"Brandishing"

[THE BIG SITT]

I did a search on this. Although I did find something, I figured it would be good to have another conversation as the last one was in 2010. Moving on...

AFAIK, Indiana does NOT have a brandishing law. There is, however, an intimidation law seen here:

IC 35-45-2-1
Intimidation
Sec. 1. (a) A person who communicates a threat to another person, with the intent:
(1) that the other person engage in conduct against the other person's will;
(2) that the other person be placed in fear of retaliation for a prior lawful act; or
(3) of causing:
(A) a dwelling, a building, or another structure; or
(B) a vehicle;
to be evacuated;
commits intimidation, a Class A misdemeanor.
(b) However, the offense is a:
(1) Class D felony if:
(A) the threat is to commit a forcible felony;
(B) the person to whom the threat is communicated:
(i) is a law enforcement officer;
(ii) is a judge or bailiff of any court;
(iii) is a witness (or the spouse or child of a witness) in any pending criminal proceeding against the person making the threat;
(iv) is an employee of a school corporation;
(v) is a community policing volunteer;
(vi) is an employee of a court;
(vii) is an employee of a probation department; or
(viii) is an employee of a community corrections program.
(C) the person has a prior unrelated conviction for an offense under this section concerning the same victim; or
(D) the threat is communicated using property, including electronic equipment or systems, of a school corporation or other governmental entity; and
(2) Class C felony if, while committing it, the person draws or uses a deadly weapon.
(c) "Threat" means an expression, by words or action, of an intention to:
(1) unlawfully injure the person threatened or another person, or damage property;
(2) unlawfully subject a person to physical confinement or restraint;
(3) commit a crime;
(4) unlawfully withhold official action, or cause such withholding;
(5) unlawfully withhold testimony or information with respect to another person's legal claim or defense, except for a reasonable claim for witness fees or expenses;
(6) expose the person threatened to hatred, contempt, disgrace, or ridicule;
(7) falsely harm the credit or business reputation of the person threatened; or
(8) cause the evacuation of a dwelling, a building, another structure, or a vehicle.

So my question is this: under this law, am I legally allowed to reveal my weapon if I feel threatened? Am I allowed to unholster?

For instance, my wife learns that I spent my whole paycheck on a gun. Instead of arguing, I decide to go for a walk. While on the walk, I notice a couple of hoodlums walking towards me. As they get closer I see one has a baseball bat, the other a tire tool. As they get closer and closer, I begin to feel more and more threatened. So I push my coat back, revealing a pistol. They continue walking directly towards me, either not noticing the pistol or simply ignoring it. Then they decide to run towards me. I could run, sure, but I'm fat and out of shape. I wouldn't get too far. So I decide to unholster, but keep the gun at a 45degree angle. They both stop, reconsider their actions, and turn and leave.

So in the above scenario, did I break any laws? I wouldn't expect the hoodlums to call the popo, but what is Mrs. Smith, who watched the whole thing from her window, decides to call the police?

Lots of "what-ifs" and hypotheticals, but some questions I could use being answered.

 

[IndyGunworks]

In order to present your firearm you must have reasonable fear of death or bodily harm.... I think your above scenario fits that.

 

[GodFearinGunTotin]

In my opinion, no you did not break any laws. As long as you can articulate that with what you experienced, you felt like you were danger of serious bodily harm, you should be good to go. Two guys with weapons, heading your way seems to be ingredients to such an articulation. Now, you'd have to be able to discuss the actions or words the 2 "hoodlums" said or did that would have made you feel you had reason to be in fear. Even if you failed, I'm not sure you were actually intimidating them, in a legal sense.

 

[EdC]

Or they were going to play baseball after they fixed their flat tire, and realized just at that moment they were late and started to run.

In my opinion, you still didn't do anything illegal. Reasonable person under the circumstances, etc. I only add that after you've drawn your gun, you might consider calling the police and report it. Just in case. Stranger things have happened.

 

[MCgrease08]

Street robberies and you - The Basics - AR15.COM

A scenario very similar to yours is covered in this thread from another forum about street robberies. It's an extremely interesting read.

The author, a former cop, definitely recommends implying or even displaying a firearm in cases like this since this is the type of behavior street thugs understand.

Certainly not to be taken as legal advice, but lots of good info to consider.

 

[Bill B]

IIRC there was a case, or two, where people "displayed" their weapons and were charged with intimidation. The ISC said, no it wasn't intimidation because intimidation only applies to preventing lawful acts. If you expose your weapon and say "don't attack me" you are not placing anyone in fear for performing a lawful action. If you expose your weapon and say "stay off the sidewalk" you are placing them in fear for performing a lawful action.
I am not an attorney, nor do I present legal advice. Research on the Indiana Supreme Court website is awesome.

 

[Timjoebillybob]

IIRC there was a case, or two, where people "displayed" their weapons and were charged with intimidation. The ISC said, no it wasn't intimidation because intimidation only applies to preventing lawful acts. If you expose your weapon and say "don't attack me" you are not placing anyone in fear for performing a lawful action. If you expose your weapon and say "stay off the sidewalk" you are placing them in fear for performing a lawful action.
I am not an attorney, nor do I present legal advice. Research on the Indiana Supreme Court website is awesome.

I don't remember that exact one, but I do remember two others. In one case it was a road rage type of incident, two guys were driving next to each other and iirc waving the ingo salute and yelling. But it was winter and the windows were up so they couldn't actually hear each other. The one guy raised a pistol up in the air but didn't point it at him. It was decided that since the other driver couldn't hear the words being said, that there was no threat and therefor no intimidation.

The other case a guy was stopped at a light and got out to talk to a panhandler, the light turned red and the guy behind him honked his horn. The guy flipped him off and went back to talking to the panhandler. The guy who was stuck behind him got out of his car and the guy talking to the panhandler raised his shirt to show a holstered pistol and told him "don't even think about it". The guy got back in his car and called for backup (off duty officer). The guy was convicted of intimidation and it was upheld.

 

[TheSpark]

IANAL

The first thing here is intent. If they are just approaching you and you move a garment which reveals your gun I think intent would be impossible to prove. Also, even if your intent was to scare them off if you think they are possibly going to attack you that is not in violation of the intimidation law you referenced since them attacking you would not be lawful and you did it with the intent of preventing an unlawful act.

Regardless though, I would not go around doing this unless you sincerely feel someone is a threat. I could see you easily getting arrested even if the charges are later dropped. Then again, that might be worth the risk if you feel your life is really in danger.

Lets also look at this from the other angle. You are walking down the street with your friend and you have a bat and he has a crowbar. You just came from baseball practice and your friend is walking to your car with you to help you fix a flat tire. A guy walking towards you makes an obvious move to show you his handgun. What would you think? All of a sudden they might think their life is in danger right now. Now you have a nuclear scenario where both sides think the other is about to attack them and both prepare to defend themselves basically on a hairpin trigger. One side snaps and ....

Point of that example is be careful what you do. You might just make yourself the threat.

 

[Sticky]

I have a "License to Carry Handgun". It doesn't require holster carry only...

 

[Frank_N_Stein]

I have a "License to Carry Handgun". It doesn't require holster carry only...

Carry it around in public in your hand and let me know how it works out for you.

 

[slowG]

In the end. It all boils down to if you feel your life is truly in danger... Laws are only there for when your life is not in danger. If me or my family could potentially be killed or seriously injured I'm not concerned with what will happen legally afterwords.

 

[88GT]

I would say a more relevant statute would be the one covering pointing a firearm at someone.

And for the sake of clarity and specificity, "point" is probably a better word choice than "present." The latter leaves too much wiggle room for a legitimate act to be criminalized.

 

[Sticky]

Carry it around in public in your hand and let me know how it works out for you.

Works as intended, if the timing is correct...

 

[LP1]

In my opinion, no you did not break any laws. As long as you can articulate that with what you experienced, you felt like you were danger of serious bodily harm, you should be good to go. Two guys with weapons, heading your way seems to be ingredients to such an articulation. Now, you'd have to be able to discuss the actions or words the 2 "hoodlums" said or did that would have made you feel you had reason to be in fear. Even if you failed, I'm not sure you were actually intimidating them, in a legal sense.

Shouldn't we be concerned that the young athlete and his mechanic friend might file a police report on you?

 

[GodFearinGunTotin]

Shouldn't we be concerned that the young athlete and his mechanic friend might file a police report on you?

Maybe. But many of them really try to avoid interaction with law enforcement.

 

[Denny347]

In order to present your firearm you must have reasonable fear of death or bodily harm.... I think your above scenario fits that.

There is no State law that actually says this. There is Intimidation or pointing a firearm. If the act does not fit either one of those laws, it's likely legal.

 

[BiscuitNaBasket]

So in the above scenario, did I break any laws? I wouldn't expect the hoodlums to call the popo, but what is Mrs. Smith, who watched the whole thing from her window, decides to call the police?

Lots of "what-ifs" and hypotheticals, but some questions I could use being answered.

IANAL, IANALEO, but if you are that fearful that grave bodily harm or death may occur then you are justified in drawing the firearm, but not pointing. Non LEO do not have the lawful authority to point a firearm without cause; IE: you believe grave bodily harm or death will occur without drawing down and or firing.

EDIT:

Right, I worded it wrong. Instead of "justified" I should have said "...but if you are that fearful that grave bodily harm or death may occur it would seem reasonable to draw the firearm without pointing." Also, lets add "IMO" to the beginning of it.

Saying that it's "justified" obviously implies that I believe it to be backed up by law, which is not the case.

 

[Denny347]

IANAL, IANALEO, but if you are that fearful that grave bodily harm or death may occur then you are justified in drawing the firearm, but not pointing. Non LEO do not have the lawful authority to point a firearm without cause; IE: you believe grave bodily harm or death will occur without drawing down and or firing.

There is no law that says this however. I am not aware of any case law that says that either.

 

[ModernGunner]

Well, since Indiana isn't a CC only State, it would be a challenge to prove that someone is flipping open their jacket / shirt with the intent of 'intimidation', unless it's an overt and obvious purpose in doing so and / or accompanied by some pointed verbiage. They may, perhaps, just be in the process of removing the garment, or brushing back the jacket / shirt to reach in their pocket for keys, change, or a wallet. IF some 'bad guy wannabe' just 'happens' to notice said firearm and determines from said observation that it's better to leave 'Mr. Lawful Citizen' alone, that wouldn't be a 'bad' thing, would it?

 

[BiscuitNaBasket]

There is no law that says this however. I am not aware of any case law that says that either.

Right, I worded it wrong. Instead of "justified" I should have said "...but if you are that fearful that grave bodily harm or death may occur it would seem reasonable to draw the firearm without pointing." Also, lets add "IMO" to the beginning of it.

Saying that it's "justified" obviously implies that I believe it to be backed up by law, which is not the case.