The author, a doctor, makes the case that in our climate of daily random violence and desperate drug addicts, a doctor would be wise to have a gun in his office. He brings up the example of emergency rooms having metal detectors and bullet proof glass because shootings have actually occurred there. So he asks:
Would you not see a doctor if you knew he had a gun in his office?
To those who would fear ....... I ask you this, why would a doctor having a gun bother you? Do you live in fear that your physician is trying to kill you? I mean if he really wanted you dead, he could stab you with a scalpel or inject you with something lethal. He could do so with the tools of his profession in a much more efficient manner than with a gun.
Here is where I disagree with you- if you aren't willing to (responsibly) let someone know you *have* a gun in an attempt to hopefully peacefully stop a situation that is escalating toward violence- you have no business carrying one, beacuse you sure as heck aren't going to use it to defend yourself. If you don't want to take the risk- don't. If you choose to carry a hand gun- you open yourself to the risk of legal action- whether you "brandish" it or not.
As for being an attorney- no- I am not one myself- however, I've spoken about this issue at length with a friend who works on these very sorts of cases back when I was first considering my own firearm.
Again- there is a *world* of difference between "pulling a gun" versus opening a jacket to expose a holster. The former is viewed as a direct threat- the latter is not. If one isn't willing to take the risk of showing ones holster or firearm- one needs to NOT carry one.
Considering that I nor you are a licensed attorney...that is why I posted the statute that applies in my state...it may be written differently in yours.
Any aspect of law is HIGHLY subject to interpretation.
Considering that the attorney does not make the arrest nor the decision to place charges and it usually goes before a judge or a jury...again, I have other things that I need to spend my money on...so flashing my gun around where everyone can see it (when there is no threat to me personally), just isn't something I can afford to do.
There are lots of things that you "could" get out of from a legal perspective.
But it doesn't mean it won't cause you an arrest, a trial and some serious cash to get out of it.
All the police had to do in my classmate's case was to make the arrest. The DA was trying to send a message that you just can't pull a gun on someone because you think they are a threat, and his interpretation was that it took more than just breaking into your house (which I disagree with...but the DA and the grand jury didn't think my way).
He still had to get an attorney, his name still appeared in the paper, he was photographed, arrested, had to post bail and it took him over $3,000 cash.
In the end, he was found not guilty...but in the end, he still had to pay.
Again- there is a *world* of difference between "pulling a gun" versus opening a jacket to expose a holster. The former is viewed as a direct threat- the latter is not. If one isn't willing to take the risk of showing ones holster or firearm- one needs to NOT carry one.
...and this is where your attorney friend's argument, in this state, would not hold up in court.
When you show someone a gun that you have on your holster...that's an implied threat. You can argue it, slice it, dice it, anyway you want, but I'm telling you, that you are not correct.
Do you know what an implied threat is? If you read what I wrote above from the statute...it is clear..when someone is in fear, when you envoke that fear, when someone has a reasonable belief that they will come to harm.
Notice that the statute does NOT say, "pull it out"...it says point, hold or brandish. All three of those words, mean different things...you are "holding" a gun in your possession if you have it in your purse or person. Whether or not your hands are on it...is 100% irrelevant.
Let's say that you have a lunatic that raped someone. He gets arrested. They find out he has a gun...did you know he STILL gets charged with using a firearm in the commission of a felony, even though he never even TOUCHED it nor did the victim see it?
Take a different situation...a guy doesn't want to bother with the hassle of shooting a gun..yet he wants to rob a bank, but he doesn't want to kill anyone....so he goes and buys a large, purple plastic gun...spray paints it black so it looks real...he takes it into the bank and points it at people...guess what? HE STILL will get charged with the use of a firearm because it ENTICED FEAR...the people had a reasonable belief that they would be shot and that they were being threatened.
Someone doesn't even have to see the gun to be guilty of the same crime...and an actual gun doesn't even have to be present...if someone is blind, and you come up behind someone and stick your finger hard in their back and say, "Move and I'll shoot"..that is all the law requires...to be charged with the same thing. Whether or not you had that ability, it not relevant...the individual being threatened...had the same level of fear and was threatened, as if the risk was real.
If you don't believe me...go ahead and test the theory. If there is no crime, then there is no crime. Everytime someone gives you a hard time, the waiter is rude, you go overcharged at Walmart....if you start arguing with someone and "show" them your holster with a gun that is most likely loaded.
Someone will be bailing you out of jail.
Again...if you don't believe me...and you are 100% sure that you are right...go ahead...test it.
Pointing a gun requires one to have it in ones hand. Holding a gun requires one to have it in ones hand. Brandishing a gun requires one to have it in ones hand, showing it with intent.
One might be freaked out by seeing someone with a firearm- but they aren't going to have a reasonable fear if the gun is not removed from the holster. For there to be reasonable fear- the gun has to be in a position to be used as a weapon. The gun is not going to fire itself from the holster without a hand on the gun and a finger on the trigger. Unreasonable fear? Sure- OK. But that's not what the statute says.
Your examples illustrate criminal offenses with firearms- NOT law abiding citizens carrying their weapons and someone seeing or being shown them in a manner that does NOT involve intent to commit a crime or actually committing a crime.
Certainly you see the difference between your non sequitur examples and that of someone showing a holster when faced with a serious potential threat. NOT that of CAUSING said serious potential threat. Showing a holster in a situation where one is alerting someone posing a threat of their ability and intent to defend themselves to thwart further aggression is FAR different than anything even CLOSE to what your examples are talking about.
According to your interpretation of the law- ALL persons who carry concealed would be liable to hearsay accusations if their jacket slipped or the firearm were viewed even inadvertantly.
...and this is where your attorney friend's argument, in this state, would not hold up in court.
When you show someone a gun that you have on your holster...that's an implied threat. You can argue it, slice it, dice it, anyway you want, but I'm telling you, that you are not correct.
Do you know what an implied threat is? If you read what I wrote above from the statute...it is clear..when someone is in fear, when you envoke that fear, when someone has a reasonable belief that they will come to harm.
Notice that the statute does NOT say, "pull it out"...it says point, hold or brandish. All three of those words, mean different things...you are "holding" a gun in your possession if you have it in your purse or person. Whether or not your hands are on it...is 100% irrelevant.
Let's say that you have a lunatic that raped someone. He gets arrested. They find out he has a gun...did you know he STILL gets charged with using a firearm in the commission of a felony, even though he never even TOUCHED it nor did the victim see it?
Take a different situation...a guy doesn't want to bother with the hassle of shooting a gun..yet he wants to rob a bank, but he doesn't want to kill anyone....so he goes and buys a large, purple plastic gun...spray paints it black so it looks real...he takes it into the bank and points it at people...guess what? HE STILL will get charged with the use of a firearm because it ENTICED FEAR...the people had a reasonable belief that they would be shot and that they were being threatened.
Someone doesn't even have to see the gun to be guilty of the same crime...and an actual gun doesn't even have to be present...if someone is blind, and you come up behind someone and stick your finger hard in their back and say, "Move and I'll shoot"..that is all the law requires...to be charged with the same thing. Whether or not you had that ability, it not relevant...the individual being threatened...had the same level of fear and was threatened, as if the risk was real.
If you don't believe me...go ahead and test the theory. If there is no crime, then there is no crime. Everytime someone gives you a hard time, the waiter is rude, you go overcharged at Walmart....if you start arguing with someone and "show" them your holster with a gun that is most likely loaded.
Someone will be bailing you out of jail.
Again...if you don't believe me...and you are 100% sure that you are right...go ahead...test it.
Considering that I nor you are a licensed attorney...that is why I posted the statute that applies in my state...it may be written differently in yours.
Any aspect of law is HIGHLY subject to interpretation.
Considering that the attorney does not make the arrest nor the decision to place charges and it usually goes before a judge or a jury...again, I have other things that I need to spend my money on...so flashing my gun around where everyone can see it (when there is no threat to me personally), just isn't something I can afford to do.
There are lots of things that you "could" get out of from a legal perspective.
But it doesn't mean it won't cause you an arrest, a trial and some serious cash to get out of it.
All the police had to do in my classmate's case was to make the arrest. The DA was trying to send a message that you just can't pull a gun on someone because you think they are a threat, and his interpretation was that it took more than just breaking into your house (which I disagree with...but the DA and the grand jury didn't think my way).
He still had to get an attorney, his name still appeared in the paper, he was photographed, arrested, had to post bail and it took him over $3,000 cash.
In the end, he was found not guilty...but in the end, he still had to pay.
I'll take a 12 man jury of my peers over 6 friends become pall bearers any day. Save your life and that of your loved ones and let the legal process do its worst (or best... in my state.)
[I]"Pointing a gun requires one to have it in ones hand. Holding a gun requires one to have it in ones hand. Brandishing a gun requires one to have it in ones hand, showing it with intent"
One might be freaked out by seeing someone with a firearm- but they aren't going to have a reasonable fear if the gun is not removed from the holster. For there to be reasonable fear- the gun has to be in a position to be used as a weapon. The gun is not going to fire itself from the holster without a hand on the gun and a finger on the trigger. Unreasonable fear? Sure- OK. But that's not what the statute says."
Asking myself would I brandish (i.e., show the gun without pulling it.) No, I think not because I'm only a 132 pound grandmother and a thug would see a gun with no hand on it and remove it from my person. That is a practical argument, not a legal, ethical or moral one. Simply pragmatic for me.
My daddy said I had to treat my guns with awe and tremendous respect and NEVER point it at anyone I wasn't ready to kill.
The aforementioned story of my disabled (multiple sclerosis) sister defusing road rage by shoving the barrel of her .45 against the driver's side window... she was really, really glad the man found his self-control and walked away. (Perhaps that's a form of brandishing...) But she would have killed him, without question if he'd made any progress or continued to try to burst in the window. (In fact her exact words shouted through the glass were "How f---king serious do you want to make this?"
Is there anyone on this post who would gainsay what she did? Is there anyone on this post willing to say that denying her right to do what she did would make society-at-large safer?
Is there anyone on this post who would have had a better idea? (Her car was blocked in... she'd pulled into a parking space. The road-rage man had is car in back of hers. I don't know if she had her cell phone on her. But when seconds count... the police are only minutes away.)
The term 'brandish' refers to (according to dictionary definition) "1 : to shake or wave (as a weapon) menacingly 2 : to exhibit in an ostentatious or aggressive manner. Either of which require one to hold the gun in hand- NOT "show the gun without pulling it" as you say here.
As for showing it- sure- you'd have to be confident enough with the weapon to pull it into operating position quickly enough *and* be far enough away from said thug to give you time to do that. However- in MANY cases, said thugs aren't looking for those able and willing to defend themselves and knowing that there is a firearm present is often enough to cause them to turn tail and run.
Your daddy was right- you never POINT a gun at anyone you aren't fully prepared and making ready to shoot. However- again- there is a significant difference between pulling said gun and letting it be known that a gun is present.
Yes- your sister "brandished" the firearm. She was holding it in a menacing manner. However, in states that have the Castle doctrine- or even a stand your ground policy- she is protected by law if she were backed into a situation where she felt she needed to shoot him.
The issue that people aren't seeing here is that there is a HUGE difference between showing- even holding in hand- a firearm in a self-defense situation, versus pointing and threatening with a firearm in a manner consistant with an illegal activity. Holding the weapon itself is NOT an illegal act- it's what you intend to DO with it that makes it legal or illegal. One has the right to self defense- one does not have the right to make ones self a bully or to initiate violence.
Asking myself would I brandish (i.e., show the gun without pulling it.) No, I think not because I'm only a 132 pound grandmother and a thug would see a gun with no hand on it and remove it from my person. That is a practical argument, not a legal, ethical or moral one. Simply pragmatic for me.
My daddy said I had to treat my guns with awe and tremendous respect and NEVER point it at anyone I wasn't ready to kill.
The aforementioned story of my disabled (multiple sclerosis) sister defusing road rage by shoving the barrel of her .45 against the driver's side window... she was really, really glad the man found his self-control and walked away. (Perhaps that's a form of brandishing...) But she would have killed him, without question if he'd made any progress or continued to try to burst in the window. (In fact her exact words shouted through the glass were "How f---king serious do you want to make this?"
Is there anyone on this post who would gainsay what she did? Is there anyone on this post willing to say that denying her right to do what she did would make society-at-large safer?
Is there anyone on this post who would have had a better idea? (Her car was blocked in... she'd pulled into a parking space. The road-rage man had is car in back of hers. I don't know if she had her cell phone on her. But when seconds count... the police are only minutes away.)
Like I said..if you think you are right...go ahead and test the theory.
I would be willing to bet...that you won't take the chance of a possible arrest.
Start flashing the gun in your holster when someone makes you upset...you'll be sitting in the back of a cruiser.
First of all- we aren't talking about flashing the gun when someone makes you upset. That's insanely stupid and downright dangerous. We are talking about showing ones holster in an attempt to diffuse a situation when one is facing a threat.
Second of all- the only way for me to "test that theory" is for me to be faced with a threatening situation- which- thanks but no thanks- I try to avoid via the use of common sense. MOST people can probably go their entire lives without being put into a situation that would necessitate the use of their firearm- or even alerting anyone to its presence- however- I'm certainly not going to put myself into a dangerous position just to prove a point. That IMO deserves the 'duh' award.
The term 'brandish' refers to (according to dictionary definition) "1 : to shake or wave (as a weapon) menacingly 2 : to exhibit in an ostentatious or aggressive manner. Either of which require one to hold the gun in hand- NOT "show the gun without pulling it" as you say here.
As for showing it- sure- you'd have to be confident enough with the weapon to pull it into operating position quickly enough *and* be far enough away from said thug to give you time to do that. However- in MANY cases, said thugs aren't looking for those able and willing to defend themselves and knowing that there is a firearm present is often enough to cause them to turn tail and run.
Your daddy was right- you never POINT a gun at anyone you aren't fully prepared and making ready to shoot. However- again- there is a significant difference between pulling said gun and letting it be known that a gun is present.
Yes- your sister "brandished" the firearm. She was holding it in a menacing manner. However, in states that have the Castle doctrine- or even a stand your ground policy- she is protected by law if she were backed into a situation where she felt she needed to shoot him.
The issue that people aren't seeing here is that there is a HUGE difference between showing- even holding in hand- a firearm in a self-defense situation, versus pointing and threatening with a firearm in a manner consistant with an illegal activity. Holding the weapon itself is NOT an illegal act- it's what you intend to DO with it that makes it legal or illegal. One has the right to self defense- one does not have the right to make ones self a bully or to initiate violence.
I am strongly in Equinox's corner here. A DA who would prosecute for showing a holstered gun in the situation where there is a true threat, is playing back door Gun Control antics. Being dissatisfied that the State's legislative body gave... (no, RECOGNIZED!) Equinox's right to be armed, he/she would drag Equinox into a court room to set a precedent so he/she could further harass gun owners. OF COURSE there are laws against "brandishing" but only a full-throated devote of gun confiscation would persecute (not prosecute, persecute) gun owners in this way. Under such a theory of law, if you fully intended to use the gun, but the thug backed down, (crisis averted) you still end up "brandishing". Here's the folly in this interpretation of the anti-brandishing law. Having SHOWN the gun, I would almost be obligated to pull it out and point it at the thug AND/OR discharge it. A competent defense attorney would make hamburger out of a DA who tried that.
Imagine the testimony that would ensue. How many gun-instructor-self-defense expert witnesses would it take to convince a jury that in order to exercise the right of self defense, it is necessary to expose the gun, since it is impossible to fire the gun while it remains holstered under a blazer.
The DA would look like an idiot because it would take an idiot to bring this case before a judge or a jury.
We can argue all you like. I HAVE shown it before. I HAVE called the police after the 'threat' was over. I HAVE NOT been arrested. Ever? 2 states....
I'm sorry...I have to call total BS on this one.
Attorneys and courts do not use Webster's to define legal terms, they use Black's Law Dictionary.
Police officers only require a GED and a clean background check...not hardly the authority on legal interpretation. That is why they created DA's, Grand Jury's and Courts.
If you are contantly having to "show" your gun and call the police in "two" states...then I would really, really question the company you keep.
Equinox_93
528 Posts
Here is where I disagree with you- if you aren't willing to (responsibly) let someone know you *have* a gun in an attempt to hopefully peacefully stop a situation that is escalating toward violence- you have no business carrying one, beacuse you sure as heck aren't going to use it to defend yourself. If you don't want to take the risk- don't. If you choose to carry a hand gun- you open yourself to the risk of legal action- whether you "brandish" it or not.
As for being an attorney- no- I am not one myself- however, I've spoken about this issue at length with a friend who works on these very sorts of cases back when I was first considering my own firearm.
Again- there is a *world* of difference between "pulling a gun" versus opening a jacket to expose a holster. The former is viewed as a direct threat- the latter is not. If one isn't willing to take the risk of showing ones holster or firearm- one needs to NOT carry one.