gavelThe question we asked our Network Affiliated Attorneys this month came from a member who wanted more information from state law to determine if pointing a firearm without shooting is considered use of deadly force in the various states. Wanting more than just a “yes” or “no” response, we asked our Affiliated Attorneys the following—

What is the law in your state regarding defensive display of a firearm?

If the gun is not fired, is simply pointing it at an assailant considered deadly force in your state?

What are common charges stemming from pointing a gun at another and what are the defenses for the armed citizen who does so to ward off imminent attack?



It was a rather complex question, so responses tend to be a bit longer than usual. This month we’ll present the first half of the attorneys’ commentaries, with the second portion slated for publication in the April journal.

John R. Monroe
Attorney at Law
9640 Coleman Rd., Roswell, GA 30075
678-362-7650
This email address is being protected from spambots. You need JavaScript enabled to view it.

In my state (Georgia), pointing a gun is not “using” deadly force, it is threatening to use deadly force. The distinction is important, because you can legally threaten to use deadly force in circumstances where you clearly cannot use deadly force. For example, if you come home and surprise a burglar who is carrying your TV out your front door, you generally cannot shoot him. But you probably can draw a gun and tell him to put down the TV and lie down on the ground or you’ll shoot him (you just cannot follow through with your threat). The test is whether you reasonably believe the threat is necessary to prevent the action.

If you wrongfully display a gun, there are two likely charges:

1. Pointing a gun or pistol at another, which is a misdemeanor.

2. Aggravated assault, which is a 20-year felony.

Pointing a gun or pistol at another is very rarely charged, because the only practical difference between the two is that the “victim” is put in apprehension of receiving an immediate injury for aggravated assault. So, for pointing a gun or pistol at another, the “victim” either 1) didn’t see you point it or 2) saw it but wasn’t afraid.

John Chapman
Kelly & Chapman
P.O. Box 168, Portland, ME 04112-0168
207-780-6500
This email address is being protected from spambots. You need JavaScript enabled to view it.

What is the law in your state regarding defensive display of a firearm?

The threatened use of deadly force is "the equivalent of non-deadly force." State v. Williams, http://scholar.google.com/scholar_case?case=3753392866118692916&q=state+v.+williams+equivalent+of+nondeadly+force&hl=en&as_sdt=4,193

If the gun is not fired, is simply pointing it at an assailant considered deadly force in your state?

No, see the same case. “As set forth in section 2(8), ‘deadly force’ means ‘physical force which a person uses . . . .’” (emphasis added). “Physical” is defined in Webster’s New International Dictionary (2d ed. 1960) as “of or pertaining to physics; characterized or produced by the forces and operations of physics.” When the word “physical” is used to qualify the word “force” to create the requirement of “physical force,” which must be used by one person against another, it is our view that the Legislature contemplated the actual exercise of some form of kinetic energy of such a nature as to create an impending and substantial risk of causing death or bodily harm. This is supported by the plain language of the statute itself, which includes the following illustrative example: “Intentionally or recklessly discharging a firearm in the direction of another person or at a moving vehicle constitutes deadly force.”

What are common charges stemming from pointing a gun at another and what are the defenses for the armed citizen who does so to ward off imminent attack?

Criminal threatening, terrorizing, reckless conduct with the use of a firearm
http://www.mainelegislature.org/legis/statutes/17-A/title17-Ach9sec0.html

Defenses are generally “justification” under chapter 5 of title 17-A:
http://www.mainelegislature.org/legis/statutes/17-A/title17-Ach5sec0.html

These typically include: prevention of theft or criminal mischief, recovery of property immediately after same, ejecting a trespasser, prevention of unlawful non-deadly force, effecting an arrest, indeed, anything where non-deadly force is:

– available as a defense, and;
– “reasonable” in degree of force used.

New Hampshire used to have the opposite rule. In 2011, they changed the law by statute (Maine did it by judicial interpretation). NH RSA Chapter 627:9 Definitions...

II. “Deadly force” means any assault or confinement which the actor commits with the purpose of causing or which he knows to create a substantial risk of causing death or serious bodily injury. Purposely firing a firearm capable of causing serious bodily injury or death in the direction of another person or at a vehicle in which another is believed to be constitutes deadly force...

IV. “Non-deadly force” means any assault or confinement which does not constitute deadly force. The act of producing or displaying a weapon shall constitute non-deadly force.

William S. Hammett, Esq.
Cobb Dill & Hammett Law Firm, LLC
270 W. Coleman Blvd., Ste. 1B, Mt. Pleasant, SC 29464
864-426-8293
www.cdhlawfirm.com
This email address is being protected from spambots. You need JavaScript enabled to view it.

Regarding the three questions posed for this quarter: i.e. What is the law in [South Carolina] regarding defensive display of a firearm? If the gun is not fired, is simply pointing it at an assailant considered deadly force in your state? What are common charges stemming from pointing a gun at another and what are the defenses for the armed citizen who does so to ward off imminent attack?, please see my analysis below.

South Carolina, like all American jurisdictions, follows the principal that something is legal unless a law specifically forbids a particular act, thus there should be a statute that specifically addresses pointing a gun at another person if in fact South Carolina prohibits this act. The code on point is SC Code Ann. 16-23-410, which states “It is unlawful for a person to present or point at another person a loaded or unloaded firearm.” Additionally, the code classifies violation as a felony and leaves sentencing to the discretion of the court but limits imprisonment for violation at five years. Finally, the code states that it cannot abridge the right of self defense nor does it apply to theatrical performances.

Our courts have defined the word “present” to include: taking a gun and waving it in another person’s face, see 370 S.C. 31, 36, 633 S.E.2d 898, 900-01 (2006); showing someone a pistol as a means of intimidation and forcing that person to walk towards a pickup truck, see 361 S.C. 372, 381, 605 S.E.2d 522, 526-7 (2004); and waiving or showing a gun to someone in a direct and actively aggressive and threatening manner, see 387 S.C. 517 692 S.E.2d 569 (S.C. App. 2010).

So in other words, if you hold a firearm in the presence of another person in a direct, aggressive or threatening manner, the state can charge you with violation of 16-23-410. A totality of the circumstances inquiry will apply, which makes listing all possible scenarios where a violation occurs impossible. That said, consider the following two examples to highlight this point. In both scenarios, Neighbor A gets into an altercation with Neighbor B over Neighbor A’s dog trespassing into Neighbor B’s yard and Neighbor B verbally threatening to injure the dog.

In scenario 1, Neighbor A gets angry over the argument, retrieves his hunting rifle from his closet, shoulders the weapon, comes back outside and begins yelling over to Neighbor B’s residence, challenging Neighbor B to come outside.

In scenario 2, Neighbor A does not retrieve his rifle and the incident concludes. The next day however, Neighbor A steps outside with his pistol in his hand, which he places in his glove box of his car every morning (and at the end of every day, he returns to his bed’s mattress). Neighbor B was already outside getting his paper.

Neighbor B sees Neighbor A carrying the pistol, remembers their argument, runs inside and calls the police.

In scenario 1, it is reasonable to assume Neighbor A acted to threaten Neighbor B. He obviously presented a firearm. It’s questionable on our facts whether or not Neighbor A presented the firearm to Neighbor B. Remember, in our facts we assume Neighbor B was in his home but he definitely wasn’t outside in scenario 1, but it doesn’t matter whether the rifle was unloaded or not, so if police arrived on scene, they could definitely charge Neighbor A with violation of 16-23-410.

In scenario 2, it is reasonable to assume Neighbor A did not act to threaten Neighbor B. In our facts, Neighbor A was acting in his ordinary course of business and not directing anything toward Neighbor B. The most important thing to remember is that even if you are Neighbor A in scenario 2, you never want to get into an argument with police. Arguments are for judges in a controlled environment.

In South Carolina, when a defendant claims the defense of “self defense,” the state is required to disprove the elements of self-defense beyond a reasonable doubt, see State v. Dicky (S.C. 2011). The elements are 1) the defendant was without fault in bringing on the difficulty; 2) the defendant . . . actually believed he was in imminent danger of losing his life or sustaining serious bodily injury, or he was actually in such imminent danger; 3) if the defendant actually believed he was in imminent danger, a reasonable prudent man of ordinary firmness and courage would have entertained the same belief; and 4) the defendant had no other means of avoiding the danger than to act as he did.

South Carolina also has the “castle doctrine,” which was previously common law and codified into S.C. Code Ann. § 16-11-420(B) (Supp. 2013). It provides:

(A) A person is presumed to have a reasonable fear of imminent peril of death or great bodily injury to himself or another person when using deadly force that is intended or likely to cause death or great bodily injury to another person if the person:

(1) against whom the deadly force is used is in the process of unlawfully and forcefully entering, or has unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if he removes or is attempting to remove another person against his will from the dwelling, residence, or occupied vehicle; and

(2) who uses deadly force knows or has reason to believe that an unlawful and forcible entry or unlawful and forcible act is occurring or has occurred.

(B) The presumption provided in subsection (A) does not apply if the person:

(1) against whom the deadly force is used has the right to be in or is a lawful resident of the dwelling, residence, or occupied vehicle including, but not limited to, an owner, lessee, or titleholder...

(C) A person who is not engaged in an unlawful activity and who is attacked in another place where he has a right to be, including, but not limited to, his place of business, has no duty to retreat and has the right to stand his ground and meet force with force, including deadly force, if he reasonably believes it is necessary to prevent death or great bodily injury to himself or another person or to prevent the commission of a violent crime as defined in Section 16-1-60.

Self defense and castle doctrine are by far the most important defenses to keep in mind when trying to ascertain the right course of action. The most important thing to remember is that you should never pull a gun on anyone unless you intend to use it, and you should never need to use a gun unless you reasonably believe you are in imminent and serious danger.
__________

A big “Thank you!” to each Network affiliated attorney who responded to this question. Please return next month for the second half of the responses to this topic.

Click here to return to March 2015 Journal to read more.