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AFFILIATED ATTORNEY QUESTION OF THE MONTH

gavelWith help from Network Affiliated Attorneys, this column keeps our members in touch with our attorneys and demystifys the legal system for readers.

The current question stems from concern expressed by concealed carry licensees that they don’t know at which point they are allowed to draw and point a firearm at an assailant as one of their tactics to escape imminent attack. In a lot of states, displaying a firearm is termed “brandishing” and is a crime, so they aren’t sure how their claim of “self defense” is invoked to avoid being found guilty of brandishing.

We asked our affiliated attorneys: “Can you explain your state laws on displaying a weapon to stop an attacker? When does the law allow pointing a gun at an assailant during self defense?” Their answers were so comprehensive that this column is a continuation of answers received and owing to the volume of responses, we will continue covering this question next month, as well.

M. REED MARTZ
Freeland Shull, PLLC
405 Galleria Lane, Ste C, P O Box 2249, Oxford, MS 38655-2249 – Ph. 662-234-1711
http://www.freelandshull.com/
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In Mississippi, our Code (§ 97-37-19) prohibits the exhibition of a deadly weapon in the presence of three or more persons “in a rude, angry, or threatening manner, not in necessary self-defense.” Additionally it is illegal to “unlawfully use the same in any fight or quarrel.”

Violation of the statute is a misdemeanor. As noted in the statute itself, the display of a weapon for the purposes of self defense is not a crime. The display of the weapon must be reasonable, meaning that the defender’s actions come in response to the attacker satisfying all three elements of the AOJ (ability, opportunity, jeopardy) triad. The defender’s action must also be measured, in appropriate response to the threat presented.

For example, when threatened with less than grave bodily harm (say, an evenly matched fist fight) one cannot respond with deadly force or even the exhibition of deadly force. Displaying a gun in this situation would not be “necessary self-defense.” If, however, the threat is deadly or presents grave bodily harm, displaying a firearm to prevent further attack would be justified and legal.

JAMES B. FLEMING
Fleming Law Offices, P.A.
P O Box 1569, Monticello, MN 55362
(763) 360-7234
http://www.jimflemingattorney.com
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You managed to find a very complicated topic this month. It is complicated by variations in the law from state to state, and variations of interpretation within each state as well. As you note, this often falls under the discussion heading of “brandishing,” as in, “Is it okay to brandish, or isn’t it, in order to discourage a potential attacker?”

The answer depends, as most of these questions do, upon where you live, and, as always, the circumstances of the situation in which the question arises. In each case, you have to start, or should, with the question of what is brandishing?

In Minnesota, there is no brandishing statute, by name, as you might find in other states, such as Virginia:
Virginia Code 18.2-282. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense.

Or, California, which prohibits brandishing a firearm in “a rude, angry, or threatening manner,” Cal. Penal Code § 417(a)(2), or Missouri, which makes it illegal to display a weapon “in an angry or threatening manner” Mo. Ann. Stat. § 571.030(1)(4).
 

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