Question about drawing pistol

[Dolomite_supafly]

I got to thinking about it and thought I would run it by people here. Not going to get into a lot of the background between my brother and I.

These are the facts:

My brother is a long term, heavy drug user with mental problems (mostly uses meth and oxy). Twice in the past he has attempted to make good on his threats to kill my family and I (most recently with an AK that ended somwhat of a standoff). Now he has hepatitus C and is in the advanced stages of it. He has a staph infection that has created oozing postules over numerous parts of his body. He has smeared his bloody infected puss on others as a means to inflict injury.

He has told several people that he has nothing left to loose now that he has hepatitus C. He has also made statements several people that he is going to kill me (complete strangers have warned me). Knowing that he has tried in the past and that he now has a propensity to smear infected body fluids onto people I have a quesiton.

Even if he is not armed with a conventional weapon, what would be the ramifications if I drew my pistol if he attempted to approach me in an aggitated or aggressive manner knowing his past?

I suspect he will attempt to infect me like he has tried to do to others. I will not allow that to happen because not only would it affect my life but also my immediate family's life.

As I said before, it is fact that he has already smeared infected fluids onto others. He has said to numerous people that he will kill me and that he would probably use those fluids to try to do it.

Dolomite

[trblmkr13]

Get an restraining order have him arrested anytime he gets near you or your family, in case you have to defend your family or yourself the DA can see he has been harassing/threating you.

[Oh Shoot]

... He has smeared his bloody infected puss on others as a means to inflict injury.....

As I said before, it is fact that he has already smeared infected fluids onto others. ...

Why haven't any of those people gone to the police?

That's obviously assault, probably aggravated assault.

- OS

[Guest Plainsman]

It sounds like there have been lots of things going on in the past that haven't been addressed appropriately. I would want as much paperwork as possible to show the history of his behavior. Sounds like its time everyone quits enabling your brother and giving him a pass when he behaves like a jonesin' lunatic.

[Guest mosinon]

Get an restraining order have him arrested anytime he gets near you or your family, in case you have to defend your family or yourself the DA can see he has been harassing/threating you.

What he said. Even better would be to move the family away from the problem. Had relatives that went through something similar and once they were a couple of hundred miles away the need for a reliable supply of drugs and the fear of being out of the comfort zone (plus lack of gas money) made the problem go away.

[Punisher84]

This is purely a non-lawyer response, but from what I would think if he tried to attack you you would be justified. Courts have ruled that if you have AIDS and try to purposefully infect someone you can be charged with a crime.

I think given the facts that he has threatened to kill you and your family, has a deadly disease, etc you would be justified in using deadly force. Trying to give someone Hep C would certainly fall under risk of serious bodily injury or death in my mind and since you have prior knowledge he has the disease it would only go towards your level of fear.

[MudBugjr]

You could always say you thought he was a zombie and had to shoot him in the head. All kidding aside I would have to agree on a paper trail and protect my family at all cost. Could always try a on leathal approach first with some good mace and a stun gun. Of coarse that doesn't usually stop someone doped up on meth either.

[Dolomite_supafly]

The reason he isn't in jail is because every time he gets in trouble they bring up his mental status as a defense. He spends time in a mental hospital until the doctors declare him fit to be released.

After hearing of his most recent claims he is going to kill me I spoke with the criminal court clerk about filing charges. I did this on the advice of one of the investigating officers. Clerk said that making open air threats was not against the law but carrying them out was. I asked even if he has the ability to carry out his threats to kill me. And she said again it wasn't against the lasw. I chuckled and asked what they thought should be done. Their response was that the death threats were a civil matter and that I should sue my brother. I asked what I could sue him for and they said for slander. I chuckled again saying that if someone is making threats it isn't slanderous it is against the law. At that point I got a bunch of deer in the headlights looks from all those behind the counter.

If anyone wants to verify this, PM me and I'll give you the court clerks number so you can call and ask for yourself if threats are against the law or I'll give you the county and you can look the number up yourself.

As with most long time drug users my brother is very manipulative. My parents have enabled him for a very long time probably out of fear more than anything. Yet they have continued to make excuses for him and even today they are looking for someone else to blame for his hepititus C infection. This comes after my brother asked about sharing "things" with a person who died of hep C. My mother has gotten a restraining order but rather than force my brother out of the house, she moved out.

As far as getting an order of protection. I had an application that had been signed by the judge. As I was talking to the judge I asked if my brother could get an order signed against me as a form of retaliation. The judge said he would also sign one for my brother if he wanted one against me. I asked the judge to repeat what had just said and he again said that he would sign a protective order for my brother. This is knowing my brother's background and my lack of one. I told the judge that I could not take a chance on that. The judge said a protective order wouldn't stop a bullet anyways if my brother wanted to kill me. I just shook my head, crumpled up the order adn asked th cleark to throw it out.

There is a chance I might be able to go back to work. My work requires me to maintain security clearances. If I had a order of protection against me it would more than likely result in my loss of my clearances and thus my ability to work when I get well enough.

My brother has been arrested numerous times and LE knows him very well. The officers try to do what they can but when my brother goes to trial for any of it the charges either get dismissed or time served and he goes into a mental health facility for a week or two. I actually had a few good friends in the sheriff's office before all of this blew up a year ago, most have distanced themselves from me over my brother now.

Dolomite

Edited October 1, 2010 by Dolomite_supafly

[peejman]

I wouldn't risk my life/health based on the opinion of one uninformed judge. Unfortunate as it may be, in today's legal system the paper trail is very important. Get the restraining order. Call 911 anytime you see him. File assault charges.

I would think his attacking anyone with his Hep C virus would be considered assault with a deadly weapon. "Intent to inflict grave bodily injury" at least. Same as people who know they are infected and spit on cops. Armed response is clearly justified IMO. But I'm not a judge.

At the very least, it really sucks that you have to deal with this. Especially since it's your brother. I'd hate to give in to him, but is moving an option?

[MikePapa1]

This is a problem I see frequently. First, get an Order of Protection. Then you and your family need to retain a lawyer to deal with this situation.

[Dolomite_supafly]

I'd hate to give in to him, but is moving an option?

We actually had our house sold two days after the first big incident in September of 2009. But after some consideration we decided to wait on selling it. I am in the middle of trying to heal up from a helicopter accident a few years ago. Because I am unable to work and my wife doesn't either because she helps me out I was unable to find a company to finance the purchase of another home. Also, I would hate to move then discover the new doctors treating me are not as good as the ones I have now or that they would give up on me. If we did move we were going to move very, very far away so there is no way I would be able to keep the same doctors.

My wife and I built our house in 2003 with our own two hands, literally. We only paid people to do the block work, electrical and the siding(only because the materials and labor was less than materials alone). I hired a few hands to help lifting walls and such but other than that we did everything ourselves. We didn't really want to let my brother's actions force us out but in the end it was the financing issue that keeping us here. Our son should be out of the house soon so that relieves some of the apprehentions we have about all of this.

Thanks for all the suggestions guys.

Dolomite

[Fallguy]

Restraing Orders aren't worth the paper the written on....as Mikepapa1 said, get an Order of Protection.

Also as others said, report every incident so there is a record.

I guess just making threats aren't against the law....unless they make you "reasonably fear imminent bodily injury" [see 39-13-101(a)(2)] but at that point I guess you'd be justified in using deadly force if you fear "serious" bodily injury [see 39-11-106(a)(34)]. So that is the whole key.... Can an unarmed person make your reasonably fear imminent bodily injury or death? Sure But it will depend on the situation at the time and a record of the thing that caused you to have that fear could/would be helpful.

[G27]

It certainly sounds to me like you have reason to fear for your life if your brother comes at you. I think this is one of those situations where it's better to risk trial by 12 over being carried by 6...

Really sorry to hear about your situation, it really sounds terrible. Best of luck to you.

[Dolomite_supafly]

He has recently dropped off the face of the earth. He hasn't been around for a few weeks now so maybe he hs finally left the area. I suspect he will return when he wears out his welcome where ever he is staying now. And when he doesn't get wha he eants frommour parents he will again start to blame others like me.

My parents are in a lot of debt because he used their info to take out loans. They didn't want to report him and have now started making payments so he can't be held now anyways.

Local LE is aware of everything here so if anything does happen there will be a background on it.

Dolomite

[Guest tnxdshooter]

He has recently dropped off the face of the earth. He hasn't been around for a few weeks now so maybe he hs finally left the area. I suspect he will return when he wears out his welcome where ever he is staying now. And when he doesn't get wha he eants frommour parents he will again start to blame others like me.

My parents are in a lot of debt because he used their info to take out loans. They didn't want to report him and have now started making payments so he can't be held now anyways.

Local LE is aware of everything here so if anything does happen there will be a background on it.

Dolomite

Yeah I think you would be justified in shooting him if he came at you. Pull your gun. Nothing will happen to you.

[DWARREN123]

Get a legal trail started and if you fear for your or your families life/health then do what you have to.

I really do hope this is just him talking crap but be careful.

[RobertNashville]

I just do not (and frankly don't want to) understand situations like this.

Your brother should be confined, whether a regular jail cell or a mental hospital; he is obviously a danger to society and himself; the fact that he is free to walk the streets is a travesty and points out how utterly ineffective our system of justice can be at times.

I also stunned when I hear how relatives (parents, siblings, etc.) who are the victims of crime are unwilling to do what needs to be done and prosecute the criminal...the sad thing is that I hear similar stories almost every day because I often counsel people who are in debt. I know that in most cases, these victims/relatives are well meaning and, they think, acting out of love but the sad thing is that enabling criminal behavior is not a loving act at all.

As to your actual question (and I am NOT an attorney) as I understand the law, the key to a successful claim of self defense is that you are in fear of your life or great bodily harm (or the same to an innocent/family, etc)...based on what you've said in this thread I think you most certainly have more than sufficient reason to be in fear of your life or of great bodily harm should you brother ever come near you.

[JReedEsq]

This is a problem I see frequently. First, get an Order of Protection. Then you and your family need to retain a lawyer to deal with this situation.

I second the Order of Protection. I've filed tons of OPs in Knox County. PM me if you have questions. I'll also be in the office (450-3333) Monday afternoon.

[Guest Phantom6]

Wow, what a shame to have to fear and possibly use lethal force on your own brother, even if he is a dirt bag. My heart goes out to you, man. My wife has a nephew that is a similar case only he can not blame psychiatric problems. He's just a crack/meth-head. His dad (wife's brother) is one as well. He (the nephew) has threatened to kill my wife and I on more than one occasion since we sold his grandmother's home when we had to take her in due to her Alzheimers condition. My mother-in-law had given my wife Power of Attorney prior to her diagnosis and none of her 6 brothers and sisters would lift a finger or a checkbook to help. His grandmother was his enabler. Things have been quiet for the last 5 years or so as the little miscreant has been a guest of the state in a DOC facility due to a couple of aggrivated assault convictions (he pistol whipped his mother and an uncle on his mother's side). Unfortunately he has just been released and is working (smoking) up the courage to confront my wife and I according to reliable sources. Fortunately I have several reports on file with the Anderson County Sheriff's Office where he has attempted to assault me. He's well known to the ACSO's due to other assaults, robberies and thefts so there is a long paper trail in the event I have to physically deal with him.

My personal situation is one reason that I teach the Civilain Safety Awareness Program by Sabre and have developed the Non-Lethal Self Defense for the Handgun Carry Permit Holder course that we teach here at Austin's Tennessee Firearms School. It is my firm belief that when the only tool you have is a hammer, then every problem or situation better be a nail. Otherwise you may find yourself screwed (pun intended for effect). If you rely on your firearm to protect you in all circumstances, you are going to be at a serious disadvantage when you can’t carry one or the situation does not rise to the level of a deadly force assault. Worse yet, immagine you are asked on the witness stand by a prosecutor or civil trial lawyer why you never considered anything other than a lethal weapon to settle your scores. "You're a killer aren't you Mr. Defendant!" "Objection" protests your attorney. "Withdrawn" states your advesary but the point is well made to the jury. That is a tough question and there is only one good answer. You see, if you have no force continuum to rely on and your life could be taking a very bad turn. You need to seek out legal and defensive options. Good luck bro. Normally I'd say I wouldn't want to be in the same boat with you but though we aren't exactly in the same boat we're both rowin' in the same cess pool.

[A.J. Holst]

G -

Hopefully he won't show back up, but like unfortunately, like the proverbial bad penny...

I agree with about everybody, have a legal paper trail, 9-1-1 phone log, etc to protect yourself.

The positives are you have a beautiful home on a great piece of land. Your neighbors appreciate that fact that you are a responsible gun owner and keep an eye on things.

Don't move - I need a local AC expert near by!!!

[Dolomite_supafly]

G -

Hopefully he won't show back up, but like unfortunately, like the proverbial bad penny...

I agree with about everybody, have a legal paper trail, 9-1-1 phone log, etc to protect yourself.

The positives are you have a beautiful home on a great piece of land. Your neighbors appreciate that fact that you are a responsible gun owner and keep an eye on things.

Don't move - I need a local AC expert near by!!!

We need to get back together some time and throw some more lead.

I might actaully have some targets the enxt time you show up. I have let everything go to hell since my accident, including my stand.

Dolomite

[analog_kidd]

Phantom's post got me thinking that maybe keep a can of Pepper Spray on hand for him, or even a baseball bat. It would be non-lethal but get your point across that he is not welcome. Of course that just may make him even madder and begin planning a retaliation of who knows what. You'll have to decide if it's worth the risk.

My personal $0.02 is that it would be a tough sell to a jury that you were in fear of your life for because he was going to rub fluid on you.

[Dolomite_supafly]

Hitting him with a baseball bat would get me in the same hot water as hitting him with a bullet if it wasn't justified. Aggravated assault or attempted murder is the same no matter the weapon. Him wiping fluids on people is aggravated assault because he knows he has Hepatitus C and is knowingly using it as a weapon. I would like to see him charged with attempted murder the next time he smears someone.

Deadly, disease infected fluids has the same risks and probably more after affects than being shot in most cases. Being infected with something would have life long affects on my quality of life as well as my immediate family's. Not to mention getting to die a miserable death because of someone else's actions. I see his fluids in the same way most people would see a bullet, once I got hit it could lead to my death. Maybe not as quick as a bullet but dead is dead.

As far as the pepper spray I guess it is one more thing I could add to what I already carry but I don't really want to go overboard either.

He was caught earlier this week smoking crack with some girl. I have to say he is one lucky guy because he was released at the scene. The car he has been using, my mother's, was towed because he was too intoxicated to drive as was the girl. She has it in her possession now and is in the process of getting all the damage repaired. She is also getting the interior cleaned of the possible pathogens, after all he does have oozing staph sores.

He hasn't been around our house or my mother or my father for at least 3 weeks now. Hopefully he has realized we will not help him until he wants to get cleaned up. I have offered dozens of times to pay for his residential treatment of my choosing but he is choosing his current lifestyle over that.

Dolomite

[Guest Old.Hickory.Shooter]

I'm no lawyer, but remember it is justified to present and use deadily force in the event of fearing imminent death or serious bodily injury. From what I read these are the circumstances I would feel justified in using a firearm in your situation:

1. Prior arrest with an AK after threatening to kill your family

2. Avid narcotic user

3. Prior "smearing" of Hep C on others

All 3 of these circumstances provide, IMO, justification if he presents a threatening situation to you or your family. Remember, that you have to present to LEO's that you had a reasonable fear of imminent death or SBI. If you do deploy deadly force and your brother is not armed be aware that the police will arrive to a scene and process immediately that you have shot an unarmed man. This is a nasty situation and you are on an uphill battle. Get the protection order and document as heavily as possible (text, pictures, video..anything) any incidents that arise.

That's just my thoughts from someone realitively new to the HCP world, but an old friend to firearms use and home defense.