Drawing but not pulling the trigger

[tawadc95]

Gun Kraft,
There is no contradiction in what I stated. I should have been clearer and said I was speaking of the definition of the word imminent itself as found in Blacks or Calcrim.
As I said in the second part of the sentence and I believe is what you are saying also is, situations, weapons, skills, intent etc determine when a situation “becomes” imminent, a violent encounter is indeed a very dynamic situation, just not the word.
The reason I’m big on the definition is because the definition is what one will be judged on, was your interpretation of the threat of death or great bodily injury (whatever the circumstances were) being imminent or reasonably appeared to be imminent correct at the moment you decided to use force.
OP, it might be worth mentioning that, not every hypothetical situation can one safely draw immediately but that doesn’t mean you can’t stage your hands in an inconspicuous manner while awaiting the safe moment to draw or for the facts to become evident. Lots of ways to prepare without drawing attention to yourself. The first gentleman killed in the White Settlement Church would most likely be alive today, just my opinion, if he had either had his hands staged or drawn the gun but kept it hidden in his coat, thereby not brandishing it. Holster placement matters.

[Gun Kraft]

Gun Kraft,
There is no contradiction in what I stated. I should have been clearer and said I was speaking of the definition of the word imminent itself as found in Blacks or Calcrim.

I disputed two things that you said: first that imminent and immediate are not the same (read 835a(e)(2) PC) and second that "imminent" is a constant. It sounds like we both agree "imminent" is not a constant and it is very much a gray area. What you consider imminent the DA may not. It's all subjective.

If you have a definition of "imminent" from Blacks or Calcrim that states it's not the same thing as "immediate" I'd like to hear it. 835a PC seems to indicate they are synonymous for the purpose of when lethal force is justified.

LOL. So displaying the gun in a threatening manner not in self defense is not being an aggressor?

By definition threatening someone is being an aggressor.

All dogs are mammals. But not all mammals are dogs. That's a simple logical fallacy which seems to elude you. As I stated before you do not have to be actively/intentionally (aggressively in your words) threatening someone in order to be guilty of brandishing.

Simple scenario: you are in a parking lot and show off the shiny new gun you just bought to your friend. You are completely unaware of Joe Public getting out of his car 30 yards away who sees you with that gun. Joe Public (this being California) panics at the sight of a gun and calls the police. You are guilty of brandishing because Joe Public felt threatened at the sight of you holding a gun. You don't have to be aggressive in order for someone to feel threatened.

[NorCalBusa]

GK- I don't think that's accurate. Is their case law that changed the penal code language?

(Bold is mine)

PENAL CODE - PEN
PART 1. OF CRIMES AND PUNISHMENTS [25 - 680.4] ( Part 1 enacted 1872. )
TITLE 11. OF CRIMES AGAINST THE PUBLIC PEACE [403 - 420.1] ( Title 11 enacted 1872. )
417.
(a) (1) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any deadly weapon whatsoever, other than a firearm, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a deadly weapon other than a firearm in any fight or quarrel is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than 30 days.

(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 as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.

(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.

(b) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any loaded firearm in a rude, angry, or threatening manner, or who, in any manner, unlawfully uses any loaded firearm in any fight or quarrel upon the grounds of any day care center, as defined in Section 1596.76 of the Health and Safety Code, or any facility where programs, including day care programs or recreational programs, are being conducted for persons under 18 years of age, including programs conducted by a nonprofit organization, during the hours in which the center or facility is open for use, shall be punished by imprisonment in the state prison for 16 months, or two or three years, or by imprisonment in a county jail for not less than three months, nor more than one year.

(c) Every person who, in the immediate presence of a peace officer, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, and who knows, or reasonably should know, by the officer’s uniformed appearance or other action of identification by the officer, that he or she is a peace officer engaged in the performance of his or her duties, and that peace officer is engaged in the performance of his or her duties, shall be punished by imprisonment in a county jail for not less than nine months and not to exceed one year, or in the state prison for 16 months, or two or three years.

(d) Except where a different penalty applies, every person who violates this section when the other person is in the process of cleaning up graffiti or vandalism is guilty of a misdemeanor, punishable by imprisonment in a county jail for not less than three months nor more than one year.

(e) As used in this section, “peace officer” means any person designated as a peace officer pursuant to Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2.

(f) As used in this section, “public place” means any of the following:

(1) A public place in an incorporated city.

(2) A public street in an incorporated city.

(3) A public street in an unincorporated area.

https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN&sectionNum=417

[tawadc95]

GK,
Imminent and immediate can be used as synonyms foreach other but for this discussion they aren’t, as words go.
Imminent danger of death or gbi is the legal standard that must exist before immediate action can happen. One can take immediate action without imminence of danger existing and be lawfully wrong. For example you cannot take immediate action if someone threatens to go get a weapon because imminence does not exist.
What year is your penal code book, my 2020 does not have section(e) paragraph(2) to pc 835a
Calcrim says that someone is not guilty of murder, manslaughter, et al if:
1.There was imminent (likely to occur) danger of being killed or suffering gbi
2. The defendant has to reasonably believe that the immediate (without delay) use of force was necessary to defend against the imminent danger.

Immediate is our lawful response to an imminent situation.
Words can seem ticky tac to us mortals but they mean everything in court, our actions are judged against words.
Parentheses with definitions are mine, not in Calcrim.

[Gun Kraft]

What year is your penal code book, my 2020 does not have section(e) paragraph(2) to pc 835a

I buy Quik-Codes every year, but this is what I was referencing: https://leginfo.legislature.ca.gov/f...a.&lawCode=PEN

Imminent danger of death or gbi is the legal standard that must exist before immediate action can happen.

One can take immediate action without imminence of danger existing and be lawfully wrong. For example you cannot take immediate action if someone threatens to go get a weapon because imminence does not exist.

I think you are proving my point that "imminent" == "immediate". Namely if you have an imminent or immediate threat you are legally justified in using lethal force. If you can give an example of taking immediate action with imminent threat and be lawfully wrong then you are proving your point that "imminent" is not equal to "immediate".

Let's parse out 835a(E)(2). In full the first sentence states: "A threat of death or serious bodily injury is “imminent” when, based on the totality of the circumstances, a reasonable officer in the same situation would believe that a person has the present ability, opportunity, and apparent intent to immediately cause death or serious bodily injury to the peace officer or another person."

Simplify that and it says "A threat... is "imminent" when... a person has the present ability, opportunity and apparent intent to immediately cause death or serious bodily injury".
Simplify it further and you get "A threat is imminent when a person [can] immediately cause death".
Therefore when talking about justified use of lethal force a threat is imminent when it can be immediate. Not that it is happening now, but that it can immediately happen. Which is the same thing as imminent.

Words can seem ticky tac to us mortals but they mean everything in court, our actions are judged against words.

I work in law enforcement. I'm a firearms instructor for my department and I teach use of force policy. I'm very much aware of what words mean when it comes to penal codes, case law and the court.

I don't think that's accurate.

"rude, angry or threatening" means any of those three. I mentioned previously that "threatening" is not based on the suspect's intent but on the victim's perception. (Post #26)

[tawadc95]

It appears 835a(e)(2) is defining what imminent is, imminent is the subject and immediate is used as an adjective describing imminent.
You can make a case that the adjectives imminent and immediate can proceed the noun danger to modify it rendering the same definition, I’m just not certain how that would work with a Gascon type of DA or if it would even matter, for me being a civilian when Calcrim does not use the words that way, imminent is the subject and immediate is an adjective modifying our response.
I envy your role in your dept, you get to learn and instruct fascinating and ever changing subjects, neve a dull moment for you.
Thanks for the discussion and be safe.

[Librarian]

"rude, angry or threatening" means any of those three. I mentioned previously that "threatening" is not based on the suspect's intent but on the victim's perception. (Post #26)

I expect that may be rebuttable in court - the feelings of the CA GFW really do not map onto 'reasonable'.

[SharedShots]

Drawing your weapon can be a defensive action just like raising your arm. The PC doesn't limit the things you can do in defense, it spells out which things done in certain ways under certain circumstances are illegal.

Depending on the clothing you are wearing and the type of gun you are carrying you can draw your firearm and keep it concealed. For those that go down the brandishing rabbit hole, it should put that to rest right there. Drawing must not be brandishing or even publicly displaying the gun.

There is a lot of back and forth about brandishing and drawing as if removing the gun from your holster requires in any way that you display it or remove it from concealment.

Then, tied to the above where is there any justification tied to drawing the gun to also having justification for shooting? It doesn't exist that I know of. If anyone knows where it is so stated, post it.

Naturally to the question why anyone would draw but keep the gun concealed. 1000 reasons.









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[Librarian]

Then, tied to the above where is there any justification tied to drawing the gun to also having justification for shooting? It doesn't exist that I know of. If anyone knows where it is so stated, post it.

The way I learned it, one needed to believe shooting was a legal response at the time one drew. Should circumstances change - threat leaves, you evade, LE magically appears, etc - re-assess the legality of shooting.

[Angrysnarf]

[SharedShots]

The way I learned it, one needed to believe shooting was a legal response at the time one drew. Should circumstances change - threat leaves, you evade, LE magically appears, etc - re-assess the legality of shooting.

I submit you draw in case you need to shoot and not because you intend to shoot. I'll even explain it.

From the time you begin to draw until the time you clear your holster or rubber band or velcro strap things can change so fast you can't react quick enough to change what you're doing. The time from sight, to analysis to action isn't instantaneous and takes more time than it goes to clear your holster if you've started to do it.

Most important though, if the justification to shoot was part and parcel to drawing your weapon everyone who drew would shoot. Things aren't always as they seem and its our ability to think of what could happen, not what is happening that allows us the flexibility to prepare for action beyond the draw without having to fire.

Question your training, question when someone relies on credentials (so typical around here) and tells you something and when you ask why they try to impress upon you that you should already know why and they disappear.

How many times do we hear "It's how I was taught" or the now infamous "I (we) have always done it that way"?

So for all the in you draw then you are justified in shooting comments, why haven't you shot if you've ever drawn? Something changed? Oh really? It takes less time to shoot than the time it takes to process a change in the situation so that goes right out the window. The truth is that you'll draw before you fully realize the need to fire and that is why everyone who draws doesn't also shoot. It's preparation to shoot, not drawing to shoot.

There are a lot of people who never question what the basis of their understandings are, especially in firearms training. The position of authority speaking from behind credentials which are rarely examined to find out where those even came from are simply accepted as the way it is.



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[Brother_Hesekiel]

The truth is that you'll draw before you fully realize the need to fire and that is why everyone who draws doesn't also shoot. It's preparation to shoot, not drawing to shoot.

What you are stating would confirm the premise that more often than not, the drawing of a firearm changes the situation in that the attacker stops what he was about to do. What we really haven't sufficiently covered how the person who drew in preparation to shoot explains to the law enforcement that the need to draw was based on an imminent thread, given that he didn't shoot.

If I were to play devil's advocate, I'd say drawing the gun was premature, even if it served the purpose, stopped the attacker, and prevented a shot being fired.

I'm with you in this; my only "issue" is to justify this to an Assistant DA who is having a bad day.

[NorCalBusa]

What you are stating would confirm the premise that more often than not, the drawing of a firearm changes the situation in that the attacker stops what he was about to do. What we really haven't sufficiently covered how the person who drew in preparation to shoot explains to the law enforcement that the need to draw was based on an imminent thread, given that he didn't shoot.

If I were to play devil's advocate, I'd say drawing the gun was premature, even if it served the purpose, stopped the attacker, and prevented a shot being fired.

I'm with you in this; my only "issue" is to justify this to an Assistant DA who is having a bad day.

I'm with you- I know we're playing game theory here, but that's assuming the "attacker" was aware you had drawn the gun. We could launch a whole other thread on what to then do with the drawn gun, but let's not.

My position remains it can be prudent and we are entitled to (discreetly) draw, but not brandish. The KFG's (Known Fast Guys) can do as they see fit- but membership in that club is not required. The rest of us mortals need reasonable provocation of threat and should be prepared- that threat escalates, well that's on those doing the threatening.

I appreciate all the view- its powerful to go through this in our minds and find our own place of comfort.

[Mute]

What you are stating would confirm the premise that more often than not, the drawing of a firearm changes the situation in that the attacker stops what he was about to do. What we really haven't sufficiently covered how the person who drew in preparation to shoot explains to the law enforcement that the need to draw was based on an imminent thread, given that he didn't shoot.

If I were to play devil's advocate, I'd say drawing the gun was premature, even if it served the purpose, stopped the attacker, and prevented a shot being fired.

I'm with you in this; my only "issue" is to justify this to an Assistant DA who is having a bad day.

You've highlighted one of the most important thing about all the learning and training that people receive when it comes to using guns specifically for social purposes, understanding the justifications for your actions AND being able to explain those justifications. People in authority, i.e. those who are likely to determine if you've acted within the law, tend to have the attitude that if a gun is used in any way by someone who isn't a LEO they had to have violated some law. A kind of guilty until proven innocent attitude. This is especially true in a blue state. Any detailed explanation you're likely to give better be done with your attorney present.

As you hash out some of these details, in training as well as in discussions such as this thread, keep in mind that it's not just your perception of any event that will be questioned, but also whether your perception will be that of a "reasonable" person. Back to the penal code. There is a listed exception to some of these laws, that being self-defense. I think where many people get tripped up, including attorneys, is that you're actually starting off admitting to the fact that you've committed a specific act, but justified due to the need to defend yourself. You will have to prove that justification.

[sbo80]

I still think a lot of these points are conflating tactical, moral, and legal issues, which confuses the discussion. For example, legally, is "drawing" a weapon, but keeping it concealed, really "drawing" at all? I think it's not. There's nothing in the PC that mentions a holster. Concealed is concealed, right? That's a tactical decision to prepare for a changing circumstance, where lethal force may not yet be allowed, but looks like it's going that way. If you pull out your firearm that others do or could see, that is drawing. I still don't see a scenario where you can say "I didn't fear for my life or great bodily harm" but pull out your gun anyway, and it be legal.