"Brandishing" charges?

[Machunk714]

Nothing came of it other than I cannot step in the apartment complex (where the ex-roommate lives) or ill be arrested. Just for my personal info, if it did go to court and such could I claim that I was de-escalating the situation by stepping back, putting my hand up, and turning the body in a way to remove the gun from the fight while they escalated by continuing to approach and surround me?

[Garufa]

2 minutes ago, Machunk714 said:

Nothing came of it other than I cannot step in the apartment complex (where the ex-roommate lives) or ill be arrested. Just for my personal info, if it did go to court and such could I claim that I was de-escalating the situation by stepping back, putting my hand up, and turning the body in a way to remove the gun from the fight while they escalated by continuing to approach and surround me?

Of course you could claim that but it all depends on how good your attorney is and how aggressive the district attorney is.

[Chucktshoes]

If it were to go to court, you could claim anything you wanted to, buT that doesn’t mean a judge or jury would buy it. As long as a firearm is physically present, there really isn’t any way to remove it from the situation other than removing yourself from the premises. 
 

I would highly recommend ceasing to speak about it on the internet. Also, if arrested or served with a summons about the incident, retaining the services of the best lawyer you and any relatives willing to chip in can afford would be the best thing you can do. 
 

Remember, we don’t have a justice system. We have a legal system that allows you all the justice you can afford. 

[quedz]

[DWARREN123]

You can claim anything you want but it is up to the ones who judge you on what they think really happened.

Just do not get into situations like that where it could be called either way.

This is a case of innocent but could go to jail anyway.

[chances R]

1 hour ago, Machunk714 said:

Nothing came of it other than I cannot step in the apartment complex (where the ex-roommate lives) or ill be arrested. Just for my personal info, if it did go to court and such could I claim that I was de-escalating the situation by stepping back, putting my hand up, and turning the body in a way to remove the gun from the fight while they escalated by continuing to approach and surround me?

With the discussion we have had on this thread, I am not sure you understand the gravity of the situation.  Heed chucktshoes advice and discuss it no further in this public venue.  This is not like tv court.  If you are arrested, an attorney is going to cost you a minimum of 10k for an initial retainer before you even go to a trial.  Then you are looking at multiples of that if it goes to trial.  How much are you willing to spend to not go to jail for 10 years.  Plus loss of all firearm privileges. Oh, yeah, you got to come up with bail money as well.

[E4 No More]

19 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.

The key here is it's up to the DA's position on the matter. Where I was a cop, brandishing a weapon was an assault, but it had to be in your hand and out of the holster, (in this case as it's a handgun), and the intent was to threaten another. If putting your hand on a holstered handgun was assault then there's a crap-ton of LEOs that could be arrested for assault every day.

[DaveTN]

15 hours ago, Machunk714 said:

Nothing came of it other than I cannot step in the apartment complex (where the ex-roommate lives) or ill be arrested. 

So the Police did either come there, or came to where you were, and gave you a trespass warning?

15 hours ago, Machunk714 said:

Just for my personal info, if it did go to court and such could I claim that I was de-escalating the situation by stepping back, putting my hand up, and turning the body in a way to remove the gun from the fight while they escalated by continuing to approach and surround me?

As has been pointed out by others, you can claim whatever you like. You sound like you think if you have a believable story you will be acquitted, and you will get off. It may not work like that. And if it goes to court and you do get off, you will still have a lawyer bill, possibly in the tens of thousands.

 

[DaveTN]

2 hours ago, E4 No More said:

The key here is it's up to the DA's position on the matter. Where I was a cop, brandishing a weapon was an assault, but it had to be in your hand and out of the holster, (in this case as it's a handgun), and the intent was to threaten another. If putting your hand on a holstered handgun was assault then there's a crap-ton of LEOs that could be arrested for assault every day.

Of course, it’s up to the DA; its always up to the DA. Part of my point was that Tennessee law does not require the gun to be pulled.

If a cop can’t articulate their justification for pulling a gun on someone; it’s a crime. Rarely are they asked to articulate that because it’s usually clear to those they would answer to. Many times, the citizens don’t agree with that. They then have the choice of filing a citizen’s complaint with the department or getting a lawyer and filing a lawsuit.

[E4 No More]

31 minutes ago, DaveTN said:

Of course, it’s up to the DA; its always up to the DA. Part of my point was that Tennessee law does not require the gun to be pulled.

If a cop can’t articulate their justification for pulling a gun on someone; it’s a crime. Rarely are they asked to articulate that because it’s usually clear to those they would answer to. Many times, the citizens don’t agree with that. They then have the choice of filing a citizen’s complaint with the department or getting a lawyer and filing a lawsuit.

My point was that many times I, and cops around me, rested our hand on the holstered gun - particularly when in a crowded area. That does not constitute assault...at least in Missouri.

[DaveTN]

3 minutes ago, E4 No More said:

My point was that many times I, and cops around me, rested our hand on the holstered gun - particularly when in a crowded area. That does not constitute assault...at least in Missouri.

It wouldn’t where I was and it wouldn’t here either. Intent is an element of the offense.

[E4 No More]

9 minutes ago, DaveTN said:

It wouldn’t where I was and it wouldn’t here either. Intent is an element of the offense.

Exactly, it's all about the intent. Unfortunately, it's hard to prove what was in someone's mind absent of other actions such as threats being made. The rub for this young man is that there was no one there to witness the incident, and we both know how low-lifes will make up things such as threats to try and solidify their claim. This is why you have the cops come to keep the peace.

Edited March 2, 2020 by E4 No More

[DaveTN]

5 minutes ago, E4 No More said:

Exactly, it's all about the intent. Unfortunately, it's hard to prove what was in someone's mind absent of other actions such as threats being made. The rub for this young man is that there was no one there to witness the incident, and we both know how low-lifes will make up things such as threats to try and solidify their claim. 

Sure, it falls into the same category as those who claim wives lie during domestic disputes or family members might lie in red flag situations. Folks must take care of their own personal business. If they don’t and the cops are called they could find a 24 year old rookie straight out of the academy handling their (now not so personal) business. They may not like the outcome. 

[Machunk714]

From what I remember in my criminal justice classes (Bachelor's degree in CJA) is that there has to be actus reus and mens rea in order to be guilty. If they say the actus reus is proven because the action of touching it, I can easily prove i did not go in attempting to commit a crime (as we know I did not think that was assault or I would not have done it). My one goal of going in there was to get the stuff and leave because we had to go. 

I was in law enforcement but left the academy. One thing I remember during training was "eyes on hands, protect your weapon, and distance is your friend" I wanted to try law enforcement again after a few years but im rethinking based on how twisted laws work where just because they called first automatically makes me the suspect. I dont know if i feel right taking someone in just because they didnt call first and among other things.

Edited March 2, 2020 by Machunk714

[DaveTN]

18 minutes ago, Machunk714 said:

From what I remember in my criminal justice classes (Bachelor's degree in CJA) is that there has to be actus reus and mens rea in order to be guilty. If they say the actus reus is proven because the action of touching it, I can easily prove i did not go in attempting to commit a crime. My one goal of going in there was to get the stuff and leave because we had to go. 

I wanted to be law enforcement after a few years but im rethinking based on how twisted laws work where just because they called first automatically makes me the suspect. I dont know if i feel right taking someone in just because they didnt call first and among other things.

There isn’t much point in discussing this any father. We were being facetious about the first caller (kinda). But it means if the responding Officers only have one side of the story; that is what they go with. If they don’t get in contact with you and an arrest warrant is issued, there is a very good probability the Officers arresting you  will have no knowledge of the incident and simply take you in and book you, where you will wait for the detectives to interview you, if they want to.

That’s why I taught my kids if they think someone called the cops on them, call in themselves and ask the dispatcher what they want them to do. The cops are almost always called when a gun is involved; it makes for high drama on the part of the callers. My son doesn’t carry, my daughter does, but she won’t open carry.

As a Police Officer you will never be required to make an arrest or violate anyone’s rights if you don’t believe they did what they are accused of. In the case of a felony you may be required to arrest them or contact a Command Officer if evidence or witnesses are claiming a crime, but for some reason you don’t want to arrest them.

But yes, because you are paid to enforce the laws, and not hold court on the street you may make some arrests that you don’t like. If you can’t do that; don’t be a cop.

[chances R]

OK, I'll be devil's advocate.  Machunk you put your hand on your weapon, yelled get back and stuck your arm out.  In the yelling and emotions, one of the other party thought you were going to shoot them.....they pulled their gun and shot you.  Now you have no story, you're dead.  They have 3 witnesses that describe it just as I did.  Now what?  You didn't live there.  If I'm in their place, they have pretty good AOJ.......to a reasonable person.

[quedz]

N/A

Edited March 2, 2020 by hughd

[gregintenn]

Methinks there’s more to this story.

[MacGyver]

I hope the OP will take this as an opportunity to step back, be thankful this didn’t have much more serious consequences, and maybe think about carrying in general and his approach to it for a while.

He got really lucky. This could have ended a lot worse.