Advanced Senior Member
Join Date: Oct 2007
Location: Northern piedmont of Va. and Middle of Nowhere, West Virginia
Re: When to use your weapon...
Let me point out that I am an attorney only in Virginia, and I don't know spit about the law where you live. Get a local attorney to explain this one.
But as to Virginia, making any reference to a firearm in connection with an intent to make someone else do or not do anything is called "brandishing a firearm". Brandishing doesn't require that the gun be pulled out, the essence of the crime is the connection between the weapon and the intent to coerce or intimidate.
So that person who showed off his gun a couple of times to dissuade someone else from causing trouble could have spent a couple of years in the county jail if that had happened in Virginia.
Police are required to coerce and intimidate as part of their job function. They have to execute search warrants on unwilling "hosts", and have to prevent dangerous felons from escaping after apprehension. Unless you're a cop, you don't have to do that. Not your job, and pretty risky from a legal perspective.
There are two situations in which the use of deadly force is excusable. And in each case, for the average person, it's a binary choice: pull the gun and shoot to kill or leave the gun alone. If the situation does not require that you kill someone, leave the gun alone, don't think about it, don't make any gesture or reference toward it, and do not touch it (especially in the presence of a police officer).
The two situations in which the use of deadly force is excusable are called, "self-defense/defense of others", and "stopping a serious felony". The "serious" felonies are those that involve an inherent risk of serious bodily injury to people: rape, robbery, murder, burglary, and arson. That's the whole list, don't be making up new "serious felonies". You might be right, but that list is the traditional formulation. The reason you can shoot an intruder in your house in the night time is because he's committing burglary. During daylight hours, he's a trespasser. Most states do not authorize the use of deadly force to protect "mere property", and trespass is an offense involving property. The common law definition of "burglary" includes the phrase, "during the night-time."; that's because people aren't out in the fields at night, they're in their beds, sleeping and defenseless. Thus a burglar is presumed to be willing to kill the occupants of the house. A trespasser is not presumed to be willing to kill (though you can defend yourself if the trespasser turns into an assailant).
Here's the traditional definition of the self defense doctrine; print it off and memorize it, after having checked with a local attorney to make sure it's correct where you live: "If you reasonably believe, based on an objective body of fact, that you or an innocent third party is faced with an imminent threat of serious bodily injury, then you may use that force which is reasonably necessary, including the use of deadly force, to stop the attack." You have to be "reasonable"; there has to be "objective" fact giving rise to your reasonable belief; the threat must be "imminent" - not five minutes from now, not five minutes ago, right now; and it has to involve "serious bodily injury". You don't have to be right in your belief, just reasonable. The fact has to be the sort that anyone observing would have seen the same thing you did. The threat has to be immediate. Any third party you are protecting has to be "innocent" with respect to the attack - you can't protect a thief or someone who started the fight with deadly force (including yourself).
If you're in that situation, pull out your gun and shoot to kill - but keep in mind that it is possible to be wrong and that you can change your mind and put the gun back without shooting. You do not have the luxury of quelling threats that have not materialized by pulling your gun out or even showing it off. But when the threat does materialize, don't hesitate. It's an either-or kind of thing.
When you're in court defending yourself on a charge arising out of your use of a gun, you want to be able to prove each and every aspect of that definition to the satisfaction of every person on the jury. The fact that you shot, and perhaps killed someone is going to be obvious to everyone there, so don't dance around that issue. Be straightforward and tell them exactly what happened and why it was absolutely necessary for you to pull that trigger. You want to live in such a way that you can face that jury and say, "They're absolutely right, I shot that guy, and I'd do it again under the same circumstances, and any sensible person would have done the same thing I did, and here's why..."
Things like your use of lightened trigger pull, an action job, enhanced sights and lasers, and hollow point bullets are only a threat if you're worried about someone saying that you were willing to kill and you meant to kill. When that happens, you want to be able to say, "Yeah, so? I carry a gun specifically for that purpose, you're absolutely right that I'm willing to kill someone who tries to kill me and my family. That's why I'm ready to defend myself. I carry the gun specifically for the purpose of shooting the bad guy, and hopefully killing him, before he can do serious bodily injury to me or another innocent third party." Willingness to kill should not be an issue. The fact that you shot someone is going to be the eight-hundred pound gorilla in the room - that's going to have to be a "so what?" kind of thing.
So the lesson is, don't touch it, don't make reference to it, don't show it off, and above all, don't pull it out, unless and until you really need to kill someone. And when that happens, don't try to intimidate someone like they do on the movies, having the gun does not make you the boss, it doesn't make the bad guy run away, and it doesn't make him lie still. It makes him drop for cover, pull out his own gun and start shooting in your direction. You can always change your mind before pulling the trigger, but the willingness to kill has to be there. Otherwise, carrying the gun only makes you into a nice target.
Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com
By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.
Last edited by user; 02-24-2010 at 09:17 AM..