Arizona governor casts veto
Newspapers report that the governor vetoed a couple of bills, one to make the CCW license a lifetime one, another to make it clear that a person could display a firearm (but not use it) in response to verbal threats.
UPDATE: I recall several cases where you had one guy going along side or tailgating the other, shouting threats, the recipient of the threat showed him that he was armed, and the one making the threats departed, called 911, and got the sorta-defender arrested. It was probably under Ariz. Rev. Statutes 13-2904, covering disorderly conduct:
"A. A person commits disorderly conduct if, with intent to disturb the peace or quiet of a neighborhood, family or person, or with knowledge of doing so, such person
6. Recklessly handles, displays or discharges a deadly weapon or dangerous instrument.
B. Disorderly conduct under subsection A, paragraph 6 is a class 6 felony. Disorderly conduct under subsection A, paragraph 1, 2, 3, 4 or 5 is a class 1 misdemeanor."
ANOTHER UPDATE: Prof. Joe Olson's remarks are in extended remarks, below.
From Joe Olson:
ince the validity defensive display IS the general rule in the United States, isn't the Arizona Governor a bit behind in her law studies?
This is from the second edition of Everything You Need About (Legally) Carrying a Handgun in Minnesota:
Defensive Display and Reasonable Force.
Defensive display of a firearm, sometimes called “brandishing,” may be defined as a lawful threat to cause death or serious bodily harm by the production of a weapon or otherwise, so long as the actor’s purpose is limited to creating an apprehension that he will use deadly force only if necessary. See Model Penal Code sec. 3.11(2). It does not involve the actual discharge of a firearm, for example. Nor does it constitute the “use” of deadly force.
Although there is no Minnesota case law on point, brandishing should be governed by the rules for use of reasonable force set forth in Minnesota Statute 609.06 (see page xxx). This is the usual American rule. As criminal law scholar Wayne R. LaFave says, “merely to threaten death or serious bodily harm, without any intention to carry out the threat [unless necessary], is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified in pulling the trigger.”
This is a common example of the necessity criteria in action prohibiting greater force when lesser force will do. If the assailant continues the attack, use of deadly force (i.e., firing the gun) will be necessary and, therefore authorized. An imminent threat is often not instantaneous. If the threat (even of death or great bodily injury) can be neutralized by a mere counter threat, if safe for the defender, that is certainly allowable even if never mandatory.
Ninety-eight percent of successful defensive gun uses involve mere brandishing - display of the firearm. The defender demonstrates that she is capable of using deadly force and the encounter ends as the assailant flees. Even criminals can weight the odds of their own injury.
Although seldom heard of by the public except in homicide cases, justification defenses like self-defense apply to all crimes. Thus self-defense may be pleaded if as a consequence of a brandishing incident you are charged [under Minnesota law] with assault in the second degree (a felony), with intentionally pointing a gun at or toward another person (a misdemeanor) or with reckless handling or using a gun so as to endanger the safety of another (a misdemeanor).
The book (the text of which is 95% applicable in all permit states) can be purchased from http://aacfi.com/products/MNEverythingYouNeedToKnow.php. Special editions for Missouri and Kansas are available too as well as a Utah Supplement.
I agree with the lifetime license, but I'm not too keen on the idea of allowing guns to come into play over a verbal altercation. A gun shouldn't be displayed unless you're justified in using it.
Posted by: Sebastian at May 28, 2008 11:42 AM
Why should transitioning from concealed carry to open carry (when both are legal) be illegal?
Posted by: Jim D. at May 28, 2008 11:46 AM
Most people, even those who carry guns, are not bloodthirsty. So, if a person sees trouble coming and draws his weapon or shows it and an aggressor stops aggressing, is the gun carrier required to go ahead and shoot him anyway because by showing the weapon he has broken the law? Whereby, having shot him, even after the threat to himself is over, he can claim fear of his life and the aggressor can't call the cops and turn him in for "brandishing", or dispute the account of what happened.
Is this really what Napolitano wanted? Of is she just too damn dumb to have heard of unintended consequences?
Posted by: straightarrow at May 28, 2008 12:25 PM
I think I may have been misunderstanding how the law works in Arizona. In Pennsylvania, we don't have a law against brandishing. If you display a gun to someone in a threatening manner in a situation that doesn't justify deadly force, it's simple assault.
Based on what people are telling me, in Arizona, it's a crime to display a firearm in a menacing or threatening manner, even if you would be justified in using deadly force.
Posted by: Sebastian at May 28, 2008 01:28 PM
Looking at the bill, it would seem to be limited to allowing a person, under threat of physical force, to a) go from concealed to open carry. Don't have too much of a problem with that one. b) verbally inform the person threatening physical force that you have a gun. Not sure I think that's a good idea. And c) to draw into a ready position, as long as you're not pointing the firearm in the direction of the attacker. Also seems like a bad idea to me.
The big problem I have with it is, if you're drawing in a situation where you're not justified in using deadly force, what happens if the attacker doesn't back down? Either because he thinks you're bluffing or possesses more testosterone than brains? It wasn't a deadly force situation before, but now you've made it one. Do you lose your justification if you have to shoot?
Posted by: Sebastian at May 28, 2008 01:51 PM
Looking over Arizona's revised statutes for justifications, if you were justified in using deadly force, you're justified in threatening it. Is there some kind of brandishing statue that still applies that I'm missing? If that's the case, wouldn't it be more reasonable just to repeal it?
Posted by: Sebastian at May 28, 2008 01:58 PM
Thanks for the update Dave. So can you use a self-defense justification for using the threat of deadly force against physical force? Or do you have to have some kind of reasonably belief that deadly physical force is imminent? Like, in the instance of two drivers arguing over being cut off, I can't see how there's a self-defense justification there if one of them displays a deadly weapon. An 240lb muscle guy getting out of his car and grabbing your collar, and threatening to bash your face in, then I can see a justification for displaying a firearm. But I would think you'd have that regardless of the bill that was just vetoed.
Posted by: Sebastian at May 28, 2008 06:09 PM
Sebastian, just hand the aggressor your gun then call the cops and have them arrest him for brandishing. I mean, just to be on the safe side.
If one is in fear of serious physical harm or death and presenting his weapon halts that threat, wouldn't he be just a little immoral and cowardly to then go ahead and shoot the guy when the reason for shooting him no longer existed?
Laws such as this make it inevitable that people who fear the law more than they do the criminal (and there are a Hell of a lot of them, you could pee in one of them's pants without moving your feet, for example) will feel compelled to go ahead and kill a man who is no longer a threat to avoid the punishment for not killing him.
Does this make any sense? Is it in any way moral?
Case in point, a traffic dispute, one driver gets out of his car with a baseball bat and advances on the other driver. The other driver draws his firearm and the bat wielder stops, turns and go back to his own vehicle. Which is better? Letting him live to return to his car? Shooting him immediately upon alignment of the sights, even though you can see he has stopped and re-evaluated? Shooting him in the back as he returns to his car, so you can prove you had justification to draw your weapon and were scared silly?
The aggressor would be the man with the bat, as he was the initiator. Should one demand he stop and allow you time to go to the nearest sporting goods store to acquire your own bat? Or should you, if you could, save his life and yours by letting him understand the likely outcome if he does not desist? If the latter, you should be punished by the state for not killing? ARE YOU NUTS?
Posted by: straightarrow at May 28, 2008 09:53 PM
that last you was a generic you with specificity only as it regards Napolitano and her supporters in this stupidity.
Posted by: straightarrow at May 28, 2008 09:56 PM
I would follow Xaviers example from his walk in the Wal-Mart parking lot. If you have to brandish, as soon as the threat is gone, call the police and report it.
Posted by: Madrocketscientist at May 29, 2008 08:51 AM
For both MRS and Sebastian, both of whom are not AZ residents to the best of my knowledge.
In a case where you draw a weapon and thus stop the confrontation, you have to hope that either you are the FIRST person to call 911 or that you have a GOOD attorney. Please recall that any witnesses could initiate that all important first call, not just the initial aggressor. Please also note that we have had a major influx of CA refugees, many of whom are not comfortable in a free state. Also please note that for some people ANY touching of a firearm is enough for exagerated claims.
Posted by: Gregg at May 31, 2008 02:33 AM
Oh, and yes I do live in AZ.
Posted by: Gregg at May 31, 2008 02:34 AM