January 2012 - Attorney Pg 13
The Regan Law Firm, L.L.C.
1821 Wyandotte St., Suite 200, Kansas City, MO 64108
I was asked to comment about whether the common law defenses of self defense or defense of others applies to situations where one exhibits or brandishes a firearm at someone, but does not actually fire the firearm. The answer generally is yes, but BEWARE AND BE CAREFUL MY FRIENDS, BEWARE AND BE CAREFUL!
The granting of a concealed carry permit confers a grave responsibility on the citizens who choose to carry. Licensees and permit holders are now permitted to carry deadly weapons in their daily lives in the community. The government, whether you like it or not, sees the granting of this authority as a privilege and not a right, and can revoke it for certain statutory reasons.
One of the most foolish things a permit holder can do is brandish or exhibit their weapon when it is not legally necessary or permissible to do so. I have seen this happen in many instances of road rage, domestic disturbances and confrontations when the permit holder lost his/her temper.
I was at a shooting range recently and observed a woman who was a very good shot. She was able to place rounds accurately down range at different distances with great precision. She also had great gun handling skills and was obviously very well-trained.
I overheard her telling her shooting companion how someone had stolen her purse from her car while she was getting out of it at a local shopping mall. Her friend asked the obvious question, “Well, did you shoot him?” Having heard the story, there was no doubt in my mind that this woman could have shot and seriously wounded or killed the thief at this close range in broad daylight. However, her quietly confident reply was, “No, I didn’t. I was not going to kill someone over a purse. I was in no fear of imminent danger, as the thief was unarmed.”
In general, the law of Kansas and Missouri allows a citizen to use deadly force only when he/she reasonable believes he/she is in imminent danger of death or serious bodily harm. This protection also extends to defense of third persons, as well, such as friends, family or other loved ones. There are other extensions of this legal defense when one is protecting one’s home, as we discussed in earlier columns on the Castle Doctrine.
The self-defense protections provided by law extend not only to the use of deadly force, but also the threat of the use of deadly force. Threat of the use of deadly force would occur when a citizen points his/her firearm at an assailant in an effort to discourage an assault, battery, robbery, sexual assault, etc. As a general matter, a weapon may only be pointed at someone when the licensee or permit holder has a reasonable fear and belief that he/she is in great imminent danger of death or bodily harm.
You need to account for your weapon and its ammunition. If using a rifle, what about over-penetration and innocent people being hit across the street? If using a shotgun, will pellets hit someone behind your threat? Can you really hit that guy at ten (10) yards in the dark? You are morally and legally responsible for every round you discharge from your gun.
These cases are decided on a case by case basis, one at a time, based on the facts available to the police and prosecutors who review these facts. There is no across the board answer to the question that would apply in all instances.
As a general rule, one should not display a weapon unless he/she is encountering a genuine and imminent threat. Waving a weapon around indiscriminately could result in the individual being charged with brandishing or exhibiting a weapon or felonious assault.
You should know that any time you pull out and point your weapon at someone, which is called exhibiting or brandishing, several things are almost certain to happen:
1. Someone is going to call the police about this.