This month’s Attorney Question continues a discussion started in last month’s edition of this journal, discussing the legal implications of gripping a holstered handgun while issuing verbal commands to stop an assault. If you missed the first set of attorney responses, we encourage you to read them at https://armedcitizensnetwork.org/august-2019-attorney-question as they are instructive. Here is the question we asked our Affiliated Attorneys:
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 the second installment of multiple answers to these questions.
Jim B. Fleming
Fleming Law Offices, P.A.
P.O. Box 1569, Monticello, MN 55362
Trying to guess what a prosecutor is going to do, or is likely to do, in a given set of circumstances is an exercise in futility. As an example, I’ve had clients charged with felony discharge of a firearm, in an accidental discharge situation. So, an assault charge is certainly possible, and with a very aggressive prosecutor it might be charged as an aggravated assault where an element of the charge is the use of a weapon. Touching the gun would be considered a “use” of a weapon. Whether in that given set of circumstances the prosecutor can gain a conviction on such a charge is a completely different issue, deserving discussion at another time.
Self defense is an “affirmative defense.” That means that in using it, the defendant is stating, “Yes, I did take that action, but I was justified in doing so, because I did so in self defense.” The burden of proof varies somewhat between stand your ground and castle doctrine jurisdictions, but the accused is, in almost all states, going to have to provide some level of proof that he/she was facing a legitimate need for self-defense situation.
So, the best advice is to keep the hand completely off the gun unless the actor reasonably feels that their life and/or limb is in jeopardy, and they can articulate, at the proper time, why that was so. Prosecutors are going to do what prosecutors are going to do. All the law-abiding citizen can do is to understand the nuances of the law well enough to make good decisions quickly, and not engage in endless “yahbuts” about what “could have happened.”
S. Magnus Eriksson
14362 N. Frank Lloyd Wright Blvd., Ste. 1000, Scottsdale, AZ 85260
Here in Arizona, Arizona Revised Statute 13-421 actually protects “Defensive Display of a Firearm,” including putting the hand on the gun and verbally informing “the perpetrator” that you are armed, so long as it is otherwise reasonable to do so. I would treat it the same way I would treat pointing the gun or shooting at someone.
Call 911, stay at the location or as close to as is tactically safe. Then summon your lawyer, tell responding officers that you fully intend to cooperate with the investigation after talking to your attorney. Tell the responding officers you will do a walk-through of the scene as soon as your lawyer is present. Be prepared to describe clearly why you HAD to do what you did. Explain why you were at the location, to show that you were there engaging in lawful activity. Explain the perp’s behavior and how and why you interpreted that as making it necessary to put your hand on the gun and issue a warning.
If the responding Law Enforcement Officers, or a prosecutor reviewing the case don’t believe you, you could be charged with, at a minimum, misdemeanor “Threatening and Intimidating,” with a max sentence of six months in jail. Or in the worst-case scenario you could be charged with Aggravated Assault with a Deadly Weapon, with a prison range of five to 15 years. Be aware that you can be one third-party witness (who didn’t see what precipitated your action) statement away from possibly being charged with a crime you didn’t commit. It happens frequently that a witness is not drawn to look at what is happening in an altercation until the person acting in self defense makes a move and the witness therefore in good faith believes that the justified person is the perpetrator. Of course, this is always a risk in every case involving self defense.
I appreciate the legislature’s attempt to make lawful self defense display of guns legitimate with this statute, and I can see situations where it would be sufficient to resolve a situation without drawing and firing the gun. However, I would advise to be very cautious with any “Defensive Display” of any kind because you can expose yourself to criminal charges if you are unlucky. Of course, we must always balance that risk against the risk of losing a fight and ending up dead or maimed for life because we were too cautious. And be prepared to draw the gun if the “display” does not stop the aggressor, and to fire if necessary. Also be prepared to de-escalate if the “display” makes the aggressor back off. So, there are several potential pitfalls with “Defensive Display of a Firearm” even in a state which specifically makes it legal.
Stay relaxed but alert, know the law, and if need be act swiftly and decisively.
LV Criminal Defense
400 S 7th Street # 401, Las Vegas, NV 89101-6914
Background: 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.
Question 1: If a citizen in your area puts their hand on the grip of the holstered pistol and gives verbal commands to stop a threat without actually drawing the gun, with what crime are they likely to be charged?
Answer: This is an important question since gun owners in Nevada are at risk of being wrongfully charged with a felony offense if they are involved in an incident where a firearm was readily accessible. In the specific hypothetical scenario described in the question, there is a chance that a gun owner could be charged with committing “assault with a deadly weapon.” According to Nevada Revised Statute § 200.471(2)(b), an assault with a deadly weapon occurs when a person is placed in reasonable fear of immediate bodily harm due to the use of a gun, knife, or other lethal object. This statutory provision is a sub-part of § 200.471, which defines assault generally as someone deliberately making another person feel as though they are about to be physically harmed. The specific statutory language defines assault as (i) unlawfully attempting to use physical force against another person or (ii) intentionally placing another person in reasonable apprehension of immediate bodily harm.
Question 2: If convicted, what is the likely punishment?
Answer: If a gun owner is convicted of committing assault with a deadly weapon, they will have a category B felony offense on their permanent record. This felony crime is punishable by having to serve between one and six years in a Nevada State Prison, along with having to pay a fine of up to $5,000.
If you are convicted of a lesser offense, such as basic assault, you will have a misdemeanor offense on your record, which is punishable by having to serve up to six months in jail and pay a fine of up to $1,000.
Question 3: What should a Network member do to avoid facing charges after that kind of situation?
Answer: Contact an attorney who is experienced in defending gun owners against these types of charges. There is an array of different defenses that could be presented in an effort to have the charges reduced or dropped entirely. For example, if a Network member is charged with committing an alleged assault with a deadly weapon, they can raise the following defenses:
The Network member had no criminal intent (i.e. they had no intention of actually harming an individual);
The Network member did not cause another person to have a reasonable apprehension of being harmed;
The Network member was in compliance with Nevada self-defense laws (e.g., Nevada is a “stand your ground” state, meaning there is no legal obligation to try and retreat if you have a reasonable belief that the aggressor poses an immediate threat to you or another person, and you inflict no more force than necessary to resist the aggressor’s threat); and/or no deadly weapon was actually involved.
James E. Leuenberger
James E. Leuenberger P.C.
5200 SW Meadows Rd Ste 150, Lake Oswego OR 97035-1684
In Oregon, menacing is a crime that is commonly alleged under the circumstances described.
2017 ORS 163.190¹
(1) A person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.
(2) Menacing is a Class A misdemeanor. [1971 c.743 §95]
Menacing is misdemeanor with a maximum sentence of 364 days and a fine of $6,250.
Matters can turn south if the state charges the defendant with a felony and then adds “with a firearm” to the indictment.
To reduce the likelihood of being charged with a crime, the person should not take any steps which can be construed as being the initial aggressor.
John William Boelke
Boelke Law, PA
3495 Maebert Rd., Mims, FL 32754-4946
In FL, any overt act (such as uncovering a concealed weapon) can be deemed a threatening gesture and a crime unless it is done with the intent of defusing a volatile and potentially dangerous situation.
As an example, if, during an argument you show to the other party you have a weapon that can be considered assault and if the weapon is removed from the cover it is the crime of brandishing. The exception is if the motion coincides with an act that can be considered conciliatory like backing away from the encounter and using words like, “I don’t want to fight.” Then you may have a case for defusing.
Brandishing is a common charge when it is done solely to intimidate or as a threatening gesture, members can be well advised to only do it when, in Florida, they have an actual fear for the safety of themselves or another and seek to calm a situation. Until their fear is genuinely of great bodily harm or death it is best to neither reveal nor draw a weapon.
A big “Thank You!” to our affiliated attorneys for their comments. Please return next month for the final commentaries from our affiliated attorneys on this topic.
To read more of this month's journal, please click here.