DISCUSSING DEFENSIVE DISPLAY OF A FIREARM WITH STUDENTS
CCW Safe’s number one most common claim is the criminal charge of brandishing. It typically happens when concealed carriers are in a confrontation and are angry and allow their emotions to overcome them. Simply lifting up their shirt and pointing towards a gun to show they are armed to someone who is not armed is an excellent way to be charged with an assault. The only way to justify the brandishing of a weapon is when they are in fear for their life. Simply lifting up their shirt to show they are armed may be judged by the same standard as if they drew their weapon and fired. If the concealed carrier is in fear of their life, then why did he or she just display their gun? If the motivation were to scare the person into backing down then they are essentially admitting the element of intent within Assault, which can be defined as putting someone else in credible fear of being attacked. If the concealed carrier has a gun and the other person does not, then that person’s fear is credible.
The legal standard for using non-deadly force is that the defendant must prove that it was necessary in order to defend him or herself from the imminent unlawful use of force by another person. Students need to know that the laws covering the defensive display of a firearm vary from state to state and proceed with extreme caution.
Some students believe that they should not draw the handgun unless they have decided to shoot another person and claim self-defense regardless of that person’s reaction to first seeing the weapon. There are numerous instances in which concealed carriers did exactly that and were subsequently charged with and convicted of aggravated assault, manslaughter, and murder. This may create a first-class quandary for the student. When should they draw their concealed handgun and what should they do with it when it is drawn? Going to the gun too soon may result in being charged with a crime and going to the gun too late may result in the student getting seriously injured or killed.
If deadly force is warranted in the event of an encounter in which the other party or parties are displaying the imminent intent to cause serious bodily injury or death and possess both the ability and opportunity to cause serious bodily injury or death, then so is the use of Defensive Display. What students may not know is that there is likely going to be only a small window of opportunity in which they can use Defensive Display without risking the possibility of being grievously injured and killed or being charged with a major misdemeanor or felony. Violent assaults take many forms that include the use of hands, feet, cutting instruments, and firearms. A student who is properly schooled should understand that if it is not safe to allow another person with bad intent and ability to get too close to them or threaten them with a firearm, an option may be, if there is sufficient time and distance, to draw their own handgun without pointing it directly at the threat and ordering them to stay back or go away. A Defensive Display of a firearm under these circumstances may demonstrate to another person or persons that they are both capable of and willing to use all necessary force in order to defend themselves if required. Following is a quote from litigation consultant and CCW Safe content contributor Shawn Vincent: Defensive display, especially where it is not considered deadly force, MAY be justified when there is ability and intent, but the opportunity has not necessarily crossed the “imminent” threshold. This is a subjective consideration; it’s not a legal standard, and there is still significant legal risk when displaying a firearm, but if you can safely end a confrontation without firing your weapon, it’s better than if you pull the trigger.”
The more that I teach, the more that I learn. After nearly three decades of instructing, I still see a recurring theme. Ask most students to draw their guns while teaching a class on the Square Range in front of a row of shooting targets and many of them point the muzzles directly at the targets. I think it is important to start them off immediately with an explanation of what constitutes an acceptable ready position. For me, that will be extending the arms to slightly less than full extension and pointing the muzzle at the ground between the student’s feet and the feet of the potential deadly threat (hereinafter referred to as “Threat”) or the base of the target stand. Done properly and with some vigor, five things are accomplished:
- The Threat may decide that he or she is just about to make what may be the last mistake they ever make and immediately break contact or permit the student to break contact.
- The student can see the Threat’s entire body and is less likely to shoot only to find out that what he or she thought was a deadly weapon was a cell phone or other non-lethal handheld object.
- The student can see the Threat’s hands. A student who aims his or her muzzle at the Threat’s waistline or sternum is most likely unable to also see the Threat’s hands if they are below the waistline. Students may be surprised to find that some armed attackers can raise their handgun and fire before they can get off a shot.
- It is likely going to be easier to defend the student in court if the student is later criminally charged if at no time does the student point the muzzle of their gun at the Threat.
- “Don’t point the gun at anything that you are not willing to shoot” is one of the Firearm Safety Golden Rules.
All of this can be confusing for students, and some may not understand when they should use Low Ready (or High Ready or Compressed Low Ready depending upon instructor preference). I may try to explain it as follows:
- If the student justifiably believes that he or she must shoot the Threat right now in order to save their life and their handgun is in their holster, then they should draw the handgun and shoot the Threat.
- If the student justifiably believes that he or she must shoot the Threat right now in order to save their life and draws their handgun with the intention to shoot and the Threat responds to that action by ceasing forward motion, backing off, lowering their hands, or taking another action suggesting that they no longer intend to assault the student, then immediately get the muzzle off the eye/target line and into a ready position that does not require pointing the muzzle at the target.
- If the circumstances are much the same as described above, but there is a small window of time in which the student can draw to a ready position in which the muzzle does not cover any part of the Threat’s body ready to shoot and demand that the Threat stay back, then consider drawing to that ready position.
The ultimate intent of this article is to shed some light on a subject that many of our students have given little or no thought. There is a litany of negative consequences that might follow them anytime they draw their handgun, most especially under circumstances in which they are “just scared.”