun never left his hip.
someone posted the bg was unarmed. How do you know?
Most said, you shouldnt intervien. What a bunch of pansies. Thats whats wrong with this country. No one is willing to step up and help someone else out in their time of need. would you want help if it was you getting beat up? What if it was a woman getting beat? Does ones sex or physical attributes only change your mind?
To everyone else. Brandishing? Come on. It was holstered. If I sling back my coat to get my wallet is that brandishing? His gun never left his hip.
someone posted the bg was unarmed. How do you know?
Most said, you shouldnt intervien. What a bunch of pansies. Thats whats wrong with this country. No one is willing to step up and help someone else out in their time of need. would you want help if it was you getting beat up? What if it was a woman getting beat? Does ones sex or physical attributes only change your mind?
eye95
Well-known member
Yeah, folks are just flat ignoring that you went to the aid of an assault victim and were threatened with violence yourself.
I don't get it.
hogeaterf6
Regular Member
damifiknow
JamesCanby
Activist Member
The line you bolded contains the legal art words "excusable" and "justifiable," both of which have specific meanings related to legal defense after deadly force has been used. In order for an act to be considered "justifiable," the actor:
- Must not be at fault
- Must prove reasonable fear of death or serious bodily injury
- Must act following an overt act by the aggressor. Words alone will not suffice.
- Must use force proportional to the threat posed
(Commonwealth v. Sands, 262 Va. 724, 729, 553 S.E.2d 733, 736 (2001))
In order for an act to to be considered "justifiable" the act must be committed in self defense 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, 31 (1958))
In order for an act to be "excusable," where the actor was to some degree at fault in provoking or bringing on the difficulty, the actor, when attacked must:
- Have retreated as far as he safely could under the circumstances
- Made a good faith attempt to abandon the difficulty, and
- Made known his desire for peace by word or act, and
- He reasonably feared that he was in danger of bodily harm, and
- He used no more force than was reasonably necessary to protect himself from the threatened harm
And, yes, we are now talking about Virginia law here, not NC, and this comment is in direct response to the previous poster, not the OP.
Had this incident occurred in VA, his actions would not have been either justifiable nor excusable by virtue of the stated facts (or facts not in evidence).
He placed himself in danger by interjecting himself into an altercation, there was no mention of anything other than "fighting words" being used -- no weapons were mentioned. The deadly force response and the "proportionality" were violated -- no weapon being evident and the 3-1 advantage against the "assaulter."
The OP, however justified in his own mind by prior experience and training, is fortunate that he acted in NC rather than in VA ... or several other states that have laws similar to VA.
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