ok...I live in Virginia and I realize that the law may differ from state to state. I was just wondering how you guys (and girls) interpret the part of the law that states that pointing a weapon at someone with out dischargeing it is brandishing a deadly weapon while it may in fact stop a crime from taking place with out a shot being fired.
   If you are having trouble understanding me look at these two situations:

Situation 1: You are in a 7-11 and a man sticks a revolver in the face of the clerk and demands all of the money. You aproach from the side and sight in on him and order the gun to be dropped. The perp drops it. You lie him down and wait for LEOs to arive and releive you. Later in court you are charged with brandishing a deadly weapon and go to jail.

Situation 2: Same as above however instead of sighting in and shouting to drop the gun you shoot him twice in rapid sucession in the upper chest/ neck area. The robber is dead. In court It is found that the shooting was justified as the criminal was able to inflict deadly force on the clerk and you were 'intervening on behalf of an innocent third party.

This seems all wrong to me. If I think I have the chance to end an incident with no shots fired I would take it in a second.  Why dose the law back us into a cornner were the only option a Law abiding CCW carrier can use is deadly force?  All comments/ feelings welcome...


TIA for all input and views.

JIM

Because you are not a cop.  

The law in Virginia is for defense of your life by deadly force.  If you did not shoot the guy, then the justification for deadly force is weak.  In VA using deadly force is specifically extended to one's family, and is generally extended to strangers (i.e. the 7-11 clerk) only if that person would be allowed to use deadly force.  In your scenario, you would probably be justified in using deadly force, as you would be defending a person who was under a threat that would call for their use of deadly force if they could.  

If you pull your gun out and don't shoot, then the threat of deadly force may not be there.  The reasoning goes that if you're truly in danger, you are justified in killing.  If you don't try to kill the guy (i.e. yell stop or fire a waring shot, or some other lame action) then the threat to you must not have been grave enough to warrant deadly force.  

The right to self-defense and using a firearm to do that is legal.  What gets into a shabby area is when you start using a firearm for things other than defending your life with deadly force.

Basically if it's worth using a gun, come out shooting.  If it's not worth shooting, it's not worth using a gun.  

I'd recommend you get "The Virginia Gun Owner's Guide"  ISBN: 0-9621958-7-1.  It does pretty well at explaining gun laws in the Commonwealth and costs about 10-15 bucks.  It's worth it, as there's plenty of laws it covers that I didn't know existed.  There are plenty more that exist that it doesn't cover, especially local ones, so you can't use it as a "know all, be all" resource.  It does a good job though as a general guide.

Ross

Can't say for sure about Virginia, but in my state the situation you describe would not and could not be construed to fit the legal definition of "brandishing" for the simple reason that your INTENT was to try and stop what reasonably appears to be a violent felony in progress, and not to threaten some innocent person, or an over-reaction on your part to, say, a verbal threat to "kick your ass" etc. In the example given, You are not brandishing (read your state's legal definition and also the statutes on use of deadly force...I think you will see that this is so) but rather performing an escalation of lawful force options...hopefully prior to being forced to actually pull that trigger.

You should be able to get a clarification on this from various knowledgable (this lets out most street cops...they very often do not know the letter of the law if it is not something they deal daily with) sources in your area.

Quoted: I'd recommend you get "The Virginia Gun Owner's Guide"  ISBN: 0-9621958-7-1.  It does pretty well at explaining gun laws in the Commonwealth and costs about 10-15 bucks.  It's worth it, as there's plenty of laws it covers that I didn't know existed.  There are plenty more that exist that it doesn't cover, especially local ones, so you can't use it as a "know all, be all" resource.  It does a good job though as a general guide. Ross

Thats a great book and I have it. It is accualy the book that prevolked this question in the first place. I bought it because I needed to get some clarification on the laws. I have been a hand gun owner for some time now and am planning to apply for my CCW in the near future. I do however want to be sure that I am famillier with every facit of these laws before i make a split second decision. I figure do the thinking/leagal debate now while i'm calm and thinking straight then as the gun is comming out of its holster on its way up. Am I right?

Thanks guys for your oppinions...

JIM

Unfortunately, Virginia is one of the VERY FEW states that has NO statues on the use of deadly force.  Each and every shooting case is assesed individually, and many (most) of them are decided by a jury in court.  Killing someone here is automatically homicide (second degree).  It is a positive defense that you did it in "self-defense" (which can extend to others) but that justification can only come later.  To prove second degree murder, the Prosecutor only has to prove that you killed him.  It's up to you to prove what the justification was.  By using "self-defense" you have to admit to the charge in the first place.

This sounds worse than it really is.  Generally speaking it's reason and common sense, but there is no law that says when you can or cannot shoot as most other states have.  It's for a jury, DA, judge, whatever to decide if you were reasonable in your actions.  

Case law does state that you may respond with the same level of force that is being used against you.

-A person who reasonably apprehends bodily harm by another is privileged to exercise resonable force to repel the assault.  However the amount of force used to defend oneself must not be excessive and must be reasonable in realtion to the preceived threat (Diffendel v. Commonwealth, 1989)

The "brandishing a firearm" law does not apply in cases where the firearm is being used legally in self-defense. See state statute 18.2-282.

Pulling a gun is however the "threat of deadly force".  Even reaching for one may be construed as such.  Basically the threat for deadly force is judged the same as the acutal use of deadly force.  As there are NO legal statues concerning when you can, and when you can't.  You're basically in the same boat in either circumstance.  Either action (situation #1-pulling the gun, or situation #2-shooting) is going to have to be justified to the courts.  

There isn't a cut and dried escalation of force you need to go through in VA.  You don't need to issue verbal warnings, etc or even retreat under certain circumstances.  If the "threat of deadly force" is enough to stop the incident, then you'd be wiser to not shoot. However you must realize that the "threat" and the actual "use" of deadly force are basically the same.  Once you've pulled that gun, you've made the concious decision that the only resort you have is to use deadly force to control the situation.  

Obviously you're going to be better off if you don't kill, and issuing a warning, etc may be the way to go.  But that's pretty much your call that you're going to have to justify afterwards.  If you didn't think the guy was going to really kill the clerk, you were playing vigilante, or for some other reason you weren't justified in killing him (few that may be), you may not be justified in the threat of deadly force.  

As for being charged with "brandishing" it does not apply to justifiable self-defense, so you're going to have to justify it before the courts (as would be expected in VA).

Ross

Quoted: Quoted: I'd recommend you get "The Virginia Gun Owner's Guide"  ISBN: 0-9621958-7-1.  It does pretty well at explaining gun laws in the Commonwealth and costs about 10-15 bucks.  It's worth it, as there's plenty of laws it covers that I didn't know existed.  There are plenty more that exist that it doesn't cover, especially local ones, so you can't use it as a "know all, be all" resource.  It does a good job though as a general guide. Ross Thats a great book and I have it. It is accualy the book that prevolked this question in the first place. I bought it because I needed to get some clarification on the laws. I have been a hand gun owner for some time now and am planning to apply for my CCW in the near future. I do however want to be sure that I am famillier with every facit of these laws before i make a split second decision. I figure do the thinking/leagal debate now while i'm calm and thinking straight then as the gun is comming out of its holster on its way up. Am I right? Thanks guys for your oppinions... JIM

I think it's a smart thing to do.  Better to figure things out now.  In the end, you aren't going to have any bizarre trouble if what you did was the reasonable and right thing to do.  Just remember that shooting someone is the LAST resort.

What would I do in this situation?  I'd draw and aim.  I would issue no warnings and make every effort to remain unseen.  Since 7-11 policy is to cooperate and surrender the cash, and nearly every crook knows that, and my area rarely has any store clerk getting killed, I'd wait.  It may sound cold, but the clerk isn't one of my kids, so I'm willing to risk his life a little more than I would if it was one of my kids.  If I felt the crook was going to take the cash and split without hurting anyone, I'd let him.  I'd observe and report to the police what I saw when they showed up.  If I thought he was going to off the clerk, and otherwise felt justified, I'd shoot.  I'm not sufficiently trained nor experienced to play cop and shout commands, etc.  

While the act of drawing may be preceived as a threat, it is actually that.  I would be justified easily in court that it was a reasonable thing to do.  

If the guy came in and stated pushing the clerk around and not really doing any damage, I wouldn't draw.

Ross

Here in Colorado the Law says a citizen can come to the aid of another person with a gun or whatever, if you feel that person's life is in danger. Happened just the other day in a town not far from me. A low life was beating the tar out of his girlfriend and two guys came along and pistol whipped the SOB into submission and held him until the LEO's arrived. Charges were filed against the perp, and the perp only! The girl ended up with a concussion and a broken jaw.