Question on brandishing and TN law

[jgradyc]

Tennessee law says this.

Quote

39-13-102. Aggravated assault.

(a)  A person commits aggravated assault who:

     (1)  Intentionally or knowingly commits an assault as defined in § 39-13-101 and:

          (A)  Causes serious bodily injury to another; or

          (B)  Uses or displays a deadly weapon; or

Here's my question. What constitutes displaying a deadly weapon when it comes to handguns? Specifically, if you remove a clip on holster, hold the holster in your left hand, and cover the weapon with your right hand while making no threatening statements, does that meet this definition? I'm not trying to be cute here. I actually saw a neighbor do this when approaching a strange car on his property. 

Edited July 7, 2017 by jgradyc

[Oh Shoot]

Note the first condition that must be met, in addition to merely showing the weapon:

" Intentionally or knowingly commits an assault as defined in § 39-13-101 and "...

- OS

Edited July 7, 2017 by Oh Shoot

[Randall53]

It'd be a good idea to read this also, since it is involved in 102.  Right?

39-13-101. Assault.

(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

So....number (2) could be construed if one has his hand on a holstered weapon? I mean it could be drawn at anytime.

Edited July 7, 2017 by Randall53

[Garufa]

It would be a good idea not to pull out or even touch your heater when asserting or simply "adjusting" yourself.  

[RED333]

I have been known to pull and open my auto knife, to clean my nails and such. Is that "brandishing"?

Edited July 8, 2017 by RED333

[chances R]

If by presenting a weapon (bat, gun, knife, big rock, etc.) in such a way to intimidate, threaten, or present a threat of bodily injury and/or death, then IMO that meets the criteria set forth for aggravated assault.  If one does so to protect oneself from an assault, then it would be imperative to call 911 ASAP.  Doing so will hopefully set the ground work for your defense and justification.  As a general rule to brandish 'legally', the threat must be imminent where one would be justified in using lethal force.

[scooter]

Why would anyone remove a clip-on holster, hold the holster in the left hand, and cover the weapon with the right hand while approaching a potential threat? What's the motivation here? I can tell you already now that drawing the weapon out of the holster will likely lead to violating a firearm safety rule. Also, holding the firearm like that is a good way to lose control over it in a scuffle.

[DaveTN]

Tennessee doesn’t have brandishing laws and approaching a car on your property with a gun in your hand wouldn't be aggravated assault. Pointing your gun at them could be.

Of course it’s tough to talk in generalities about what you can be arrested for; it’s the specifics of that incident that count. You can be arrested for anything.

Individual Officers make the decision to arrest based on what they see and are told, and their discretion.

[walthermitty]

On 7/8/2017 at 7:05 AM, DaveTN said:

Tennessee doesn’t have brandishing laws and approaching a car on your property with a gun in your hand wouldn't be aggravated assault. Pointing your gun at them could be.

Of course it’s tough to talk in generalities about what you can be arrested for; it’s the specifics of that incident that count. You can be arrested for anything.

Individual Officers make the decision to arrest based on what they see and are told, and their discretion.

Seems I remember reading about guns being "shown" (not pointing toward a person) while in traffic.  I think it may have been used as "proof" of road rage.  So, minus corroborating evidence such as being followed, crowded off road, etc., is there not a specific code similar to brandishing for "showing a firearm" in that circumstance?  Or is it just evidence of a different violation?

It would be great to have a 2nd Amendment attorney on this forum.  The NRA Carry Guard and USCCA have attorney referrals, and the USCCA has an attorney that answers questions during webcasts.  Maybe, a local attorney that would be interested in handling firearm cases for the above insurance holders could help their practice?

[DaveTN]

1 hour ago, walthermitty said:

Seems I remember reading about guns being "shown" (not pointing toward a person) while in traffic.  I think it may have been used as "proof" of road rage.  So, minus corroborating evidence such as being followed, crowded off road, etc., is there not a specific code similar to brandishing for "showing a firearm" in that circumstance?  Or is it just evidence of a different violation?

It would be great to have a 2nd Amendment attorney on this forum.  The NRA Carry Guard and USCCA have attorney referrals, and the USCCA has an attorney that answers questions during webcasts.  Maybe, a local attorney that would be interested in handling firearm cases for the above insurance holders could help their practice?

There are no brandishing laws in Tennessee. A road rage incident could result in reckless driving, reckless endangerment, reckless endangerment with a deadly weapon, or aggravated assault; depending on the circumstance of that incident.

The opinions on the law I would be concerned on hearing from would be the local DA; preferably in the county I want to know about. As a Police Officer we had access to those people that would be making the decisions. I’m surprised more DA’s don’t offer to speak to citizens groups.

I really don’t care what any 2nd amendment attorney or criminal defense attorney’s opinions are on any given law; because they won’t be deciding the charges. I would only care about their opinion if I had a 2nd amendment issue or was arrested criminally. As a Police Officer I’ve seen people go to prison because they listened to their attorney. I’m not condemning attorneys like any other group they have good and bad. But I’ve learned that the best legal advice comes from the person that will be deciding what charges are brought, not from those defending you on those charges.

I can offer this piece of advice for what it’s worth. If I ever find myself in a situation where someone thinks I may have threatened them with a gun; I will call the Police and I will wait for their arrival. I have arrested countless people that may not have been arrested had the responding Officers heard both sides of the story.

[chances R]

I am not an attorney, but have attended seminars on this subject as well as availed myself to many instructors that speak to this as well.  Pulling one's weapon is of last resort.  Withdraw, whether on foot or by vehicle is almost always the best solution.  Forget what the law says because there are no guarantees once the legal process starts.  You can be as right as can be and if it goes to a jury there is still a 10-20% chance you can get hosed.  Pulling your weapon whether you shoot or not can result in years in prison.  As I mentioned before and as DaveTN said, call the police and get your story told preferably first if you do present your gun.  In a road rage situation, if you feel threatened, keep driving and use your cell phone.  In a situation I am familiar with they will generally have you drive to a location where an officer will meet you.

[JayC]

On 7/7/2017 at 6:48 PM, Randall53 said:

It'd be a good idea to read this also, since it is involved in 102.  Right?

39-13-101. Assault.

(a)  A person commits assault who:

     (1)  Intentionally, knowingly or recklessly causes bodily injury to another;

     (2)  Intentionally or knowingly causes another to reasonably fear imminent bodily injury; or

     (3)  Intentionally or knowingly causes physical contact with another and a reasonable person would regard the contact as extremely offensive or provocative.

So....number (2) could be construed if one has his hand on a holstered weapon? I mean it could be drawn at anytime.

If that was the case, every time an officer walked up to a vehicle with his hand on his gun he'd be committing aggravated assault.  The mere act of placing your hand on a holstered gun in and of itself probably doesn't rise to the level of aggravated assault, but the devil is in the details, how those details are documented and the mood of the charging ADA.

Edited July 10, 2017 by JayC

[Randall53]

1 hour ago, JayC said:

If that was the case, every time an officer walked up to a vehicle with his hand on his gun he'd be committing aggravated assault.  The mere act of placing your hand on a holstered gun in and of itself probably doesn't rise to the level of aggravated assault, but the devil is in the details, how those details are documented and the mood of the charging ADA.

I don't disagree at all. I just see it as something a person could use to possibly call the cops and say you threatened them. That's why I presented it more as a question. I could see that happening and then leading to an expensive defense lawyer to fight the charges. This may not be true, I was just wondering if that could happen.

[DaveTN]

18 minutes ago, Randall53 said:

I don't disagree at all. I just see it as something a person could use to possibly call the cops and say you threatened them. That's why I presented it more as a question. I could see that happening and then leading to an expensive defense lawyer to fight the charges. This may not be true, I was just wondering if that could happen.

Certainly it could happen.

[JayC]

20 hours ago, Randall53 said:

I don't disagree at all. I just see it as something a person could use to possibly call the cops and say you threatened them. That's why I presented it more as a question. I could see that happening and then leading to an expensive defense lawyer to fight the charges. This may not be true, I was just wondering if that could happen.

The question is who the police see as the 'victim' in the situation.  If some 45 years old soccer mom calls, the chances are higher than if a 25 year old male with a rap sheet as long as your arm calls the police.  Also matters where you are, and what you're doing.  On your own property dealing with a unknown person after dark, probably not going to get charged.  

As Dave said the exact situation is what matters.  And as in most things there is a reasonable person standard...  But as a law abiding citizen likely with no criminal record, you have stuff going for you

[peejman]

On 7/9/2017 at 3:48 PM, DaveTN said:

I can offer this piece of advice for what it’s worth. If I ever find myself in a situation where someone thinks I may have threatened them with a gun; I will call the Police and I will wait for their arrival. I have arrested countless people that may not have been arrested had the responding Officers heard both sides of the story.

 

23 minutes ago, JayC said:

The question is who the police see as the 'victim' in the situation.  If some 45 years old soccer mom calls, the chances are higher than if a 25 year old male with a rap sheet as long as your arm calls the police.  

The answer to your question is above (emphasis by me). Right or wrong, the first person to call is always assumed to be the victim.  That can make all the difference. 

[JayC]

7 hours ago, peejman said:

 

The answer to your question is above (emphasis by me). Right or wrong, the first person to call is always assumed to be the victim.  That can make all the difference. 

Dave is right if you have to pull your gun on somebody call the police even if they run off.  But the fact remains, if somebody with 5 charges of robbery calls the cops to complain you brandished a firearm, and you with no criminal record says, 'sure did he tried to rob me...'  The chances you're getting charged are slim to none.

Same call from a 45 year old soccer mom, chances are you're taking a ride to the station. Whether you called first or not.

[bersaguy]

Gosh after reading some of these posts a person could be arrested just for open carry if someone see the gun on a person, gets upset and calls 911. There are people out there that are just stupid enough to do that even though the person doing open carry did nothing illegal. That is where the first one that calls 911 is not always going to be right but will be the first one the officer would respond to. The poor guy doing open carry would not even be aware of the call till he was confronted by the police officer..................JMHO

[peejman]

2 hours ago, JayC said:

Dave is right if you have to pull your gun on somebody call the police even if they run off.  But the fact remains, if somebody with 5 charges of robbery calls the cops to complain you brandished a firearm, and you with no criminal record says, 'sure did he tried to rob me...'  The chances you're getting charged are slim to none.

Same call from a 45 year old soccer mom, chances are you're taking a ride to the station. Whether you called first or not.

Why wouldn't you call the police if someone tried to rob you?

If you weren't doing something stupid, the soccer mom wouldn't feel the need to call the police. 

[JayC]

On 7/11/2017 at 7:04 PM, peejman said:

Why wouldn't you call the police if someone tried to rob you?

If you weren't doing something stupid, the soccer mom wouldn't feel the need to call the police. 

I'd recommend calling the police... as I indicated in the post you quoted.

Have you met some of the soccer moms running around Nashville?  I had one flip out and call the cops one day because I was sitting in a park taking timelapses of the sky with a camera.  Like full on sitting on a tripod pointed 45+ degrees into the sky.

I can only imagine what lies she would have made up if she knew I had a firearm on me in said park

Edited July 13, 2017 by JayC

[JAB]

If I am at home and there are strangers on my property as was the case in the OP, depending on the situation (with countless factors figuring into the specifics of my response) - particularly if I feel there is a credible possibility of a 'threat' - the other party will probably be too busy looking at the pump shotgun in my hands to worry about whether or not I am 'brandishing' the side arm in my holster.

However, I live in the country on a dead end road and this is my back yard:

I also know from recent experience (with mom's house burning down and me getting injured in the fire) that it takes emergency personnel and authorities 30 to 45 minutes to get to my house once 911 is called.  So, to me, that old Public Enemy rap "911 Is a Joke" makes sense.  I can't depend on the cops or an ambulance showing up until the situation is over and resolved, one way or another, so I am not going to take chances out of concern that I might 'frighten' someone who is on my property and who doesn't belong there in the first place.  I'll still call 911 when appropriate, of course, but have to realize that I am essentially on my own and act accordingly.

Edited July 13, 2017 by JAB

[peejman]

2 hours ago, JayC said:

I'd recommend calling the police... as I indicated in the post you quoted.

Have you met some of the soccer moms running around Nashville?  I had one flip out and call the cops one day because I was sitting in a park taking timelapses of the sky with a camera.  Like full on sitting on a tripod pointed 45+ degrees into the sky.

I can only imagine what lies she would have made up if she knew I had a firearm on me in said park

Since I don't live there, thankfully no, I don't have experience with Nashville soccer moms. 

A guy with a camera on a tripod in a park....    

I bet the conversation between the operator and the investigating officer was interesting.

[walthermitty]

On 7/13/2017 at 10:44 AM, peejman said:

Since I don't live there, thankfully no, I don't have experience with Nashville soccer moms. 

A guy with a camera on a tripod in a park....    

I bet the conversation between the operator and the investigating officer was interesting.

This suddenly took a funny, but creepy turn! Some day I may find out how to add those yellow dots. 

DaveTN, I am certainly on board with getting info from DAs, but the attorney for USCCA seems to have his head on straight, so maybe DAs, defense attorneys and LEOs, like yourself? The advice runs similar to what people here have said ....... be the first to call 911, don't open carry, you're responsible for every bullet, run first .. hide second .. fight as last resort, etc.. I think the issue is important enough that I wouldn't mind occasional reminders (kind of like church.) That's one of the reasons I participate in firearm related forums. Just an old guy mumblin.

Edited July 16, 2017 by walthermitty

[Guest PAULSHOOT]

Just bought the 7 DVDs from www.concealedcarryuniversity.org  --- bought off E Bay for $40 (Some on E Bay for around $90), where theya re $297 reduced to $197 on the web site.  

Anyway, I just started watching the First 2 DVDs.  The first two DVDs are entitled MINDSET and called Part 1 (of 3 parts, each part has 2 DVDs and are about 2HRs 40 MIN each). Part 1 (first two DVDs) deal with the basics as sort of a introduction summary (good way to get started). They discuss items such as Myths, Legal Aspects, Decisions, Ability, Training, etc.  

So far I have learned this Carry Stuff is legally very scary stuff, you can get in a mess legally and of course mentally if you mess up and cause escalation or mess up and accidentally shoot some innocent person or a bystander, or damage property while doing what you think is "Self Defense" with deadly force.   

Brandishing is one of the things that can get you in trouble. The DVD presents three reasons: 1) Loose tactical advantage, 2) Be accused of escalating a situation, 3) Might be tempted (accidentally or on purpose) to pull the trigger and shoot the attacker as he turns to run (then you will be accused of murder - it is not self defense then).     

 

[Oh Shoot]

7 hours ago, PAULSHOOT said:

....

Brandishing is one of the things that can get you in trouble. The DVD presents three reasons: 1) Loose tactical advantage, 2) Be accused of escalating a situation, 3) Might be tempted (accidentally or on purpose) to pull the trigger and shoot the attacker as he turns to run (then you will be accused of murder - it is not self defense then).    

In this state "brandishing" can well result in aggravated assault charge.

- OS