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Old 07-21-2020, 10:55 AM
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Default Brandishing - Stand Your Ground – Castle Doctrine Laws (Files Updated)

EDIT -

We have combined the “Brandishing” and “SYG/Castle Doctrine” files. The two original Files will no longer be updated if you have downloaded them. The New combined Doc will be put on the site but we haven’t decided where we are going to put it. In the Mean time you can access that Document at

https://www.handgunlaw.us/documents/...h_Statutes.pdf

It has some additions that the two original documents do not contain. It is dated as being updated 8/1 but putting a link out to it earlier here. Again not sure where a link on the site will be pointing to this document.

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Handgunlaw.us has always gotten a lot of questions about the Brandishing, Stand Your Ground, Castle Doctrine etc. With the virus, heat wave and other things that have slowed us down we have had time to put together a couple documents that puts info on these issue for all the states in one place. We started out with the idea of placing the information about Brandishing on each states page in the Misc Information section. That is the reason for the layout of that doc and it makes it easy to copy and paste it into each states page. It has morphed into the collection of the Stand Your Ground etc as we were looking at all the states statutes.

We would appreciate any feedback on additions etc. to these listings You can also email us at admins@handgunlaw.us. Thank you for any assistance you can give us. Stay Safe!
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Old 07-21-2020, 03:38 PM
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Gary,
Maybe a little slow today, but the referenced South Dakota law seems to be not referencing brandishing, so maybe you can assist me?
Thanks
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Old 07-21-2020, 03:57 PM
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SD law does not contain the word Brandish. As the header to the doc says: "State Statute/s on Brandishing and/or Statute/s That Could Cover the Display of a Firearm:" Their Disorderly conduct would most likely be the charge if you presented a handgun in public in your hand without good reason. This is why there are so many questions about Brandishing. A majority of states don't define it or even mention that word in their statutes. The charge is leveled under another statute and this is one "It Could Be Issued Under!"

22-18-35. Disorderly conduct--Misdemeanor.

Any person who intentionally causes serious public inconvenience, annoyance, or alarm to any other person, or creates a risk thereof by:

(1) Engaging in fighting or in violent or threatening behavior;
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Old 07-21-2020, 04:44 PM
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This is very interesting, thanks for posting. I would say some of our laws are a bit dated...

Title 13 : Crimes And Criminal Procedure
Chapter 053 : Homicide
(Cite as: 13 V.S.A. § 2305)
§ 2305. Justifiable homicide

If a person kills or wounds another under any of the circumstances enumerated below, he or she shall be guiltless:

(1) in the just and necessary defense of his or her own life or the life of his or her husband, wife, parent, child, brother, sister, master, mistress, servant, guardian, or ward; or
(2) in the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery, with force or violence; or
(3) in the case of a civil officer; or a military officer or private soldier when lawfully called out to suppress riot or rebellion, or to prevent or suppress invasion, or to assist in serving legal process, in suppressing opposition against him or her in the just and necessary discharge of his or her duty. (Amended 1983, No. 23, § 2.)
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Old 07-21-2020, 05:17 PM
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WCCPHD, Yep I stated such at the top of the Document. If I put everything concerning all the Laws/Court Cases it would most likely be well over 1000 pages and that is being conservative!

Some states have laws specifically defining Brandishing while many don’t. Below is a listing of Statutes that define Brandishing or statutes that could cover displaying a firearm. When it comes to this subject Case Law would have a huge impact on how these laws are applied.
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Old 07-21-2020, 05:57 PM
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So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
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Old 07-21-2020, 06:19 PM
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Only God knows at that instant what is legal!
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Old 07-21-2020, 06:42 PM
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Originally Posted by jamestx View Post
So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
As a former concealed carry instructor for NC, my answer to that is that you can call 911. The punk is guilty of brandishing, because he has displayed a firearm as a visual means of intimidation. But until the threat to you is imminent, you can take no deadly force action as he has not directly threatened you by drawing and pointing the weapon.

Certainly, I would be looking around for cover, evaluating any danger to bystanders from him, and from you if you have to defend yourself should he draw his firearm. The first move has to be his.
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Old 07-21-2020, 08:10 PM
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So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
Around here you could hit him with a $50 fine, $100 if he pulls the trigger.


Title 13 : Crimes And Criminal Procedure
Chapter 085 : Weapons
Subchapter 001 : Generally
(Cite as: 13 V.S.A. § 4011)
§ 4011. Aiming gun at another

Any person who shall intentionally point or aim any gun, pistol, or other firearm at or towards another, except in self-defense or in the lawful discharge of official duty, shall be punished by fine not exceeding $50.00. Any person who shall discharge any such firearm so intentionally aimed or pointed shall be punished by imprisonment for not more than one year or fined not more than $100.00, or both
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Old 07-21-2020, 09:52 PM
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Thanks Gary, the explanation makes sense, but I liked "only God knows..." also!
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Old 07-22-2020, 07:43 AM
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Originally Posted by dockmurgw View Post
This is very interesting, thanks for posting. I would say some of our laws are a bit dated...

Title 13 : Crimes And Criminal Procedure
Chapter 053 : Homicide
(Cite as: 13 V.S.A. § 2305)
§ 2305. Justifiable homicide

If a person kills or wounds another under any of the circumstances enumerated below, he or she shall be guiltless:

(1) in the just and necessary defense of his or her own life or the life of his or her husband, wife, parent, child, brother, sister, master, mistress, servant, guardian, or ward; or
(2) in the suppression of a person attempting to commit murder, sexual assault, aggravated sexual assault, burglary, or robbery, with force or violence; or
. (Amended 1983, No. 23, § 2.)
So you can defend your mistress but not your cousin?
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Old 07-22-2020, 08:47 AM
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Dated? PA doesn't even mention 'brandishing'. Fortunately (or unfortunately) LEOs have the generic and all-encompassing fallback "Disorderly Conduct"

Quote:
a) Offense defined.--A person is guilty of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, he:

(1) engages in fighting or threatening, or in violent or tumultuous behavior;

(2) makes unreasonable noise;

(3) uses obscene language, or makes an obscene gesture; or

(4) creates a hazardous or physically offensive condition by any act which serves no legitimate purpose of the actor.
I've heard a few NRA-sanctioned trainers and LEOs say stuff like "Yeah open carry is legal but make Granny nervous in the grocery store and they'll charge you with (or, you're guilty of) disorderly conduct."

Heavy Sigh....

Thanks Gary, your efforts are outstanding and appreciated...
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Old 07-22-2020, 09:10 AM
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unless there inside my house and taking up slack on their trigger I simply wont risk a jail sentence
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Old 07-22-2020, 09:29 AM
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Florida is exactly what the law says it is. But as always everything is open to interpretation and that exact moment in time.
If you draw a weapon, you better be damn sure it is correct to do so. What happens in that split second can go on for years in Court!

Take the recent case of the couple who stood outside their home the guy with a rifle and the dumb wife POINTING a hand gun!
No reason for her to point it, and that's why its all a mess now. Heck they are even lawyers!

The shooting at the convenience store case by the guy arguing over the handicap parking is another example. To me he was assaulted and in fear of his life. he shot the guy dead. Sheriff said it was a justified but after "political" maneuvers he was tried and convicted.

So you never know!
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Old 07-22-2020, 09:37 AM
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Default I live in Kansas where

both open and concealed are legal without a permit. Hypothetical situation: I am in a parking lot going to my car late at night, my gun is under my jacket, 3 guys are approaching me with bad intentions. They don't see my gun, as the get closer I simply remove my jacket so the gun can be seen by them, they turn tail and head out and the situation ends well. According to the officer I asked about this I did absolutely nothing illegal since KS allows open and concealed carry and all I did was simply remove my jacket. Had I pulled the gun from the holster the situation would be different.
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Old 07-22-2020, 09:39 AM
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unless there inside my house and taking up slack on their trigger I simply wont risk a jail sentence
What if you are at a convenience store, a robber comes in and points a gun at you and is "taking up slack", you going to just stand there?
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Old 07-22-2020, 09:40 AM
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Montana

45-3-111. Openly carrying weapon -- display -- exemption. (1) Any person who is not otherwise prohibited from doing so by federal or state law may openly carry a weapon and may communicate to another person the fact that the person has a weapon.

(2) If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon.


Here is another good one

45-3-112. Investigation of alleged offense involving claim of justifiable use of force. When an investigation is conducted by a peace officer of an incident that appears to have or is alleged to have involved justifiable use of force, the investigation must be conducted so as to disclose all evidence, including testimony concerning the alleged offense and that might support the apparent or alleged justifiable use of force.

and

45-3-110. No duty to summon help or flee. Except as provided in 45-3-105, a person who is lawfully in a place or location and who is threatened with bodily injury or loss of life has no duty to retreat from a threat or summon law enforcement assistance prior to using force. The provisions of this section apply to a person offering evidence of justifiable use of force under 45-3-102, 45-3-103, or 45-3-104.

All the justifiable use of force laws for Montana are here

Part 1. When Force Justified - Table of Contents, Title 45, Chapter 3, MCA
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Old 07-22-2020, 09:40 AM
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Dated? PA doesn't even mention 'brandishing'. Fortunately (or unfortunately) LEOs have the generic and all-encompassing fallback "Disorderly Conduct"



I've heard a few NRA-sanctioned trainers and LEOs say stuff like "Yeah open carry is legal but make Granny nervous in the grocery store and they'll charge you with (or, you're guilty of) disorderly conduct."

Heavy Sigh....

Thanks Gary, your efforts are outstanding and appreciated...
Granny needs to find a different store.
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Old 07-22-2020, 10:44 AM
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Default brandishing-stand your ground-castle doctrine laws

I have to disagree with Rule3 as his interpretation of the convenience store handicap parking shooting incident. As the closed circuit camera in slow motion, at the convenience store indicated, the attacker, not showing he was armed, was moving backward as the shooter drew his firearm and shot the customer that had knocked him to the ground. If he hesitated for a split second while he brandished his firearm, he would have observed the person moving backward at that time of altercation. In all probability, he may have been in fear of his life and the preponderance of evidence, the jury found him guilty of manslaughter. Again, I am not a lawyer, but watching the video, I believe, swayed the jury to that verdict. Florida subsection (2) ie /subsection 776.012 pertains to the use of threat of deadly force. As Florida lawer Jon H. Gutmacher states, the legislature and sponsors of that legislation did not think through as to the issue of (threats), and will most certainly cause problems for anyone using self defense. It only authorizes the use, or even the threat of using (deadly force) in a situation that would actually allow using deadly force as in imminent death or great bodily harm, or the imminent commission of a forcible felony. Otherwise, in a non-deadly force situation (ie: no imminent forcible felony or imminent death or great bodily harm), if you did use deadly force, or even threatened to use it. (for instance: display of a firearm) you will not only have lost any immunity you might otherwise have had, but you have probably use excessive force, and could therefore constitute an assault, aggravated assault, or improper exhibition-even though you were not the initial aggressor. Warning shots are considered the use of deadly force, and not just a threat. What is boils down to is at the time of the incident that you feel was necessary to use deadly force will be reviewed by your peers as to weather it was justified or not at the time of the incident. Sometimes, you may have to walk away for the incident, if you have an option, and defuse the situation before it escalates to a deadly force incident.

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Old 07-22-2020, 01:22 PM
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So you can defend your mistress but not your cousin?
Well, yeah! Maybe the legislators were just practicing realpolitik and thinking about who THEY would risk their lives defending......
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Old 07-22-2020, 05:12 PM
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In the absence of law enforcement and in or on your own property should not fall under normal circumstances. Approached by mob or rioters a reasonable person would be in fear for their life. To charge people for brandishing or related charges would be strictly political activism. People in their own home have reasonable expectation of safety. Others who invade the property for whatever reason are guilty of trespass at the least.
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Old 07-23-2020, 01:00 PM
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Originally Posted by hobby-gunsmith View Post
I have to disagree with Rule3 as his interpretation of the convenience store handicap parking shooting incident. As the closed circuit camera in slow motion, at the convenience store indicated, the attacker, not showing he was armed, was moving backward as the shooter drew his firearm and shot the customer that had knocked him to the ground. If he hesitated for a split second while he brandished his firearm, he would have observed the person moving backward at that time of altercation. In all probability, he may have been in fear of his life and the preponderance of evidence, the jury found him guilty of manslaughter. Again, I am not a lawyer, but watching the video, I believe, swayed the jury to that verdict. Florida subsection (2) ie /subsection 776.012 pertains to the use of threat of deadly force. As Florida lawer Jon H. Gutmacher states, the legislature and sponsors of that legislation did not think through as to the issue of (threats), and will most certainly cause problems for anyone using self defense. It only authorizes the use, or even the threat of using (deadly force) in a situation that would actually allow using deadly force as in imminent death or great bodily harm, or the imminent commission of a forcible felony. Otherwise, in a non-deadly force situation (ie: no imminent forcible felony or imminent death or great bodily harm), if you did use deadly force, or even threatened to use it. (for instance: display of a firearm) you will not only have lost any immunity you might otherwise have had, but you have probably use excessive force, and could therefore constitute an assault, aggravated assault, or improper exhibition-even though you were not the initial aggressor. Warning shots are considered the use of deadly force, and not just a threat. What is boils down to is at the time of the incident that you feel was necessary to use deadly force will be reviewed by your peers as to weather it was justified or not at the time of the incident. Sometimes, you may have to walk away for the incident, if you have an option, and defuse the situation before it escalates to a deadly force incident.

Nick

All true, but the jury was not there at the time and it is easy to pick it apart watching a video over and over frame by frame If there was no video what would the outcome have been????????

But it is a done deal now which is why I said what I did above, The case was bashed around for ever.
There is more to it then what can be discussed here.
I spoke with a former under Sheriff where I live and he thought it was a good shoot. So did several other Deputies as well as the Sheriff of Pinellas County,



NO ONE can say unless they were in that exact situation.
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Old 07-23-2020, 01:28 PM
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Default Brandishing - Stand Your Ground - Castle Doctrine

That is a fact Rule3, I was not there and you were not there. It looked like a good call but the jury called in differently. If you have an excellent attorney and the facts are sorted to a point that the evidence can go either way. Again, it is how the jury perceives the incident from their perspective weather it was right or wrong at that given time. I believe this case is closed and you can keep it going until the cows come home but he was found guilty by his peers.

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Old 07-23-2020, 02:07 PM
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The politics of this stuff actually drive confrontations towards a shooting. I agree gun shouldn’t come out unless the person is in fear for their life. In other words they have justification to shoot. Here’s where it gets sticky. In drawing a gun it can end the threat without shots being fired. What the activist are causing now is the gun owner who pulls a gun and doesn’t shoot is guilty of brandishing. What we need are solid Federal guide lines that can’t be used for political activism. Think about it, you have citizens that are law abiding their whole lives. One of these issues comes up, no shots fired and nobody hurt or injured. Why would an DA want to file charges and prosecute such people? It doesn’t make sense trying to send people to jail and ruin them except if it’s political or personal. Either way it’s misconduct that needs oversight. There is too much of this type of cases being used by political hacks. What does this say about the character of the DA.
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Old 07-23-2020, 02:32 PM
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Quote:
unless there inside my house and taking up slack on their trigger I simply wont risk a jail sentence
If you wait that long you won't need your weapon, whether in your house, the mall, grocery store, parking lot, public restroom, wherever.

Quote:
So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
Since I have to respond strictly to the picture presented you're almost legal to do nothing. Lifting his shirt and showing a gun is "brandishing". First, get the heck out of there. Second, call 911 forthwith. But after you get away from this idiot.

The legal issue here is whether you are justified to feel threatened with serious bodily injury or death. What is reasonable under the circumstances? Showing a "holstered" gun is most likely insufficient to justify the use of deadly force. If you think you can say to a police officer "I saw his gun when he lifted his shirt and was afraid for my life" then by all means pull your weapon, shoot this idiot, and then call your banker to see if you have sufficient funds to pay for bail and a trial defense.

As a former CHL instructor and a lawyer in real life I THINK you could justify pulling your gun and pointing it at this jerkwad BEFORE he pulls his gun but you simply cannot shoot him. You get him down on the ground, disarmed if possible, call 911 and DO NOT HAVE A GUN DISPLAYED when the police show up so they don't shoot you. Since you're holding this jackanapes at gunpoint don't stand too close and put your own gun down when the gendarmes arrive and then tell them the story. THAT is about all that you can legally do in the situation as you described it and I do hope you have witnesses.
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Old 07-24-2020, 02:40 PM
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The shooting at the convenience store case by the guy arguing over the handicap parking is another example. To me he was assaulted and in fear of his life. he shot the guy dead. Sheriff said it was a justified but after "political" maneuvers he was tried and convicted.

So you never know!
I disagree on that one. He was assaulted, fear for his life from a guy backing up, uh no. The charge was justified imo. Now the guy is on top of him beating the poop out of him, yes. Devil is always in the small details.
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Old 07-24-2020, 02:45 PM
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So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
Well you are not legal to use lethal force. We don't get to do preemptive strikes. Though some LEO get away with it.
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Old 07-24-2020, 02:52 PM
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So you can defend your mistress but not your cousin?
Was the victim the mistress's husband?
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Old 07-25-2020, 07:32 PM
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So I tried reading Texas sections which is mind numbing , here is a scenario , I come out of a store , a punk is stealing something from the owner , but bc he is caught on camera by owner people laugh , he verbally gets pissed snd threatens me and others fir laughing , 2 nights later we see said individual and with no provocation he lifts shirt and shows off a gun . Am I legal to do what???????
Say nice gun, leave and call 911
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Old 07-26-2020, 03:12 PM
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Thanks for the links.
I need to find the Fla. legal definition of "unlawful force" and "forcible felony"
Appears at first glance to either not mean much or a large gray area.
Found Chapter 776 of the Fla. statutes.

Good reading for Fla. residents.
Chapter 776 - 2019 Florida Statutes - The Florida Senate

Last edited by soFlaNative; 07-26-2020 at 03:42 PM. Reason: more info
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  #31  
Old 07-26-2020, 04:03 PM
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Originally Posted by hobby-gunsmith View Post
I have to disagree with Rule3 as his interpretation of the convenience store handicap parking shooting incident. As the closed circuit camera in slow motion, at the convenience store indicated, the attacker, not showing he was armed, was moving backward as the shooter drew his firearm and shot the customer that had knocked him to the ground. If he hesitated for a split second while he brandished his firearm, he would have observed the person moving backward at that time of altercation. In all probability, he may have been in fear of his life and the preponderance of evidence, the jury found him guilty of manslaughter. Again, I am not a lawyer, but watching the video, I believe, swayed the jury to that verdict. Florida subsection (2) ie /subsection 776.012 pertains to the use of threat of deadly force. As Florida lawer Jon H. Gutmacher states, the legislature and sponsors of that legislation did not think through as to the issue of (threats), and will most certainly cause problems for anyone using self defense. It only authorizes the use, or even the threat of using (deadly force) in a situation that would actually allow using deadly force as in imminent death or great bodily harm, or the imminent commission of a forcible felony. Otherwise, in a non-deadly force situation (ie: no imminent forcible felony or imminent death or great bodily harm), if you did use deadly force, or even threatened to use it. (for instance: display of a firearm) you will not only have lost any immunity you might otherwise have had, but you have probably use excessive force, and could therefore constitute an assault, aggravated assault, or improper exhibition-even though you were not the initial aggressor. Warning shots are considered the use of deadly force, and not just a threat. What is boils down to is at the time of the incident that you feel was necessary to use deadly force will be reviewed by your peers as to weather it was justified or not at the time of the incident. Sometimes, you may have to walk away for the incident, if you have an option, and defuse the situation before it escalates to a deadly force incident.
Nick
I initially thought this was a good shoot too. After I watched the video of this confrontation of a parking lot vigilante and the improper parker. The parking lot vigilante initiated the confrontation, got in the guys face and I felt baited the person to assault him. Real brave (felony stupid) initiating a confrontation knowing that you are armed. I think he is rightly charged. You (or I) can not justly start a fight and then claim self defense.
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Old 07-26-2020, 06:06 PM
WR Moore WR Moore is offline
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First, a big THANK YOU to Gary for including 18.2-282 Code of Virginia. The index of the CoV is, politely, lacking. Very good information there and very relevant.

While I got a laugh out of the "mistress" in post #4, the previous inclusion of "master" sorta suggests that the intended meaning referred to actions of a servant, indentured or otherwise, on behalf of their employer. If the statute is old enough for "owner" to apply, it's long past time for some revisions.
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Old 07-26-2020, 07:59 PM
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The shooting at the convenience store case by the guy arguing over the handicap parking is another example. To me he was assaulted and in fear of his life. he shot the guy dead. Sheriff said it was a justified but after "political" maneuvers he was tried and convicted.

So you never know!
Actually, the sheriff never said it was justified, what he said was under FL law he could not arrest the guy, who claimed self defense, unless the investigation provided evidence that self defense was not justified. Eventually the investigation showed otherwise, thus the arrest, charges, and conviction.
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Old 07-28-2020, 09:07 AM
sotexas sotexas is offline
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If you draw a weapon, you better be damn sure it is correct to do so. What happens in that split second can go on for years in Court!

Take the recent case of the couple who stood outside their home the guy with a rifle and the dumb wife POINTING a hand gun!
No reason for her to point it, and that's why its all a mess now. Heck they are even lawyers!

The shooting at the convenience store case by the guy arguing over the handicap parking is another example. To me he was assaulted and in fear of his life. he shot the guy dead. Sheriff said it was a justified but after "political" maneuvers he was tried and convicted.

So you never know!
I don't understand the couples mindset at the time which led them to go outside with their guns. I have come to believe that in most cases a weapon must be shown and you will need to take a serious a** whipping to convince the legal system that you were justified in the use of deadly force. However, each instance will be singular and hopefully decided as such.
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Old 07-31-2020, 05:18 PM
Dvan34 Dvan34 is offline
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The shooting at the convenience store was unfortunate. What set everything off was the guy arguing with the woman in the car parked in a handicap zone. He wasn't an LEO , why bother? The woman or her husband may have had a valid need to park there but it was none of his business to investigate. I suspect that after this experience he would choose to avoid this. Better to avoid arguments when possible.
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Old 08-08-2020, 11:09 PM
donnieowsley donnieowsley is offline
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There were a two problems with the Drejka shooting. He was the initial aggressor in that he started the affray and he didn't have a reasonable belief in the necessity of using the degree of force he used at the point in time that he used it.
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