Brandishing a weapon, some other law, or nothing at all?

Factual Questions
1

Here’s a hypothetical situation:

Driver A is a law abiding citizen, with a permit to carry a concealed weapon in the state that he resides. He is driving down the highway when he encounters Driver B who is in road rage mode. Driver B expresses direct threats to harm Driver A. Driver A remembers from his required CCW class (to obtain a license to carry) that in a situation where you are threatened, you must first try to get out of the situation safely, and if you cant, you are to warn the agressor that you are armed before you produce your weapon.

With that in mind, Driver A looks for a way to drive away from the situation to no avail, Driver B continues to follow and be the agressor. Driver A decides that it is now time to warn the Driver B that he is armed. He does not want to pull his weapon and show it, because that is CLEARLY BRANDISHING. So, Driver A opts to go through the motions (out of direct sight) of pulling his weapon out, releasing the full magazine from his 9mm, and showing the full magazine ONLY to Driver B indicating that those are for him if he continues his actions.

Now, Driver C see’s what’s going on and calls police because they saw Driver A “show a loaded magazine” to Driver B.

My questions: Is this considered Brandishing a weapon (even though the weapon was never seen by anyone outside of Driver A’s car), or is it breaking a different law, or is it absolutely nothing in the eyes of the law???

BTW, this would be occuring in Michigan if that makes a difference.

KnK

2

Depends on the state. In Texas you are not required to try to “defuse” the situation. Brandishing or showing a gun is considered “assault with a deadly weapon” here.

Basically, if you’re going to pull your gun out, it should be to shoot someone. Period.

In Texas the only requirement is if “you feel your life, or the life of someone else is in immediate danger”. Someone trying to run you off the road certainly qualifies, but I think that isn’t enough.

If you stop on the side of the road, and he gets out of his car and approaches you with a tire iron, then you’re pretty much safe.

I was trained in CCW class in Texas never to pull out a gun to “defuse” or “intimidate” a situation - pull it out when you’re fully prepared to kill someone.
Just my two cents…

D.

3

IMO, I see no difference between someone trying to run you off the road, and someone approaching you with a tire iron. Not everyone has the ability to escape from something like that.

4

That’s a big no-no here in Pennsylvania as well. If you draw, you must subdue your assailant. That doesn’t necessarily mean shoot, but at that point a police officer needs to enter the situation and make some sort of determination about what should be done.

You ever hear the saying “Better to be tried by 12 than carried by 6”? There’s a cartain amount of truth to that because if you pull a gun out you’re opening yourself up to considerable scrutiny and it doesn’t always stand up, so you better be sure it’s a life-threatening situation or you stand a pretty good chance of going to jail.

5

I’m still looking for a cite . . . don’t worry. But brandishing weapons–in the sense of unholstering a pistol and waving it around–is against the law (IIRC, it’s assault in most communities). Simply exposing a holstered weapon from concealed to exposed is not.

Why? What’s the difference? It’s the little logical step that the pistol is either ready to be used or not. An unholstered pistol is the next logical step to an intent to pull the trigger. A holstered one is not.

In your case, Driver “A” didn’t do anything illegal, because he waved a loaded magazine around. Not the greatest of ideas, but a loaded magazine is not a weapon per se. Now if he started waving an unloaded pistol around, that’s a different story. Unless he’s got the vision of Superman, I don’t think “B” would even be able to understand what the hell “A” was waving around at a carlength’s distance (kinda far to make out what the magazine looks like through a windshield and rear window, let alone what the rounds are).

When this hits the courts, the prosecutor will most likely say that Driver “A” was irresponsible enough to start waving dangerous items around, when all he could have done was pull over and let “B” go on his way. Besides, I’ve never heard of a jurisdiction requiring people to warn others that they’re armed before they “pull steel”. :confused:

Tripler
DISCLAIMER: I am not a lawyer. I just like guns.

6

Oh, and one more thing.

If you’re ever in a road rage situation, NEVER stop to talk to the guy. Keep going, and if he gets too aggressive find the nearest police station and go there. There’s nothing cowardly or macho about taking steps to protect yourself.

If you stop they can say that you didn’t do everything you could to avoid the situation and you’re toast.

7

I’m just saying someone swerves at you with their car or honks and flashes their lights, you’re probably not free and clear to roll down the window and start blasting away.

Basically shooting in Texas revolves around 1) immediate bodily threat to you or someone else and 2) shooting them was the only option that a “reasonable person” would take to end the threat.

For example, if you’re 220 pounds and you blow away a 98 pound woman with a walker, thats not exactly justifiable. For that same reason you can’t shoot a person once they “drop to the ground”…

In other words, practice emptying the clip before they drop… :wink:

D.

8

Thanks for the replies.

Tripler in your statement "When this hits the courts, the prosecutor will most likely say that Driver “A” was irresponsible enough to start waving dangerous items around, when all he could have done was pull over and let “B” go on his way. Besides, I’ve never heard of a jurisdiction requiring people to warn others that they’re armed before they “pull steel”. – What exactly is the reason that Driver A would be in court. What law was broken? At NO TIME was the actual weapon brandished, just the full magazine. Remember, he tried to escape Driver B, but Driver B persisted. And, in MI, you are required to warn your assailant to get them to back down. However, I don’t know how often that would really be practiced.

KnK

9

You are absolutely right. No law was broken. At the time I was writing my reply, I was mentally picturing myself as the prosecutor/defense lawyer (playing Devil’s Advocate with myself), and kind of picturing that this was something unfolding with someone you know (based on the detail of your OP).

Yer right. It was my delivery. Sorry. . . But that’s how I would picture it in any given court.

But I’m surprised that Michigan requires that a person warn another before drawing in order to “get them to back down”. Are you serious, that this is a law or just simply a practice that the CCW teachers taught? I’m not doubting you, but it’s just new to me. I think we both agree that there would be situations where you don’t have time to speak–just assess and shoot. That “warning” seems to be a loophole that any civil lawsuit would exploit for a wrongful death suit against a shooter–even if that shooter was absolved in a criminal trial.

Tripler
Like I said, I’m not a lawyer. I just find this stuff fascinating.

10

You didn’t start list the cost of your Good Advise!

11

Heh? What? I don’t follow. . .

But if I think I know what you are asking, I’ll try my best to lead someone in the right direction when the speak with a lawyer. I’m not a lawyer, but a few honest opinions of a situation, and their interpretation, wouldn’t hurt.

Tripler
I just read the law and give what I would think is the best course for Dopers.

12

Ok here we go. First, I am licensed to carry in Michigan, Texas, Florida (Where I reside) and about 1.5 dozen other states. I’m also an instructor qualified to give those CCW classes so you freaks can waive your little pistolas around…

Anyway, just a couple things I saw that I’d like to comment on:

The whole waiving the loaded magazine around thing is not illegal in anyway. But it’s very childish. How very silly of Driver A to even go through those troubles. Driver A is irresponsible and immature and can’t seem to handle a little road rage. Also… from a tactical point of view, Driver A is the most ignorant ass I’ve ever seen. Driver A feels like he is being threatened by Driver B so he UNLOADS his primary means of self-defense!!! I having difficulty not using profanity here!! How moronic!! If you’re truly threatened the last thing you should do is UNLOAD your freakin pistol. And if you’re NOT truly threatened, then there is no reason to waive around a magazine…

OK… Ive calmed down…

Tripler, unholstering a firearm (In Florida) but not pointing it at anyone or waiving it all crazy like is a misdemeanor. It’s an additional crime (still a misdemeanor though, I think) to have that loaded gun in your hand if you’re drunk! But you can have it in a holster if you’re drunk. You just cant have it loaded and in your hand. For Florida, it works like this:

Displaying a visible Weapon (knife, sword, dirk, club…) = NO CRIME
Possessing a concealed Weapon (with no permit) = A Misdemeanor
Displaying a visible Firearm = A Misdemeanor
Possessing a concealed Firearm (with no permit) = Felony

Finally, if there is a road rage insident and you think it’s best to just pull over to let the person pass you, and then he pulls over too. You are NOT in the clear to shoot him. Or to point your gun at him or anything like that. I guess you could waive a magazine at him, but… well I’ve discussed that.
I dont care if he is running at your car with a baseball bat… all you have to do is drive off!!! You have a means of escape, use it!! You are not in the clear as I believe someone implied earlier.

I think that’s all…

13

Oh… in case it is not obvious, if you have to display a firearm because you pulled it out and shot someone… then that’s ok - it’s not a crime. (even if you are drunk). But if you were drunk… man, you will have one hell of a CIVIL case against you!!

14

If someone waved a gun magazine at me I would have no idea what it was. I have never owned any firearms nor do I intend to. A few weeks ago a jerk cut me off then tried brake checking me. When I showed him my cell phone and punched in an obvios 911, he changed his tune real fast and sped off. I don’t know of anyone that has been arrested for brandishing a cell phone.

15

See, my problem is that I was born and raised in New Jersey–one of the most ungun-friendly states in the U.S., so I tend to think along the lines of NJ’s gun laws, which isn’t too far off of from the rest of them as far as conduct is concerned (it’s just getting a weapon that’s a pain in the ass there. . .).

However, I’m surprised that FL law seems to allow you to posess a weapon but not display it if you’re drunk. I can show my ASP baton when I’m sober, but give me one beer, and I flash it underneath my coat? Uffdah . . . :rooleyes:

But then again, you know what fascinates me about this stuff? Bear_Nenno, you or I could put on DCUs in less that 5 minutes, and just by changing clothes, we in essence change our legal status. Ain’t that a kick in the pants?

Tripler
For the Love of God, don’t play with guns if you’re drunk. Or maybe you should–if you are an idiot.

16

**Thanks for your comments ** :smiley:

17

Tripler, it is my assumption from the CCW class that the “warning” is a legal requirement. It “may” be just something that the class instructs as a good practice, rather than a requirement. I’ll have to check into it. I can certainly see situations where the “warning” comes after the perp has additional ventilation in his body.

18

If the law states that you have to warn somebody that you have a firearm, then by all means do so. To be honest, it sounds false though. It reminds me of the old “You have to warn somebody if you know karate”, which was never true either, at least not in general, although I’m sure some backwards thinking locality decided to pass such a law I’m sure.

However, if this is advice from a CCW class then it is very poor advice. Making any kind of threat of any kind in a tense, hostile and emotional situation is not a good idea. It will never descalate the situation unless you can do so from authority. I.e. a police officer threatens to arrest you if you don’t calm down. Of course, you may not intend for revealing your firearm to come off as a threat, but that is how it will be taken, it is unavoidable, because no matter how you phrase it there is the implication that you will draw and use it, and that is a threat.

For example:

“Calm down, I’m not looking for any trouble, and I should warn you I’m carrying a firearm.”

Now for the people who like looking for the obvious, yes, the first half of this statement is better said without the second half, of course; however, I’m making the assumption here that things are getting so heated that you think you might be needing to use your firearm shortly and are trying to fulfill your legal req’t or follow the uhm good cough advice of your CCW teacher.

Can you imagine any situation where the person, who is emotionally charged, goes “Oh well, since you have a gun, yeah let’s chill out and talk about this”. Short answer. No. You are vastly more likely to get something along the lines of “**** you and your ****ing gun, you think I’m afraid of your ****ing gun. **** you”. Hardly beneficial.

Lastly, from a descalation standpoint, you’ve now upped the stakes from one of a heated and angry exchange to one of survival. His animal mind will now be wondering if life and limb are now at stake. Bringing the animal mind more into play is not helpful. Everytime your hands move, his instincts are screaming “Is he going for his gun? Should I attack now before he does?” or pehaps his rational mind is saying “This guy seems crazy you should attack now before he draws his gun”. How is this helpful? Short answer, it isn’t.

Plus, from a purely tactical standpoint … i.e. that which relate to your survival, you’ve just revealed your big ace. Again, unwise. It is far better for you to, when assaulted with force that warrants a lethal force reply to respond with lethal force that was previously unknown to your assailant then for it to be known. Surprise, as a tactical weapon, wins fights.

Remember all that being said, follow your local laws. Not only can failing to follow them lead to criminal charges, but can leave you open to a greater chance of loss in a civil suit.

19

May I ask a hypothetical follow-up question?

Is it illegal to imply that you have a weapon aboard? Say, for example, a road rager is endangering another vehicle in confined traffic on a smallish highway, and Driver A is unable to escape Driver B.

So Driver A puts reaches down, puts his hand in a paper bag and points his finger, then holds it up to show road-raging Driver B as he attempts to pass Driver A on the shoulder. Driver B gets the message and backs off.

Say, hypothetically, this incident happens along Route 29 between Charlottesville and Culpepper in Virginia in the summer of 1995. Did Driver A break the law, or was he merely creatively using whatever means available to defuse the situation?