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CalCop
11-11-2008, 8:35 AM
CALIFORNIA LAW PERTAINING TO EXHIBITING A WEAPON IN SELF-DEFENSE

California Constitution I. 1. “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.”

Civil Code (50.) “Any necessary force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master, or guest.”

Penal Code 417. (a)(2) “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable.”

PC 693. “Resistance sufficient to prevent the offense may be made by the party about to be injured:
1. To prevent an offense against his person, or his family, or some member thereof.
2. To prevent an illegal attempt by force to take or injure property in his lawful possession.”

PC 694. “Any other person, in aid or defense of the person about to be injured, may make resistance sufficient to prevent the offense.”

PC 834-847 Laws allowing citizen’s arrest for crimes committed in their presence.

Conclusions drawn from California Law:
- Californians have the inalienable right to defend life and liberty, and property. (CA Constitution I, 1)
- Any necessary force may be used to protect from wrongful injury. (Civil Code 50) [Drawing or exhibiting your firearm may be what is necessary]
- It is lawful to draw and exhibit a firearm in a threatening manner for self-defense. (PC 417)
- It is lawful to draw or exhibit a firearm for other than self-defense, as long as the exhibition is done in a non- threatening manner. (PC 417) [Example: just showing the bad guy your weapon may be all it takes to deter him]
- Even homicide is justifiable to stop the attempted or intended violent commission of a felony. (PC 197, 1&2)
- Even homicide is justifiable to stop an aggressor’s attempt to inflict great bodily injury. (PC 197, 1)
- Even homicide is justifiable when defending from an imminent danger of a plan to do some great bodily injury. (PC 197, 3)
- Even homicide is justifiable to lawfully apprehend a person for any felony committed. (PC 197, 4)
- Even homicide is justifiable when necessarily and lawfully preserving the peace. (PC 197, 4)
- For these homicides to be justifiable, the circumstances must be sufficient to excite the fears of a reasonable person. (PC 198)
- Verbally threatening immediate great bodily injury is a felony. (PC 422)
- A firearm may be used to effect a citizen’s arrest for a felony. (PC 197,4 and 837)
- Sufficient resistance may be made by any person to prevent an offense against any other person about to be injured. (PC 693, 694) [Showing your firearm may be the resistance needed to prevent an injury which is about to happen]

Webster’s dictionary definition of “Brandishing”
“to wave, shake, or exhibit in a menacing, challenging, or exultant way”
[Merely showing your firearm does NOT constitute brandishing.]


Final conclusion:
A California citizen has the right to lawfully defend against, resist, or prevent injury to himself or his property.
Exhibiting or drawing your weapon can be the reasonable force used to stop the escalation of force against yourself (or others), or to stop an injury which is about to take place. A California citizen also has the right to use a firearm to make a citizen’s arrest for a crime committed in his presence.

Linh
11-11-2008, 8:44 AM
CALIFORNIA LAW PERTAINING TO EXHIBITING A WEAPON IN SELF-DEFENSE

Final conclusion:
A California citizen has the right to lawfully defend against, resist, or prevent injury to himself or his property.
Exhibiting or drawing your weapon can be the reasonable force used to stop the escalation of force against yourself (or others), or to stop an injury which is about to take place. A California citizen also has the right to use a firearm to make a citizen’s arrest for a crime committed in his presence.

Whether it's legal or not when you shoot someone from taking your tv, I highly doubt that California juries would say that you were right for protecting your property.

Unless you're law enforcement then it would be a little different of course but for a regular person. Good luck with that cause the person will sue you and take everything you got might as well just help him cart out your tv or whatever else he wants until the cops arrive.

CalCop
11-11-2008, 8:52 AM
Whether it's legal or not when you shoot someone from taking your tv, I highly doubt that California juries would say that you were right for protecting your property.

Unless you're law enforcement then it would be a little different of course but for a regular person. Good luck with that cause the person will sue you and take everything you got might as well just help him cart out your tv or whatever else he wants until the cops arrive.I never suggested shooting anyone for a TV. The reader of my post must make reasonable conclusions. What would a "reasonable" person do? Like I said in my original post... "For these homicides to be justifiable, the circumstances must be sufficient to excite the fears of a reasonable person. (PC 198)" Read and think about my whole post before you do an irresponsible drive-by.

odysseus
11-11-2008, 8:55 AM
Whether it's legal or not when you shoot someone from taking your tv, I highly doubt that California juries would say that you were right for protecting your property.

I think we need to narrow down a little. Say a person sees someone breaking into their car at home. Does the person have the right to come outside, with their firearm, and tell the person to stop? I believe they do. The person might even tell the thief he is under citizens arrest and to wait for the police.

This issue gets a little muddled I believe because, no you cannot shoot the person if he continues to attempt to steal the car, or just runs away against your "arrest". However if the thief decides to come at you in a expressed manner as to threaten you with bodily harm, you have a right to defend yourself and use the firearm to stop them.

.

CalCop
11-11-2008, 8:58 AM
I think we need to narrow down a little. Say a person sees someone breaking into their car at home. Does the person have the right to come outside, with their firearm, and tell the person to stop? I believe they do. The person might even tell the thief he is under citizens arrest and to wait for the police.

This issue gets a little muddled I believe because, no you cannot shoot the person if he continues to attempt to steal the car, or just runs away against your "arrest". However if the thief decides to come at you in a expressed manner as to threaten you with bodily harm, you have a right to defend yourself and use the firearm to stop them.
I agree with your conclusions completely. My post was about brandishing...not shooting. A citizen is allowed to brandish to effect arrest...but you had better be ready to shoot if the bad guy comes at you with a gun. You can only shoot an escaping bad guy if he is attempting to escape from the fresh commission of a violent felony.

Glock22Fan
11-11-2008, 9:07 AM
You can only shoot a bad guy who is attempting to escape from the fresh commission of a violent felony.

Maybe LEO's can do this, but can the ordinary citizen? I somewhat doubt that it would be a safe thing to do unless there's reason to believe that the perp is about to commit another violent felony.

CalCop
11-11-2008, 9:12 AM
Maybe LEO's can do this, but can the ordinary citizen? I somewhat doubt that it would be a safe thing to do unless there's reason to believe that the perp is about to commit another violent felony.I agree that a citizen would need to reasonably believe that another violent felony is likely, for you to shoot.

CA PC 197. Homicide is also justifiable when committed by any person in any of the following cases:
1. When resisting any attempt to murder any person, or to commit a
felony, or to do some great bodily injury upon any person; or,
2. When committed in defense of habitation, property, or person,
against one who manifestly intends or endeavors, by violence or
surprise, to commit a felony, or against one who manifestly intends
and endeavors, in a violent, riotous or tumultuous manner, to enter
the habitation of another for the purpose of offering violence to any
person therein; or,
3. When committed in the lawful defense of such person, or of a
wife or husband, parent, child, master, mistress, or servant of such
person, when there is reasonable ground to apprehend a design to
commit a felony or to do some great bodily injury, and imminent
danger of such design being accomplished; but such person, or the
person in whose behalf the defense was made, if he was the assailant
or engaged in mutual combat, must really and in good faith have
endeavored to decline any further struggle before the homicide was
committed; or,
4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

(Again...it must be what a reasonable person would do. I'm not giving the scenarios, I'm giving the law.)

Doheny
11-11-2008, 9:16 AM
CA PC 197. Homicide is also justifiable when committed by any person in any of the following cases:

4. When necessarily committed in attempting, by lawful ways and
means, to apprehend any person for any felony committed, or in
lawfully suppressing any riot, or in lawfully keeping and preserving
the peace.

(Again...it must be what a reasonable person would do. I'm not giving the scenarios, I'm giving the law.)

Writing bad checks is a felony. I wouldn't suggest shooting someone for that.

CalCop
11-11-2008, 9:19 AM
Writing bad checks is a felony. I wouldn't suggest shooting someone for that.Again...it must be what a reasonable person would do. I'm not giving the scenarios, I'm giving the law.

Like I originally posted: For these homicides to be justifiable, the circumstances must be sufficient to excite the fears of a reasonable person. (PC 198)

fairfaxjim
11-11-2008, 9:52 AM
I agree with your conclusions completely. My post was about brandishing...not shooting. A citizen is allowed to brandish to effect arrest...but you had better be ready to shoot if the bad guy comes at you with a gun. You can only shoot a bad guy who is attempting to escape from the fresh commission of a violent felony.

I would carefully review case law in this area before coming to that conclusion. If you brandish to effect an arrest or to stop a crime that is not in itself a violent felony, and the situation deteriorates to a shooting, You, not the offender has crossed the line and may be found guilty of brandishing, assault and/or battery, and even manslaughter.

Final conclusion:
A California citizen has the right to lawfully defend against, resist, or prevent injury to himself or his property.
Exhibiting or drawing your weapon can be the reasonable force used to stop the escalation of force against yourself (or others), or to stop an injury which is about to take place. A California citizen also has the right to use a firearm to make a citizenís arrest for a crime committed in his presence.

Since you have no control over how the situation will play out, and as a citizen have no civil immunity, being the one to introduce a firearm into a situation that does not already involve the requisite reasonable and honest fear that your are in imminent danger of death or great bodily injury is risky at best. If exhibiting or drawing your weapon in a situation that does not meet the "deadly force" criteria (i.e. property crimes without danger of death or great bodily injury), and you end up shooting someone, it may later be found to be unlawful in itself.

"Going to guns" should be the last resort, and only used when the situation already meets the criteria for immediate use of the firearm. One exception to that rule is in your own residence when the situation meets all of the requirements of PC 198.5 and you are provided with the "presumption" of a reasonable fear.

198.5. Any person using force intended or likely to cause death or
great bodily injury within his or her residence shall be presumed to
have held a reasonable fear of imminent peril of death or great
bodily injury to self, family, or a member of the household when that
force is used against another person, not a member of the family or
household, who unlawfully and forcibly enters or has unlawfully and
forcibly entered the residence and the person using the force knew or
had reason to believe that an unlawful and forcible entry occurred.

As used in this section, great bodily injury means a significant
or substantial physical injury.

battlehatch
11-11-2008, 10:07 AM
Gotta take into account Tennesee v. Garner... Appropriate use of deadly force on a fleeing felon. Unless that felon presents an immediate threat of death or great bodily injury to the public, you can't shoot a guy that burglarized your house.

Maybe pepperspray him and tie him up 'til the cops get there? I don't know. I would definately do SOMETHING though.

EDIT: Chances are you will get sued no matter what you do these days. Probably best to just let the criminals have whatever it is they want and just call the cops. Hope they find the guy. Maybe we should just leave our doors unlocked, too. Then they won't have to be inconvenienced... Leave cookies and milk(bad idea, lactose intolerant criminals exist...)

CalCop
11-11-2008, 11:37 AM
Gotta take into account Tennesee v. Garner... Appropriate use of deadly force on a fleeing felon. Unless that felon presents an immediate threat of death or great bodily injury to the public, you can't shoot a guy that burglarized your house.burglary is not a violent felony...robbery is.

Riodog
11-11-2008, 2:32 PM
Gotta take into account Tennesee v. Garner... Appropriate use of deadly force on a fleeing felon.Unless that felon presents an immediate threat of death or great bodily injury to the public, you can't shoot a guy that burglarized your house.[/COLOR][/COLOR]

Maybe pepperspray him and tie him up 'til the cops get there? I don't know. I would definately do SOMETHING though.

EDIT: Chances are you will get sued no matter what you do these days. Probably best to just let the criminals have whatever it is they want and just call the cops. Hope they find the guy. Maybe we should just leave our doors unlocked, too. Then they won't have to be inconvenienced... Leave cookies and milk(bad idea, lactose intolerant criminals exist...)

If that sum***** is armed he's gonna do some dyin this night.
Must we teach you people everything??? That's why you always have a throw-away handy. Just know how to apply it.
Rio

ElvenSoul
11-11-2008, 2:36 PM
well as a Armed Security Officer...merley placing your hand on your holster can get you charged with assault...so take it from there

CalCop
11-11-2008, 4:21 PM
well as a Armed Security Officer...merley placing your hand on your holster can get you charged with assault...so take it from therecite the law or keep it out of the forum

Ding126
11-11-2008, 4:33 PM
Good feed back from the LE members.. Thanks

Meplat
11-11-2008, 5:23 PM
Brandishing? My goal, after a very bad experience as a teenager, is that no one ever knows that I have it until it goes off. And it will only go off under the gravest necessity. Sorry, no brandishing or warnings from this ol' bore.

Theseus
11-11-2008, 6:10 PM
I think the law is crap. If a guy steals my car, I can't afford to replace it. . .who will make me whole. I can't go sue his family if he steals it and crashes it in a high speed chase, can I? And if I can't why should his family be able to sue me for shooting him for trying to steal it in the first place?

If a guy is stealing my car I am not gonna sit there and let him. Maybe I should wait until he gets in my car and then shoot him as he tries to run over me with it. . . but darn! The MOFO has AIDS and now my car is tainted with HIV blood and needs to have the upholstery cleaned and the seats and windshield replaced costing me large quantities of money that I can't afford...Way I see it with the law I have no real options...Maybe these are misguided rants of an ignorant person...but I am tired of the criminals having more right to steal my crap than I do to keep it.

CalCop
11-11-2008, 7:49 PM
Is it better to fight off an attacker by using physical force, a gun, or not fighting back at all?
The statistics say that the best option is to use a gun! Consider the following:
-Women offering no resistance to attack are 2.5 times more likely to be seriously injured than women resisting with a gun.
-Women who resist their attackers without a gun are 4 times more likely to be seriously injured than women resisting with a gun.
-Men who do not resist attack, or resist without a gun are 1.4 and 1.5 times more likely, respectively, to be seriously injured than men resisting with a gun.
(Department of Justice’s National Crime Victimization Survey (1979-1987), and Lawrence Southwick, Jr., Journal of Criminal Justice, “Self-Defense with Guns,” tables 5 and 6, and Dr. Gary Kleck, “Point Blank: Guns and Violence in America” 1991)

But will brandishing my weapon actually escalate the situation by angering the attacker?
Statistics do not support this idea.
-What the statistics DO show is that brandishing effectively stops the attack 90% of the time.
-Of the 2.5 million times citizens use their guns to defend themselves every year, the overwhelming majority merely brandish their gun or fire a warning shot to scare off their attackers.
-Less than 10% of the time, a citizen will kill or wound his/her attacker.
(Kleck and Gertz, "Armed Resistance to Crime," at 173, 185)

battlehatch
11-11-2008, 8:04 PM
If it saves your life then good. That's why 417 p.c. is written that way. The issue is if you can articulate why you did it and show the need for it. I like the adage of being tried by 12 instead of carried by six. Unfortunately, we live in a very litigious(sp?) society and bad people catch a lot of breaks.

freakshow10mm
11-11-2008, 8:06 PM
Here's my take (note that I'm in MI).

Brandishing is universally accepted as "waving or displaying a weapon in a threatening manner".

Brandishing is illegal, but justifiable in certain circumstances, such as lawful defense of yourself and another person.