Draw versus Draw and Fire

[ptoemmes]

I do not think this has been discussed at least recently and not in the context of the recent Time Magazine (down boyz and girls).

Mods - kill this is you feel the need.

Now that article was written as a result of Zimmerman-Martin, but it's not really about that nor do I want it to be.

Full article here, but you have to be a subscriber: http://www.time.com/time/magazine/article/0,9171,2110471,00.html

I live in Florida and did not fully understand the implications of this - the money excerpt to me:
"
...
One of the stranger elements in the legal landscape of such cases is that Florida law offers a strong incentive to shoot your gun once it's drawn. Even though "Stand your ground" excuses shootings with the barest of evidence, Florida punishes the crime of simply pointing a gun at someone with a mandatory minimum of three years in prison. In other words, you can point a gun and go to prison - or you can fire the gun and go free under "Stand your ground."
...
"

Now...those are the authors' words not mine and they, to me, are quite biased. Putting that aside, I think I understand the intent versus application, but that and a high priced lawyer might keep one out of jail for simply - and justifiably IMHO - drawing down and not firing in a scenario.

What say you?

Pete

[muggsy]

I'm sure that stand your ground will stand it's ground. If my gun clears its holster it's going to be fired. I never pull a gun that I don't intend to use.

[OldLincoln]

I'm not sure I agree with you muggsy. If approached by a mugger with a knife and as I draw my gun he puts his hands up and starts backing away, I don't believe I would shoot him as the threat level has dropped and he cannot really attack while backing away.

If a security camera video showed his hands in the air and backing away then I shot and killed him, I cannot see it being a favorable result with the DA. You have to assume everything is on video and act accordingly.

[chrish]

It's a very tough question to answer due to the goofy laws we live under. My hope is that my body language alone will alert any BG to my intentions without spelling it out or actually drawing. I will rotate weak side toward the attacker, move my hand into position to draw, tell them not to come any closer or I will defend myself, and then act from there if necessary. A, perfect world.

But I agree with Lincoln on this one. Draw does not always have to end in shoot. I am not suggesting using your firearm as a deterrent but if the attacker turns tail, you better not shoot them all because you have drawn. Reholster, call 911, and be honest. I will use the same language that I would have used had I needed to shoot. I was in imminent fear of my life and I drew my weapon to stop the attack. Anything further I want my lawyer to answer.

[JFootin]

IMO, if you draw on a mugger - someone who is obviously coming at you with malicious intent, and he decides to back off and flee, put your gun back in your holster and get out of there. Why call the police if no one has been attacked or shot? This is just my opinion, but people living in New York City, Chicago and other large cities have been carrying small concealed handguns for generations to protect themselves from muggers. And despite the ban on handguns in some of those cities, I'm sure that a lot of people still do so. Often just a little 25. And all of them will say that flashing the gun was all that was needed to prevent a mugging. No bullets were fired. No police were called. Citizen and mugger lived to see another day.

[chrish]

Jfootin, definitely a good question. I guess I'd have to roll the dice on that one. On the one hand, I can see your point. On the other, if the BG or a bystander choose to call the cops on me...either out of stupidity/do-gooder on the part of a bystander or opportunistic on the part of the BG (lawsuit), then I want to be on record as the person who was the true victim. Otherwise, I would agree...just not sure I trust the rest of the world to see it my way should it come up for some reason at a later time/date.

I guess I see the unlikely and pure evil in every situation. Wish I didn't. But with my luck, I'd draw, they'd run...then get my plates as I drove off and call the cops saying I threatened them and they were just askin' me for a buck for some beer. Yea, maybe they'd get a slap on the wrist for panhandling, which is illegal where I live, but then again, I might get slapped w/ a brandishing charge. Yea, I'm an upstanding citizen and maybe it wouldn't go down this way...but not willing to chance it.

[muggsy]

I'm not sure I agree with you muggsy. If approached by a mugger with a knife and as I draw my gun he puts his hands up and starts backing away, I don't believe I would shoot him as the threat level has dropped and he cannot really attack while backing away.

If a security camera video showed his hands in the air and backing away then I shot and killed him, I cannot see it being a favorable result with the DA. You have to assume everything is on video and act accordingly.

If I draw and fire my attacker won't have the time to put his hands in the air and retreat. Anyone who demonstrates the he is willing to take my life or cause me grievous bodily harm is in serious danger of losing his life. Survival is a mind set. I'd rather be judged by twelve than carried by six. I won't give my attacker a second opportunity to kill or harm me because I didn't shoot.

[muggsy]

It's a very tough question to answer due to the goofy laws we live under. My hope is that my body language alone will alert any BG to my intentions without spelling it out or actually drawing. I will rotate weak side toward the attacker, move my hand into position to draw, tell them not to come any closer or I will defend myself, and then act from there if necessary. A, perfect world.

But I agree with Lincoln on this one. Draw does not always have to end in shoot. I am not suggesting using your firearm as a deterrent but if the attacker turns tail, you better not shoot them all because you have drawn. Reholster, call 911, and be honest. I will use the same language that I would have used had I needed to shoot. I was in imminent fear of my life and I drew my weapon to stop the attack. Anything further I want my lawyer to answer.

He who hesitates is lost. I only draw if I intend to shoot. I may expose my weapon and warn, but if my gun clears leather it's going to go off. I have no other reason to pull it.

[DKD]

A very long time ago I came to the conclusion that if I ever was placed in a position where I felt I needed to draw my weapon, I had already made my mind up to fire that weapon. There is no second place only first. He who hessitates just becomes the victim. I beleive you would find in most cases that there are no other witness's thats why the perpatrator chose the victim in the first place. I have had a few instances over the years where the presence or presentation of a weapon didn't end in the discharge of said weapon. I have had a couple cases where the assailant left rather quickly or fled so fast I couldn't have drawn a bead on them and I was just as glad to see them (multiple assailants) leave the scene. My intent in the later case was to finish what they started but since my butt was in hull defilade (behind cover for you non military types) and they were either on the ground or half way up a ladder coming at me, I had the option not to engage due to time & distance factor, and when they fled I had no reason to push the case since the outcome was resolved favorably. In this case I was in Miami just after huricane Andrew, where there was no law & order for a good while and I was on my own trying to conduct the business of reconstruction.

[chrish]

He who hesitates is lost. I only draw if I intend to shoot. I may expose my weapon and warn, but if my gun clears leather it's going to go off. I have no other reason to pull it.

I think I agree w/ you completely there. But in the instance in time that this all takes place, potentially just a few seconds. You could do that (draw), having already exposed your weapon, and in the split second decision making process of both you and the BG, he begins to turn as you draw. At this point, he's bugging out and you are standing there w/ a weapon pointed at him. I doubt you are going to fire at that point.

Everything happens FAST on both sides of this equation IMO. Just sayin'. That was my only point. I would expect that my 'warning' and my decision to actually draw would most likely be extremely close together. Like I said, a perfect world, which would allow me a bit of decision. If that time doesn't exist, you can bet your bottom dollar I'm in your camp on drawing and firing.

But I agree w/ the premise, my intention would be to shoot.

In the vain of the OP though, draw vs draw and shoot, I think exposing your weapon for the purposes of defining 'draw' are one and the same in the eyes of MOST brandishing laws.

[OldLincoln]

Just for me, if I had the mindset that if I draw the aggressor gets shot, I know I would hesitate on my draw until the last moment. I see the draw as one function the the shot another, much like law enforcement.

You see them draw and aim while screaming at the bad guy to get on the ground, etc. I'd rather draw and scream than draw and shoot, but that's just me. However, if the bad guy has a gun and points it my direction, like law enforcement I shoot. If he has a knife and continues toward me I shoot, just like law enforcement.

I can't help but believe law enforcement guidelines would make a reasonable defense to the DA for a justified shooting. Much stronger than telling the DA "If I draw I shoot, regardless of what the bad guy does."

[JFootin]

+1 on that^^^

[muggsy]

I think I agree w/ you completely there. But in the instance in time that this all takes place, potentially just a few seconds. You could do that (draw), having already exposed your weapon, and in the split second decision making process of both you and the BG, he begins to turn as you draw. At this point, he's bugging out and you are standing there w/ a weapon pointed at him. I doubt you are going to fire at that point.

Everything happens FAST on both sides of this equation IMO. Just sayin'. That was my only point. I would expect that my 'warning' and my decision to actually draw would most likely be extremely close together. Like I said, a perfect world, which would allow me a bit of decision. If that time doesn't exist, you can bet your bottom dollar I'm in your camp on drawing and firing.

But I agree w/ the premise, my intention would be to shoot.

In the vain of the OP though, draw vs draw and shoot, I think exposing your weapon for the purposes of defining 'draw' are one and the same in the eyes of MOST brandishing laws.

You can discuss the law if it pleases you. I'm talking survival in the real world. You can't deal with the courts if you're dead. If the assailant is close enough to do me harm when he pulls up I'm still going to consider him a threat and a stationary target. If the assailant is looking for sympathy he'll find it in the dictionary located between the words excrement and syphilis. I believe in the words, "Don't tread on me."

[chrish]

+1 on OldLinclon's statement, thats EXACTLY what I'm talking about, good way to put it.

muggsy, i'll stand down on the law discussion. i'm not a lawyer and didnt mean offend you with regard to my opinion of your proposed action. i'll just agree to disagree on this one.

[AIRret]

Old Lincoln, I agree! That is the way I see it.

I have a question. If you show your gun but do not draw it (it stays in the holster) is that brandishing?

[ptoemmes]

...

I have a question. If you show your gun but do not draw it (it stays in the holster) is that brandishing?


I am the OP so thanks to all who have responded. I think THIS ^ is key and think it may need to be made a separate post even though it is likely to be different on a state-by-state basis. Go for it AIRret if you choose.

I have been remiss in not rereading Florida's statute as there have been some recent changes. In a quick search of the statute: http://www.leg.state.fl.us/statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0790/0790.html
I do not see the term brandishing mentioned or defined (may have missed it).

Perhaps this is what covers it:
"
790.001 Definitions.—As used in this chapter, except where the context otherwise requires:
...
(2) “Concealed firearm” means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.
(3)(a) “Concealed weapon” means any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.

...

790.053 Open carrying of weapons.—
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.
(2) A person may openly carry, for purposes of lawful self-defense:
(a) A self-defense chemical spray.
(b) A nonlethal stun gun or dart-firing stun gun or other nonlethal electric weapon or device that is designed solely for defensive purposes.
(3) Any person violating this section commits a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 87-537; s. 173, ch. 91-224; s. 3, ch. 97-72; s. 1205, ch. 97-102; s. 3, ch. 2006-298; s. 1, ch. 2011-145.

...

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
History.—s. 1, ch. 4532, 1897; GS 3272; RGS 5105; CGL 7207; s. 5, ch. 69-306; s. 743, ch. 71-136; s. 2, ch. 76-165; s. 174, ch. 91-224.
"

I see references that that the Florida law has been changed - perhaps recently - to exempt the accidental or unintentional display of a holstered firearm from being considered illegal. As the to the intentional "display" of a holstered firearm in an attempt to alter an encounter, I dunno yet.

All of this in the context of - in any given situation where me (or my loved ones) safety is in question and deciding the course of action in the next second or so - I will not be running Florida statutes though my mind.


Pete

[muggsy]

Section 790.10 is exactly how brandishing is defined by Ohio law.

[muggsy]

It takes about 2.5 seconds for an attacker to cover a distance of 21 feet, the distance that most of us practice our shooting from. Two and one half seconds is not a lot of time to deliberate the consequences of your actions, or in action. One and a half seconds is all you have to draw and fire. Shoot first and deliberate later. You can bet that your attacker isn't deliberating his actions when he's attacking you. I want to see all of you on this board for years to come. Survival is a mind set.

[OldLincoln]

790.10 is your friend in the case of somebody approaching with a knife or threatening manner. It is legal to draw your gun for self defense if you only do so in the reasonable fear of your life. Reasonable is what a reasonable person would do in your situation. The DA & jury decide on reasonable. I say pulling the gun to ward off a shooting is reasonable. Many disagree with me and that's fine as long as they make the conscious decision for themselves.

We all live with consequences of our decisions. When first starting to carry I spent many hours studying this very subject reading scenarios and deciding what I would do before reading other responses. I learned that responses will vary just as this thread but formed my thinking based on the consequences discussed.

I seriously considered giving it up as the opinion generally expressed by the law was either way your were screwed. If not by the DA then in civil court. However I have seen a shift in public opinion and expressions of law agencies since and I'm glad I stuck it out. But I will do my best to make sure I don't pull a stunt like playing police officer looking for trouble.

[muggsy]

I too, studied all of the legal ramifications. I decided that breathing was a far better option than not breathing. If you shoot first you will have plenty of time for remorse later. If you don't shoot there may not be a later. Criminal attackers have no remorse for those who they maim, or kill.

[chrish]

Oh, I'll have no remorse...please don't misunderstand my position to include any concern for the bottom of the gene pool. I was ONLY coming at this topic from the standpoint of keeping my own tail out of prison for even a night. If the timing doesn't allow for me to make any other decision or take any other actions...it'll be draw and fire. I may be worth more dead than alive...but I will choose the latter over the former.

[muggsy]

Keep these pictures in the back of your mind when someone is advancing on you.

http://www.metacafe.com/watch/246460/sucker_punch/

http://www.break.com/usercontent/2006/8/Multiple-Assault-Robbery-Suspect-Arrested-140223

[jouesdeveau]

So: if you unholster your weapon "in a rude, careless, angry, or threatening manner, not in necessary self-defense" you are liable. I read that as meaning that if you unholster your weapon "in necessary self-defence" (but do not fire) you are NOT liable for the crime of brandishing.

IS THAT CORRECT?

[les strat]

You guys might remember last December, I pulled my gun out of the holster on a gang member (clearly) that aggressively approached my truck (wife/kids with me). The CM9 was out of the leather, but clearly, I was not going to shoot unless he made a move, and I did not point it at him. If I raise to point, it is the shoot. I'M GLAD I DID NOT HAVE TO. I don't think many or any here can digest the ramifications that will come from shooting someone. But I can say that I would have without a doubt in my mind. His life vs my family. That's a no-brainer. Glad a good dominant alpha male stare and a firm "No" got my point across.

[muggsy]

You guys might remember last December, I pulled my gun out of the holster on a gang member (clearly) that aggressively approached my truck (wife/kids with me). The CM9 was out of the leather, but clearly, I was not going to shoot unless he made a move, and I did not point it at him. If I raise to point, it is the shoot. I'M GLAD I DID NOT HAVE TO. I don't think many or any here can digest the ramifications that will come from shooting someone. But I can say that I would have without a doubt in my mind. His life vs my family. That's a no-brainer. Glad a good dominant alpha male stare and a firm "No" got my point across.

Seated in a vehicle I might have done the same Les, but I wasn't talking seated in a vehicle. I'm in no hurry to shoot or kill anyone, but I won't hesitate if push comes to shove. Both my father and the military taught me that you don't pull a gun unless you intend to use it. If I pull it, I intend to use it. My younger son hesitated once. It almost cost him his life. The doctors used four titanium plates to put the bones in his face back together. The police never caught the S.O.B. that attacked him.

[chrish]

So: if you unholster your weapon "in a rude, careless, angry, or threatening manner, not in necessary self-defense" you are liable. I read that as meaning that if you unholster your weapon "in necessary self-defence" (but do not fire) you are NOT liable for the crime of brandishing.

IS THAT CORRECT?

In some place, yes, that's exactly what that means. In others, not so much, you draw and the local/state laws are not gun friendly, you may be in serious trouble.

I think everybody here agrees w/ that.

But there are (or seem to be) varying degrees of what people intend, practice, etc. with how they would ultimately react if presented w/ the need to defend themselves. None of which are wrong or right IMO, just different, and every action you take will ultimately have its own pros and cons.

I think the general idea(s) to take away from this thread are first and most importantly, be VERY self-aware of what you are willing to do and capable of doing to defend yourself. Second, practice and be ready to implement that action that you've decided upon virtually automatically but with clarity in what you are about to do (if that's even possible once put in a terrible situation). And third, if you are so inclined, be VERY aware of the laws in any given area you intend to carry in and if you feel it to be prudent, factor that into your equation for the second item above.

Just my take on this entire thread...which is been a very good discussion for me to see other sides and thoughts!

[jimbar]

I've read the laws for Wa state, and as I understand it, according to part c of subsection 3, I am legal to show, or draw my weapon, without firing, and not be guilty of "brandishing". I certainly hope I'm never in a situation to make this choice, but hope if so, I do not take a life when just the drawing of a weapon will repel the threat.Everyone should be familiar with your states laws,...just in case.


RCW 9.41.270
Weapons apparently capable of producing bodily harm — Unlawful carrying or handling — Penalty — Exceptions.

(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.

(2) Any person violating the provisions of subsection (1) above shall be guilty of a gross misdemeanor. If any person is convicted of a violation of subsection (1) of this section, the person shall lose his or her concealed pistol license, if any. The court shall send notice of the revocation to the department of licensing, and the city, town, or county which issued the license.

(3) Subsection (1) of this section shall not apply to or affect the following:

(a) Any act committed by a person while in his or her place of abode or fixed place of business;

(b) Any person who by virtue of his or her office or public employment is vested by law with a duty to preserve public safety, maintain public order, or to make arrests for offenses, while in the performance of such duty;

(c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person;

(d) Any person making or assisting in making a lawful arrest for the commission of a felony; or

(e) Any person engaged in military activities sponsored by the federal or state governments.