The question we are currently asking our Network Affiliated Attorneys arose when a member wanted more information from state law to determine if pointing a firearm without shooting is considered use of deadly force in the various states. Wanting more than just a “yes” or “no” response, we asked our Affiliated Attorneys the following—
What is the law in your state regarding defensive display of a firearm?
If the gun is not fired, is simply pointing it at an assailant considered deadly force in your state?
What are common charges stemming from pointing a gun at another and what are the defenses for the armed citizen who does so to ward off imminent attack?
It was a rather complex question, so responses tend to be a bit longer than usual. Last month we presented the first half of the attorneys’ commentaries, and will wrap up the second half of the responses in this journal.
Mitch Vilos
Attorney at Law
P.O. Box 1148, Centerville, UT 84014
801-560-7117
http://www.firearmslaw.com/index-attorney.html
In Utah, a person may use a firearm if it’s otherwise justifiable applying the concepts of imminent, reasonable and necessary or to stop the commission of a forcible felony. If it is not reasonable and necessary, displaying the gun in a threatening manner is considered a Class A misdemeanor “Threatening with a deadly weapon” or, if the gun is pointed at any part of a person’s body, and the threat is not justifiable, it’s considered an aggravated assault, a third degree felony.
Although the question of whether the threat of deadly force is considered the use of deadly force has not been decided by the Utah appellate courts, the Model Penal Code, section 3.11 makes it clear that the threat of deadly force does not involve the use of deadly force. However, no one should be anxious to be the test case on this issue.
Ralph D. Long, Sr.
Attorney at Law
120 County Road 230, Florence, AL 35633
256-335-1060
Simply pointing a firearm at someone in Alabama is not normally considered deadly force unless one is doing it as part of a criminal act. There are misdemeanor charges for menacing and harassment where a weapon is waved around or pointed in a threatening manner without justification. However, self defense is a defense to such a charge in situations where the gun owner is legitimately afraid of death or serious bodily injury due to the aggressive or threatening actions of others. Having a gun in your hand while investigating what appears to be someone breaking into your car would not be considered deadly force.
Eric W. Schaffer
Schaffer, Black & Flores PC
129 W. Patrick St., Ste. 5, Frederick, MD 21701
301-682-5060
www.MDGunLawyers.com
www.SBF-pc.com
Unlike some other states Maryland does not have a brandishing type statute. What Maryland does have is the crime of First Degree Assault. There are several different types of First Degree Assault but the crime as it pertains to the question presented would be defined as “using a firearm to intentionally frighten another person with the threat of immediate physical harm.”
The good news is that the display must be intentional; an accidental slip of a cover garment would not trigger the statute. However pulling a jacket up to show you are carrying a pistol could be considered an intentional frightening. The bad news is that the charge of First Degree Assault is one of the most serious crimes on the books in Maryland and is a felony that carries a potential maximum penalty of up to 25 years in prison. Since there is no lesser charge it is often the only charge a prosecutor has at her disposal and is frequently lodged against a person in this situation.
There are some defenses to First Degree Assault. As you can see from the definition above the display must be coupled with the threat of immediate physical harm. This can give rise to a potential defense when there is a conditional threat, for example: “If you don’t get back, I’ll shoot.” Additionally Maryland recognizes self defense as a complete defense to all assaultive crimes, so if all the elements of self defense are present it is an absolute defense to the crime of First Degree Assault. Maryland does not consider the mere display of a firearm to be deadly force. To rise to that level it must be discharged. So you would only need the elements of non-deadly self defense to be present to mount a successful defense.
Jon H. Gutmacher, Esq.
Attorney at Law
1861 S. Patrick Dr., Box 194, Indian Harbour Beach, FL 32937
407-279-1029
http://www.floridafirearmslaw.com/
In Florida the simple reply is that pointing a firearm at another is normally aggravated assault with a firearm carrying a mandatory prison sentence unless there was a reasonable belief of imminent death or great bodily harm, or the imminent commission of a forcible felony. It is not recommended except in the most dire of circumstances.
Bruce Finlay
Attorney at Law
P.O. Box 3, Shelton, WA 98584
360-432-1778
http://www.brucefinlayattorney.com
Pointing a gun at another person in Washington State could result in a class B felony charge of assault in the second degree with a deadly weapon. That crime occurs when a person assaults another with a deadly weapon. Assault is not defined by statute in Washington; this state uses the common law definition, which for these purposes is as follows: “An assault is an attempt, with unlawful force, to inflict bodily injuries on another, accompanied with the apparent present ability to give effect to the attempt if not prevented. Such would be the raising of the hand in anger, with an apparent purpose to strike, and sufficiently near to enable the purpose to be carried into effect; the pointing of a loaded pistol at one who is in its range; the pointing of a pistol not loaded at one who is not aware of that fact and making an apparent attempt to shoot; shaking a whip or the fist in a man’s face in anger; riding or running after him in [a] threatening and hostile manner with a club or other weapon; and the like.” That charge carries a maximum sentence of 10 years in prison and a fine of $20,000.
It could also be charged as unlawful display of a weapon or unlawful carrying or handling, a gross misdemeanor carrying a maximum sentence of 364 days in the county jail and a $5,000 fine. That statute makes it unlawful for any person to carry, exhibit, display, or draw any firearm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons. So, you can see that one is pretty broad. There is a published case in this state that upheld a conviction for this when a man was walking down a residential street carrying a firearm over his shoulder. He was doing nothing in the way of pointing it or making any threats. And Washington is an open carry state.
It could also be charged as aiming or discharging a firearm, another gross misdemeanor. Aiming or discharging a firearm occurs when a person aims a firearm, whether loaded or not, toward another human being.
There may also be a number of other offenses that could be charged depending on the circumstances of the case; these are the ones that seem to most closely fit the hypothetical.
On the other hand, it is legal to defend yourself, your loved ones or others using reasonable force, which is a whole other area of definitions and can generally be stated as a person can use the same force being used against him or her if it is necessary to do so and a reasonable person under the circumstances known to the defendant would believe it was necessary. Or, a person can use deadly force, which a firearm certainly is, when it reasonably appears immediately necessary to avoid imminent danger of death or serious bodily injury. But this area is complicated and a person should study it well. There is older case law in this state that says that it is not lawful to bring a gun to a fistfight; that presumes that the size/ability disparity is not in and of itself a deadly threat.
Self defense or defense of others is a defense; that is, the State can still bring charges and then you have to defend against them. Self defense does not prevent charges from being filed. Every gun owner should educate him or herself before having to use a firearm in self-defense. The Armed Citizens’ Legal Defense Network has extensive materials available for this purpose and I think that Massad Ayoob’s new book, Deadly Force: Understanding Your Right to Self Defense is excellent; I can’t imagine how anyone would write a better book on the subject.
Richard H. Seaton, Jr.
Seaton, Seaton & Dierks, LLP
410 Humboldt, Manhattan, KS 66505
785-776-4788
http://www.seatonlawoffices.com
What is the law in your state regarding defensive display of a firearm?
21-5221. Use of force; definitions. (a) (1) “Use of force” means any or all of the following directed at or upon another person or thing: (A) Words or actions that reasonably convey the threat of force, including threats to cause death or great bodily harm to a person; (B) the presentation or display of the means of force; or (C) the application of physical force, including by a weapon or through the actions of another.
(2) “Use of deadly force” means the application of any physical force described in paragraph (1) which is likely to cause death or great bodily harm to a person. Any threat to cause death or great bodily harm, including, but not limited to, by the display or production of a weapon, shall not constitute use of deadly force, so long as the actor’s purpose is limited to creating an apprehension that the actor will, if necessary, use deadly force in defense of such actor or another or to affect a lawful arrest.
If the gun is not fired, is simply pointing it at an assailant considered deadly force in your state?
No, if the action is in defense of self in an otherwise appropriate situation. Kansas requires the “Imminent fear of death or great bodily harm” in order to justify use of deadly force.
What are common charges stemming from pointing a gun at another and what are the defenses for the armed citizen who does so to ward off imminent attack?
If the firearm presentation is in defense of self as described above, no charges are likely. If it is not, then Aggravated Assault is the likely outcome.
J. Jeffries Goodwin, Esq.
Goodwin Law Corporation
101 Parkshore Dr., Ste. 100, Folsom, CA 95630
916-932-2345
http://goodwinlawcorp.com
I just tried to a jury in Sacramento, California this very issue. The client was charged with assault with a deadly weapon, or in the alternative, brandishing. The foreman of the jury was a retired detective. My expert witness said my client was justified in pulling his legal revolver and saying, “This argument is over!” I talked to the jury that convicted him and they said the reason they did convict him was because he did not immediately call the sheriff’s office.
I am an NRA instructor and I now tell my students to carry a set of handcuffs whenever they carry a handgun because if you are justified in pulling your handgun, you are justified in making a citizen’s arrest. I also recommend that the students get professional training in handcuffing.
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A big “Thank you!” to each Network affiliated attorney who responded to this question. Please return next month for an entirely new topic of discussion.
Click here to return to April 2015 Journal to read more.