When to draw or not to draw

[linkinpark9812]

I don't want to beat a dead horse, but I was interested in this concept. Obviously, we all know that if you can articulate why you though you or anther's life was going to be seriously injured or killed, you can shoot. And as of right now, that is the only time I would do it.

However, what about scenarios where you go to pull the gun, and the guy stops his act (drops his weapon, puts hit hands up, doesn't run). Would you continue to point the weapon at him? Is he still a threat? maybe he threw his gun out of his reach. I was curious so I looked up some IC's to see what you all think.

Also what about pulling your firearm to stop a potentially non-deadly but forcible felony (someone trying to rip a purse out of someone's hand, etc)?

Let's start with pointing a firearm at someone and criminal reckless. That is pretty much what anyone of use could be charged with if we pulled our weapon in public for no reason.

I'm just going to copy the part that pertains to us. I will list the IC so you can look up the whole thing.

IC 35-42-2-2
Criminal recklessness; element of hazing; liability barred for good faith report or judicial participation
Sec. 2. (a) As used in this section, "hazing" means forcing or requiring another person:
(1) with or without the consent of the other person; and
(2) as a condition of association with a group or organization;
to perform an act that creates a substantial risk of bodily injury.
(b) A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person; or
(2) hazing;
commits criminal recklessness. Except as provided in subsection (c), criminal recklessness is a Class B misdemeanor.
(c) The offense of criminal recklessness as defined in subsection (b) is:
(1) a Class A misdemeanor if the conduct includes the use of a vehicle;
(2) a Class D felony if:
(A) it is committed while armed with a deadly weapon; or
(B) the person committed aggressive driving (as defined in IC 9-21-8-55) that results in serious bodily injury to another person; or

Ok so pulling a gun and acting like a retard, illegal. The next one is interesting.

IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.
As added by P.L.296-1995, SEC.2.

This one is interesting. This doesn't apply to ANYONE using reasonable force under IC 35-41-3-2 or -3. -2 is all about "Use of force to protect person or property" which isn't what I want to get into. -3 is all about "Use of force relating to arrest or escape".

Here is just the first part. It is quite large, but mostly deals with LEO's. Here is the part for citizens.

IC 35-41-3-3
Use of force relating to arrest or escape
Sec. 3. (a) A person other than a law enforcement officer is justified in using reasonable force against another person to effect an arrest or prevent the other person's escape if:
(1) a felony has been committed; and
(2) there is probable cause to believe the other person committed that felony.
However, such a person is not justified in using deadly force unless that force is justified under section 2 of this chapter.

Basically, a "citizen detainment". But what if that detainment included a firearm?

My question is "What is the different between reasonable force and deadly force?"

From this law, if someone is trying to pull a purse/book bag/etc (robbery), a forcible felony, is pulling a gun to stop the act reasonable force or deadly force?

Even when not shooting, I would constitute it as deadly force. And the IC seems to support it EXCEPT for one thing. In the exception of pointing a firearm, it says reasonable force is an exception if covered under the -2 or -3 IC's.

I can't find an IC that defines reasonable force, but I did find deadly force.

IC 35-41-1-7
"Deadly force"
Sec. 7. "Deadly force" means force that creates a substantial risk of serious bodily injury.
As added by P.L.311-1983, SEC.8.

I think pointing a loaded firearm would be deadly force. But the IC somewhat contradicts itself in "IC 35-47-4-3
Pointing firearm at another person".

My . Anyone else's thoughts?

 

[jgreiner]

I am not a lawyer....but common sense tells me that pulling the TRIGGER would be deadly force, not simply pointing it at someone.

And no, I did NOT sleep in a Holiday Inn Express last night.......

 

[Dead Duck]

Now that I'm older, I can draw a gun whenever I want - even without permission! I'm a big boy.
This one is left handed too. I can draw much better with my right hand but I didn't want to show off.

 

[linkinpark9812]

I am not a lawyer....but common sense tells me that pulling the TRIGGER would be deadly force, not simply pointing it at someone.

And no, I did NOT sleep in a Holiday Inn Express last night.......

And that's what Indiana seems to think. I was split on personally whether I thought it was or not. But I wanted to know the LEGAL part and it seems to support what you are saying.

And good "drawing" the gun Dead Duck! haha.

 

[recon]

If you draw it when you can't pull the trigger someone is bound to call your bluff. then what?

 

[rbrthenderson]

I understand that to mean, if you are pointing your weapon at someone, you had better have the right to use deadly force.

Even if you don't have to fire, you need to be covered even if you do fire. Otherwise, keep it in the holster.

 

[lrahm]

When in doubt, don't. Be a good witness.

 

[linkinpark9812]

If you draw it when you can't pull the trigger someone is bound to call your bluff. then what?

That's what I thought. But according to the law, if you are trying to hold someone after a crime, as long as using reasonable force is ok. You are exempted in the point a firearm IC because of that, since they don't say it is "deadly force". So what crime can you be charged with? Could you still be charged with criminal recklessness?

I do agree with you recon, but I'm wondering if the law says otherwise?

When in doubt, don't. Be a good witness.

I also have had that mentality. I guess it would be a case by case basis though, just like anything involving firearms.

 

[Bondhead88]

My son asked me about drawing yesterday. I told him I would only draw if I was willing to shoot. Now the guy drops his gun and puts his hands in the air?

I still draw my weapon. I tell him to kneel, cross his ankles behind him, put his hands on the back of his head and interlock his fingers. I would keep my gun on him till the police arrived.

If at anytime he attempted to retrieve his weapon. My willingness to pull the triggers would very suddenly be put into motion.

Having a gun and not willing to draw is useless not willing to pull the trigger is deadly.

 

[Bondhead88]

When in doubt, don't. Be a good witness.

If the guy had a gun and dropped it and put up his hands, you would still not want people to draw?

I am sorry but I disagree with this. Many a criminal has changed their minds both ways. There is no way if a guy had a gun and dropped it would I give him a chance to reconsider his actions and then we are both raising to the draw.

 

[Bondhead88]

That's what I thought. But according to the law, if you are trying to hold someone after a crime, as long as using reasonable force is ok. You are exempted in the point a firearm IC because of that, since they don't say it is "deadly force". So what crime can you be charged with? Could you still be charged with criminal recklessness?

I do agree with you recon, but I'm wondering if the law says otherwise?



I also have had that mentality. I guess it would be a case by case basis though, just like anything involving firearms.

I would rather be safe and draw on him. if they want to charge me I can LIVE with that. better to be tried by 12 than carried by 6.

 

[GuyRelford]

You guys need to read Nantz v. State. Here's a link: http://scholar.google.com/scholar_c...e,+740+N.E.2d+1276&hl=en&as_sdt=2,15&as_vis=1

 

[linkinpark9812]

If the guy had a gun and dropped it and put up his hands, you would still not want people to draw?

I am sorry but I disagree with this. Many a criminal has changed their minds both ways. There is no way if a guy had a gun and dropped it would I give him a chance to reconsider his actions and then we are both raising to the draw.

So since deadly force was authorized initially and the bad guy gives up, you are down to reasonable force now with citizen detainment, and you are still exempted from pointing the firearm under both -2 and -3 (protecting someone and citizen detainment, respectively).

But what if a weapon isn't being shown, but implied, but a place is getting robbed? You would still be covered under citizen detainment? Or would you also be authorized for deadly force because of the implied weapon?

Really good responses!

 

[IndianaSigma]

This seems to be an interesting read: Use-of-Force Definitions

Couldn't find a similar article for Indiana.....note that this is Iowa.....I'll keep looking for Indiana.

 

[linkinpark9812]

You guys need to read Nantz v. State. Here's a link: http://scholar.google.com/scholar_c...e,+740+N.E.2d+1276&hl=en&as_sdt=2,15&as_vis=1

I took a quick read. However, he was NOT classified under citizen detainment because he did not state that. However, if he did, would that have been considered reasonable force?

Early I said I personally though that pointing a deadly weapon at someone constitutes deadly force, and this case seems to support it. However, under citizen detainment, it might not be, but we wont know since he didn't "officially" do a citizen detainment.

EDIT: I read more details. He was intoxicated at the time as well. NOT good to get a gun involved and made his case much worse IMO...

 

[GuyRelford]

I took a quick read. However, he was NOT classified under citizen detainment because he did not state that. However, if he did, would that have been considered reasonable force?

We don't know for sure, becaue there's not a case directly on point, but I have always said that I believe that effecting a lawful citizen's arrest is still a legitimate exception to "pointing a firearm," based on the wording of the statute, even though Nantz equates "pointing a firearm" and "deadly force." (Because Nantz is not a citizen's arrest case, as you mention.)

Keep in mind that you can only use force to effect a citizen's arrest if you observe a felony being committed or you have a reasonable belief that a felony has been committed and the person you're arresting commmitted it.

Just my opinion - not legal advice.

Guy

 

[linkinpark9812]

We don't know for sure, becaue there's not a case directly on point, but I have always said that I believe that effecting a lawful citizen's arrest is still a legitimate exception to "pointing a firearm," based on the wording of the statute, even though Nantz equates "pointing a firearm" and "deadly force." (Because Nantz is not a citizen's arrest case, as you mention.)

Keep in mind that you can only use force to effect a citizen's arrest if you observe a felony being committed or you have a reasonable belief that a felony has been committed and the person you're arresting commmitted it.

Just my opinion - not legal advice.

Guy

Right. What you said right there prompted me to post this. Because after I took a look at the law, I thought exactly what you just said. Using a weapon to hold a criminal under citizen detainment. You would without a doubt have to know they committed a felony and that they did it. That means you better damn well know what is a felony and what is not.

However, if he runs, you are NOT covered under most of the subsections of -3, as they only refer to LEO (if a criminal runs away). Only the one I posed, I believe, affects everyone but LEOs.

 

[IndianaSigma]

It's always a good idea to know which offenses are felonies and which are misdemeanors: Indiana Criminal Offense Levels

 

[cbseniour]

Follow the simple common sense rule, Don't pull it unless you actually have to use it. If your life or that of someone else is in danger or if you are trying to stop a violent felony you have the right to use violent force. Otherwise keep in in your pants. Talk it out, walk away if you can. But when the time comes when their is that actual clear and present threat don't hesitate just do what you have to do.
Overthinking can cause hesitation. IF the time comes when you need a gun you will probably know.

 

[linkinpark9812]

Follow the simple common sense rule, Don't pull it unless you actually have to use it. If your life or that of someone else is in danger or if you are trying to stop a violent felony you have the right to use violent force. Otherwise keep in in your pants. Talk it out, walk away if you can. But when the time comes when their is that actual clear and present threat don't hesitate just do what you have to do.
Overthinking can cause hesitation. IF the time comes when you need a gun you will probably know.

Right, and you also did mention a violent felony. IN considers a robbery, at the very least, a Class C felony. So if someone you see is being robbed but that person, from what you see, has no weapon, should you still draw AND shoot, just DRAW, or be a good witness? Or a citizen detainment with your firearm? or something else?