Brandishing. Why are some people allowed, and others aren't?

[Kirk Freeman]

So why is it that a LEO can draw down on an individual on mere suspicion that they *may* pose a threat?

Because they are arresting someone. Police, from your local department, who are pointing a firearm need to have fair probability of a crime.

Kirk, from the Northside of Lafayette, better have a darn good reason to point a firearm. Self-defense is that reason. I am not going forward, the police have to.

 

[Kirk Freeman]

It is my understanding that Feds cannot enforce state laws Bill.

Nope, the feds can arrest as they have probable cause to do so for a felony in front of them.

State law. Where's my woof shirt?

 

[HoughMade]

Wow...this thread is kind of wacky.

IAAL...but I hesitate to clarify because this is fun.

I will say, however- don't point your gun at anything that you do not intend to shoot in an exercise of lawful self defense or the defense of others, and you will increase your chances of not being a guest of the State. having your gun out of the holster is not "pointing"...ya know, unless you point it at someone. Funny how that works.

 

[Titanium_Frost]

They can in limited circumstances, as IC 35-33-1-1 grants them the authority to do so:

(b) A person who:
(1) is employed full time as a federal enforcement officer;
(2) is empowered to effect an arrest with or without warrant for a violation of the United States Code; and
(3) is authorized to carry firearms in the performance of the person's duties;
may act as an officer for the arrest of offenders against the laws of this state where the person reasonably believes that a felony has been or is about to be committed or attempted in the person's presence.

Thanks for the info! That understanding was actually from a federal law enforcement officer who wrote a book and explained how the feds and local law enforcement worked together, but that was California in the 90's and they did not have a state law granting feds authority of arrest there. My guess is that is where some of the DEA issues exist with the marijuana laws now.

Nope, the feds can arrest as they have probable cause to do so for a felony in front of them.

State law. Where's my woof shirt?

You don't wear 3XL, or I would send you my last one

 

[Paul30]

Officers often draw the weapon to

1. convey an understanding to a person who is being arrested that they will be shot if they try something stupid

2. Get the gun in the position to actually follow through with it if it becomes necessary.

I do wish they would train to keep the finger off the trigger and possibly point it close but not at the person they don't plan to destroy unless it becomes necessary. This lady
was covering her partner when she had a Glockciental discharge. https://www.youtube.com/watch?v=UOI9ahGxMfk

 

[T.Lex]

*coff* What about warning shots?

 

[TheSpark]

IANAL.

There is no brandishing laws in Indiana. You could walk around down the sidewalk holding a loaded handgun in your hand with it pointing at the ground in Indiana if you wanted. (Will draw a police response)

Drawing/brandishing your gun can get you in trouble when you point it at someone or do it in a "threatening" way.

Police are protected from some laws though to allow them to perform their job. Just like an officer can blow a red light with his sirens an officer can point a gun at someone if they feel threatened. They can also carry without Mr. Pink. They are not above the law, they just have exemptions. Like it or not they have to in order to protect us and them.

Now technically you too can point a gun at someone if they are posing a threat to your life, but you better not do so as "freely" as police often do.

 

[HoughMade]

IANAL.

There is no brandishing laws in Indiana. You could walk around down the sidewalk holding a loaded handgun in your hand with it pointing at the ground in Indiana if you wanted. (Will draw a police response)

Drawing/brandishing your gun can get you in trouble when you point it at someone or do it in a "threatening" way.

Police are protected from some laws though to allow them to perform their job. Just like an officer can blow a red light with his sirens an officer can point a gun at someone if they feel threatened. They can also carry without Mr. Pink. They are not above the law, they just have exemptions. Like it or not they have to in order to protect us and them.

Now technically you too can point a gun at someone if they are posing a threat to your life, but you better not do so as "freely" as police often do.

Keep in mind that, as you indicated, "pointing" a firearm can be a crime and whether you were just holding it, or pointing it, assuming no video- may end up a you said-they said issue. Just because you don't point doesn't mean you won't be accused of it...or that someone thought you did. Ultimately, how do you prove that the gun was "pointed" illegally? Both sides tell their tale and a judge or jury decides who they believe.

 

[CathyInBlue]

Funny. I had a sworn officer testify that he pointed his firearm directly at my back in my own backyard for no reason other than I was OCing on my own property and they didn't like that fact.

OCing. Cop doesn't like that. Act which would equate to assault with a deadly weapon if I were to do it is A-Okay for him.

Makes perfect sense to me.

 

[Denny347]

Act which would equate to assault with a deadly weapon if I were to do it is A-Okay for him.

Actually there is no such law. There is battery and aggravated battery and what you describe does not fit anything close to that.
Aggravated battery
Note: This version of section effective 7-1-2014. See also preceding version of this section, effective until 7-1-2014.
Sec. 1.5. A person who knowingly or intentionally inflicts injury on a person that creates a substantial risk of death or causes:
(1) serious permanent disfigurement;
(2) protracted loss or impairment of the function of a bodily member or organ; or
(3) the loss of a fetus;
commits aggravated battery, a Level 3 felony. However, the offense is a Level 1 felony if it results in the death of a child less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age.
As added by P.L.213-1991, SEC.2. Amended by P.L.261-1997, SEC.6; P.L.158-2013, SEC.422.

IC 35-42-2-1 Version b
Battery
Note: This version of section effective 7-1-2014. See also preceding version of this section, effective until 7-1-2014.
Sec. 1. (a) As used in this section, "public safety official" means:
(1) a law enforcement officer, including an alcoholic beverage enforcement officer;
(2) an employee of a penal facility or a juvenile detention facility (as defined in IC 31-9-2-71);
(3) an employee of the department of correction;
(4) a probation officer;
(5) a parole officer;
(6) a community corrections worker;
(7) a home detention officer;
(8) a department of child services employee;
(9) a firefighter; or
(10) an emergency medical services provider.
(b) Except as provided in subsections (c) through (j), a person who knowingly or intentionally:
(1) touches another person in a rude, insolent, or angry manner; or
(2) in a rude, insolent, or angry manner places any bodily fluid or waste on another person;
commits battery, a Class B misdemeanor.
(c) The offense described in subsection (b)(1) or (b)(2) is a Class A misdemeanor if it results in bodily injury to any other person.
(d) The offense described in subsection (b)(1) or (b)(2) is a Level 6 felony if one (1) or more of the following apply:
(1) The offense results in moderate bodily injury to any other person.
(2) The offense is committed against a public safety official while the official is engaged in the official's official duty.
(3) The offense is committed against a person less than fourteen (14) years of age and is committed by a person at least eighteen (18) years of age.
(4) The offense is committed against a person of any age who has a mental or physical disability and is committed by a person having the care of the person with the mental or physical disability, whether the care is assumed voluntarily or because of a legal obligation.
(5) The offense is committed against an endangered adult (as defined in IC 12-10-3-2).
(6) The offense is committed against a family or household member (as defined in IC 35-31.5-2-128) if the person who committed the offense:
(A) is at least eighteen (18) years of age; and
(B) committed the offense in the physical presence of a child less than sixteen (16) years of age, knowing that the child was present and might be able to see or hear the offense.
(e) The offense described in subsection (b)(2) is a Level 6 felony if the person knew or recklessly failed to know that the bodily fluid or waste placed on another person was infected with hepatitis, tuberculosis, or human immunodeficiency virus.
(f) The offense described in subsection (b)(1) or (b)(2) is a Level 5 felony if one (1) or more of the following apply:
(1) The offense results in serious bodily injury to another person.
(2) The offense is committed with a deadly weapon.
(3) The offense results in bodily injury to a pregnant woman if the person knew of the pregnancy.
(4) The person has a previous conviction for battery against the same victim.
(5) The offense results in bodily injury to one (1) or more of the following:
(A) A public safety official while the official is engaged in the official's official duties.
(B) A person less than fourteen (14) years of age if the offense is committed by a person at least eighteen (18) years of age.
(C) A person who has a mental or physical disability if the offense is committed by an individual having care of the person with the disability, regardless of whether the care is assumed voluntarily or because of a legal obligation.
(D) An endangered adult (as defined in IC 12-10-3-2).
(g) The offense described in subsection (b)(2) is a Level 5 felony if:
(1) the person knew or recklessly failed to know that the bodily fluid or waste placed on another person was infected with hepatitis, tuberculosis, or human immunodeficiency virus; and
(2) the person placed the bodily fluid or waste on a public safety official.
(h) The offense described in subsection (b)(1) or (b)(2) is a Level 4 felony if it results in serious bodily injury to an endangered adult (as defined in IC 12-10-3-2).
(i) The offense described in subsection (b)(1) or (b)(2) is a Level 3 felony if it results in serious bodily injury to a person less than fourteen (14) years of age if the offense is committed by a person at least eighteen (18) years of age.
(j) The offense described in subsection (b)(1) or (b)(2) is a Level 2 felony if it results in the death of one (1) or more of the following:
(1) A person less than fourteen (14) years of age if the offense is committed by a person at least eighteen (18) years of age.
(2) An endangered adult (as defined in IC 12-10-3-2).
As added by Acts 1976, P.L.148, SEC.2. Amended by Acts 1977, P.L.340, SEC.30; Acts 1979, P.L.298, SEC.1; Acts 1979, P.L.83, SEC.10; Acts 1981, P.L.299, SEC.1; P.L.185-1984, SEC.1; P.L.205-1986, SEC.1; P.L.322-1987, SEC.1; P.L.164-1993, SEC.10; P.L.59-1995, SEC.2; P.L.31-1996, SEC.20; P.L.32-1996, SEC.20; P.L.255-1996, SEC.25; P.L.212-1997, SEC.1; P.L.37-1997, SEC.2; P.L.56-1999, SEC.1; P.L.188-1999, SEC.5; P.L.43-2000, SEC.1; P.L.222-2001, SEC.4; P.L.175-2003, SEC.2; P.L.281-2003, SEC.3; P.L.2-2005, SEC.125; P.L.99-2007, SEC.209; P.L.164-2007, SEC.1; P.L.120-2008, SEC.93; P.L.131-2009, SEC.73; P.L.114-2012, SEC.137; P.L.158-2013, SEC.420.

 

[CathyInBlue]

(d) The offense described in subsection (b)(1) or (b)(2) is a Level 6 felony if one (1) or more of the following apply:
(2) The offense is committed against a public safety official while the official is engaged in the official's official duty.

Nice to know that the crime they charged me with would be a felony if the police are still ignorant of the law again.

Edit: Check that. I beat the battery rap.

 

[pitbulld45]

IANAL.

There is no brandishing laws in Indiana. You could walk around down the sidewalk holding a loaded handgun in your hand with it pointing at the ground in Indiana if you wanted. (Will draw a police response)

Drawing/brandishing your gun can get you in trouble when you point it at someone or do it in a "threatening" way.

Police are protected from some laws though to allow them to perform their job. Just like an officer can blow a red light with his sirens an officer can point a gun at someone if they feel threatened. They can also carry without Mr. Pink. They are not above the law, they just have exemptions. Like it or not they have to in order to protect us and them.

Now technically you too can point a gun at someone if they are posing a threat to your life, but you better not do so as "freely" as police often do.

Not exactly true. An Officer can not blow a red light by law. There is a deal called "due regard". They must slow and check both ways before proceeding through the red light.

 

[chezuki]

OP starts thread and 4 days later still hasn't returned... me smells a troll.

 

[Bill of Rights]

Actually there is no such law. There is battery and aggravated battery and what you describe does not fit anything close to that.
...

Denny, as Hough indicated, there is "pointing a firearm", which I tried to look up unsuccessfully. Would what she describes fit that, if it was a non-LEO doing it? Additionally, suppose the roles were reversed, and it was she pointing her gun at a LEO's back? Obviously, another LEO would quickly have ended her life, seeing a mortal threat to another officer, but let's just for a moment entertain the idea that that didn't happen. Speculate, if you would, on how the prosecutor and the courts would address those situations?

Nothing happened to the officer, from the report we have here. In some ways, that's good, as I don't think we want a "chilling effect" on officers' ability to act to stop actual crimes in progress. However, going solely on CIB's post, she was in her own yard, OCing, and was thus dealt with. Based solely on that description of the events, it would seem to me that the officer's actions were beyond the pale.

CIB, no offense meant, but the police reports probably differ from your recount of the story. Are those reports wholly true? I'd guess not, but neither is your side of it. All the things in both probably happened, but the truth is somewhere between the two perspectives, with some details left out of both reports. I am not saying you're lying. I'm saying that your perspective of what happened includes information the officer did not report or was unaware of, and vice versa as well, and that both are reporting the truth as they saw it.

So again, the question, asked above of Denny, is open to anyone with experience with the courts, whether attorney, officer, or anyone, though I do ask that replies not be speculation, i.e. "she'd have fried cuz cops are corrupt" or some such. I'm curious as to the differentiation and what the exemption is that seems to make two classes of people, one who commits an act and is punished, and the other who is somehow exempt. In no way is this intended to be a hate-on-cops thing, as it's obvious you don't write the laws. I do allow for the possibility that that one officer who did as Cathy described may have attempted to do so, i.e. accusing her of "contempt of cop."

Blessings,
Bill

 

[Denny347]

Denny, as Hough indicated, there is "pointing a firearm", which I tried to look up unsuccessfully. Would what she describes fit that, if it was a non-LEO doing it? Additionally, suppose the roles were reversed, and it was she pointing her gun at a LEO's back? Obviously, another LEO would quickly have ended her life, seeing a mortal threat to another officer, but let's just for a moment entertain the idea that that didn't happen. Speculate, if you would, on how the prosecutor and the courts would address those situations?

Nothing happened to the officer, from the report we have here. In some ways, that's good, as I don't think we want a "chilling effect" on officers' ability to act to stop actual crimes in progress. However, going solely on CIB's post, she was in her own yard, OCing, and was thus dealt with. Based solely on that description of the events, it would seem to me that the officer's actions were beyond the pale.

CIB, no offense meant, but the police reports probably differ from your recount of the story. Are those reports wholly true? I'd guess not, but neither is your side of it. All the things in both probably happened, but the truth is somewhere between the two perspectives, with some details left out of both reports. I am not saying you're lying. I'm saying that your perspective of what happened includes information the officer did not report or was unaware of, and vice versa as well, and that both are reporting the truth as they saw it.

So again, the question, asked above of Denny, is open to anyone with experience with the courts, whether attorney, officer, or anyone, though I do ask that replies not be speculation, i.e. "she'd have fried cuz cops are corrupt" or some such. I'm curious as to the differentiation and what the exemption is that seems to make two classes of people, one who commits an act and is punished, and the other who is somehow exempt. In no way is this intended to be a hate-on-cops thing, as it's obvious you don't write the laws. I do allow for the possibility that that one officer who did as Cathy described may have attempted to do so, i.e. accusing her of "contempt of cop."

Blessings,
Bill

There is such a charge as pointing a firearm. It is a misdemeanor if unloaded and a felony of loaded. Pointing a firearm by an LEO is governed by Graham v. Connor, as all of our use of force is. It is the reasonableness standard. I need to know the exact details the officers knew when interacting with CIB to make a guess if their actions were within this ruling. One small detail cold make a good application of force bad and vice versa.

 

[Bill of Rights]

There is such a charge as pointing a firearm. It is a misdemeanor if unloaded and a felony of loaded. Pointing a firearm by an LEO is governed by Graham v. Connor, as all of our use of force is. It is the reasonableness standard. I need to know the exact details the officers knew when interacting with CIB to make a guess if their actions were within this ruling. One small detail cold make a good application of force bad and vice versa.

Thank you for posting the relevant SCOTUS case. I read the wiki on it as "cliff notes" into the holdings of the case, and I think I get it. What was the standard prior to 1989? the 14A? 8A?

I also think I understand that this means that if reasonableness is not established under Graham, the officer would be equally liable for his actions as would Cathy or I or anyone else. Please correct if I'm mistaken.

To be unreasonable, the officer must be shown to have violated a specific right, such as entering Cathy's property unbidden and without legitimate cause (Whether or not she was OCing or had a license, she has a right to do so that is not within his purview to question, more especially so in that location.) Further, there would need to be some other cause to enter, such as, for example, she was not simply carrying, but had been taking potshots at moles or groundhogs or the like. (I am not saying Cathy did this, only making an example to illustrate a possible mitigating factor for the officer's actions.) And lastly, the officer's actions would have to be shown to not be simply because he did not personally approve of OC, but that he was maintaining the public peace. He may have his opinion on OC, but not while he is on the public clock.

Relevant quote from Wiki below:

All claims that law enforcement officials have used excessive force—deadly or not—in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are properly analyzed under the Fourth Amendment's "objective reasonableness" standard, rather than under a substantive due process standard. Pp. 490 U. S. 392-399.
(a) The notion that all excessive force claims brought under § 1983 are governed by a single generic standard is rejected. Instead, courts must identify the specific constitutional right allegedly infringed by the challenged application of force, and then judge the claim by reference to the specific constitutional standard which governs that right. Pp. 490 U. S. 393-394.
(b) Claims that law enforcement officials have used excessive force in the course of an arrest, investigatory stop, or other "seizure" of a free citizen are most properly characterized as invoking the protections of the Fourth Amendment, which guarantees citizens the right "to be secure in their persons . . . against unreasonable seizures," and must be judged by reference to the Fourth Amendment's "reasonableness" standard. Pp. 490 U. S. 394-395.
(c) The Fourth Amendment "reasonableness" inquiry is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, and its calculus must embody an allowance for the fact that police officers are often forced to make split-second decisions about the amount of force necessary in a particular situation. Pp. 490 U. S. 396-397.
(d) The Johnson v. Glick test applied by the courts below is incompatible with a proper Fourth Amendment analysis. The suggestion that the test's "malicious and sadistic" inquiry is merely another way of describing conduct that is objectively unreasonable under the circumstances is rejected. Also rejected is the conclusion that, because individual officers' subjective motivations are of central importance in deciding whether force used against a convicted prisoner violates the Eighth Amendment, it cannot be reversible error to inquire into them in deciding whether force used against a suspect or arrestee violates the Fourth Amendment. The Eighth Amendment terms "cruel" and "punishment" clearly suggest some inquiry into subjective state of mind, whereas the Fourth Amendment term "unreasonable" does not. Moreover, the less protective Eighth Amendment standard applies only after the State has complied with the constitutional guarantees traditionally associated with criminal prosecutions. Pp. 490 U. S. 397-399.

 

[CTS]

If he was threatening with a Hi-Point, then that would be enough to put him away.

Eh, those are only usually deadly to the user.

 

[cobber]

Keep in mind that, as you indicated, "pointing" a firearm can be a crime and whether you were just holding it, or pointing it, assuming no video- may end up a you said-they said issue. Just because you don't point doesn't mean you won't be accused of it...or that someone thought you did. Ultimately, how do you prove that the gun was "pointed" illegally? Both sides tell their tale and a judge or jury decides who they believe.

But then you have the modern phenomenon of SWATing. Even if holstered and secure, some hysterical knucklehead may claim they saw the 'gunman' waving it around.

Now they will just have to say they "misunderstood or didn't know the law" and they will be free and clear from any lawsuit.

Actually no. Then they are liable as private citizens, and it's a civil rights or tort claim. Maybe.

 

[rbhargan]

Interesting points all around. I learned that while there is no Indiana law regarding “brandishing” a firearm, you *could* face charges if you point a firearm at another person – even if you did so in response to a perceived threat (you said/they said).

While a case can be made that a LEO should be given wide discretion on when they can point a weapon at an individual, a civilian is at the mercy of the vagaries of the judicial system, and is less likely to be given the benefit of the doubt. And that brings me back to my original question, is it reasonable to hold civilians to a higher standard than LEO’s? Just something to think about.

 

[Bill of Rights]

Thank you for posting the relevant SCOTUS case. I read the wiki on it as "cliff notes" into the holdings of the case, and I think I get it. What was the standard prior to 1989? the 14A? 8A?

I also think I understand that this means that if reasonableness is not established under Graham, the officer would be equally liable for his actions as would Cathy or I or anyone else. Please correct if I'm mistaken.

To be unreasonable, the officer must be shown to have violated a specific right, such as entering Cathy's property unbidden and without legitimate cause (Whether or not she was OCing or had a license, she has a right to do so that is not within his purview to question, more especially so in that location.) Further, there would need to be some other cause to enter, such as, for example, she was not simply carrying, but had been taking potshots at moles or groundhogs or the like. (I am not saying Cathy did this, only making an example to illustrate a possible mitigating factor for the officer's actions.) And lastly, the officer's actions would have to be shown to not be simply because he did not personally approve of OC, but that he was maintaining the public peace. He may have his opinion on OC, but not while he is on the public clock.

Relevant quote from Wiki below:

Quoting this as I don't want it to drop and be unanswered. Not rushing you, Denny, I'm sure you've had other things going on and haven't had time yet.

Interesting points all around. I learned that while there is no Indiana law regarding “brandishing” a firearm, you *could* face charges if you point a firearm at another person – even if you did so in response to a perceived threat (you said/they said).

While a case can be made that a LEO should be given wide discretion on when they can point a weapon at an individual, a civilian is at the mercy of the vagaries of the judicial system, and is less likely to be given the benefit of the doubt. And that brings me back to my original question, is it reasonable to hold civilians to a higher standard than LEO’s? Just something to think about.

What would you propose? How would you hold them to the same standard and not hamper their work? Conversely, how would you relax the standard on "the rest of us"? Remember, in your answer, the so-called "force continuum", beginning with officer presence and ending with deadly force. The rest of us don't have that "presence".

For the record, I've long advocated that the presumption of truth should not be determined by the uniform someone wears or the credential in their pocket.

Blessings,
Bill