When is it legal to brandish a firearm?

If the kid, or his parents, wanted to push the issue, the old man could have been found guilty of assault with a deadly weapon. It is illegal to point a gun at another person. If your state has a citizen's arrest law, may be not. I NC, a citizen has a very limited right to"detain", but can not use lethal or deadly force to effect or enforce this "detainmant". the fact that the would be robber was a minor blows the original scenario completely out of the water. Kids are "hands off" even for LEOs. asault on a minor, illegal detainment of a minor, come to mind. It isn't right, but it is the law. Ought to be able to give them a good beating with a belt, but try that with your own kids now days and see what happens. If a criminal wants to leave, and you cant use nondeadly force to hold him until the calvary arrives, he is free to leave. never try to hold someone at gunpoint until the law gets there. Again, your state may be different, but I doubt it.

[tattedupboy]

Originally Posted by docmagnum357@yahoo.com

If the kid, or his parents, wanted to push the issue, the old man could have been found guilty of assault with a deadly weapon. It is illegal to point a gun at another person. If your state has a citizen's arrest law, may be not. I NC, a citizen has a very limited right to"detain", but can not use lethal or deadly force to effect or enforce this "detainmant". the fact that the would be robber was a minor blows the original scenario completely out of the water. Kids are "hands off" even for LEOs. asault on a minor, illegal detainment of a minor, come to mind. It isn't right, but it is the law. Ought to be able to give them a good beating with a belt, but try that with your own kids now days and see what happens. If a criminal wants to leave, and you cant use nondeadly force to hold him until the calvary arrives, he is free to leave. never try to hold someone at gunpoint until the law gets there. Again, your state may be different, but I doubt it.

If I were the man's lawyer, I would reply that by doing what he did, he prevented a serious violent crime, and without resorting to firing any shots. I'm pretty sure that if pointing a weapon prevents a serious violent crime, then it's justifiable just about everywhere.

[Jay]

In Indiana, deadly force can be employed to prevent the occurrence of a forcible felony..... and citizens arrest is viable if a felony, or some misdemeanors are witnessed.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against
another person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force,
against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person's unlawful entry of or attack on
the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an
occupied motor vehicle, a person is justified in using reasonable
force against another person if the person reasonably believes that
the force is necessary to immediately prevent or terminate the other
person's trespass on or criminal interference with property lawfully
in the person's possession, lawfully in possession of a member of the
person's immediate family, or belonging to a person whose property
the person has authority to protect.


Indiana Code 35-33-1-4:

Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.

[tattedupboy]

Originally Posted by Jay

In Indiana, deadly force can be employed to prevent the occurrence of a forcible felony..... and citizens arrest is viable if a felony, or some misdemeanors are witnessed.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against
another person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful force.
However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or the
commission of a forcible felony. No person in this state shall be
placed in legal jeopardy of any kind whatsoever for protecting the
person or a third person by reasonable means necessary.
(b) A person:
(1) is justified in using reasonable force, including deadly force,
against another person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person's unlawful entry of or attack on
the person's dwelling, curtilage, or occupied motor vehicle.
(c) With respect to property other than a dwelling, curtilage, or an
occupied motor vehicle, a person is justified in using reasonable
force against another person if the person reasonably believes that
the force is necessary to immediately prevent or terminate the other
person's trespass on or criminal interference with property lawfully
in the person's possession, lawfully in possession of a member of the
person's immediate family, or belonging to a person whose property
the person has authority to protect.


Indiana Code 35-33-1-4:

Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.
A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.

This is Indiana's Castle Doctrine law you're quoting.

[Jay]

Correct, and the highlighted portion supports your statement...

I'm pretty sure that if pointing a weapon prevents a serious violent crime, then it's justifiable just about everywhere

.

The citizen's arrest portion posted to note that the level of force allowed (in Indiana) to effect a citizen's arrest is not specified.

[tattedupboy]

Originally Posted by Jay

Correct, and the highlighted portion supports your statement... .

The citizen's arrest portion posted to note that the level of force allowed (in Indiana) to effect a citizen's arrest is not specified.

Other than that, Indiana is great, isn't it?

[tag1737]

Nice thread. Lots of good info here.

I have a question. I'm walking to my car and I see a three suspicious characters heading my way. At some point they start making demands for money and car keys. In my state I must retreat so I turn and run till I risk being caught. I don't know what, if any, weapons they may have, and they have not made any death threats. I am however very afraid for my safety. I stop, turn to face them and...

Do I risk drawing my weapon and shooting some punk kids trying to scare an old guy for fun. Or, do I sweep back by jacket and put my hand on my holstered weapon and tell them to stop as I am prepared to defend myself.

Seems to me that announcing my capabilities by showing my holstered firearm would put the punks in a position to make up their own minds as to how this encounter will end and, I technically did not brandish my firearm.

Any further advance would be proof to me that they intend to do me harm and would cause me to draw and fire. A retreat would be wiser on their part and my firearm stayed holstered.

Of course, timing is important and the retreat law does not help. Making an old guy run away is a great idea. In reality I would turn away and note their reaction. If they are still threatening, that's when I turn to confront them.

Comments?

[tattedupboy]

Originally Posted by tag1737

Nice thread. Lots of good info here.

I have a question. I'm walking to my car and I see a three suspicious characters heading my way. At some point they start making demands for money and car keys. In my state I must retreat so I turn and run till I risk being caught. I don't know what, if any, weapons they may have, and they have not made any death threats. I am however very afraid for my safety. I stop, turn to face them and...

Do I risk drawing my weapon and shooting some punk kids trying to scare an old guy for fun. Or, do I sweep back by jacket and put my hand on my holstered weapon and tell them to stop as I am prepared to defend myself.

Seems to me that announcing my capabilities by showing my holstered firearm would put the punks in a position to make up their own minds as to how this encounter will end and, I technically did not brandish my firearm.

Any further advance would be proof to me that they intend to do me harm and would cause me to draw and fire. A retreat would be wiser on their part and my firearm stayed holstered.

Of course, timing is important and the retreat law does not help. Making an old guy run away is a great idea. In reality I would turn away and note their reaction. If they are still threatening, that's when I turn to confront them.

Comments?

Better to be judged by twelve than carried by six.

The law notwithstanding, do what you have to do to get out of the situation alive. Remember, fire a shot only as a last resort. If drawing and pointing stops the threat and they run away, then fine.

[Jay]

Brandishing...... per Webster.....

1bran·dish Listen to the pronunciation of 1brandish
Pronunciation:
\ˈbran-dish\
Function:
transitive verb
Etymology:
Middle English braundisshen, from Anglo-French brandiss-, stem of brandir, from brant, braund sword, of Germanic origin; akin to Old English brand
Date:
14th century

1 : to shake or wave (as a weapon) menacingly
2 : to exhibit in an ostentatious or aggressive manner

to me, simply exposing the firearm in it's holster, does NOT meet the definition of brandishing. Check with your local proscecutor.

In my state I must retreat so I turn and run till I risk being caught.

Most of the time.... (key word is most) disparity of force is on the side of us older folks. If the agressors are old and frail, you're gonna have a tough time making your case. But if the agressors are young and fit, and I'm good for a senior citizens discount, it's a bit easier to presume that I was at risk of being caught right away. I have exposed my firearm just as you described, twice in 40 years of carrying. Both times, the situation was thankfully de-escalated, and both times, when LEO's finally showed up, there was no hassle. Your state laws should give you the answer to this, not us. I'm a far cry from attorney status.

Call or write your Attorney General and see what he/she says..... then let us know.

[tag1737]

I did a little research this morning about "brandishing" and found many references to a few studies that state over 2 million crimes each year are stopped by a citizen simply brandishing. In less then 1% was a shot ever fired. I also noticed that LE was NOT called in almost all cases. The BG was allowed to run away with a lesson learned.

In my state of NY, brandishing is definitely not a good thing and at minimum you will lose your permit. On the other hand, intentionally displaying your holstered firearm to the BG has not resulted in any convictions.

IMO, it would seem reasonable that if after displaying a holstered firearm the BG is still coming at you, it's time to take it to the next level. The question of calling LE is a problem for me. I would have to think it through long and hard before I make the call.