Is pointing a gun always considered using deadly force?

[Fallguy]

I think I see what you are saying now....

[wjh2657]

Contrary to the CSI and Law and Order TV shows, LEOs do not go around drawing and pointing their guns at everybody they are about to arrest.

There is good reason for this. Most departments require a patrol officer to file a report anytime he draws his service weapon and/or racks the slide on a SG. These reports are usually pretty closely scrutinized by his /her superiors. The officer may not be indicted as would a civilian but he faces a Department Review Board ( which most likely include people from outside the department) which can be as bad or worse than a trial, because department policy carries the same weight as law in these proceedings. he may not have broken any laws, but he may very well have busted procedure.

If there was not justification he faces a whole continuum of possible consequences from fines and suspension from duty without pay to outright dismissal. At best a report would go in his file that could be detrimental to any further career advancements. It is not something that police departments take lightly, mainly because of the safety factors involved. The law is written to give the LEO the option to draw and point his weapon, but he still faces dire consequences if he is wrong by SOP.

I had only served as a reserve LEO and for a relatively short time, but I have seen officers severely reprimanded for pointing a weapon when it was not deemed necessary by a board.

Just because a law says he can do it, doesn't mean he can do it all the time. "Cowboying" by an LEO usually means a very short career. Everything they do is monitored!

When Special Teams (SWAT,etc) go in they usually have already been authorized deadly force, so weapon is at the ready.

[Fallguy]

I agree with you mostly wjh2657....in departments with several officers.

But the town I grew up in only had 5 full-time officers. The other town in the same county only had one and one part-time officer. The sheriff's department only had about 9-10 road deputies. So at any given time there maybe only 1-2, none, 2-3 respectivly officers on duty.

I'm not saying anything bad about these size departments...but they just don't operate the same way or have the same internal or external review as larger departments do.

I'm not saying they are drawing their guns all the time, I'm just saying there aren't as many reports filed and/or reviewed by others.

I think we discuss LEO issues on TGO we forget that we aren't all used to the same size agencies in our local areas.

[wjh2657]

I agree. There are some smaller communities in Tennessee that use elected constables who have no LEO training whatsoever. Many smaller departments actually depend on citizen complaints to activate proceedings, but most have some sort of instrument (County officials, mayor's council,etc) to investigate when complaints are lodged.

I live in a small county seat town but I know for a fact that the PD and SD both hold their officers to a high standard and there is a city and a county board in place to investigate any discrepencies. If an officer points his gun at you in this town and you feel it was unjustified, he will be off the street fast and had better have his ducks together if he wants to keep his job. Every policeman and deputy I have met here has been friendly and thoroughly professional by the way!

Main point is, there is usually procedures other than just statute law that govern the use of the gun. If this is not so in your community, citizens need to get involved and make it so. A good LEO doesn't mind SOP, it takes pressure off him to guess at what his actions need be.

[Guest jwb68]

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.

I am not aware of a "civilian version" of A. Your going to have to explain what you are talking about.

As to my statement that Dave is right....he is. He stated that an LEO is operating under a different set of rules and they are. You can't threaten to use deadly force in the same scenarios that they can.

Edited August 25, 2009 by jwb68

[DaveTN]

Contrary to the CSI and Law and Order TV shows, LEOs do not go around drawing and pointing their guns at everybody they are about to arrest.

There is good reason for this. Most departments require a patrol officer to file a report anytime he draws his service weapon and/or racks the slide on a SG. These reports are usually pretty closely scrutinized by his /her superiors. The officer may not be indicted as would a civilian but he faces a Department Review Board ( which most likely include people from outside the department) which can be as bad or worse than a trial, because department policy carries the same weight as law in these proceedings. he may not have broken any laws, but he may very well have busted procedure.

If there was not justification he faces a whole continuum of possible consequences from fines and suspension from duty without pay to outright dismissal. At best a report would go in his file that could be detrimental to any further career advancements. It is not something that police departments take lightly, mainly because of the safety factors involved. The law is written to give the LEO the option to draw and point his weapon, but he still faces dire consequences if he is wrong by SOP.

I had only served as a reserve LEO and for a relatively short time, but I have seen officers severely reprimanded for pointing a weapon when it was not deemed necessary by a board.

Just because a law says he can do it, doesn't mean he can do it all the time. "Cowboying" by an LEO usually means a very short career. Everything they do is monitored!

When Special Teams (SWAT,etc) go in they usually have already been authorized deadly force, so weapon is at the ready.

Good God, I would like to know from some real cops if this really happens around here?

“Review boards†and “Indictments†for pulling a gun??

Sure… cops can’t go around waving their guns out the squad windows at anyone walking by; but if I felt the need I pulled my gun and I didn’t have to answer for it unless someone made a complaint. (Which I never saw happen to any Officer over a gun being pulled)

You need to give an example because short of pulling a gun on you for no reason at all; I can’t think of a situation where it would be a problem.

<O:p</O:p

Making sure you and the other Officers stay safe is not "Cowboying".

It’s tough enough to make the decision to use deadly force. I can’t imagine being in a department where you face a board for pulling your weapon. What department is this?

[JayC]

I am not aware of a "civilian version" of A. Your going to have to explain what you are talking about.

As to my statement that Dave is right....he is. He stated that an LEO is operating under a different set of rules and they are. You can't threaten to use deadly force in the same scenarios that they can.

The similar language I'm talking about is 40-7-109 thru 40-7-112 which basically gives private citizens the ability under the law to arrest persons for felonies and other public charges (committed in their presence).... Elsewhere it's stated that you can only use reasonable force, not deadly force to effect a citizens arrest (I'm sure Fallguy has already posted this more than once so I won't go over it again).

Dave was making the argument that a police officer is not making a threat of deadly force when they pull a gun on a suspect because there is no 'intent' for the officer to commit a crime... I'm trying to point out that line of thinking is incorrect, that whenever ANYBODY points a firearm at another person it's a threat of deadly force (sometimes referred to under the law is threat of death or serious bodily injury), and the situation along with who is pointing the weapon makes the threat either lawful or unlawful.

Why is this even important? It answers the OPs original question, every time somebody points a gun at another person it is considered a threat of death or serious bodily harm under the law, there are no exceptions to that, it's ALWAYS a threat. There is no exception for police officers, or for citizens, it's always considered a threat, the question then becomes whether the threat is lawful or unlawful, and that is where police officers have a few exceptions that regular citizens do not.

I know it's putting a fine point on the law, but the distinction is critical in this case.

[Punisher84]

Good God, I would like to know from some real cops if this really happens around here?

“Review boards†and “Indictments†for pulling a gun??

Sure… cops can’t go around waving their guns out the squad windows at anyone walking by; but if I felt the need I pulled my gun and I didn’t have to answer for it unless someone made a complaint. (Which I never saw happen to any Officer over a gun being pulled)

You need to give an example because short of pulling a gun on you for no reason at all; I can’t think of a situation where it would be a problem.

<O:p</O:p

Making sure you and the other Officers stay safe is not "Cowboying".

It’s tough enough to make the decision to use deadly force. I can’t imagine being in a department where you face a board for pulling your weapon. What department is this?

News to me too.

[Guest jwb68]

The similar language I'm talking about is 40-7-109 thru 40-7-112 which basically gives private citizens the ability under the law to arrest persons for felonies and other public charges (committed in their presence).... Elsewhere it's stated that you can only use reasonable force, not deadly force to effect a citizens arrest (I'm sure Fallguy has already posted this more than once so I won't go over it again).

Dave was making the argument that a police officer is not making a threat of deadly force when they pull a gun on a suspect because there is no 'intent' for the officer to commit a crime... I'm trying to point out that line of thinking is incorrect, that whenever ANYBODY points a firearm at another person it's a threat of deadly force (sometimes referred to under the law is threat of death or serious bodily injury), and the situation along with who is pointing the weapon makes the threat either lawful or unlawful.

Why is this even important? It answers the OPs original question, every time somebody points a gun at another person it is considered a threat of death or serious bodily harm under the law, there are no exceptions to that, it's ALWAYS a threat. There is no exception for police officers, or for citizens, it's always considered a threat, the question then becomes whether the threat is lawful or unlawful, and that is where police officers have a few exceptions that regular citizens do not.

I know it's putting a fine point on the law, but the distinction is critical in this case.

I agree with all the above but do not see how 40-7-108 is not an exception. They can use deadly force to make an arrest. You can't.

[Fallguy]

I agree with all the above but do not see how 40-7-108 is not an exception. They can use deadly force to make an arrest. You can't.

I think he is agreeing with that.

He is just that regardless of who is doing the pointing of the gun and regardless of whether it is lawful or not.......that pointing a gun at someone is threatening deadly force.

[JayC]

I think he is agreeing with that.

He is just that regardless of who is doing the pointing of the gun and regardless of whether it is lawful or not.......that pointing a gun at someone is threatening deadly force.

Exactly

[Guest Jamie]

Most departments require a patrol officer to file a report anytime he draws his service weapon and/or racks the slide on a SG.

You know, if I had to fill out a report for every time I ended up drawing my gun and pointing it at someone, in the 2+ years I worked the night shift, I'd probably still be writing.

The S.O. I worked for had about 20 - 25 full time deputies ( some of which were attached to CID ), and about that many part time or reserve deputies, when I worked there. And there was more than a few nights when there was only one car and one or two deputies patrolling the entire county. ( SOP was to have at least one car in each of 4 zones, but it just didn't always work that way. )

I realize times are changing, but around here having a cop point a gun at you has never been questioned. If the officer felt there was a need, then the CLEO and the courts have always supported him or her.

Might not be exactly what the law says, but that's the way it is and has been.

[Fallguy]

I realize times are changing, but around here having a cop point a gun at you has never been questioned. If the officer felt there was a need, then the CLEO and the courts have always supported him or her.

Might not be exactly what the law says, but that's the way it is and has been.

Careful....you'll start that "blue wall" talk again....

[Guest Jamie]

Careful....you'll start that "blue wall" talk again....

Wouldn't want that to happen, would we?

Honestly though, it would also be an odd circumstance for a person here to have a problem with someone on their property, point a gun at them, and end up being charged for it.

As long as the intruder was in the wrong, and the property/gun owner didn't do anything truly stupid, it'd be the bad guy who got the grief.

[Fallguy]

Wouldn't want that to happen, would we?

Honestly though, it would also be an odd circumstance for a person here to have a problem with someone on their property, point a gun at them, and end up being charged for it.

As long as the intruder was in the wrong, and the property/gun owner didn't do anything truly stupid, it'd be the bad guy who got the grief.

I tend to agree....on both accounts.

[rwt101]

Then what is brandishing a weapon considered?

Bob T

[Guest Muttling]

Then what is brandishing a weapon considered?

Bob T

As I understand it, brandishing is displaying it in a threatening manner. Pulling out of the holster and waving it around would be a good example. Putting your hand on the hilt and threatening to draw it from the holster or shoot without actually drawing the weapon would be another.

Something MORE threatening than open carry, but not as threatening as pointing the weapon.

[Guest Engloid]

Exactly. Brandishing could be definied as using or displaying your firearm in any way which would cause a reasonable person to fear..... blah, blah, you know that stuff.

Therefore, if somebody fixes your hamburger wrong, and you intentionally lift your shirt to show your weapon during an argument, you are guilty of "brandishing."

[DaveTN]

Then what is brandishing a weapon considered?

Bob T

Generally speaking (in states that have those laws), brandishing is letting someone see the weapon without making an outright threat. Like pulling your jacket back or pulling your shirt up to expose a weapon. It is usually a misdemeanor. It could be a felony if you make an outright threat when you do it.

<O:p</O:p

On the other hand, pulling a weapon out and waving it around or making threats will (in most states) get you charged with aggravated assault; a felony. I think this would be the case in Tennessee if you make any threat with a gun; I don’t think Tennessee even addresses brandishing.

<O:p</O:p

However…. You would have to check each states laws to know for sure.

</O:p

[Guest Bluemax]

I'm not an expert in Tn law but I follow the rule of 3, If I give a BG 3 warnings, he's asking for it, If he comes closer than 3 yrds he's treading on dangerous grounds, if I anticipate that he is going to hurt my loved ones, the innocent, or myself and have exhausted all reasonable and possible means to avoid a lethal confrontation..then God have mercy on him because I won't and I pray that I am never put in this situation

[rwt101]

I guess what I am looking at, is if you pull you firearm or just show it to defuse a situation, and the BG turns and runs can you be charged with anything?

Bob T

[JayC]

Then what is brandishing a weapon considered?

Bob T

There is no law in TN against 'brandishing a weapon'. There are laws if you threaten someone with a weapon (directly or implied), or pointing a weapon at somebody, probably could get charged with disturbing the peace or disorderly conduct if you're waving it around.

But there is no law which prohibits brandishing.

[JayC]

I guess what I am looking at, is if you pull you firearm or just show it to defuse a situation, and the BG turns and runs can you be charged with anything?

Bob T

Most likely under current state law that would be considered threat of serious bodily injury or death. If the situation was a justifiable self defense situation you should be okay.

Technically if you weren't legally able to shoot said BG it would appear you've broken the law in TN. Now, the truth is, it's very unlikely you would be charged if it was a true BG, but as always you'd want to be the first to contact the police...

If you were charged the *likely* charge would be Aggravated Assault under the state law.

Obviously this is just a laypersons opinion on the subject.

[extremescene]

As many others have said... he was running away, you can't shoot anybody, lethal or non-lethal, that is trying to get away from you. The burglar was avoiding the fight in that case and you escalated it. That point was made very clear in my Guns and Leather HCP class.

[DaveTN]

I guess what I am looking at, is if you pull you firearm or just show it to defuse a situation, and the BG turns and runs can you be charged with anything?

Bob T

Certainly. You can be charged with aggravated assault.

That is why if you ever have to do that you need to call the Police right then and wait on them to arrive. Many times I have seen people arrested simply because the responding Officer only had one side of the story. Since the other person left; they were arrested later.

If the cops are only going to hear one side; make sure it is yours.

<O:p</O:p