This month’s Attorney Question comes from members who, reading the statistics on self defense, understand that often the verbal threat of use of deadly force backed up by gripping a holstered gun can convince an attacker to break off. This action is not without legal concerns, though, and this correctly worries members. Condensing several questions along this line of inquiry, we asked our Network Affiliated Attorneys for their thoughts on the following questions--

In many states, a person has committed the crime of assault when he or she verbalized a threat of force accompanied by threatening actions.

This can create a problem when an armed citizen only puts his or her hand on the grip of the holstered pistol and gives verbal commands to stop a threat without actually drawing the gun. If a citizen in your area does that, with what crime are they likely to be charged? If convicted, what is the likely punishment?

What should a Network member do to avoid facing charges after that kind of situation?

We received so many responses from Affiliated Attorneys that the following is only the first installment of multiple answers to these questions.

John R. Monroe
John Monroe Law, PC
156 Robert Jones Road, Dawsonville, GA 30534

The answer to this question actually underscores a big issue in my home state of GA. An assault in GA can be accomplished in one of two ways. The first is the common law definition of assault, which existed at the time of the Founding. A common law assault was an attempt to commit a battery. The stereotypical example was to swing one’s fist at another as if to punch him. (Once the fist connects with the other’s face, it becomes a battery. If the swing misses, it is only an assault). The second way of committing an assault in Georgia is to commit an act that places another in reasonable apprehension of immediately receiving a violent injury. This addition made a whole collection of actions an assault based, not on the intention of the “perpetrator,” but on the perception of the “victim.” In Georgia, an assault is a misdemeanor, punishable by a maximum of one year in jail and a $1,000 fine.

But with the question in the example, things get even dicier. An assault committed with a deadly weapon, such as a firearm, is an aggravated assault, a felony punishable by up to 20 years in prison. In the example, placing one’s hand on a firearm and giving verbal commands is, in many instances, going to place the other person in reasonable apprehension of immediately receiving a violent injury. Because it is done with a firearm, it is an aggravated assault. In practice, it makes little or no difference whether the gun is drawn or not, because the apprehension of the other person is not going to be much, if at all, different.

Of course, GA has a self-defense statute, so that a person is justified in threatening force reasonably necessary for the defense of self or others. So, a prosecution for aggravated assault can be defended on self-defense grounds if placing the hand on the gun and the verbal commands were reasonably necessary to defend the person (or another).

What a defendant can convince a jury was “reasonably necessary” is going to vary from county to county (and even from jury to jury). Under current law, therefore, I think the most prudent course of action is to refrain from displaying, touching, or otherwise drawing attention to the fact that one is armed during a confrontation, unless using the firearm has become necessary. If one is openly carrying (which is perfectly legal with a weapons carry license), nothing more should be done to display it (such as touching it, mentioning it, or turning one’s body to make the gun more prominent or visible). If one is carrying concealed (also legal with a weapons carry license), the gun should not be mentioned, touched, or purposefully unconcealed.

The foregoing is especially true in public, when the parties are on equal footing. I would be more comfortable with my client overtly introducing the gun into the equation if the confrontation were on my client’s own turf (his home or car).

John Chapman
Kelly & Chapman
PO Box 168, Portland, ME 04101
This email address is being protected from spambots. You need JavaScript enabled to view it.

In ME, threats of bodily injury are potentially criminal, unless justified. However, the threatened use of deadly force is the “equivalent of non-deadly force.” Neighboring NH is similar. Thus, while you cannot shoot a person to stop a simple theft, you “might” be able to threaten to shoot them. It depends if a jury or prosecutor decides that threat is a “reasonable” level of non-deadly force (or rather, that the state hasn’t disproved that you reasonably believed that level was necessary).

Given the greater number of instances where non-deadly force is justified, training to properly threaten is important. Since there are “degrees” of non-deadly force, one can easily conceptualize different levels of threat, from stating that you are armed, all the way to pointing a loaded firearm at a person (which our Law Court has said is, if unjustified, enough to justify a conviction for reckless conduct with a firearm).

Crimes committed with the use of a dangerous weapon against a person have enhanced sentencing and, if it is a firearm, mandatory minimum one-year sentence. Otherwise, garden variety criminal threatening and terrorizing, absent aggravating circumstances, are punishable by a maximum of six months in jail.

Paul E. Bucher
Bucher Law Group, LLC3
55 Austin Circle, Ste. 110, Delafield, WI 53018

In WI, there is no crime of assault. However, Disorderly Conduct or Harassment or another low-level offense could come into play. It’s very risky to place your hand on the gun and verbalize; that invites an escalation. I recognize that in some situations there is no choice. Recording the encounter or having someone else do it would be helpful as would be calling the police immediately and informing them clearly of what has occurred.

I’ve dealt with these cases and almost always the other person will claim you pointed the firearm at them. That could bring more serious charges. Your call to 911 is recorded and that is why it’s important to be specific and calm. Next step, call a lawyer on the Network. Getting contact information of witnesses, even license plates will help. Be careful in these situations and avoid them by walking away if possible, even if you don’t feel you have to. Best to deal with it another day.

John I. Harris III
501 Union Street, 7th Floor
PO Box 190676, Nashville, TN 37219
615-244 6670

In TN, an “assault” occurs when an individual “intentionally or knowingly causes another to reasonably fear imminent bodily injury.” In general, an assault is a Class A misdemeanor which can result in fines and incarceration of up to 11 months and 29 days. However, if the individual engages in an assault which involves the “use or display of a deadly weapon” then the potential criminal charge elevates to an “aggravated assault.” An aggravated assault is a Class C felony which carries a sentence range of 3-15 years and a fine of up to $10,000.

Under TN law, the concept of “self defense” is classified as a justification or defense to a criminal charge. Essentially, if the state can establish the elements of the crime, the criminal act may be excused by the jury and the defendant found “not guilty” if the defendant’s conduct falls within the range of excusable or justifiable action. Under current TN law, deadly force may be used, with some exceptions, in instances where there is an “an imminent danger of death or serious bodily injury” that is founded on reasonable grounds and for which the threat of death or serious injury is real. If all of the statutory elements of self defense are established, the defendant may be found not guilty of the assault or aggravated assault.

It is important to note, however, that under TN law deadly force, which includes the facts giving rise to a potential aggravated assault involving the use or brandishment of a weapon, may not be used to stop a property crime, to stop a trespass or in numerous other instances that do not involve an imminent threat of death or serious bodily injury to the individual or certain third parties. Thus, if someone makes a demand to leave their yard or to stop breaking into their car and in so doing uses or displays a firearm, what might have been a justified use of force without involvement of the deadly weapon becomes an unjustified use of deadly force.

Setting aside the academic issues of whether the conduct of giving a warning and placing your hand on a holstered gun is a crime and whether there is a defense to such crime, the practical problem in TN is that these issues are not required to even be considered by law enforcement or district attorneys before criminal charges are brought. Instead, law enforcement can bring the criminal charges and the issue of self-defense or legal justification is often left for the jury.

The practical problem for the gun owner who thought that they were avoiding a criminal act is that they will potentially face the full burdens of criminal prosecution, trial and potentially an appeal which can involve significant legal defense costs and fees even if they are ultimately found innocent of the charges. Under TN law, the wrongfully accused and those found not guilty at trial are not entitled to have the state reimburse them their bond, attorneys fees or other defense costs.

Steven M. Harris
Attorney at Law
14260 W Newberry Rd. #320, Newberry, FL 32669
This email address is being protected from spambots. You need JavaScript enabled to view it.

The question presented: Is it lawful to display a holstered handgun (with hand on it), together with the issuance of a verbal command to desist, in response to an assault? FL law is a bit muddled. As a consequence of statutory amendment (which some believe was a failed attempt to address gun-pointing and/or warning shots), the justified use of force statutes are not entirely harmonious with longstanding case law.

Under FL case law, firearm display, including gun-pointing, is non-deadly force as a matter of law. Non-deadly force is justifiably used or threatened when a person reasonably believes that such is necessary to defend himself or herself or another against the imminent use of unlawful force, which includes an assault. Display of a handgun with some verbal suggestion of intended use might be considered the threatening of deadly force under the current Chapter 776 statutes. The statutes on deadly force provide that the use of deadly force may be threatened only when a person reasonably believes that threatening to use such force is necessary to prevent imminent death or great bodily harm to himself or herself or another, or to prevent the imminent commission of a forcible felony. “Simple” assault is not a forcible felony. The foregoing addresses the defense of justification against a likely charge of aggravated assault (third degree felony, incarceration up to five years), or the lesser misdemeanor charge of “simple” assault (incarceration up to 60 days). Time in prison is very likely on conviction of the felony.

The other side of the FL prosecutor’s coin where someone has displayed a firearm is this: In FL, it is a misdemeanor (incarceration up to one year) to exhibit a handgun in a rude, careless, angry, or threatening manner, “not in necessary self-defense.” “Improper exhibition” may be charged alone or come into play as a lesser included to a charge of aggravated assault.

Whether the act described is considered the use of non-deadly force or the threatening of deadly force also affects the duty to retreat. When threatening or using deadly force, in order not to have a duty to retreat (more properly described an attempt to retreat), a person must not be engaged in a criminal activity and must be in a place where he or she has a right to be. Those predicates are not required for the use of or threatening the use of non-deadly force.

Based on the above principles, I observe that cautious, knowledgeable FL attorneys and firearms instructors advise that one should only threaten deadly force when the actual use of deadly force would be lawful, notwithstanding that the state legislature may have intended something else.

A big “Thank You!” to our affiliated attorneys for their comments. Please return next month for more commentaries from our affiliated attorneys on this interesting question.

To read more of this month's journal, please click here.