Is pointing a gun always considered using deadly force?

[OngoingFreedom]

Less than lethal ammo:

12 ga. flashbangs, rubber buckshot, fin-stabilized rubber rocket, beanbags, teargas rocket, etc. Everything for the mall ninja in you.

[wjh2657]

"The "Asked for <ACRONYM title="Handgun Carry Permit">HCP</ACRONYM> on her own Property" thread got me wondering if the act of aiming a firearm at a person is always considered threat of or useage of deadly force."

According to my legal beagles , aiming a firearm at somebody without due cause (legally constituted self fefense) constitutes assault with a deadly weapon. In short, if you don't intend to shoot him, don't point it at him.

The Citizen's arrest or holding at gun point can backfire because the BG still has to be proven guilty of committing an offense in your presence. If the authorities don't press the action, drop the charges or he is found innocent by trial, he can come back and charge you with AWDW. Be aware that in many large cities the courts are crowded and many times charges are dropped if they don't involve big money items just to "grease the skids" for a busy court.

He has more rights than you do and if you don't kill him outright you are sure as heck going to violate a whole bunch of his rights.

If he isn't a threat to your life, let him go and be a good witness. Keep serial numbers of your belongings and have a good homeowner/renter insurance policy.

Remember Thomas Quigley's sage advice: "This ain't Dodge City and you ain't Wild Bill Hickock!"

Edited August 17, 2009 by wjh2657
spelling

[JayC]

I'm sorry can you point to the law that allows a LEO to point a weapon at you and not be considered a threat of deadly force?

Last time I checked, legally they largely play under the same rules we do except they're allowed to use deadly force in a few more situations than we are. But them pointing the weapon IS a threat to use deadly force under the law as I understand it.

Turn the question around and you will get your answer....

A shotgun is being pointed at you, how do you respond??? Do you ask "Is that weapon loaded?" Do you ask "What type of shell is in that weapon?" Do you dodge and return fire without asking questions?

If you point a gun at me, I presume you mean to kill me and I will respond with lethal force to prevent you from doing so. That is my right.....I hope we both survive, but if you die....so be it. If you didn't mean to kill me, you're an idiot for threatening me in a lethal manner.

EDIT: LEO's get exceptions to this. A LEO can point a weapon at me and I won't be happy about it, but I will assume that he is trying to gain control of the situation without killing me unless he really has to do so. We put LEO's in a tough spot and they deserve our support.

[JayC]

Not in my opinion.

...and if a guy ever stills my stuff and I chase him down and tackle him, guess we'll find out the legal systems opinion, because I'll be damned if I'm just going to watch someone run off with my property.

Now if he has dropped my property and is running away empty handed, that might be a different situation.

Fallguy is right, as long as he is in pursuit of the criminal it's still part of the intial crime and chasing him down and using reasonable force to detail him is allowed under the law (IANAL).

Now, if Fallguy lost sight of the criminal then went to criminals house 4 hours later... that would be a different story...

But just because the criminal runs doesn't mean you can't chase him (even if he drops the stuff you still witnessed him commit a crime and under TN law can still effect a citizens arrest - not that I suggest you do that)...

People need to remember that citizens arrest powers have different rules from self defense... If I attack you then retreat you no longer can use deadly force in self defense, but you sure can grab a hold of me and hold me until the police come as a citizen arrest (since in this case I assaulted you).

[oldmustangjunkie]

I know this adds nothing to the thread either, but self-appointed classroom monitors are obnoxious.

Amen!

And that's a great pic!

[Guest Muttling]

I'm sorry can you point to the law that allows a LEO to point a weapon at you and not be considered a threat of deadly force?

Last time I checked, legally they largely play under the same rules we do except they're allowed to use deadly force in a few more situations than we are. But them pointing the weapon IS a threat to use deadly force under the law as I understand it.

To the best of my knowledge you are correct.

I was referring to how I would respond to a stranger drawing or pointing a weapon at me personally. If it's not a LEO and I have half an opportunity to respond, I probably will because I presume their intent isn't good. If a LEO draws, I'm not going to draw on him or resist as I presume he's got good reason.

[DaveTN]

I'm sorry can you point to the law that allows a LEO to point a weapon at you and not be considered a threat of deadly force?

Please point me to this “Threat to use deadly force†law. It’s aggravated assault and does not require nor does it allow “the threat of deadly forceâ€.

Last time I checked, legally they largely play under the same rules we do except they're allowed to use deadly force in a few more situations than we are. But them pointing the weapon IS a threat to use deadly force under the law as I understand it.

Then you haven’t checked. Police do not operate under the same rules you do. I could direct you to the information, but the OP is not asking about cops and if this thread gets redirected in that direction it will end up locked.

If you want to make that comparison, start a new thread and we can all discuss it.

[Guest canynracer]

I am curious, why do we all assume that threatening force includes deadly force?

In other parts of the law, they disseminate the two... for example:

39-11-613. Protection of life or health. —

A person is justified in threatening or using force, but not deadly force, against another, when and to the degree the person reasonably believes the force is immediately necessary to prevent the other from committing suicide or from the self-infliction of serious bodily injury.

[Acts 1989, ch. 591, § 1.]

Another example:

39-11-604. Reckless injury of innocent third person. —

Even though a person is justified under this part in threatening or using force or deadly force against another, the justification afforded by this part is unavailable in a prosecution for harm to an innocent third person who is recklessly injured or recklessly killed by the use of such force.

[Acts 1989, ch. 591, § 1.]

And finally the one that we are talking about:

(a) A person in lawful possession of real or personal property is justified in threatening or using force against another, when and to the degree it is reasonably believed the force is immediately necessary to prevent or terminate the other's trespass on the land or unlawful interference with the property.

( A person who has been unlawfully dispossessed of real or personal property is justified in threatening or using force against the other, when and to the degree it is reasonably believed the force is immediately necessary to reenter the land or recover the property, if the person threatens or uses the force immediately or in fresh pursuit after the dispossession:

(1) The person reasonably believes the other had no claim of right when the other dispossessed the person; and

(2) The other accomplished the dispossession by threatening or using force against the person.

© A person is not justified in using deadly force to prevent or terminate the other's trespass on real estate or unlawful interference with personal property.

[Acts 1989, ch. 591, § 1.]

because they are specific in these other laws, one would think they will be that specific in the protecting property as well, no? I mean, in section C (Above) they clearly state that you cannot USE deadly force...why define it as deadly force if force is force?

39-11-621. Use of deadly force by private citizen. —

A private citizen, in making an arrest authorized by law, may use force reasonably necessary to accomplish the arrest of an individual who flees or resists the arrest; provided, that a private citizen cannot use or threaten to use deadly force except to the extent authorized under self-defense or defense of third person statutes, §§ 39-11-611 and 39-11-612.

[Acts 1989, ch. 591, § 1.]

Also they have two different definitions:

39-11-602. Justification definitions. —

As used in this part, unless the context otherwise requires:

(1) “Custody” means under arrest by a law enforcement officer, or under restraint by an officer, employee or agent of government pursuant to an order of a court;

(2) “Deadly force” means force that is intended or known by the defendant to cause or, in the manner of its use or intended use, is capable of causing death or serious bodily injury;

and

and here is (12) from

39-11-106. Title definitions. —

(12) “Force” means compulsion by the use of physical power or violence and shall be broadly construed to accomplish the purposes of this title;

[Acts 1989, ch. 591, § 1.]

Edited August 17, 2009 by canynracer

[JayC]

Threatening or using force intended or likely

to cause death or serious bodily injury if the

person has a reasonable belief that there is an

imminent danger of death or serious bodily

injury, the danger creating the belief of

imminent death or serious bodily injury is real,

or honestly believed to be real at the time, and

the belief of danger is founded upon

reasonable grounds.

Pointing a gun at somebody is clearly a threat of force intended to cause death or serious bodily injury... Now that is a long sentence to type out, so many of us laypersons just shorten it to threat to use deadly force... The law clearly spells out when you're allowed to use said force (or the threat of said force), and when you're not - and when you're allowed to use reasonable force or the threat of reasonable force, but NOT deadly (and while it doesn't say so, the implied threat of death or serious bodily injury).

Now, as I stated there are a few times LEOs are allowed to use (and therefore threaten) the use of deadly force that regular citizens cannot, but that does not change the fact that anytime somebody points a firearm at you it's a threat of force intended to cause death or serious bodily injury... Now that threat (or it's use) is allowed under the law in some limited situations for both citizens and police officers (who again have a few situations where they can legally threaten or use force that citizens can not).

But, nowhere in the law does it state that because somebody is a police officer their pointing a gun is not a "threat of force to cause death or serious bodily injury" (from here now refereed to as threat of deadly force).

So, YES when you point a weapon at somebody you are threatening death or serious bodily injury (and there is no exception for LEOs), and you best be doing so within the law or you can be charged (and agg assault with a deadly weapon seems like the charge that would normally apply)

Again, this is not anything negative about LEOs, only that them pointing a gun at you is a threat of death or serious bodily injury, just like me pointing at gun at you would be the same, who is pointing the gun does not change the threat under the law. It very well MAY impact whether the threat is legal or not but not that it is a threat.

So long and short, YES when you point a gun at a person it is a threat to cause death or serious bodily harm (threat of deadly force) and the law limits when that threat can legally be used who you are doesn't change that it is a threat only whether it's legal or not.

Please point me to this “Threat to use deadly force†law. It’s aggravated assault and does not require nor does it allow “the threat of deadly forceâ€.

Then you haven’t checked. Police do not operate under the same rules you do. I could direct you to the information, but the OP is not asking about cops and if this thread gets redirected in that direction it will end up locked.

If you want to make that comparison, start a new thread and we can all discuss it.

[Guest Swamprunner]

Remember this always. Each bullet that leaves your firearm has a lawyer attached to it. That may sound trite, but it's the darned truth.

I was involved in a "good" shoot back in the mid 80's, and the system turned me every which way but loose. I'm really surprised that I still have hair. This guy was a lowlife, and I was made to feel like one. The whole drama stretched out for two years.

I just want to let you know, use restraint. A piece of property is just not worth the grief that will consume you and your family. Now then, if you are justified to use a firearm, do it, and make sure you get the job finished. But be prepared for the fallout that will come.

Also, when you "point" a firearm you can be charged with aggravated assault (felony).

No more carry permit o firearms fer you. Now that's bad.

[DaveTN]

So, YES when you point a weapon at somebody you are threatening death or serious bodily injury (and there is no exception for LEOs), and you best be doing so within the law or you can be charged (and agg assault with a deadly weapon seems like the charge that would normally apply)

Again, this is not anything negative about LEOs, only that them pointing a gun at you is a threat of death or serious bodily injury, just like me pointing at gun at you would be the same, who is pointing the gun does not change the threat under the law. It very well MAY impact whether the threat is legal or not but not that it is a threat.

That’s just ridiculous. Certainly there is an exception for LEO’s. It’s an element of the crime and it is called “intentâ€.

[JayC]

That’s just ridiculous. Certainly there is an exception for LEO’s. It’s an element of the crime and it is called “intent”.

I'm sorry, but again read my post... Your intent when you point a gun at somebody is to threaten death or serious bodily injury.... There is no exception to this fact for anybody in the law... even a police officer when he points a firearm at a person is making a threat of death or serious bodily injury, the law does not make an exception for that act...

BUT, the law does say when you may legally use deadly force (and the threat of deadly force)... and LEOs do have some limited cases where they're allowed to use deadly force and a regular citizen is not under the law.

So lets go over this again...

1. Yes pointing a firearm at a person is considered a threat of death or serious bodily injury (aka deadly force).

2. There are no exceptions to this in the law, no matter who is pointing the gun it is always considered a threat of deadly force.

3. Whether the threat of deadly force is lawful or unlawful depends on the situation.

Dave, let me be clear, I'm not indicating that LEOs are breaking the law or committing a crime when they draw their weapon, but pointing out that every time they do so is a threat of "deadly force". Who is behind the gun does not change the threat, only whether that threat is lawful or not.

So, just like I can point a firearm at a person and that action can be lawful or unlawful depending on the details of the situation, every time I do so, I am threatening the use of deadly force or serious bodily injury, the fact that my actions are lawful or unlawful doesn't change the fact that I am still threatening said force. This also holds true for a police officer, when they point a gun at you, that act is a threat of 'deadly force', again whether that threat is lawful or unlawful is defined in the law, police officers do have situations where they are allowed to use 'deadly force' (and therefore the threat of deadly force) where regular citizens are not...

Back to point #1, the threat is there no matter who is pointing the gun at you, the only question is whether it is lawful or unlawful but in both cases that doesn't change the fact that you're being threatened with deadly force.

Edited August 21, 2009 by JayC

[Guest jackdm3]

There is one scenario that everyone has seemed to have overlooked. It is a rare one, to be sure, but I would never say it hasn't happened and that it couldn't happen to you. In the event that a perp is able to leave the scene, he can run away from you, yet continue to fire in your direction, even if only to create his own covering fire. In such a case, the "death or serious bodily injury" is still very real. He can't possibly run away faster than his bullets can reach you. Yes, you can shoot a fleeing man.

[Fallguy]

There is one scenario that everyone has seemed to have overlooked. It is a rare one, to be sure, but I would never say it hasn't happened and that it couldn't happen to you. In the event that a perp is able to leave the scene, he can run away from you, yet continue to fire in your direction, even if only to create his own covering fire. In such a case, the "death or serious bodily injury" is still very real. He can't possibly run away faster than his bullets can reach you. Yes, you can shoot a fleeing man.

You're right, but I think one reason it wasn't brought up is I think all of the discussions have been dealing with unarmed intruders/thieves and what, if any, consequences there could be on your part for pointing your weapon at them.

But you do give a very good example of when a fleeing person is still a threat.

[wjh2657]

There is one scenario that everyone has seemed to have overlooked. It is a rare one, to be sure, but I would never say it hasn't happened and that it couldn't happen to you. In the event that a perp is able to leave the scene, he can run away from you, yet continue to fire in your direction, even if only to create his own covering fire. In such a case, the "death or serious bodily injury" is still very real. He can't possibly run away faster than his bullets can reach you. Yes, you can shoot a fleeing man.

Pray he leaves bullet casings in yard or that you have a witness and that you don't hit him in the back! Depending on community/state, prosecutor might still go for "fleeing the scene" or "no longer a threat" arguments for a manslaughter conviction. Argument would be that you could have stayed in house and taken cover. In Texas they would probably give you a medal but in Massachusetts they may lock you up.

Even though the law in Tennessee gives me some leeway in my own yard, I have long ago decided to limit my gunfire to inside house. I have a pretty solid brick home and I would seek cover before engaging in fire outside the structure. (Encountering fire out in the yard initially is a whole different ball park. With nowhere to hide, there is no choice but to engage until conclusion of firefight.)

[JayC]

My understanding of current TN self defense law is that a DA could not make the argument in court you should have stayed inside the house and taken cover.

You're legally allowed in your own front yard, and therefore, have no duty to retreat from it... Shooting a suspect in the back with a weapon in hand, is probably going to be considered self defense in every county in TN. Suspects in the process of committing a crime while armed and then pull a gun out, all reasonable people would consider that a threat.

If you go back and look at some of the self defense shootings here in TN since the law was passed, you'll notice that a lot of 'questionable' shootings we talk about here on the forums result in no charges in real life.

For example, sometime in the last year there was a robbery here in Middle TN (cell phone store) where a HCP fired on the get away vehicle as it drove away... No charges were filed against the HCP holder, this was in public location and the bad guys were armed but never fired a shot. Honestly,

I'm not recommending that you push the envelope but sometimes I wonder if we on the forums really see it the same as the police and DAs seem to sometimes.

Pray he leaves bullet casings in yard or that you have a witness and that you don't hit him in the back! Depending on community/state, prosecutor might still go for "fleeing the scene" or "no longer a threat" arguments for a manslaughter conviction. Argument would be that you could have stayed in house and taken cover. In Texas they would probably give you a medal but in Massachusetts they may lock you up.

Even though the law in Tennessee gives me some leeway in my own yard, I have long ago decided to limit my gunfire to inside house. I have a pretty solid brick home and I would seek cover before engaging in fire outside the structure. (Encountering fire out in the yard initially is a whole different ball park. With nowhere to hide, there is no choice but to engage until conclusion of firefight.)

[Guest Ggun]

Pray he leaves bullet casings in yard or that you have a witness and that you don't hit him in the back! Depending on community/state, prosecutor might still go for "fleeing the scene" or "no longer a threat" arguments for a manslaughter conviction. Argument would be that you could have stayed in house and taken cover. In Texas they would probably give you a medal but in Massachusetts they may lock you up.

Even though the law in Tennessee gives me some leeway in my own yard, I have long ago decided to limit my gunfire to inside house. I have a pretty solid brick home and I would seek cover before engaging in fire outside the structure. (Encountering fire out in the yard initially is a whole different ball park. With nowhere to hide, there is no choice but to engage until conclusion of firefight.)

See: http://www.tngunowners.com/forums/newsworthy-reports/26030-fla-court-allows-force-against-retreating-attacker.html

[Guest Muttling]

My understanding of current TN self defense law is that a DA could not make the argument in court you should have stayed inside the house and taken cover.

You're legally allowed in your own front yard, and therefore, have no duty to retreat from it...

But you're not describing a retreat. You're saying that you leave the home and follow the retreating attacker into the yard.

Retreat described a flee from the position you were at when you were threatened. It's not, hey I've got a big box that I can give chase and attack from any place within.

The standard is pretty simple, you may shoot to nuetralize a threat to life or bodily harm. If they are in the home, you are presumed to be in fear of your life or bodily harm. PRESUMED. It's not automatic and the DA can argue that the presumption is incorrect in your particular circumstance.

For example, if you hit the guy and he drops unconsious.....you can't stand over him, kick him to see if he wakes up, and then plug him again just because you're inside your home.

Similarly with a person fleeing your home, giving chase opens the door for saying you weren't in fear for your life. If you shoot as he's running away you can argue "He may have taken cover and returned fire." However, leaving cover to chase after a guy who you fear is gonna take cover and return fire is a non-sense argument. Why would a reasonable person leave cover and give chase when they fear death?

[Guest Muttling]

See: http://www.tngunowners.com/forums/newsworthy-reports/26030-fla-court-allows-force-against-retreating-attacker.html

As I pointed out in that thread, there's a TON of inconsistencies in that story and that prosecution.

It's not even clear that the individual was retreating when he was shot.

[saintsfanbrian]

Why would a reasonable person leave cover and give chase when they fear death?

I would say the marines and police officers do this almost all the time but you did say reasonable and I don't count Marines in this light.

Seriously - there has to be something severely wrong with you if you are willing to leave the safe confines of your home and go after someone with a gun that is shooting at you.

As an aside - I have nothing but respect for all of our armed forces and police officers that deserve it.

[DaveTN]

I'm not recommending that you push the envelope but sometimes I wonder if we on the forums really see it the same as the police and DAs seem to sometimes.

Here in the forums you often see where someone reads the law and starts interpreting it for everyone else.

Cops and lawyers know that is not enough information. Elements of the offense, state of mind, and case law are not stated in the written law.

My opinions (as a former cop) are based on what will keep you alive and out of jail; not on how you can justify shooting someone.

My own personal beliefs are that you should be able to shoot criminals that come on your property to commit any kind of serious crime. You should be able to shoot car jackers and armed robbers without the question ever being asked if they were trying to get away.

However…. I know that my personal beliefs are not the law and would send you to prison.

Too many parents get upset at the thought of you killing their little juvenile delinquent they have raised while he is burglarizing your car or breaking into your home.

[Guest Muttling]

I would say the marines and police officers do this almost all the time but you did say reasonable and I don't count Marines in this light.

Seriously - there has to be something severely wrong with you if you are willing to leave the safe confines of your home and go after someone with a gun that is shooting at you.

As an aside - I have nothing but respect for all of our armed forces and police officers that deserve it.

hehe.....Excellent points one and all.

I'm damn glad we have LEO's and Marines that will leave cover to take the battle to our enemies. It's an action done in spite of fear for death or bodily harm, it's what makes this country great.

[JayC]

I don't think we're describing the same situation here, I agree a bad guys breaks into your house with a gun, and then runs out the front door and away from your property before you shoot him - that is going to be a hard situation to say the shooting was justified.

On the other hand if you see somebody breaking into your car/garage/whatever on your property, you go outside and then they produce a firearm and threaten you with it, and in the process you shoot him, that seems like a clear self defense shooting. DA is going to have a tough time arguing to a jury that you should have stayed inside your house when somebody is breaking into your car... And if in the process of confronting a person who is breaking into your car, that person produces a firearm, it's going to be a pretty clear case of self defense.

I do agree that chasing somebody from inside to outside and off your property is pushing the limits of the castle and no retreat laws to their limits (and very well beyond).

But you're not describing a retreat. You're saying that you leave the home and follow the retreating attacker into the yard.

Retreat described a flee from the position you were at when you were threatened. It's not, hey I've got a big box that I can give chase and attack from any place within.

The standard is pretty simple, you may shoot to nuetralize a threat to life or bodily harm. If they are in the home, you are presumed to be in fear of your life or bodily harm. PRESUMED. It's not automatic and the DA can argue that the presumption is incorrect in your particular circumstance.

For example, if you hit the guy and he drops unconsious.....you can't stand over him, kick him to see if he wakes up, and then plug him again just because you're inside your home.

Similarly with a person fleeing your home, giving chase opens the door for saying you weren't in fear for your life. If you shoot as he's running away you can argue "He may have taken cover and returned fire." However, leaving cover to chase after a guy who you fear is gonna take cover and return fire is a non-sense argument. Why would a reasonable person leave cover and give chase when they fear death?

[Guest jwb68]

Please point me to this “Threat to use deadly force†law. It’s aggravated assault and does not require nor does it allow “the threat of deadly forceâ€.

Then you haven’t checked. Police do not operate under the same rules you do. I could direct you to the information, but the OP is not asking about cops and if this thread gets redirected in that direction it will end up locked.

If you want to make that comparison, start a new thread and we can all discuss it.

Dave is correct. Is you think differently you should see 40-7-108.

[JayC]

Dave is correct. Is you think differently you should see 40-7-108.

No, I'm sorry but Dave's point and yours are incorrect and the law you cite proves it... 40-7-108 states:

(a) A law enforcement officer, after giving notice of the officer's identity as an officer, may use or threaten to use force that is reasonably necessary to accomplish the arrest of an individual suspected of a criminal act who resists or flees from the arrest.

and

<table border="0" cellpadding="0" cellspacing="0"><tbody><tr><tr> <td>( Notwithstanding subsection (a), the officer may use deadly force to effect an arrest only if all other reasonable means of apprehension have been exhausted or are unavailable, and where feasible, the officer has given notice of the officer's identity as an officer and given a warning that deadly force may be used unless resistance or flight ceases, and:

</td></tr></tr></tbody></table>

You'll note that I've said repeatedly that officers are given a FEW extra cases where deadly force (and therefore the threat of deadly force) is allowed to be used that citizens are not. This section of the law is an example... the civilian version of A is almost exactly worded the same as citizens arrest powers, but section B gives the officers a much wider lawful use of deadly force than a regular citizen.

BUT, in all cases when an officer or anybody points a weapon at you, it's a threat of death of serious bodily injury under the law... there are no exceptions to the fact that pointing said weapon is a threat...

The difference is whether that threat is lawful or unlawful, which depends on the situation and who is holding the weapon. Clearly there are cases where a police officer may threaten deadly force lawfully that a citizen can not, but in ALL cases the pointing of said weapon is still a threat of deadly force under the law.

Again this is not a negative towards police officers in any way, only that all persons pointing a gun at you under TN law are threatening death or serious bodily injury, the question is whether the threat is lawful or not.