Drawing vs Shooting

[linkinpark9812]

Yes, I know this has been discussed before, I have read through multiple threads and I seem to have a good understanding of it. But was curious on some things and wondering how people (and lawyers) on here interpret them, specifically the IC.

So the two specific conditions. Drawing your weapon without making the simultaneous decision to fire vs. drawing and already making the decision to fire. I am more focused on the first.

Obviously if you are making the decision to already fire, for example, if a guy is robbing a store and he has the gun pointed at the cashier, and your background is clear, and you make the decision to draw and shoot.

However, after reading about a certain situation posted on here, I was becoming more interested in the decision to draw but not fire. Now, I remember someone posting on here the case law about Indiana interpreting pointing a firearm as DEADLY force, and NOT reasonable force, which was originally how i interpreted it (if someone knows it and can post a link, that would be great.

So from my understanding, BOTH are deadly force, so to do either, you must be justified in using deadly force. I don't want to post all the IC's here but I'll post this one.

IC 35-41-3-2
Use of force to protect person or property
Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.

So basically if I believe that force is needed to prevent serious bodily injury to me or someone else OR the commission of a forcible felony, I can use deadly force.

However, if someone comes up behind me and says "give me your money and I won't hurt you", since he is in the commission of a forcible felony, I can use deadly force. Would that look well in court if I actually shoot him and he is unarmed? probably not. However, if I pull my gun to point at him before making the decision to shoot, I am still using deadly force according to the IC.

So is there this underlying "level of deadly force"? I mean if I pull my gun, it is because I believe I am authorized to use deadly force. However if someone asks "Well, why didn't you shoot?". Seems like you could contradict yourself.

Just my on the topic.

Also, I guess you could technically avoid these problems if you just backed away from the threat with your gun exposed and your hand on it in its holster or out of the holster and pointed at the ground, since there is no brandishing law. That wouldn't necessarily be deadly force, but would it be reasonable force instead or neither?

 

[1911 DeadHead]

Curious to see responses on this. I think pointing a firearm at someone and considering it deadly force is dumb, because if pointing and not firing is all the force that is needed to neutralize a threat, why would it just not be reasonable force?

Buy, hey, I dont write the laws. I just complain how so many can be up for interpretation.

 

[Dwight]

A decision to use deadly force could change in an instant. Suppose your mugger did have a knife but threw it down as soon as you drew your gun. You would not continue with pulling the trigger.

Drawing a gun on a suspect to end the threat could be articulated to the court. Identifying that the suspect was unarmed and "reducing your level of force" by not pulling the trigger is a reasonable next step.

 

[Jack Burton]

Some people believe a gun is just like a Gurkha knife... if you draw it, it has to be blooded before being returned to its sheath.

 

[mr.steve]

this sounds like a topic that should make the rounds on a regular basis.
this is a real concern when you decide to carry - if you make the decision to draw yet hesitate due to potential legal implications then why carry in the first place? A clear consious understanding of your rights AND responsibilities is absolutely needed. That being said, I personaly have the desire to understand all the interpretations that could be possible.

I am looking forward to reading more on this topic.

 

[cedartop]

A decision to use deadly force could change in an instant. Suppose your mugger did have a knife but threw it down as soon as you drew your gun. You would not continue with pulling the trigger.

Drawing a gun on a suspect to end the threat could be articulated to the court. Identifying that the suspect was unarmed and "reducing your level of force" by not pulling the trigger is a reasonable next step.

Correct, I have had this very thing happen to me more than once. (as a LEO, not ccw'r) Lets not go down the road of paralysis by analysis. Yes you should play out possible scenarios in your head or in a FOF enviroment, but don't become so wraped up in the what ifs, that it freezes you when you need to act. Guys, when this stuff happens for real, thinking back to Ayoob's last article on how some good guy went to jail for drawing his gun could get you killed. No, I am not saying draw on everybody, far from it. I am confident in my verbal and physical skills, and most likely that will be all that is needed, but when the time comes that I need my gun, I won't be burdened by some esoteric caselaw, or state penal code. Like everything in life, be responsible, act correctly, and face the consequences for good or ill.

 

[Sticky]

A decision to use deadly force could change in an instant. Suppose your mugger did have a knife but threw it down as soon as you drew your gun. You would not continue with pulling the trigger.

Drawing a gun on a suspect to end the threat could be articulated to the court. Identifying that the suspect was unarmed and "reducing your level of force" by not pulling the trigger is a reasonable next step.

Correct, I have had this very thing happen to me more than once. (as a LEO, not ccw'r) Lets not go down the road of paralysis by analysis. Yes you should play out possible scenarios in your head or in a FOF enviroment, but don't become so wraped up in the what ifs, that it freezes you when you need to act. Guys, when this stuff happens for real, thinking back to Ayoob's last article on how some good guy went to jail for drawing his gun could get you killed. No, I am not saying draw on everybody, far from it. I am confident in my verbal and physical skills, and most likely that will be all that is needed, but when the time comes that I need my gun, I won't be burdened by some esoteric caselaw, or state penal code. Like everything in life, be responsible, act correctly, and face the consequences for good or ill.

Very well said x 2.

It is also possible for a CCW user to non-verbally "articulate", to a potential bad-guy, that you are armed without even drawing or showing the gun. The good part of that is that a non-criminal type will probably not even notice; while the bad-guy(s) (or anyone in LE) very likely will.

The best post I've ever seen on that has probably already been linked to: here's the link again.

 

[figley]

The gun is a final resort, in a whole continuum of possible responses. A good total self defense trainer will help you to sort out the nuances.

Aside from that, your best bet may be to put all your hip in a toaster. One member here claims that method has worked for him for 29 years.

 

[figley]

DT

 

[linkinpark9812]

Curious to see responses on this. I think pointing a firearm at someone and considering it deadly force is dumb, because if pointing and not firing is all the force that is needed to neutralize a threat, why would it just not be reasonable force?

Buy, hey, I dont write the laws. I just complain how so many can be up for interpretation.

Right, I cannot be 100% sure if Indiana has the case law that pointing a loaded firearm at someone is deadly or reasonable force, though it was stated somewhere that it was.

A decision to use deadly force could change in an instant. Suppose your mugger did have a knife but threw it down as soon as you drew your gun. You would not continue with pulling the trigger.

Drawing a gun on a suspect to end the threat could be articulated to the court. Identifying that the suspect was unarmed and "reducing your level of force" by not pulling the trigger is a reasonable next step.

Right, but the question is, the initial reason. if I pull a gun on someone with a knife and have ample room between him and me, and he drops his knife, you better believe I am not going to just re-holster my weapon, even though the initial threat has technically disappeared.

But if you had to articulate why you pulled your weapon and used it on the threat without actually pulling the trigger, what would be your reasoning? This is assuming that he didn't not have a weapon necessarily, or that he did not have the ability at that moment. You could articulate that deadly force was authorized since it only has to be a forcible felony and you felt that the level you gave of deadly force was reasonable. But then again, this comes down to if pointing a weapon at someone is 100% considered deadly force.

Correct, I have had this very thing happen to me more than once. (as a LEO, not ccw'r) Lets not go down the road of paralysis by analysis. Yes you should play out possible scenarios in your head or in a FOF enviroment, but don't become so wraped up in the what ifs, that it freezes you when you need to act. Guys, when this stuff happens for real, thinking back to Ayoob's last article on how some good guy went to jail for drawing his gun could get you killed. No, I am not saying draw on everybody, far from it. I am confident in my verbal and physical skills, and most likely that will be all that is needed, but when the time comes that I need my gun, I won't be burdened by some esoteric caselaw, or state penal code. Like everything in life, be responsible, act correctly, and face the consequences for good or ill.

That is why I think it is great to think about it before hand and possible scenarios and what you can do to diffuse them. Obviously, you can't run every scenario, but it will give you a much better understanding when you have to make that split second decision in the field. Just like you should practice drawing you weapon in the safety of your house, so you have muscle memory when it comes down to drawing in a real life situation.

Great posts!

 

[finity]

Here is the decision that basically stated that pointing a firearm at someone is DF:

Nantz vs. State

"‘Deadly force’ means force that creates a substantial risk of serious bodily injury.” Ind. Code § 35-41-1-7. There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded firearm, constitutes deadly force as referred to in the defense of property statute, Ind. Code § 35-41-3-2 (c). However, in Spurlock v. State, 675 N.E.2d 312, 316 (Ind. 1996), our supreme court concluded that pointing a loaded firearm at a police officer was sufficient evidence to support a conviction for criminal recklessness. “A person commits criminal recklessness when he recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person.” Id. (citing Ind. Code § 35-42-2-2.). Thus, within the context of a charge of criminal recklessness, pointing a loaded firearm is considered an action that creates a substantial risk of bodily injury to another person. See Id.

Consequently, we conclude that Nantz’s conduct, pointing a loaded firearm at Petro’s head, was unreasonable force to use to protect his alleged property interest in the bulldozer.

Note that the above case was specifically about using DF to protect your property in which they held that, since pointing a gun can be considered DF, pointing a gun at someone to protect property is UNreasonable force.

That decision can be construed to other cases in which the use of reasonable force, per the IC, can be used to protect your property.

I think that the INCOA got that decision wrong since the IC specifically says that pointing a firearm (not shooting a firearm, though) is legal if reasonable force is justified to protect your property. But that's just my personal opinion.

Also note that the distinction is between just drawing and drawing & pointing NOT between drawing & pointing and pointing & firing. There is no brandishing law in IN so just drawing it is not illegal (even though the decision implies that you could just as easily get convicted of criminal recklessness by just pulling a gun - even unloaded - out of your holster ANYTIME AT ALL - like at a busy shooting range?).

The problem in Nantz was that 1. there was never any threat of bodily harm & 2. he pointed the gun at the other guy (or at least just "waved it around" - the "brandishing" the court was talking about).

Who knows if he would have been convicted of anything if he didn't point the gun at the other guy but instead just drew it in contemplation of using it. He definitely couldn't have been convicted of pointing a firearm, though.

My :

If there is a reasonable chance that you may need to use your gun to defend yourself or others from SBI or a FF then drawing your gun shouldn't be a problem as long as you aren't "waving it around" irresponsibly or pointing it at people.

If you are under reasonable belief that you are under imminent threat of SBI or a FF (FF requires the use of at least the threat of force against you to be a FF in the first place) drawing & shooting someone shouldn't be a problem as long as the use of DF was reasonable.

If DF was justified initially then you shouldn't get in trouble for just pointing the gun & not shooting if the situation suddenly changes. I don't think that anyone reasonably expects you to just put down your defenses as soon as the BG acts like he MAY no longer be a threat. IOW, you don't need to reholster as soon as the BG drops the knife. You just can't shoot him now since the threat is no longer imminent. I don't think anyone would get in trouble for then holding said BG at gunpoint for police since the IC allows for the pointing of a gun in the case of a citizens arrest (ironically, though, it's in the same IC as the law that allows you to point a gun at someone to protect your property too, but the court didn't rule on that aspect of the law...so )

If it were me I wouldn't point a gun at someone for stealing my hubcaps. I may have it in my hand & be prepared to use it if the BG escalates the confrontation to me needing to defend myself, though.

If someone tried to rob me, I'd shoot. No hesitation - hesitation kills you. Even if I can't see that they are armed. There is no way I can KNOW that they DON'T have the means to carry through on their threat to harm me if I don't comply. I MUST assume that they do & act on that assumption for my best chance at safety. ("Detached reflection cannot be demanded in the presence of an uplifted knife" - O.W. Holmes in Brown v. US)

If they then stopped the threat before I could shoot & I decided that they had given up then I wouldn't shoot. I'd hold them at gunpoint till the police got there. If they decided to run away while I had the gun on them then I'd let them go.

But that's just me based on the best possible interpretation of the applicable IC & court cases I've seen. I'm not a lawyer so I don't have the "inside scoop" on this stuff but sometimes you just have to make the best decisions you can based on the information you've got & hope that you don't get a rogue cop/prosecutor/judge/jury just trying to make an example out of you by reinterpreting the laws as they see fit.

I'd say for the most part that works out pretty well in most instances.

 

[BrewerGeorge]

This may be naive of me, but if something ever happens and I have to act, I will not be quoting legal definitions of "Deadly Force" or the like to the responders. I will just give a straightforward account of what happened without trying to draw conclusions or make excuses other than "I felt I was in danger because..."

 

[linkinpark9812]

This may be naive of me, but if something ever happens and I have to act, I will not be quoting legal definitions of "Deadly Force" or the like to the responders. I will just give a straightforward account of what happened without trying to draw conclusions or make excuses other than "I felt I was in danger because..."

Believe me, I wouldn't either. I will give them the story of what happened and that is it.

The whole point of the IC is to prepare yourself beforehand and use it in your judgement call if you ever have to implement deadly force. It may also come in handy if you actually do get charged with something and you discuss with your lawyer about it.