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Question raised in carry permit class.....

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So this question was raised in my carry permit class.......

You are at a convenience store at 2 or 3 AM to get gas. As you are gassing  up you notice a thug outside that appears to be casing you out for a possible score. You are carrying your weapon concealed. While this thug is casing you out is it alright to pull your shirt or coat back to reveal your weapon?

Instructor thought that this would be threatening and would not be OK. I personally felt that this may defuse the upcoming confrontation. Thoughts?

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That would be considered open carrying after it was no longer concealed. 100% legal in TN with a permit.

The instructor may think it's not OK, but it's not illegal. You have to either draw it from the holster or verbally say you will use it to be illegal.

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The breeze may accidentally expose your weapon. Or you may choose to just make it know that you are armed. Technically that is not brandishing, which IS illegal.

From Google:

brandish - wave or flourish (something, especially a weapon) as a threat or in anger or excitement.

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Depends on the manner in which you expose your weapon, it may be seen as brandishing by some and an overzealous LEO may agree if called.  Personally, I would not show my weapon until I was ready to pull the trigger.

Edited by Omega
speeling
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1 minute ago, Omega said:

Personally, I would not show my weapon until I was ready to pull the trigger.

I think the best kind of fight is one that I never get into. Therefore, I'd rather the guy see that I'm not an easy target and move along.

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Just now, netmindr said:

I think the best kind of fight is one that I never get into. Therefore, I'd rather the guy see that I'm not an easy target and move along.

The thing is, if he is set on making you a victim, he will be more inclined to shoot first then take your stuff if he knows you are armed.  If a person can be deterred, then just acknowledging his presence may be enough, that is being situationally aware not staring him down.  If he is looking for an easy score, then he wants the element of surprise on his side.

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AFAIK, the only real question regarding "showing" your firearm to anyone in this state is whether it rises to one of the standards of assault and/or aggravated assault.

 

39-13-101.  Assault.

.. Intentionally or knowingly causes another to reasonably fear imminent bodily injury

39-13-102.  Aggravated assault.

...Intentionally or knowingly commits an assault as defined in § 39-13-101, and the assault:

... Involved the use or display of a deadly weapon

- OS

Edited by Oh Shoot
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If I was being cased that hard I'd be looking for the guys partner... increasing my situational awareness rather than focusing on one potential threat, looking for the best escape route, etc..

Just having a weapon isn't a fight ender. Some may consider it an escallation, it may make you more of a target if there is a team working because they want your weapon. Lots of possibilities. 

I'd look into getting some additional training. There are some vendors on this site such as Randy Harris (cruel hand luke) that offer training that is well worth it. I was particularly interested in part of a class he taught that he called the "pre-fight negotiation". The best fight is the one you never have. Flashing your weapon and telegraphing your intentions may not be the best answer...

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I don't agree with 'showing' my weapon.  AFAIK, since open carry is allowed, and IF he did not finger his weapon I would argue he is perfectly fine.  If there was an imminent threat and he pulled his weapon he would need to immediately call the police from a safe place and report the incident.  I would also recommend verbal challenge loud enough to draw witnesses initially if got to the point you felt threatened.

Keep in mind you will be judged by was it a reasonable response.  As many of you realize, simply presenting the gun may neutralize the threat, but you have to make the call to 911.

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Plenty for you to think about and have a plan. Tennessee has no laws against “brandishing”; they do have laws against assault.

Would a reasonable person (that’s a juror or a Judge; not you) believe you are in immediate danger of death or great bodily harm? If so you are justified in either threatening them with your weapon; or shooting them.

Someone giving you the evil eye or walking up on you without displaying a weapon at the pumps does not meet that level.

Just because you have a gun doesn’t mean you will survive and it doesn’t mean everyone will fear you. Armed people, both good and bad are killed every day.

Pulling your shirt or jacket back might scare off a bad guy. Or it might be an armed violent criminal that wants your vehicle and you just became a dead man walking because he now has the upper hand.

If you pay at the pump, you have no reason to cross his path, get in your car, lock the doors and get the hell out of there.

I’ll fight or take an azz whipping before I pull a gun on someone. But if someone threatens me with a weapon; I have no problem with using deadly force to save my life or the life of another.

But at the end of the day whether you are an HCP holder, cop or citizen with a gun in your car, you have to be prepared to do whatever you need to so you can go home.

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This may also be a good time to discuss alternative measures initially such as pepper spray, blowing the horn excessively, inside the car and doors locked and simply driving off.

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Good question!  

From the Law of Self Defense classes by Andrew Branca I remember discussing five elements needed for a legal self defense claim.  They are as follows.

Innocence

Imminence 

Avoidance

Reasonableness

Proportionality 

If you didn't start the fight you are innocent.  By showing your gun you could be perceived as threatening the other party or a third party could assume you are the aggressor.  And you might prevent him from choosing you as his next victim.  Slippery slope.    

If the other guy is casing you for a "possible future" attack it will be hard to convince a judge / jury that the attack was imminent.  This rapidly changes when he starts walking toward you or follows you.  The advice about looking for his buddy is good.  

If you have an opportunity for avoidance (get in car and drive away or run away), but instead consciously decided to stay in the area where you think the attack is about to happen, you are adding liability that could erode your self defense claim.  Having limited mobility, escorting a family member, and being in a kill zone all detract from you ability to avoid the situation.  TCA 39-11-611 is worth a read here to somewhat understand the law in TN.   

Reasonableness is the hardest of the five because it depends largely on the area from which the jury will be pulled that you are showing your gun in.  More liberal could = less reasonable from our point of view and vice versa.  You have no way to prove what this other person is thinking if they are only staring at you.   

Proportionality means you match lethal force paired against you with lethal force of your own with a caveat for disparity of force (multiple attackers, big attacker vs little victim, MMA fighter vs disabled...etc).  Gun vs stare is not proportional.  Gun vs walking at you isn't proportional unless he's a big dude and you are not and he's somehow someway threatening you in a way that you can prove in a court.  Gun vs "Hey man, you got a dollar?" still isn't proportional.

The race to 911 is real and I don't think it can be underestimated.   

 

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Agree with above EXCEPT he did not show his gun, he was simply an open carry...prove otherwise.  There is no duty to retreat, that element in TN is not required.  Not that it isn't a good idea but in this instance, all ended well so at face value I would say the wind blew just at the right time and everyone went home.  Of course any position could be argued, but no harm no foul at face value.

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2 hours ago, chances R said:

Agree with above EXCEPT he did not show his gun, he was simply an open carry...prove otherwise. 

That’s the question he asked. “Prove otherwise” works both ways; by showing them a gun, the other person could call the Police and claim he pulled it.

2 hours ago, chances R said:

There is no duty to retreat, that element in TN is not required.  Not that it isn't a good idea but in this instance, all ended well so at face value I would say the wind blew just at the right time and everyone went home.  Of course any position could be argued, but no harm no foul at face value.

This didn’t happen; it was a question, so we don’t know how it would end. Flashing a weapon or pulling a weapon is a possible response. Without a direct threat it’s a bad idea and could very easily land you in jail. But you have to do whatever you are ready to take responsibility for.

As a former Police Officer I will repeat the comment above about calling 911. If I feel the need to “show” someone a gun in any way shape or form; I am calling 911 and I am staying there until Officers arrive. The first person to call is the “victim” the second person is the “suspect”. I can’t count the number of people that I have arrested that probably would not have been arrested had the Officer at the scene had both sides of the story.

They are standing there looking at your license plate; they can give a description of you, your vehicle, your gun, and how and where you carry it. Knock, Knock Knock… answer the door it’s the Police.

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11 minutes ago, chances R said:

So if we take the OP as is, and as an Officer, will you make an arrest?  The charge?  

Whats the "victim" telling me when I arrive?

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In this case nothing.  This is simply an action by the OP.  Let's say you simply observed it.  And then for discussion, the 'victim' described exactly what the OP described.

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59 minutes ago, chances R said:

In this case nothing.  This is simply an action by the OP.  Let's say you simply observed it.  And then for discussion, the 'victim' described exactly what the OP described.

If there is no complainant; nothing happened. Pulling your coat back while getting gas isn’t a crime in this state.

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2 minutes ago, DaveTN said:

If there is no complainant; nothing happened. Pulling your coat back while getting gas isn’t a crime in this state.

So that is exactly my point.  Even if there was a complainant, simply pulling back one's coat , or even removing one's coat is not an illegal act.  Again as I stated in my 1st post I don't agree with exposing my weapon, but not illegal. 

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17 minutes ago, chances R said:

So that is exactly my point.  Even if there was a complainant, simply pulling back one's coat , or even removing one's coat is not an illegal act.  Again as I stated in my 1st post I don't agree with exposing my weapon, but not illegal. 

Correct.

If I were teaching students I would add this: Having been a Police Officer, and I’m sure those that have been one will agree; people don’t always tell the truth. There are two sides that are not always the truth.

I don’t know how it works in Tennessee, but where I was I had discretion on a misdemeanor. I did not have discretion on a felony. Threatening someone with a gun was a felony. If the person was believable and there were no other witnesses or video around you would probably be going with me to jail. If they weren’t believable I could have a Command Officer or a Detective come to the scene and make the call.

The truth will not always set you free. Do everything you can to get out of the situation without displaying a gun.

However…. That’s just my opinion based on dealing with the public. As I said before; you can do anything you are ready to take responsibility for. (Because you will)

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2 hours ago, chances R said:

In this case nothing.  This is simply an action by the OP.  Let's say you simply observed it.  And then for discussion, the 'victim' described exactly what the OP described.

Much of this goes to the reason that the "victim" made the call. If they make a call because they saw a weapon then they are feeling "victimized" all sorts of "feelings" start to cloud the facts at this point.

I personally am not afraid of the sight of a gun, I do have a sister in law that is very much so. We would have very different stories to tell a responding officer just because of our personal feelings. This goes to what happens if a 3rd party like my SIL saw all of this and called 911...

As with most scenarios there are simply too many what ifs.

 

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On 3/24/2017 at 2:54 PM, netmindr said:

I think the best kind of fight is one that I never get into. Therefore, I'd rather the guy see that I'm not an easy target and move along.

My idea exactly.

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My answer is intuition, if your that threatened but scared then showing your gun is tipping your hand. If playing poker and you think your hand ain't good enough, do you fold or show your three of a kind that's part of a full house or not? No ones bluff is any better than the others... the outcome is what you are left with....

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There does seem to be at least some case law that looks into the intent to intimidate.  I'm certainly no lawyer, but reading through this case, it seems if the bank robber (Groce) had actually had her gun with her in the bank (she said she left it in the car and the prosecution couldn't prove otherwise), the note she gave the teller would have been considered brandishing.  This was from a US Circuit case regarding a robbery in Murphy, NC.

OP has a very interesting question that seems to me to revolve around motive and not just actions.

 

https://casetext.com/case/us-v-groce-5

"Brandish" is defined as follows:

 

[T]he term "brandish" means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person.

18 U.S.C. § 924(c)(4) (emphasis added). Groce agrees that, if the gun had been present in the bank, the presentation of the note referencing the gun would constitute the "otherwise mak[ing] [of] the presence of the firearm known to another person" within the meaning of subsection (c)(4). 

Edited by wipfel

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1 hour ago, wipfel said:

OP has a very interesting question that seems to me to revolve around motive and not just actions.

Exactly. Intent will be the question.

The rest of what you posted pertains to Federal law in a Federal bank Robbery trial. The OP’s trial would be in state court on Felony Assault charges; Intent would mean everything and brandishing would probably not even be mentioned as it does not apply.

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