Making the call to defend yourself or your home with a firearm in the face of an attack or deadly threat may seem like a pretty straight-forward decision. A no-brainer, right? The problem is that there are a lot of factors involved that may make it more complicated than you might think.
Let’s begin by acknowledging the fact that laws for firearm carry and self-defense can vary widely by State. The definitions of the legal terms and the justification for your actions in a situation where guns are involved may not always be what you were expecting, so it’s vital that you fully understand what you can and can’t do in certain circumstances.
This does not necessarily mean waving your weapon in the air crazily or creating something more extreme like a ‘Say hello to me little friend’ scenario. Brandishing, by definition, could be as subtle as lifting up your shirt to reveal a concealed weapon, placing your hand on a holstered weapon or simply threatening another individual with an unseen weapon. Essentially, if you present a gun in a ‘rude, angry or threatening manner’, then it may be possible to be charged with a brandishing offence. This can also be categorized as an unnecessary, improper, defensive or unlawful display of a firearm. In fact, the weapon doesn’t even need to be loaded to be considered a ‘threat’ or a ‘promise’ of violence. Again, this varies broadly by jurisdiction.
Having said all of that, there are a number of elements that can affect these situations. In most cases, there has to be some fight or real threat to be able to justify the presentation of a defensive weapon. You have to be REALLY sure that this move is absolutely necessary, because once you open that can-of-worms, then there’s no going back. By ‘brandishing’ a weapon, you may actually escalate a situation that could otherwise have been handled differently. Additionally, aside from the person or persons that you may be engaging with (who now know exactly what the deal is), you have to consider anyone else in the immediate vicinity. What will their reaction be if you demonstrate that you have a deadly weapon? Are YOU the real threat? Other things to consider would be your previous criminal activity (if any) or the setting for the incident. Outside of a bar is one thing, but revealing a weapon near a school or in front of a police officer is quite different.
Also remember that simply revealing a firearm is vastly different than pointing it directly at someone. That‘s another whole ball game. In a great deal of cases, you can open yourself up to civil or criminal prosecution, or at the very least lose your concealed carry permit.
For actual defense with a gun, the primary principle of imminent threat applies as it would for the ‘pulling’ or revealing of a weapon as discussed above. The issue of self-defense with a gun can get complicated though, due to the variables involved.
When is a Threat, a Threat?
If you (or a loved one or other individual) are attacked in some way with any weapon (not just a gun) that has the potential to inflict death or great bodily harm, then you are likely justified in using a firearm for defense. This could include a knife, baseball bat, broken bottle, tools etc. In the eyes of the law, fists, feet and teeth are not normally considered to be deadly weapons. The situation, words and actions of an aggressor will also dictate how much of real threat is present. Someone who is 10 feet away in an alley with a crow bar and describing what they’re going to do to your skull is far different from someone flipping you the bird and cutting you off on the highway. Being threatened is distinctly different than feeling threatened. For instance, pulling a weapon and pointing it at an unarmed neighbor during an argument would clearly violate most State laws.
In some cases everything happens very quickly and there isn’t much time to react. However, if there are situations where you could potentially de-escalate, then what is your level of responsibility? If you are able to warn the attacker off and they back down, that’s the best-case scenario. If they don’t and you have no alternative but to defend yourself, then you’ve done your job and you’re less likely to get into legal trouble.
Duty to Retreat
In keeping with the de-escalation theme, there is a Duty to Retreat law in some jurisdictions that requires an individual to get themselves to a safe space wherever possible in the event of a physical or deadly threat. This is a legal requirement for the threatened person not to harm an aggressor or use lethal force if it is possible to retreat to a place of safety. For instance, if you’re on your porch and someone is threatening you with an axe handle from 50 feet away (and perhaps slowly advancing), you could reasonably go back into your home and call 911. This law does contrast though with the right to Stand Your Ground which is found in some States.
A Line in the Sand
The Stand Your Ground rule applies in some areas and basically states that you do not need to back down or retreat in the face of a physical threat. It provides that people can use deadly force in order to defend themselves against potential death, grave bodily harm, kidnapping, rape, robbery or other serious crimes (depending on where you live). There is no Duty to Retreat in these cases, but it does not apply if there is is no imminent deadly threat, you are the aggressor or if you’re undertaking some illegal activity. It is often used as a defense in legal cases, but again it would have to be justified.
There is also the Castle Doctrine that allows for you to reasonably defend yourself in your own home (or vehicle or workplace in some States) from an intruder. This can include the use of deadly force, but the circumstances would dictate what would be considered ‘reasonable’ in the eyes of the law. Shooting someone in the back as they’re leaving your home (with you unharmed) might not cut it.
The bottom line here is that you have to have a complete understanding of your local and State laws if you carry or have a defensive weapon in your home. Claiming ignorance of the rules after-the-fact just won’t work
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NYState’s”castle defense”is a farce i.e.you’ll be financially bankrupt by the defense lawyers,if you are to stay out of prison.
What can you expect in this marxist paradise??
Kalashnikov Dude says
I always wind up coming back to PHX Arizona whenever I leave, looking for more money, less insane heat during summer. Maybe the biggest part of that is our laws regarding firearms and self defense. Here, it pretty much goes along the lines of whatever may happen, you’re allowed to defend yourself. That as it turns out is all that is needed to give the edge to those rightfully defending themselves. It bears out in the statistics. We have far less of the shenanigan’s we see in other states and cities. Far less. Let me put it another way. Arizonan’s are safer because we have more realistic laws surround firearms and their usage in defensive matters. It’s that simple. People who live elsewhere need to demand a change to absolute recognition of our 2nd Amendment. Arizona isn’t even close to the letter and spirit of it. But it’s closer. And we’re safer.
That was a very well written, but superficial, review of the legal theory of self-defense.
First off let me say that everyone who has a gun in their home or carries a gun for self-defense needs to have concealed carry insurance. It’s not actually insurance but it’s really a prepaid legal defense plan.
Ccw Safe, US law shield, and several other companies offer these plans for a dollar or two per day.
Considering that the retainer for just a brandishing charge, (which is a felony good for 10 years in prison)will be about $30,000. A reasonable legal defense will be at least $300,000, and if you are convicted the appeal is extra.
If you want an education in the legal aspects of self defense go to “law of self-defense blog “by Andrew Branca.
He does a weekly Roundup of self-defense cases in the news that’s free and just reading those will give you an excellent basic education in self-defense law.
If you want to know the law of self-defense better than it’s taught in every law school in the US, pay the dollar a day to get his daily blog where he analyzes the legal aspects of self-defense using his system of innocence, iminence, avoidance, reasonableness and proprtionality.
These five principles underlie self defense law in all 50 states.