Isn’t Brandishing Your Gun Illegal?

I read a recent news report of a defensive gun use that got me thinking about some bad self defense legal advice that I've seen online and heard from many people over the years. Maybe you've also seen or heard something like this—If you draw the gun, you better use it, because if you don't, police can arrest and charge you with brandishing.

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Drawing and Brandishing—Is is Always Illegal?

Now, while that statement can be true under some circumstances, it isn't true for all instances. And while the elements of each state's, brandishing a firearm, or assault with a deadly weapon laws may vary, there is a simple principle that is important to understand so you can understand when the above statement is true, and when it is just bad information.

A Defensive Gun Use Example From Florida—

So here is the brief story as reported on a website called Your Observer News. According to the author, on June 14 around 9:00AM, Sarasota Florida Police responded to a disturbance involving two truck drivers. One man brandished a handgun, and the other a baseball bat.

 

Police determined that one of the truck drivers was making a delivery and parked his truck in a way that the trailer partially obstructed the roadway. The other truck driver arrived, pulled behind the truck, sounded his horn and told the first truck driver to move his vehicle.

The man in the first truck retrieved a baseball bat and approached the second truck driver. The second truck driver drew his gun but did not point it at the man armed with the bat. Police arrived and determined that the man who brandished his legally possessed firearm was justified in his actions. Police stayed on scene to preserve the peace until both men finished unloading their trucks.

Self Defense Law Summarized—

The specifics of self defense law vary from state to state, but in general, all states have laws that allow someone to use deadly force to defend against a threat that the person reasonable perceives as imminent, and likely to cause death or great bodily injury. The person claiming to act in self defense also can not be the initial aggressor. Some states have duty to retreat laws, while others allow someone to stand their ground.

This book is one of the best resources for those who carry a firearm to better understand self defense legal principles.

It's really important that you study the self defense law, and understand associated case law and jury instructions on potential charges one could face in your state because it really can vary greatly from state to state. But again, we are dealing in general and presenting a principle of self defense that should help understand why you don't HAVE to shoot the person or face arrest if you draw the gun.

Are You Justified To Draw The Gun?

It's rather simple. If you draw the gun, make sure you have a legal justification to do so. If you're justified in using the firearm, then you're justified in drawing the gun, but not pressing the trigger. Makes sense right? That seems to be what happened in the incident between the truck drivers.

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Drawing the Gun to Scare The Other Person—

Now if you draw the gun just to scare the person, and you're not justified, or not willing to use the gun, there are two really bad things that can happen. First, you could escalate the incident, and cause the other person to see you as a threat and use deadly force against you. In this video, we see this play out, and it costs the man his life.

Another bad outcome could be that police charge you with brandishing, assault with a deadly weapon or something similar. Police could charge you with these types of crimes not because you brandished the firearm, but because you weren't justified in brandishing the gun. That is the major distinction.

A third option could be when you draw the gun, your actions are justified, however, as the incident progresses, the initial aggressor is no longer a deadly threat. In these situations, you need to ensure you don't become an aggressor by pursuing the bad guy. A good example of this is an armed robber of a convenience store cashier.

The man in red drew his gun, and it didn't end well for him.

While the robber is armed and demanding cash, the cashier would likely be justified in brandishing and using a firearm. But if the robber ran off, the cashier faces losing his innocence and could become the aggressor if he chases him outside the store and uses deadly force to stop him from taking the money.

Getting back to our story above between the two truck drivers. Couldn't someone argue that the second truck driver was the initial aggressor because he honked his horn, and so if he didn't do that, the first truck driver would not have produced the baseball bat?

Initial Aggressor Briefly Explained—

Well, someone could certainly say that, but it's a stretch of an argument. The man who produced the baseball bat and approached the second driver was not reasonable behavior and excessive, considering the second trucker honked his horn. What if the second driver yelled obscenities? Well, it's not smart behavior, and that is a great way to escalate an incident, but it's not necessarily illegal to yell at someone.

Yelling threats of violence could certainly complicate your defense, but in keeping in the scope of the article and staying with general principles, the trucker didn't become the initial aggressor for simply honking his horn.

Dispelling Bad Info—

Okay, so next time you hear someone tell you if you draw your gun, you better shoot the person or you'll get arrested; you'll have some principles to help explain why that isn't actually the best way to look at it.

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About Matthew Maruster

I follow my Lord and Saviour Jesus Christ who is the eternal co-equal Son of God. I currently live in Columbus, Ohio with my wife and daughter. I served in the Marine Corps Infantry. I was a Staff Sergeant and served as a Platoon Sergeant during combat in Iraq. After I was a police officer at a municipal agency in San Diego County. I have a Bachelors's Degree in Criminal Justice from National University. MJ Maruster Defense.

1 Comment

  1. Steven M. Harris on June 25, 2023 at 7:03 am

    Well done article — as far as generalized “advice” can be. State law can vary greatly on holstered display, drawn exhibition and gun pointing.

    In Florida, any form of firearm exhibition short of actual gun pointing accompanied by a verbal threat is non-deadly force. But the caselaw is a bit uncertain. A recent appellate case held correctly that a menacing display by chambering a round while openly carrying was non-deadly force. The court reversed a trial court and granted the defendant self-defense immunity. Gun pointing plus a verbal command or threat may be the threatening of deadly force. Under current Florida statutes that conduct may be lawful only when the actual use of deadly force would be. I have written about this for lawyers and judges, suggesting a legislative “fix” is needed.

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