Brandishing - Stand Your Ground – Castle Doctrine Laws (Files Updated)

[Drm50]

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.

 

[Rule3]

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.

 

[hobby-gunsmith]

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.

Nick

 

[Drm50]

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.

 

[ISCS Yoda]

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.

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.

 

[fredj338]

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.

 

[fredj338]

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.

 

[bigggbbruce]

So you can defend your mistress but not your cousin?

Was the victim the mistress's husband?

 

[sotexas]

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

 

[soFlaNative]

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

 

[flagman1776]

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.

 

[WR Moore]

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.

 

[SMSgt]

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.

 

[sotexas]

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.

 

[Dvan34]

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.

 

[donnieowsley]

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.