One of the most important questions when carrying concealed is, “When can you draw your gun?” The answer to this question is not straightforward. It’s a delicate balance between protecting oneself and avoiding unnecessary legal complications.
It’s first crucial to understand some fundamental principles. Laws regarding concealed carry differ from state to state. So what might be legal in one state may not be in another. Second, the primary purpose of carrying a concealed firearm is for self-defense against imminent threats. Displaying or using your weapon in any other circumstance could lead to legal issues.
Brandishing vs. Defensive Display
One common misconception is the difference between “brandishing” a firearm and a “defensive display.” Brandishing typically involves displaying a weapon in a threatening manner without justification, which is illegal in most jurisdictions.
On the other hand, a defensive display refers to showing your firearm to deter a potential threat. However, even with defensive display, the key element is the presence of a legitimate, immediate threat.
When Can You Draw Your Gun?
Generally, in a self-defense case, you will have to meet four rule for the use of deadly force:
- Reasonable fear: You must genuinely believe that your life or someone else’s life is in immediate danger. The fear should be something that a reasonable person in the same situation would also feel.
- Innocent party: You must be the innocent party and cannot be seen as an aggressor. You should not start or escalate a conflict.
- Proportional response: No less force should be sufficient to stop the threat. If you can stop a threat with something less than deadly force, you should.
- No escape: Many states’ laws require that if you can do so safely, you are expected to seek escape from a potential attack (if an avenue of escape is available and practical), before standing your ground and defending yourself with deadly force.
The Legal Implications
Drawing your gun when it’s not legally justified can lead to serious legal consequences, including criminal charges such as assault with a deadly weapon or brandishing a firearm. Even if you don’t fire your weapon, simply showing it can be considered a use of force in some jurisdictions.
Moreover, civil lawsuits can also arise from these situations. The person at whom the gun was drawn might sue for emotional distress, personal injury or violation of civil rights.
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Kevin Michalowski: A viewer from Waterloo, Iowa, wants to know: “If I’m arguing with someone who wants to fight and I clearly don’t want to, can I brandish my gun to make him back off?” We’re going to ask noted criminal offense attorney, Tom Grieve.
Pull out your gun and brandish it to make someone back off so this argument doesn’t escalate to fisticuffs.
Tom Grieve: Well, check your local listings, all right? Because at the end of the day, some jurisdictions may have laws considering, “Look if you produce a firearm, does that do something illegal?” Right, just in and of itself, that mere act of pulling a firearm from leather or Kydex these days.
Another thing is if you point it at that person, right? Which maybe the question isn’t explicitly asking, but it’s sort of baked in there, right? Of like without using deadly force, right? Maybe we kind of set that as the upper limit of what we’re doing here. What uses of the firearm, more or less, are permitted, right? There’s a big problem here to run into if you do this because I see this time and time again.
First off, everybody’s going to call the cops. They’re going to say, “This guy had a weapon.” It’s going to make you look like the person who, at a minimum, severely escalated the situation. And moreover, a lot of people are going to be adding to that, saying that you pointed it at people, even if you never did. Which, there’s a really good chance that’s going to be a crime.
KM: Tom, let’s finish this up. This idea of brandishing. I know that I haven’t been able to find the word “brandishing” in state laws just about anywhere. We’ve been searching for that. The idea of using your gun for something other than addressing an imminent deadly threat, I think that’s what we’re talking about here.
TG: Yeah, I mean, look, more realistically, what you will see people charged with is either some sort of reckless issue, some sort of intentionally pointing or some sort of disorderly conduct without being well-armed. Those are the three most likely things that I tend to see out there.
Being reckless means that, and again all subject to your local listings, but oftentimes state criminal codes have these nebulous long arms statutes as we might say in law, which is a really fancy way of saying that they’re so nebulously written, they can be so openly interpreted that they actually apply to a lot of different things. And they do that on purpose to give prosecutors and law enforcement these tools because we don’t necessarily always have this specific and exact fact pattern that we can line up with a very specific and exact statute. So sometimes they do things that are a little bit more open-ended.
Disorderly conduct, of course, being the next and probably the biggest one of them. It’s a very wide-open statute, and then you can attach an enhancer, which basically escalates the penalties involved if you say, “Well, they were disorderly while armed with a dangerous weapon or something like that, or a firearm.” And then, of course, intentionally pointing speaks for itself. It’s saying that you intentionally pointed your firearm at another person.
KM: Yeah, and I think this is a point where we remind people to kind of swallow their pride. And you can tell when a verbal argument might be escalating to something physical. Get out of there. You don’t need to win the argument, especially if you’re carrying a gun. You don’t need to pull your gun out because then you might be the one who’s escalating the situation.
TG: Oh, and that’s the way that law enforcement will basically start. That’s where the needle starts. That’s what everybody’s going to start with: “You’re the bad guy because you’re the guy that brought the gun to the verbal argument.”
KM: Absolutely. So, thanks again for the insight, Tom. Always a pleasure talking to you.
TG: Thanks, Kevin.