Unholstering your weapon

[Guest EB31]

And therein lies the "intent" part. You're displaying your firearm to make a threat. However if you were carrying open it would not be considered brandishing.

We actually finally agree on one thing though, talking to a lawyer is a good idea. I've worked around firearms trainers for several years and have consulted lawyers frequently on a variety of topics. It's why I hold the opinions I do. Whether internet folk agree with them or not.

Well I'll be...

We agree I'm sure there will be other times.

[Punisher84]

Well I'll be...

We agree I'm sure there will be other times.

Well crazier things have happened

[Guest DanE479]

Guy: At no time did Jay "Draw Down" on anybody. To draw down on somebody is to point the weapon at someone with the intent to shoot. Jay presented his firearm at a low ready. This is a perfectly reasonable tactic to position yourself in a tactically better manner to win a potential gunfight. YOu need to get your terms straight before you go chastising people on tactics. I've been in the training and LEOish field for over a decade now, and I teach security officers and civillians to unholster at a low ready when they think that there is a likelihood of a threat.. Having the weapon at a low ready cuts a good second off of your first shot response time.

TO "Brandish" a weapon is to direct a weapon in the vicinity of another and actively threaten that individual with either movement, speech, or any combination of both. Let me be clear on this: Brandishing requires action and intent in order for it to happen.

You need to get your training straightened out, Guy, as you are going on false assumptions, false impressions, and false information to draw your conclusions. You then compound these errors by trying to confuse legal issues with survival issues. Remember this rule: first, win the fight; then, worry about everything else. Don't let your legal hangups endanger your survivability factor.

As I stated above, I'm not questioning your read of the law. But, to assume you will get the same application of the law as a cop is foolish at best.

As for your example......you drew down on some "children" going to the bathroom. Yes, based on the details given I suggest it was a bad idea. Did the youths run towards you, or threaten you in any way? Did the occupants of the vehicle make any threatening motions? If the kids had been white and wearing dockers, would you have drawn? Do you draw down any time a car blocks you in for more than a few seconds? Yes, it could have gone differently....... but it didn't. You were not in any danger at any point. SA? How do you rate yours in that situation?

Here's another question: What if the occupant of the car was also a HCP holder, and he saw your "hidden" gun? Should he have drawn down on you? By your logic, the answer is yes. What would have happened then?

The simple fact is that when you draw your weapon, it should be because you fear for your life and, unless things change immediately, you intend to use it. Your attacker should have the means, intent and proximity to cause you harm. And yes, you have to make that decision in a split second. Any doubt or concern about your ability to draw your weapon quickly should be met with additional practice and training, not with the decision to draw down at any potential threat.

[Guest DanE479]

Again, Guy, you are missing the point. In each situation, a person drew a weapon and pointed it at someone else, or made gestures while holding the weapon. The act of pointing the weapon at another individual is different than presenting at a low ready. You are trying to have a completely different conversation than the rest of us. Get on the same page, and stop trying to argue different points.

I'm not one for quoting myself, but here are some examples of exactly what I'm talking about:

http://www.tngunowners.com/forums/newsworthy-reports/45829-another-genius-pulls-gun-during-argument.html

This one is questionable, as the homeowner may have been protecting his property, but:

http://www.tngunowners.com/forums/newsworthy-reports/44180-arrested-charged-defending-property.html

CCW holder in LV shot dead by police. Official report says he pointed his roscoe, witnesses say differently. Either way, someone saw his legally carried firearm, now he's dead.

http://www.tngunowners.com/forums/newsworthy-reports/43877-las-vegas-permit-holder-shooting.html

Hmm, I'll bet this guy claims self defense. He was even sitting in his car and confronted....

http://www.tngunowners.com/forums/newsworthy-reports/41334-memphis-father-pulls-coach-his-kids-game.html

In this one, the "bad guy" and HCP holder pulled a gun after he claims (and other confirm) that he was threatened.

http://www.tngunowners.com/forums/newsworthy-reports/25066-handgun-carry-permit-holder-pulls-gun-employee-arrested.html

Just a few examples found with a few minutes looking.

[Guest DanE479]

I was taught it's never wise to listen to :poop:house lawyers.

I would also think twice before believing you can draw your weapon...even if not aiming at someone...and have it not be considered "brandishing".

Brandishing a firearm can and does included "..exhibiting a weapon in a threatening manner". Exhibiting...ie displaying, showing. Call and speak to an attorney about this. I did today.

I was told what I already believed to be true. If you so much as raise you shirt to expose your weapon to "make a point"...and let's not play on words..we all know exactly what I'm talking about...that can and in most cases will be considered "brandishing a weapon".

Just be smart an speak to an attorney...better yet, call several. Ask them to define the law as it pertains to brandishing a firearm.

In order to threaten, you must be actively engaged with another individual. Drawing into a low ready )as a civillian firearm carrier) happens in situations where you are not actively engaged in any type of interaction with anyone. I go to a low ready when I am in the car, and someone is exhibiting behavior that I deem could pose a threat to myself (such as someone approaching my vehicle late at night, while I am at a stoplight, and that person is looking me in the eyes). That is TOTALLY justified, and not threatening to anybody at all.

[Punisher84]

In order to threaten, you must be actively engaged with another individual. Drawing into a low ready )as a civillian firearm carrier) happens in situations where you are not actively engaged in any type of interaction with anyone. I go to a low ready when I am in the car, and someone is exhibiting behavior that I deem could pose a threat to myself (such as someone approaching my vehicle late at night, while I am at a stoplight, and that person is looking me in the eyes). That is TOTALLY justified, and not threatening to anybody at all.

+10 You won't be getting a reply from EB though.

[MikePapa1]

As a lawyer actively practicing in Sumner County, if you unholster your weapon and show it, you are brandishing. DAs vary from county to county, but here if you unholster your weapon unless acting directly in self defense you will be charged either with Aggravated Assault or Reckless Endangerment, generally the latter. You'd only be charged with the Agg Assault if you pointed it at someone, but you will be charged with Reckless Endangerment unless you convince first the LEOs involved and then the DA that your actions were NOT reckless. I see this all the time, though not necessarily with guns. My last time was a 63 year old janitor who'd recently had open heart surgery who woke up to his grown son, drunk, arguing and threatening his heart patient mother. When my client intervened, the son pushed him. He picked up a knife from the kitchen counter and told his son not to lay hands on him again. Stories varied, but the son ended up with a small cut on his forearm, so my client was charged with Aggravated Assault. We had a preliminary hearing and Judge Hunter dismissed the case finding my client was acting in self defense. The DA elected not to take it to the Grand Jury anyone so the case against my client was over but he was arrested, had to pay a $10,000 bond (Standard bond for a Class C Felony), had attorney's fees and missed three days of work while they raised the bond money. He won, but it still cost him.

Something to think about before you unholster your weapon unless under direct threat.

[Punisher84]

As a lawyer actively practicing in Sumner County, if you unholster your weapon and show it, you are brandishing. DAs vary from county to county, but here if you unholster your weapon unless acting directly in self defense you will be charged either with Aggravated Assault or Reckless Endangerment, generally the latter. You'd only be charged with the Agg Assault if you pointed it at someone, but you will be charged with Reckless Endangerment unless you convince first the LEOs involved and then the DA that your actions were NOT reckless. I see this all the time, though not necessarily with guns. My last time was a 63 year old janitor who'd recently had open heart surgery who woke up to his grown son, drunk, arguing and threatening his heart patient mother. When my client intervened, the son pushed him. He picked up a knife from the kitchen counter and told his son not to lay hands on him again. Stories varied, but the son ended up with a small cut on his forearm, so my client was charged with Aggravated Assault. We had a preliminary hearing and Judge Hunter dismissed the case finding my client was acting in self defense. The DA elected not to take it to the Grand Jury anyone so the case against my client was over but he was arrested, had to pay a $10,000 bond (Standard bond for a Class C Felony), had attorney's fees and missed three days of work while they raised the bond money. He won, but it still cost him.

Something to think about before you unholster your weapon unless under direct threat.

Remind me not to move to Sumner county. I like places where people can understand the laws.

[Fallguy]

Remind me not to move to Sumner county. I like places where people can understand the laws.

+1

[MikePapa1]

There is an exception I wanted to mention though. Somewhere earlier in the thread, someone mentioned arriving home and finding the door open. In that case I'd have no hesitation about drawing my gun to investigate because the law is clear if there is an intruder in your home they are presumed to be a lethal threat. On the street, however, the onus is going to be on the armed individual to prove that he acted reasonably in response to a direct threat. I have had several incidents where I put my hand on my weapon in response to a potential threat, but I've never been forced to unholster. I could see an instance where I'd be willing to unholster, and place the gun at the side and slightly behind my thigh ala police procedure, but I'd have to justify even this behavior. If you draw your weapon where others can see it, unless you can prove you had cause to do so, I think the chances of you being charged approach 90%.

[Punisher84]

There is an exception I wanted to mention though. Somewhere earlier in the thread, someone mentioned arriving home and finding the door open. In that case I'd have no hesitation about drawing my gun to investigate because the law is clear if there is an intruder in your home they are presumed to be a lethal threat. On the street, however, the onus is going to be on the armed individual to prove that he acted reasonably in response to a direct threat. I have had several incidents where I put my hand on my weapon in response to a potential threat, but I've never been forced to unholster. I could see an instance where I'd be willing to unholster, and place the gun at the side and slightly behind my thigh ala police procedure, but I'd have to justify even this behavior. If you draw your weapon where others can see it, unless you can prove you had cause to do so, I think the chances of you being charged approach 90%.

Maybe in your county, but if anyone is smart enough to appeal a conviction there I'm 99.9% sure they'd win. As soon as it went to the state it'd be overturned unless you could prove they threatened, and had the intent to threaten, someone with the firearm.

[MikePapa1]

LOL. Well, you MIGHT be right. My experience with the Court of Criminal Appeals leads me to believe otherwise. Frankly, I think even if the the conviction were clearly erroneous you'd have a 50/50 chance of it being overturned.

Be that as it may, by the time you've gotten to the CCA, you're out about $25,000 give or take.

Frankly, it's OK with me. I have people everyday who don't listen. That's how my son's in engineering school and my daughter's getting ready for law school. I think of it as an annuity.

[JayC]

There is an exception I wanted to mention though. Somewhere earlier in the thread, someone mentioned arriving home and finding the door open. In that case I'd have no hesitation about drawing my gun to investigate because the law is clear if there is an intruder in your home they are presumed to be a lethal threat. On the street, however, the onus is going to be on the armed individual to prove that he acted reasonably in response to a direct threat. I have had several incidents where I put my hand on my weapon in response to a potential threat, but I've never been forced to unholster. I could see an instance where I'd be willing to unholster, and place the gun at the side and slightly behind my thigh ala police procedure, but I'd have to justify even this behavior. If you draw your weapon where others can see it, unless you can prove you had cause to do so, I think the chances of you being charged approach 90%.

In all fairness in the case I cited... While I unholstered the weapon, I moved it to between the seat and the center console using my leg to hide it... just to have easier access should I need it.... I didn't have it in my hand... I seriously doubt one could make an assault case or reckless endangerment case because I could legally have driven around all day long with the weapon in that position.

[MikePapa1]

No, Jay, I agree. In your example I see no way to charge you. I've done that myself when driving. If people see a gun in your hand, however, in my experience, your chances of being charged go up exponentially.

[Punisher84]

LOL. Well, you MIGHT be right. My experience with the Court of Criminal Appeals leads me to believe otherwise. Frankly, I think even if the the conviction were clearly erroneous you'd have a 50/50 chance of it being overturned.

Be that as it may, by the time you've gotten to the CCA, you're out about $25,000 give or take.

Frankly, it's OK with me. I have people everyday who don't listen. That's how my son's in engineering school and my daughter's getting ready for law school. I think of it as an annuity.

I'm just really glad you have this in your sig line...

*The material presented herein is for informational purposes only, is not guaranteed to be correct, complete, or up to date, does not constitute legal advice and does not establish an attorney-client relationship. You should NOT act or rely on any information in this post or e-mail without seeking the advice of an attorney YOU have retained. In plain English, while I am an attorney, I'm NOT your attorney, and I'm NOT giving you legal advice of any kind.

I've worked with lawyers, cops, firearms trainers, security officers, you name it all my professional life thus far and you are the first person who stated they were in a legal role that has told me I'd be charged for simply removing my firearm from it's holster.

I also understand that may be what you guys do where you are and that's your experience. I'm just saying I don't think it jives with state law.

[MikePapa1]

I'm just really glad you have this in your sig line...

I've worked with lawyers, cops, firearms trainers, security officers, you name it all my professional life thus far and you are the first person who stated they were in a legal role that has told me I'd be charged for simply removing my firearm from it's holster.

I also understand that may be what you guys do where you are and that's your experience. I'm just saying I don't think it jives with state law.

I've worked with those sorts of folks, too. I've also practiced law for 27 years in Indiana and Tennessee. If you unholster your weapon and place people in fear that you may use it. Unless you have a very good explanation as to why you felt your life was in danger, you will very likely be charged. I don't like it, but I see people charged regularly that, in my opinion, should not have been. They are, however. The Aggravated Assault statute is VERY clear:

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

( Uses or displays a deadly weapon; or

(2) Recklessly commits an assault as defined in § 39-13-101(a)(1), and:

(A) Causes serious bodily injury to another; or

( Uses or displays a deadly weapon.

What part of "displays a deadly weapon" is unclear to you? By the way, Reckless Aggravated Assault under TCA § 39-13-102(a)(2) is a "D" Felony and Aggravated Assault under TCA § 39-13-102(a)(1) is a "C" Felony.

Edited September 13, 2010 by MikePapa1
Added additional cite.

[mikegideon]

I'm just really glad you have this in your sig line...

I've worked with lawyers, cops, firearms trainers, security officers, you name it all my professional life thus far and you are the first person who stated they were in a legal role that has told me I'd be charged for simply removing my firearm from it's holster.

I also understand that may be what you guys do where you are and that's your experience. I'm just saying I don't think it jives with state law.

First of all, keeping it hidden is the object of the game, ALWAYS. How could you be charged if it's hidden, even out of the holster? Somebody has to see it before they start wetting the bed.

[Punisher84]

I've worked with those sorts of folks, too. I've also practiced law for 27 years in Indiana and Tennessee. If you unholster your weapon and place people in fear that you may use it. Unless you have a very good explanation as to why you felt your life was in danger, you will very likely be charged. I don't like it, but I see people charged regularly that, in my opinion, should not have been. They are, however. The Aggravated Assault statute is VERY clear:

( Uses or displays a deadly weapon.

What part of "displays a deadly weapon" is unclear to you? By the way, Reckless Aggravated Assault under TCA § 39-13-102(a)(2) is a "D" Felony and Aggravated Assault under TCA § 39-13-102(a)(1) is a "C" Felony.

More than familiar with the statute, it's not unclear in anyway. My point is there must be a victim, someone who felt threatened and you need to have a suspect that showed intent. Every time I OC, I am "displaying a deadly weapon". Every time I pull out my pocket knife for some reason, I am displaying a deadly weapon. I live and work in Memphis, TN rival for "weapons displaying" capital of the United States and I have never seen or heard of anyone being charged with "brandishing", Assault, or Agg. Assault for anything like what we are discussing here. If that is happening in your county then I feel extremely sorry for the people that have been wronged by your courts.

[MikePapa1]

Which is why, Punisher, I suggested people here were not normally charged with Agg Assault unless they pointed it at someone. If you open carry, I would suggest you keep your temper because displaying a weapon, if you put someone in fear that you might use it, you could easily be charged.

Here, you'd be charged with Reckless Endangerment under TCA § 39-13-103. It reads:

39-13-103. Reckless endangerment. —

(a) A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.

( Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

Notice the use of the word "may" in this one. Clearly, displaying an unholstered gun, without cause to do so falls within this definition.

Again, feel free to ignore what I say. I have no problem at all with that. People often don't listen. Unfortunately, they often find cause to regret it. But with kids in college, I always get to charge more when they've ignored my advice so I'm not complaining.

[Punisher84]

Which is why, Punisher, I suggested people here were not normally charged with Agg Assault unless they pointed it at someone. If you open carry, I would suggest you keep your temper because displaying a weapon, if you put someone in fear that you might use it, you could easily be charged.

Here, you'd be charged with Reckless Endangerment under TCA § 39-13-103. It reads:

39-13-103. Reckless endangerment. —

(a) A person commits an offense who recklessly engages in conduct that places or may place another person in imminent danger of death or serious bodily injury.

( Reckless endangerment is a Class A misdemeanor; however, reckless endangerment committed with a deadly weapon is a Class E felony.

Notice the use of the word "may" in this one. Clearly, displaying an unholstered gun, without cause to do so falls within this definition.

Again, feel free to ignore what I say. I have no problem at all with that. People often don't listen. Unfortunately, they often find cause to regret it. But with kids in college, I always get to charge more when they've ignored my advice so I'm not complaining.

First off, let's get the "kid in college", young buck, know-it-all stuff out of the way. I've heard too much of it the past few weeks. I'm not debating age here. We are debating intent of Tennessee state law. I work with this stuff every day. I've sent people to jail for it, wrote reports on it, and trained on it. I know my weapons laws.

Now, I agree if you put someone in fear you could very well be charged. That goes to intent. Could you be charged for walking down the street with a gun in your hand even with an HCP? I'm certain you could. Does TN state law say you should be? No.

The point many are and have been trying to make here is that nothing in TN state law states that just because you have your firearm out of a holster you are committing a crime as a permit holder. If I am in a situation where I feel threatened and simply remove my firearm from it's holster and have it out of sight, just in case my fear level raises to the use of deadly force, I have committed no crime in TN. If I threaten someone with it or act stupid with it and cause fear then I have. That's the usage and intent of the law that I have seen used in my experiences in Shelby County.

[mikegideon]

Which is why, Punisher, I suggested people here were not normally charged with Agg Assault unless they pointed it at someone. If you open carry, I would suggest you keep your temper because displaying a weapon, if you put someone in fear that you might use it, you could easily be charged.

.

I think there's some miscommunication. I'm not going to unholster in a mall, or a parking lot full of people. I'm not going to threaten anybody. It won't be an effort to "show" my weapon to anybody.

[Punisher84]

I think there's some miscommunication. I'm not going to unholster in a mall, or a parking lot full of people. I'm not going to threaten anybody. It won't be an effort to "show" my weapon to anybody.

I think so as well. I hate to bring it up again, but Kwik was never charged and he carried a gun down a main street. Lost his HCP because he's a loon, but still.

[mikegideon]

I think so as well. I hate to bring it up again, but Kwik was never charged and he carried a gun down a main street. Lost his HCP because he's a loon, but still.

They would have thrown the book at him if they could. His intent was to freak people out as well.

Nothing has changed in my way of thinking. If I'm in a dark alley, and a threat comes my way, my weapon will be in my hand. I promise I won't brandish it.

[Fallguy]

I think everyone is in about 98% agreement....the other 2% has more to do the actual specifics in a given situation and can't really be discussed with certainty in general discussion.

[mikegideon]

Yeah, the devil is always in the details.