"Brandishing" charges?

[Machunk714]

Today my girlfriend was moving out of her apartment so I was helping her. When she was leaving due to an emergency, she went back in to get her final supplies and her roommates mom got in her face and yelled at her causing my girlfriend to run to me. I was open carrying my gun and went in to get the things and go. I walked in and asked if I could have the things so we could leave. The roommate, her mom, her brother and one of their friends charged (between a fast walk and a jog) at me and got into my personal space. I turned my side to protect my gun and covered it with my hand and I used my injured arm (torn rotator cuff) to stick my hand out and tell them to get back. They threatened to call the police saying I threatened them with my firearm by touching it while I was really protecting it and turning away. After tensions settled nothing happened out of it but I was curious if me being outnumbered constituted a threat to the point of "brandishing" as they called it given the 4 to 1 ratio and my injured left side. 

[E4 No More]

52 minutes ago, Machunk714 said:

Today my girlfriend was moving out of her apartment so I was helping her. When she was leaving due to an emergency, she went back in to get her final supplies and her roommates mom got in her face and yelled at her causing my girlfriend to run to me. I was open carrying my gun and went in to get the things and go. I walked in and asked if I could have the things so we could leave. The roommate, her mom, her brother and one of their friends charged (between a fast walk and a jog) at me and got into my personal space. I turned my side to protect my gun and covered it with my hand and I used my injured arm (torn rotator cuff) to stick my hand out and tell them to get back. They threatened to call the police saying I threatened them with my firearm by touching it while I was really protecting it and turning away. After tensions settled nothing happened out of it but I was curious if me being outnumbered constituted a threat to the point of "brandishing" as they called it given the 4 to 1 ratio and my injured left side. 

Brandishing would have been if you took it out of your holster in a threatening manner.

And on another note, if you are ever in a situation where you think the person(s) are going to be aggressive, you can always call the local PD and ask them to come out to keep the peace.

Edited February 29, 2020 by E4 No More

[DWARREN123]

Maybe be the first to call police and report a hostile situation.

Or if you feel comfortable with it just forget it.

[DaveTN]

Don’t ever use the word “brandishing” when you are describing felony assault. Tennessee doesn’t have a brandishing statute.

Was the threat to level a reasonable person would have thought deadly force was justified? No. If they did in fact call the Police after you left, there is a very good chance you will be arrested for aggravated assault.

 As E4 said above, based on their remarks you should have called the Police and waited for them to arrive. The first caller is the complainant, the second caller is the suspect.

Don’t ever bring a firearm into a situation like that. If you are afraid of her brother, leave.

Sorry if that sounds tough, but I’ve cuffed and stuffed too many people that made stupid mistake in a domestic situation.

[mikegideon]

Sure would have been easier if your gun wasn't in plain sight. Domestic situations can reach the height of stupidity. And, the person in the wrong isn't always the one that gets in trouble.

[Machunk714]

Also they did not let us leave unless we paid $200 in case of "damage fees" so my girlfriend sent her $200 and left so we could just be done with the situation. We called the apartment and they said they found nothing and the roommate has not sent the money back. I also see we could charge the mom with maybe false imprisonment and/or simple assault and battery for making movement that put me in fear of injury (we were less than inches apart). anyone specify?

[quedz]

28 minutes ago, Machunk714 said:

Also they did not let us leave unless we paid $200 in case of "damage fees"

[Garufa]

I’m beginning to think there’s a lot of past tension that built up to today’s incident.

Why was roommate’s mama, brother, and “friend” there?

Why were you OC’ing?

How does Apt. management assess damages on a Saturday and clear one of two residents the same day?

How do you “send” someone money and expect it back the same day?

There are some things going on here that don’t add up.

Edited March 1, 2020 by Garufa

[Chucktshoes]

10 minutes ago, Garufa said:

I’m beginning to think there’s a lot of past tension that built up to today’s incident.

1000%
 

@Machunk714, let me offer you the best advice I can. Let it go. Whatever money, time or emotion has been spent dealing with the other parties involved is lost. There’s no getting it back and you will only waste more of your life attempting to accomplish whatever it is that you are seeking here. 
 

You made a very unwise move openly wearing a gun into a tense domestic environment. If it only cost you $200 to extricate yourself from it, consider yourself Lucky and that $200 money well spent. 
 

Just walk away and try and learn a few lessons here about how to spot bad situations and avoid them. 
 

There is no winning here other than moving on with your life. 
 

Just let it go, bud. Let it go. 

[Machunk714]

1 hour ago, Garufa said:

I’m beginning to think there’s a lot of past tension that built up to today’s incident.

Why was roommate’s mama, brother, and “friend” there?

Why were you OC’ing?

How does Apt. management assess damages on a Saturday and clear one of two residents the same day?

How do you “send” someone money and expect it back the same day?

There are some things going on here that don’t add up.

They were there to help "polish" up the place by mopping and dusting so avoid cleaning fees,

I always open carry. Conceal carry just is not my thing and it is hard to get comfortable

The lease ended today so the walk through to assess damage was same day

She sent money through cash app

[Swang]

Give them whatever and leave, cheaper in the end.

[peejman]

5 hours ago, DaveTN said:

The first caller is the complainant, the second caller is the suspect.

Bingo. 

[chances R]

If you always open carry, then it is just a matter of time until something bites you.  As mentioned, $200, you got out cheap.  You are not doing anything that helps 'the cause' by OC; in fact it hurts.  When you placed your hand on the gun, I think it could be argued that you committed Ag. Assault.....a felony.  This could cost you $20,000 up front, before you ever go to trial.  IF you carry a gun, best to avoid any confrontation.

[mikegideon]

4 hours ago, chances R said:

If you always open carry, then it is just a matter of time until something bites you.  As mentioned, $200, you got out cheap.  You are not doing anything that helps 'the cause' by OC; in fact it hurts.  When you placed your hand on the gun, I think it could be argued that you committed Ag. Assault.....a felony.  This could cost you $20,000 up front, before you ever go to trial.  IF you carry a gun, best to avoid any confrontation.

It wasn't Ag. Assualt, but could be argued, especially if they embellished some. And NOBODY can embellish like a pissed off woman.  

AFIK, it's not aggravated assault until you unholster and point it. But it's plenty easy to tell that story if they know the gun is there.

[E4 No More]

12 hours ago, Machunk714 said:

Also they did not let us leave unless we paid $200 in case of "damage fees" so my girlfriend sent her $200 and left so we could just be done with the situation. 

Absent of the fact that I would have called the police to keep the peace to begin with, it is at this point that I would have certainly called them. As others have opined you should forget the $200 and chock it up to a lesson learned.

[chances R]

I am a follower of Andrew Branca.  I have taken his live course when in Nashville, as well as some other courses he has offered.  I also discuss several firearm topics with local attorneys.  Have been consulted as an expert for same.  I am not an attorney, but as you know, they get paid to argue white is black and vice versa.  As far as aggravated assault goes, I teach as I have been taught; any movement involving a firearm that changes a person's behavior can be considered Ag. Assault.  With open carry legal, IMO, that means placing your hand on your gun, throwing back a cover garment to reveal you have a firearm, drawing one's weapon, not just pointing your gun at someone.  It will also depend on the circumstances, who called the law, who didn't.  Believability, responding officers judgement, your word against several others.......it can be a crap shoot.  Avoidance is always the best policy as felony charges are serious, especially expensive and can change your residence by 10 -20 years.

[pop pop]

Let it go! Big mistake, open carry.... You are lucky manchuck.  

[DaveTN]

17 hours ago, Machunk714 said:

I also see we could charge the mom with maybe false imprisonment and/or simple assault and battery for making movement that put me in fear of injury (we were less than inches apart). anyone specify?

No one will care what put you in “fear of injury”; only what would put a reasonable person in fear.

You are either trying the old "He was going to punch me!" Or “If he punches me in the face, I could die” non-sense. It won’t work and had you shot someone in the situation you were in; you would have gone to prison. Because as we know now; the only danger was a bunch of emotionally charged young people in a confined space with one of them grabbing at a gun.

You are young, so I’ll give you this information to help you out. The Police are not your friends. They are not there to help you with your domestic situations that you can’t seem to be able to handle. If you can’t handle your domestic situations; walk away. The security deposit would pale in comparison to what this could have cost you if they did call the cops.

Open carry is not smart, fortunately for you it is not illegal. This situation is one of the reasons why it is not smart. From your description of the events no one was anywhere near a deadly force danger. Yet you are questioning if you were. That’s bad news for you, you need to rethink carrying a gun if you were considering using it in that case.

A gun should have not been an element of this situation; but it was. It would be a part of the issues the responding Officers would have had to deal with. Aggravated assault does not require that you pull, or point, the gun. It only requires that an assault “Involved the use or display of a deadly weapon”. You being armed and grabbing your weapon met that requirement. If they say you grabbed it in a threatening manner, and you say you were trying to secure it; that is something that would be argued in court at your trial.

Based on your description of events, and the fact we are just arm chair quarterbacking here; I would have arrested you for aggravated assault. With no other record the DA would have probably offered you a deal dropping it to misdemeanor assault with probation and the permanent loss of your carry privileges.

You should learn from this experience. You were legally carrying a handgun, but its mere presence in open carry could have caused you problems, because you got into a situation where a gun should have not been displayed.

We have discussed on this forum many times and very in-dept about the use of deadly force. One of my comments has always been that I’ll take an azz whipping before I pull a gun. If my loudmouth or my stupidity gets me in a situation my big azz can’t get me out of; I’m not going to use a gun to save my butt. Remember the saying “Don’t let your mouth overload your azz”.

You can’t use a gun, or even the threat of using a gun in a domestic situation, road rage incidents, etc., where you are a willful participant. You can. but you will almost always be arrested and go to trial if you are still alive.

Edited March 1, 2020 by DaveTN

[chances R]

Machunk...DaveTN is spot on, a most excellent post.  

[mikegideon]

3 hours ago, chances R said:

I am a follower of Andrew Branca.  I have taken his live course when in Nashville, as well as some other courses he has offered.  I also discuss several firearm topics with local attorneys.  Have been consulted as an expert for same.  I am not an attorney, but as you know, they get paid to argue white is black and vice versa.  As far as aggravated assault goes, I teach as I have been taught; any movement involving a firearm that changes a person's behavior can be considered Ag. Assault.  With open carry legal, IMO, that means placing your hand on your gun, throwing back a cover garment to reveal you have a firearm, drawing one's weapon, not just pointing your gun at someone.  It will also depend on the circumstances, who called the law, who didn't.  Believability, responding officers judgement, your word against several others.......it can be a crap shoot.  Avoidance is always the best policy as felony charges are serious, especially expensive and can change your residence by 10 -20 years.

Retaining your weapon isn't assault, no matter how cop, judge, and jury wanna interpret it. But, that's the problem with open carry. The minute the girl screamed threat, he was probably screwed.

[mikegideon]

1 hour ago, DaveTN said:

Aggravated assault does not require that you pull, or point, the gun. It only requires that an assault “Involved the use or display of a deadly weapon”. You being armed and grabbing your weapon met that requirement. If they say you grabbed it in a threatening manner, and you say you were trying to secure it; that is something that would be argued in court at your trial.

So, the way I read this, open carry would be aggravated assault if it wasn't legal.  It really is threatening to a lot of folks. We always come to the same conclusion around here. Hide your damn gun.

[DaveTN]

27 minutes ago, mikegideon said:

So, the way I read this, open carry would be aggravated assault if it wasn't legal.  It really is threatening to a lot of folks. We always come to the same conclusion around here. Hide your damn gun.

It would be aggravated assault if you committed an assault while armed with a deadly weapon. Whether you threatened to use that weapon or not. But you have to meet the requirements of an assault first.

It depends on the DA. Where I was, we had “Assault” and “Aggravated Assault” and “Battery” and “Aggravated Battery”.  Just like here, an assault or battery could go to aggravated if you were armed whether you threatened to use it or not. However, our States Attorney would not charge aggravated unless the deadly weapon was threatened or used. States Attorney’s in other counties sometimes would.

[chances R]

On 2/29/2020 at 1:33 PM, Machunk714 said:

...I turned my side to protect my gun and covered it with my hand and I used my injured arm (torn rotator cuff) to stick my hand out and tell them to get back...

Pretty self-explanatory as well as intimidating.  A concealed and properly holstered gun is a better choice, or not being there at all.  What would 'reasonable' people think?  I know we essentially all agree here, but certainly a good refresher for the  position.

[mikegideon]

1 hour ago, chances R said:

Pretty self-explanatory as well as intimidating.  A concealed and properly holstered gun is a better choice, or not being there at all.  What would 'reasonable' people think?  I know we essentially all agree here, but certainly a good refresher for the  position.

Yep. 

[mikegideon]

2 hours ago, DaveTN said:

It would be aggravated assault if you committed an assault while armed with a deadly weapon. Whether you threatened to use that weapon or not. But you have to meet the requirements of an assault first.

It depends on the DA. Where I was, we had “Assault” and “Aggravated Assault” and “Battery” and “Aggravated Battery”.  Just like here, an assault or battery could go to aggravated if you were armed whether you threatened to use it or not. However, our States Attorney would not charge aggravated unless the deadly weapon was threatened or used. States Attorney’s in other counties sometimes would.

Yep. Lots depends on how much they hate guns.