[eddified]

I have a hypothetical situation to ask about.

Let's say I'm just minding my own business in a store, or out of doors even... it doesn't really matter. I'm stationary, and I see a suspicious looking character walking up to me. I don't have any particular reason to draw, or even let the would-be enemy see a weapon at this point. However, I'm suspicious enough to begin the draw process, and possibly let the enemy know that I have a weapon. If I reach back with my hand (strong side carry) and act as if I'm getting ready to draw, is that considered brandishing? More to the point, is it legal?

Assume that the weapon is fully underneath my clothing and that I never actually get to a point where anyone could see the weapon from *ANY* vantage point. Ie, it remains perfectly concealed the whole time. -- However, the enemy has reason to believe I have a gun that I am getting ready to draw. Is this legal and if so, is it even advisable?

The reason I ask is I previously read a published account of someone who was on a date in Washington D.C. who did something like this to diffuse the situation. (back before the handgun ban, etc). As this person and his date were either entering or leaving (I don't remember which) the parking garage where his car was parked, 2-3 suspicious-looking gang bangers spotted them, got off the back of their car where they had been sitting, and began walking towards them. The would-be victim reached into his coat for his weapon while positioning himself in front of his date (in a protective manner). The gang bangers turned around and left. The would-be victim never had to draw.

The reason that I hope my hypothetical response (acting as if I am about to draw) to be legal is because I heard that criminals often try to close the distance between you and them before you have any real reason to draw. If a suspicious looking character who I have negative intuitive feelings about (warning bells going off in my head) gets too close to me, it may be too late before I am legally justified in drawing. So, if my hypothetical response of "pre-drawing" isn't legal (I don't know if it is or not), then what can I do (besides running, which is the only other reasonable response I can think of right now)?

 

[GeneticsDave]

There's no brandishing law in Utah.

Try to put distance between you and anyone you feel to be a potential threat. This not only has the potential to diffuse/ascertain the situation but is also tactically sound. If that is not possible, you can get vocal. You can yell, "Stop!" if they don't then you could start your draw. By simply yelling commands, you assert yourself and your confidence. You tell this would be criminal that you are in charge and know that something is up. If they are an innocent, they will freak and ask what's going on. You can say, "Don't ever try to sneak up on someone like that... it's dangerous." Then you two can part ways (keeping an eye on them until you are safe).

Note: You don't have to retreat here in Utah, but if you have the opportunity to do so in this type of situation, you will be better for it; both tactically and legally.

 

[Cinhil]

Dave has some good points with what he said.

As for Utah law, there is no law against brandishing a weapon so if necessary, in your minds eye, for your safety or that of another, you may either draw or show your weapon as a means of diffusing a situation.

Now with that said, be sure to have a cell phone available and immediately call and report the suspicious person. by doing this you assert that at the time of the incident You were the victim and disqualifies any lies which the perp may use later, or if he/she decides to call and report you--which has happened. This is one of the major reasons I decided to begin having a cell phone and join the modern age. Of course I use it responsibly and only for emergencies (like when the wife needs to call me when she has broken down etc.).

I hope this helps.

 

[UtahCFP]

The pertinent section of Utah Code I think you are hunting for is 76-1-506 -- http://le.utah.gov/~code/TITLE76/htm/76_10_050600.htm -- which states "[E]very person, except those persons described in Section 76-10-503, who, not in necessary self defense in the presence of two or more persons, draws or exhibits any dangerous weapon in an angry and threatening manner or unlawfully uses the same in any fight or quarrel is guilty of a class A misdemeanor" (section 76-10-503 is titled "[R]estrictions on possession, purchase, transfer, and ownership of dangerous weapons by certain persons" and spells out who is restricted from possessing a firearm).

Introducing deadly force when it is not yet justified likely means that you have just escalated the situation. Better to embarass yourself --- shout "STOP RIGHT THERE!" at the top of your lungs and put out your left hand (assuming you are right handed) in the universal palm-towards-them STOP sign. Your right hand might be getting ready to go into action, but don't "draw or exhibit" the firearm. Goofs don't like to be noticed, so you've already made them unfcomfortable with you as target. If they now continue their advance, they have crossed an actual line that they know you drew. 'Course, if they didn't really mean you harm, they know think you are nuts and will leave you alone anyway. Shouting at them turns the tables and gives you a little control over the situation since you are acting outside of "normal" behavior.

If they do the "just want to know what time it is" thing, shout you don't have a watch or it is busted and "DON"T COME ANY CLOSER!". Distance is your friend, light is your friend, goofs don't like witnesses, so look for ways to change the situation to your advantage. Shine a bright light in their eyes and say "STOP RIGHT THERE"... now they not only can't see, but are starting to wonder if they picked a cop.

I like the "I'VE GOT A COMMUNICABLE DISEASE, DON'T COME ANY CLOSER" approach myself. uke:

 

[Paul]

eddified,

I think you are just fine doing what you have described. In fact, I like what you have suggested for this reason. If it is a BG, he is definetely going to have his eyes on you and will know full good and well what you are doing. When he sees you go into a pre-draw stance and put your hand near your gun, he will get the hint real quick. If it is an innocent person, they really won't be paying attention to you and most likely won't notice what you are doing anyway, so you have nothing to worry about. The persons response to your "position" should give you everything you need to know pretty quick.

 

[eddified]

Thanks for the insightful answers.

So, what exactly does Dave mean by "there is no brandishing law in utah"? I imagine I would get in trouble if I started brandishing a gun during an argument with a friend in which he did nothing to make me afraid for my life. I guess what I'm asking is, when can I brandish, and when should I not brandish?

 

[GeneticsDave]

Thanks for the insightful answers.

So, what exactly does Dave mean by "there is no brandishing law in utah"? I imagine I would get in trouble if I started brandishing a gun during an argument with a friend in which he did nothing to make me afraid for my life. I guess what I'm asking is, when can I brandish, and when should I not brandish?

The real problem is what do you mean by "brandish"? It's not in the Utah Code definitions (hence no law specifically saying brandish). If you mean expose that's one thing. If you mean wave around, that's something entirely different.

What I meant was, if your firearm becomes exposed, intentionally or not, there is no penalty (assuming you are not using it to threated someone). This means that when your CFP instructor told you that you were breaking the law if your gun was exposed, s/he was wrong.

That being said, keep the firearm in the holster unless needed for self-defense. If you take it out and wave it around, people will feel threatened, whether that was your intention or not would be irrelevant. You could be in violation of Utah State Code 76-10-506: Threatening with or using dangerous weapon in fight or quarrel. Threatening without justification is a class A misdemeanor. Now, if you point the gun at someone you just elevated it to Aggravated Assault, a felony. So... the best thing to do is to keep it holstered off the range and outside the house.

 

[eddified]

Thanks for the insightful answers.

So, what exactly does Dave mean by "there is no brandishing law in utah"? I imagine I would get in trouble if I started brandishing a gun during an argument with a friend in which he did nothing to make me afraid for my life. I guess what I'm asking is, when can I brandish, and when should I not brandish?

The real problem is what do you mean by "brandish"? It's not in the Utah Code definitions (hence no law specifically saying brandish). If you mean expose that's one thing. If you mean wave around, that's something entirely different.

What I meant was, if your firearm becomes exposed, intentionally or not, there is no penalty (assuming you are not using it to threated someone). This means that when your CFP instructor told you that you were breaking the law if your gun was exposed, s/he was wrong.

That being said, keep the firearm in the holster unless needed for self-defense. If you take it out and wave it around, people will feel threatened, whether that was your intention or not would be irrelevant. You could be in violation of Utah State Code 76-10-506: Threatening with or using dangerous weapon in fight or quarrel. Threatening without justification is a class A misdemeanor. Now, if you point the gun at someone you just elevated it to Aggravated Assault, a felony. So... the best thing to do is to keep it holstered off the range and outside the house.

My CFP instructor didn't say anything about brandishing, far as I can recall.

When does "exposing" become "threatening" though? What if I'm walking down the street and a group of thug-looking guys come over and start telling me to hand my money over, but with no verbal threats or weapons visible. If I expose my gun (but do not draw), would that be "threatening" someone? Would that get me into legal troubles? (assume that I have a few good witnesses so I don't have them lying a lot etc-------Without the witnesses I know I could get in huge legal troubles if they lie about it and they call in first, etc, but for this question let's assume the judge/jury get the truth about the situation).

 

[GeneticsDave]

That could be seen as a threat. The question you would have to answer (possibly in court) is, "Why did you uncover your gun?"

If it is to get ready to defend yourself, that's one thing (providing you felt threatened). If it's to show to the thugs that you have a gun in a, "Don't mess with me!" manner, that's a threat.

If you OC, you didn't change anything. You aren't threatening because your firearm is always exposed, you didn't change anything when in the situation.

 

[eddified]

That could be seen as a threat. The question you would have to answer (possibly in court) is, "Why did you uncover your gun?"

If it is to get ready to defend yourself, that's one thing (providing you felt threatened). If it's to show to the thugs that you have a gun in a, "Don't mess with me!" manner, that's a threat.

If you OC, you didn't change anything. You aren't threatening because your firearm is always exposed, you didn't change anything when in the situation.

Thanks. I think what I would do (instead of exposing a weapon) in this new made-up situation would be to do what was outlined above: yell "STOP" and hold up my hand, etc. (Thanks dave, you really know your stuff)

 

[eddified]

That could be seen as a threat. The question you would have to answer (possibly in court) is, "Why did you uncover your gun?"

If it is to get ready to defend yourself, that's one thing (providing you felt threatened). If it's to show to the thugs that you have a gun in a, "Don't mess with me!" manner, that's a threat.

If you OC, you didn't change anything. You aren't threatening because your firearm is always exposed, you didn't change anything when in the situation.

So, I guess I'm coming to the realization that brandishing a gun is always a bad idea, in Utah, am I right? The situation is one of either 1) yell STOP but do not brandish the gun or 2) draw and aim. It seems that everyone is saying there is no reason to brandish the gun unless you have already decided to apply lethal force. Is this the general concensus?

 

[divegeek]

If it is to get ready to defend yourself, that's one thing (providing you felt threatened). If it's to show to the thugs that you have a gun in a, "Don't mess with me!" manner, that's a threat.

+1

This is an interesting area, because uncovering your gun so that you have quick access to it and can defend yourself, and uncovering your gun to make a threat are EXACTLY THE SAME movement. But one is legal and the other is illegal -- it's all about your intent. In reality, it's all about how you explain your intent, after the fact.

 

[xmirage2kx]

If you introduce you gun as an element in the situation (your ace up the sleeve so to speak) you should be prepared to defend your action in court (legal or not).

Open carry gives you an advantage here because you didn't change anything and still have a quick draw.

Assuming you shouldn’t have used your gun this is what you may/will face:

Uncover gun: possible misdemeanor
Hand on gun: likely misdemeanor
Draw, Low ready: misdemeanor
Point/aim: felony
Fire: felony

 

[m&p40]

I think mental awareness goes a long way in how you react. All things said here were great IMO. The more aware you are of your surroundings the less likely you will NEED your weapon. IMO even though utah is a no retreat state, you should ALWAYS be looking for ways to get out of the situation WITHOUT bringing your gun into play. Your gun is a last resort. With good mental awareness you will already have an escape route in your head and know what is needed to happen in order for you to draw your weapon.

Its the "Frontsight" mentality. frontsight.com has some good articles on mental awareness. you might want to check them out.

 

[bane]

@eddified: You know, I have been reading this thread since it's inception and reading everyone's input to it and withheld comment b/c I think the general sentiment is right on target with regards to the notion of "brandishing" -- is it, per-se, illegal??? Not in Utah. BUT you should be careful b/c, as has been pointed out, there are other laws on the books that could get you for acts very similar to brandishing... in other words, the fine line between legal brandishing and these other illegal actions is a pretty fine one. In the heat of the moment, you are pretty unlikely to remember exactly where that line is... most likely, you will cross it and get in trouble.

Other than the other great advice given here (like put distance between you and the perps -- probably the #1 best advice IMO) I have one more bit to throw in the mix. You should seriously carry OC. Some guys hate it, I know. But I think you should give it serious consideration. If the military uses it, it obviously works and has it's place. And trust me, it does work. So here's the thing... if a couple of thugs started bearing down on you and you immediately started putting distance between you, barking orders and they were able to close the distance to within 6 feet what are you going to do then??? Well, you could draw but now you have to worry about brandishing type of issues. You might be better served to utilize (your already drawn) OC at that point. It's easy enough to swipe several perps at that range and you can easily do it with your non-firing hand while having your firing hand getting ready to draw if needed.

If that doesn't stop them, you have a LOT more reason to draw and shoot -- and your defense would be that much more solid. Think about it these 2 scenarios:

#1: "Your honor, my clients were merely walking up to the gentleman to ask him for some bus money and he lifted his shirt and showed his firearm and threatened he'd shoot them"

#2: "Your honor, my clients were... ummm... merely walking up to the gentleman to ask him for some bus money... yeah.. ummm... well he started putting distance between them, backing away from them and uhhh... he put out his hand and ordered them to stop coming near him but uhhh... they must not have heard him or seen his hand and they kept getting closer to him until... well, for some reason he felt threatened and sprayed them with OC.... now I'm not sure why they didn't understand that message but they didn't and uhhh... well, they stormed him, I guess they were mad at that point... and so he shot them"

You can see #2 would be a pretty easy defense for you. Because you utilized SEVERAL tactics to stop the threat rather than just 1 or 2. There are so many situations where I can imagine OC providing the perfect intermediary solution that I can't imagine any reason sufficient for not carrying it.