[yung1s#2]

Some Background;
I own a dental assisting school that operates inside a dental office. Our classes run late into the evening starting at 6:00pm and ending at 10:00pm (this is after the business we operate within has closed.) These classes are only for students who have enrolled. Generally I hire instructors but recently I started teaching myself, seeing how I wear scrubs, this week I ordered a Thunder Wear holster so I can conceal carry while teaching.

Needless to say when this happened I was NOT carrying.

Anyways around 8:15pm while my class was in our classroom taking a test I went to the clinical area to set up for the clinics we had that evening. As I turned down a hall I looked up to see a 6 ft African American man medium weight in dark clothes (with his hands in his pockets) standing a few feet in front of me. I looked at him and said, “We are closed you need to leave.” (As I said this I took a few steps back so I would be able to access another hallway to run.) The man mumbled something and again I said, “We are closed you need to leave.” He mumbled something again and I repeated my previous statement just as a student walked up behind me. The man finally headed toward the exit. (The area where I discovered the man was several doors, rooms, and feet from the door he entered through.)

I went to a window to look for plates and never saw him leave (maybe he was on foot? Or another car was blocking him from my sight?) I proceeded to call 911. When the police officer arrived he checked the premises and stated all was clear.

Naturally when I first came upon the man my first thought was, “S*** I don’t have my gun.” On my drive home I ran the scenario through my head and was wondering if I had my gun at what point would I have drawn it and at what point would I have shot? And with that what were my rights? I was scared for my life.

What would you have done? What would have happened had I been carrying and proceeded as stated above? What were my rights?

 

[aashooter]

Although I can see where this situation could get strange in a hurry, I don't think you have would have been justified in presenting or shooting this gentleman based on the information you provided. Unless he was behind secured doors which would indicate he broke in, it seems like trespassing after you asked him to leave.

It sounds like he never threatened you or showed a weapon of any kind. Although he may have acted a little strangely, it doesn't seem as though he was even acting in a threatening manner. Distance is your friend.

I guess I would ask if/why your front doors were unsecured allowing anyone to walk in.

 

[yung1s#2]

Although I can see where this situation could get strange in a hurry, I don't think you have would have been justified in presenting or shooting this gentleman based on the information you provided. Unless he was behind secured doors which would indicate he broke in, it seems like trespassing after you asked him to leave.

It sounds like he never threatened you or showed a weapon of any kind. Although he may have acted a little strangely, it doesn't seem as though he was even acting in a threatening manner. Distance is your friend.

I guess I would ask if/why your front doors were unsecured allowing anyone to walk in.

Prior to class starting I had locked all the doors. Although the door he enetered in was not damaged. I am guessing someone from the business we operate within had come back to get something and left without locking the door behind them.

Had I turned to run my back would have been to him but that still may have been my best option?

 

[aashooter]

Certainly if he had advanced as you were retreating and asked him to leave you have more reason for concern. One problem in that case is that it sounds like you were so close that accessing and presenting a firearm would be difficult if he got aggressive.

Further, unless he was a lot bigger or stronger than you, it limits your options against an the "unarmed" man. Especially knowing that you had students that would probably come to your aid.

 

[yung1s#2]

Certainly if he had advanced as you were retreating and asked him to leave you have more reason for concern. One problem in that case is that it sounds like you were so close that accessing and presenting a firearm would be difficult if he got aggressive.

Further, unless he was a lot bigger or stronger than you, it limits your options against an the "unarmed" man. Especially knowing that you had students that would probably come to your aid.

I see your point. (I'm a 5 ft 7 in small framed female I felt he was bigger and stronger than I was.) Although I carry I hope to NEVER have to use it but in the event that I would need to I would hope to know when (not too soon and not too late.)

Prior to this situation I was feeling fairly confident from the time I have spent practicing at the range, running through scenarios, and going to classes. Now I feel I have quite a way to go before I would be "ready."

 

[aashooter]

I think of five factors when I look at lethal force:

1) Is there an imminent threat of great bodily injury or death?
2) Does the threat have the ability and opportunity to cause great bodily injury or death?
3) Does the threat have the intent to do great bodily injury or death (usually manifested in a physical action . . . no mind readers here)?

In the situation you described, I would give you the benefit of the doubt on item 2 due to the male/female thing and size difference (disparity of force). However, I think it falls short in points 1 & 3.

On top of this, was the situation avoidable. Could you walk away from it or go in a room/business and lock the door? Finally, the issue of innocence comes to play. Did your actions escalate the situation to require the use of lethal force?

Although the law may make some of these less important in certain situations, I think they all play a role in the decision making process. Certainly if you can pass the litmus test on all these factors, my confidence that a jury will reach the proper conclusion is much higher.

 

[mchlwise]

I agree with the gist of the previous posts, and do not believe, based on what was said, that there was reason to pull a gun.

That being said, not having a gun when you could have must have been very scary.

I've gone through scenarios in my head myself. Especially with a couple recent stories in the news of people being arrested for "brandishing a firearm."

As the story was told, I believe that if yung1s had pulled a gun, the man could have left and called the police and she would have been investigated if not arrested for brandishing.

There are a couple things that I have decided I will do if ever faced with such a scenario:

First is to place my hand over my concealed weapon, so I have quick access if I need it. I carry in my pocket, and I would have quickly placed my hand in my pocket, gripping my gun. It would have looked kind of funny, but if yung1s was carrying in the thunderwear under scrubs, she could have started placing her hand in her pants.

Second, I would put my other hand up in the universal "stop" gesture, and then give a command in a loud voice - such as "Stop!" or "Don't!" or "Get out!" or even "You need to leave!" This will frequently tell the person that you are not an "easy target" and may get them to back away. At the very least, it will attract attention - which could have been and may have been very valuable in yung1s situation.

The next actions would be dictated by what the other person does. If they draw a knife, gun, or other weapon, it's time to draw mine. If they put up their fists in a fighting stance, I would probably back away (without turning my back) and repeat the commands, while still holding my (still concealed weapon). If they put up their fists or make any other threatening gesture and start coming at me as if they are going to imminently attack me, I would draw my gun.

At whatever point I have to draw my gun, I would hope that would discourage whatever attack (and I would assume it would discourage almost all of them). If it does not and they continue their attack, I would shoot.

After the incident, if my gun was drawn I would immediately call 911. The cops are likely to believe more whoever called them first. As soon as the threat leaves, if I had to pull my gun, I would (obviously) put it away quickly, then call 911 and say: "I'm a concealed permit holder, I was just involved in an incident where I believed my life was in danger, and I pulled my weapon."

At that point, they will have lots of questions, but I think it's much less likely that you'll get cited or arrested for "brandishing" if you call them first and tell them you had to pull your gun and why. It's certainly a message to them that you have nothing to hide.

:shrug:

My 2 cents.

Glad it turned out o.k.

 

[Paul]

I agree with the gist of the previous posts, and do not believe, based on what was said, that there was reason to pull a gun.

That being said, not having a gun when you could have must have been very scary.

I've gone through scenarios in my head myself. Especially with a couple recent stories in the news of people being arrested for "brandishing a firearm."

As the story was told, I believe that if yung1s had pulled a gun, the man could have left and called the police and she would have been investigated if not arrested for brandishing.

There are a couple things that I have decided I will do if ever faced with such a scenario:

First is to place my hand over my concealed weapon, so I have quick access if I need it. I carry in my pocket, and I would have quickly placed my hand in my pocket, gripping my gun. It would have looked kind of funny, but if yung1s was carrying in the thunderwear under scrubs, she could have started placing her hand in her pants.

Second, I would put my other hand up in the universal "stop" gesture, and then give a command in a loud voice - such as "Stop!" or "Don't!" or "Get out!" or even "You need to leave!" This will frequently tell the person that you are not an "easy target" and may get them to back away. At the very least, it will attract attention - which could have been and may have been very valuable in yung1s situation.

The next actions would be dictated by what the other person does. If they draw a knife, gun, or other weapon, it's time to draw mine. If they put up their fists in a fighting stance, I would probably back away (without turning my back) and repeat the commands, while still holding my (still concealed weapon). If they put up their fists or make any other threatening gesture and start coming at me as if they are going to imminently attack me, I would draw my gun.

At whatever point I have to draw my gun, I would hope that would discourage whatever attack (and I would assume it would discourage almost all of them). If it does not and they continue their attack, I would shoot.

After the incident, if my gun was drawn I would immediately call 911. The cops are likely to believe more whoever called them first. As soon as the threat leaves, if I had to pull my gun, I would (obviously) put it away quickly, then call 911 and say: "I'm a concealed permit holder, I was just involved in an incident where I believed my life was in danger, and I pulled my weapon."

At that point, they will have lots of questions, but I think it's much less likely that you'll get cited or arrested for "brandishing" if you call them first and tell them you had to pull your gun and why. It's certainly a message to them that you have nothing to hide.

:shrug:

My 2 cents.

Glad it turned out o.k.

:agree:

You just saved me 10 minutes of typing.

 

[GeneticsDave]

:agree:
I agree with mchlwise on most points. The one below I do not agree with:

As the story was told, I believe that if yung1s had pulled a gun, the man could have left and called the police and she would have been investigated if not arrested for brandishing.

As far as I know, you were in your place of business, correct? It was after hours (public not welcome). Had he not left or asked questions after the first request to leave, you are very right to feel threatened. Had you drawn your weapon, and he left after doing so, I would immediately call 911 and report the incident. There is no such thing as "brandishing" in Utah and definitely not while in your place of residence or your business (provided it's yours and you aren't threatening co-workers, etc). You told him to leave, he refused, you prepared yourself to use force to defend yourself and your property. There is no guarantee that any of the students would have heard you, come to your aid, or been able to defend you - so you would have been justified.

Now, the biggest problem here is that you didn't have your sidearm, so your options were limited. That can and should be remedied easily and quickly. Don't be too eager to draw your weapon (you know this), but don't hesitate if you feel your life is in danger. Just because you draw doesn't mean you have to fire. You are much better off drawing and eliminating the threat than waiting until the situation escalates to a point where your abilities or means may not be enough to stop the threat.

Best wishes, I hope you don't ever have anything like that happen again!

 

[aashooter]

. . . There is no such thing as "brandishing" in Utah . . ."

Hmmm . . . based on a Utah Attorney's web site:

"In Utah it is illegal to intimidate, threaten or cause fear in another person by brandishing or showing a weapon to the victim. Here the offender attempts to imply that unless the victim complies with his demands, he may use the weapon. It is not necessary that the weapon be a firearm. It is equally unlawful to brandish a knife. It is also against the law to brandish an object to the victim intended to cause fear that the perpetrator is in possession of a weapon and could harm the victim."

I don't know the exact laws in Utah but most states have brandishing laws.

 

[mchlwise]

I agree with mchlwise on most points.

While the word "brandishing" does not appear anywhere in the Utah Code, Section 76-10-506 says:

Every 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.

(persons described in 76-10-503 are "restricted persons" who can't legally have a weapon)

I believe this is the code that's been used recently to cite people for what the media calls "brandishing".

The element that I think is most relevant is: "not in necessary self defense in the presence of two or more persons".

How that breaks down will depend on the circumstances. Yung1s certainly could have believed that had she drawn it would have been "in necessary self defense", but she would have been lacking the prong of the "presence of two or more persons", and could technically have been cited.

It seems a little silly to me that you have to have witnesses when you're defending yourself, but I believe the legislature included that provision to prevent people from unnecessarily "brandishing" weapons and then saying it was in self defense.

Bottom line though, I would rather be defending myself against a "brandishing" charge than being buried in a cemetary.

 

[divegeek]

On top of this, was the situation avoidable. Could you walk away from it or go in a room/business and lock the door?

It's worth pointing out that this can help avoid or minimize a civil suit, but it's really not relevant as far as criminal charges go. Utah law specifically states that you have no duty to retreat in any location where you have entered or remained legally.

Personally, I'll do everything I can to get away rather than shoot someone. I'm not going to shoot unless I think there's an unavoidable risk to me or to a third party (and there's reason to be cautious about defending strangers, too). However, you are not legally obligated to try to get away.

Finally, the issue of innocence comes to play. Did your actions escalate the situation to require the use of lethal force?

This one is important in Utah law. If it can be shown that you initiated the use of force, then you're at fault. This also applies to threats of force; if you're the first one to threaten and show force, then you've committed assault. If the other person threatens and shows force then they've assaulted you and you can defend yourself, by threat of force or actual force -- your choice.

 

[yung1s#2]

:agree:
I agree with mchlwise on most points. The one below I do not agree with:

As the story was told, I believe that if yung1s had pulled a gun, the man could have left and called the police and she would have been investigated if not arrested for brandishing.

As far as I know, you were in your place of business, correct? It was after hours (public not welcome). Had he not left or asked questions after the first request to leave, you are very right to feel threatened. Had you drawn your weapon, and he left after doing so, I would immediately call 911 and report the incident. There is no such thing as "brandishing" in Utah and definitely not while in your place of residence or your business (provided it's yours and you aren't threatening co-workers, etc). You told him to leave, he refused, you prepared yourself to use force to defend yourself and your property. There is no guarantee that any of the students would have heard you, come to your aid, or been able to defend you - so you would have been justified.

Now, the biggest problem here is that you didn't have your sidearm, so your options were limited. That can and should be remedied easily and quickly. Don't be too eager to draw your weapon (you know this), but don't hesitate if you feel your life is in danger. Just because you draw doesn't mean you have to fire. You are much better off drawing and eliminating the threat than waiting until the situation escalates to a point where your abilities or means may not be enough to stop the threat.

Throughout our business there are no offices with locked doors. The classroom is far from the clinical area making it pretty much impossible to hear what is going on in the other areas of the office. All of the students were all in the classroom other than the one that had come to find me.

Is it breaking and entering when you go inside a closed business? The man had to of known we were closed. He walked through a dark reception area, several doors, through a few rooms and was in the very back end of the business. As I came down the hallways I was turning on the lights.

Although I took a few steps back I was still very close to him. Had he done something when I first came upon him, none of the students would have heard anything, and even if they had....there were only a few of them and each are smaller females than I am.

The area behind him was still dark. I didn't know if he was by himself or what to think. It took three times of asking him to leave before he finally did. There was no reason for him to be there and I made it clear the first time I told him to leave. So I felt threatened.....

1) He was in a closed business in a dark area.
2) He didn't leave when I asked him to.
3) He had his hands in his pockets.

I agree that I would not had wanted to escalate the situation by pulling my weapon too soon but for all I knew he already had his hand on his. There was no reason for him to be there and he was not responding to my demands for him to leave.

I think it is great advice that had I been carrying to have my hand on my weapon after he didn't leave as I demanded.

What are the differences since I was at my business and not my home?

Surely had you come across a man in a dark hall in your home, asked him to leave once, had pretty much no response from him, you would have pulled your weapon.

 

[mchlwise]

What are the differences since I was at my business and not my home?

Surely had you come across a man in a dark hall in your home, asked him to leave once, had pretty much no response from him, you would have pulled your weapon.

Utah Code 76-10-504 says:

(some of the codes I quote may not apply, but I'd rather quote the whole thing and explain than edit it and only quote part)

(a) a person who carries a concealed dangerous weapon, as defined in Section 76-10-501, which is not a firearm on his person or one that is readily accessible for immediate use which is not securely encased, as defined in this part, in a place other than his residence, property, or business under his control is guilty of a class B misdemeanor; and
(b) a person without a valid concealed firearm permit who carries a concealed dangerous weapon which is a firearm and that contains no ammunition is guilty of a class B misdemeanor, but if the firearm contains ammunition the person is guilty of a class A misdemeanor.

So basically, it is against the law to carry a concealed dangerous weapon, or a concealed firearm without a permit, "in a place other than his (or her) residence, property or business under his (or her) control".

What that means is that it is not against the law to carry a concealed whatever in your residence, on your property, or in a business under your control. It doesn't have to be YOUR business, but I interpret the code to mean that you have to be in charge or in "control" of the business at the time.

As I interpret it, though, the only difference between being at home or your business or on the street is your ability to carry concealed. I don't see anything that would affect the above-quoted law about "brandishing" (for lack of a better term) regardless of where you are.

 

[mchlwise]

By the way, yung1s#2,

I don't mean to imply in any way that you would have been wrong to pull your gun had you had one, or that you did anything wrong in your situation. Each of us have to make our own decisions based on the circumstances, and any of us who weren't there shouldn't second guess those who were.

By posting what I did, I'm hoping to increase all of our understanding so that we have as much knowledge as possible when we make those tough decisions, and so we know what the laws that govern us are.

At the end of the day, it will be the particular prosecutor in any siutation that will decide to press charges or drop the case against us, should any of us unfortunately be charged with anything.

 

[aashooter]

Throughout our business there are no offices with locked doors. The classroom is far from the clinical area making it pretty much impossible to hear what is going on in the other areas of the office. All of the students were all in the classroom other than the one that had come to find me.

Is it breaking and entering when you go inside a closed business? The man had to of known we were closed. He walked through a dark reception area, several doors, through a few rooms and was in the very back end of the business. As I came down the hallways I was turning on the lights.

Although I took a few steps back I was still very close to him. Had he done something when I first came upon him, none of the students would have heard anything, and even if they had....there were only a few of them and each are smaller females than I am.

The area behind him was still dark. I didn't know if he was by himself or what to think. It took three times of asking him to leave before he finally did. There was no reason for him to be there and I made it clear the first time I told him to leave. So I felt threatened.....

1) He was in a closed business in a dark area.
2) He didn't leave when I asked him to.
3) He had his hands in his pockets.

I agree that I would not had wanted to escalate the situation by pulling my weapon too soon but for all I knew he already had his hand on his. There was no reason for him to be there and he was not responding to my demands for him to leave.

I think it is great advice that had I been carrying to have my hand on my weapon after he didn't leave as I demanded.

What are the differences since I was at my business and not my home?

Surely had you come across a man in a dark hall in your home, asked him to leave once, had pretty much no response from him, you would have pulled your weapon.

In my mind, this is a classic dilemma for a the use of lethal force--determining intent. I would venture to say that most of us would say if the man did almost anything that could be considered aggressive or moved towards you when you asked him to leave you would have been justified in presenting a firearm, perhaps even shooting. However, he was not compliant but he was not necessarily a threat either. It is hard to judge intent.

This is further complicated if mental illness, alcohol or other drugs are in play. Also, you can't always assume they speak english and understand your commands.

 

[GeneticsDave]

Ok, let me answer some things here.

The two witness thing is unclear in the law. It was most likely created to help reduce gang activity. You need to have two witnesses to testify that you in fact did threaten without justification. If you are alone, you cannot be convicted for that. (U.C.A. 76-10-506)

As far as drawing you weapon, it is a misdemeanor if you draw to the low position and a felony if you point the weapon at someone. Given that the person entered after hours, he might be charged with trespassing or potentially breaking and entering (usually connotes intent of theft or vandalism). In this type of situation I would recommend giving verbal information, "We're closed, come back in the morning." followed by "Stop! Stand back! You need to leave!" placing one hand on the weapon and the other held up in the universal stop sign. Finally, "Stop or I'll shot!" with the weapon at low ready. If the man ignores this and keeps coming, you stop the threat.

I'm not suggesting that you draw under any circumstance. But some people are so set in criteria that they might end up dead rather than in court. Granted you don't want either, but it's better to be convicted by twelve than carried by six. You would at most face a misdemeanor by drawing on this guy. And, to be honest, you most likely wouldn't get charged if you could call 911 quickly and explain that a strange man entered the premises and wouldn't answer questions and wouldn't leave. Unless you shot him without him attacking you, you would likely be fine. How can I say this? Think about it. You are a woman, all alone in a near vacant building with some strange guy that shouldn't be there. He's acting strange (who knows what he'll do) and you are not only smaller than he is, you are also a woman who likely is not as strong as this man. Nobody would charge you on something like this and even if they did, no jury in their right mind would convict you, and even if they did, it's always better to be fined and/or take minimal time than be dead.

 

[Paul]

Good discussion. One point that hasn't been made is the 2nd call which better be to a good attorney. Also never forget the words, "I felt my life was in danger." Then "I want my attorney present for further questioning."

 

[mchlwise]

I'm not suggesting that you draw under any circumstance. But some people are so set in criteria that they might end up dead rather than in court. Granted you don't want either, but it's better to be convicted by twelve than carried by six. You would at most face a misdemeanor by drawing on this guy. And, to be honest, you most likely wouldn't get charged if you could call 911 quickly and explain that a strange man entered the premises and wouldn't answer questions and wouldn't leave. Unless you shot him without him attacking you, you would likely be fine. How can I say this? Think about it. You are a woman, all alone in a near vacant building with some strange guy that shouldn't be there. He's acting strange (who knows what he'll do) and you are not only smaller than he is, you are also a woman who likely is not as strong as this man. Nobody would charge you on something like this and even if they did, no jury in their right mind would convict you, and even if they did, it's always better to be fined and/or take minimal time than be dead.

Absolutely.

I think we need to know the laws, and need to be careful and not too quick to pull a gun just because we have one on us, but if you feel there's a legitimate threat and you need to protect yourself, don't hesitate!

 

[aashooter]

. . . As far as drawing you weapon, it is a misdemeanor if you draw to the low position and a felony if you point the weapon at someone. Given that the person entered after hours, he might be charged with trespassing or potentially breaking and entering (usually connotes intent of theft or vandalism). In this type of situation I would recommend giving verbal information, "We're closed, come back in the morning." followed by "Stop! Stand back! You need to leave!" placing one hand on the weapon and the other held up in the universal stop sign. Finally, "Stop or I'll shot!" with the weapon at low ready. If the man ignores this and keeps coming, you stop the threat.

I'm not suggesting that you draw under any circumstance. But some people are so set in criteria that they might end up dead rather than in court. Granted you don't want either, but it's better to be convicted by twelve than carried by six. You would at most face a misdemeanor by drawing on this guy. And, to be honest, you most likely wouldn't get charged if you could call 911 quickly and explain that a strange man entered the premises and wouldn't answer questions and wouldn't leave. Unless you shot him without him attacking you, you would likely be fine. How can I say this? Think about it. You are a woman, all alone in a near vacant building with some strange guy that shouldn't be there. He's acting strange (who knows what he'll do) and you are not only smaller than he is, you are also a woman who likely is not as strong as this man. Nobody would charge you on something like this and even if they did, no jury in their right mind would convict you, and even if they did, it's always better to be fined and/or take minimal time than be dead.

I agree with your evaluation . . . I would be surprised if someone pursued brandishing charges in that situation with immediated follow-up with 911.