Network Affiliated Attorneys Answer Brandishing Question
Thanks to the generous help of our Network Affiliated Attorneys, in this column we help our members understand the world our affiliated attorneys work in, demystifying aspects of the legal system for our readers.
The current question comes from concern expressed by concealed carry licensees that they don’t know at which point in a developing confrontation they are allowed to draw and point a firearm at an assailant as one of their tactics to escape imminent attack. In a lot of states, displaying a firearm is termed “brandishing” and is a crime. Armed citizens aren’t sure how their claim of “self defense” is invoked to avoid being found guilty of brandishing a weapon.
We asked our affiliated attorneys: “Can you explain your state laws on displaying a weapon to stop an attacker? When does the law allow pointing a gun at an assailant during self defense?” Their answers were so comprehensive that this column is a continuation of answers received and we will continue covering this question next month, as well.
SHAUN PATRICK WILLIS, J.D.
Aggressive Criminal Defense
491 W. South St., Kalamazoo, MI 49007
In answer to your question, under Michigan law brandishing is a crime. However, more often now the prosecutors tend to charge your proposed scenario as the even more serious charge of “felonious assault,” which in Michigan is a four year felony defined as “a person who assaults another person with a gun, revolver, pistol, knife, iron bar, club, brass knuckles, or other dangerous weapon without intending to commit murder or to inflict great bodily harm less than murder is guilty of a felony punishable by imprisonment for not more than 4 years or a fine of not more than $2,000.00, or both.”
This obviously ups the stakes greatly on a case like you described as this person is not just facing a simple brandishing charge, they are calling it a felony and the person could get a maximum of four years in prison.
We have seen this happen three times in the past year and we are currently defending an individual who was charged with felonious assault when he was threatened by a road raged individual and showed that individual his gun as a warning to curtail the road rage. Because the client “showed the gun,” the prosecutor concluded he should be charged with felonious assault. We are currently defending the case, have requested a jury trial and we are aggressively fighting the case.
But, this is the really unfortunate reality that ensues when you show your gun or fire your gun. Even though it is clear to you it is self defense, the police, detectives, investigators, crime lab staff, and prosecutor are all going to be scrutinizing each move you made defending yourself to twist it into somehow using your gun to commit a crime. These days are not the days of our grandparents, where the local Sheriff was your high school classmate. In current times, when the police are called to a gun incident, they are not there to be your friend, but to gather evidence for the charging of crimes.
So when is it appropriate to show or point your gun? Unfortunately, the system is currently set up that you may have to have a jury of 12 answer that question for you. My advice would be to only show or use your gun after you have exhausted all reasonable means to avoid the situation or de-escalate the situation. But when you truly feel you need to show or use it to defend yourself, remember that each thing you do from that point on will be collected and reviewed by police and prosecutors, and the police report that the officer turns into the prosecutor will be his or her rendition of what you said, and not what you actually said and meant, and that is why on the back of my card that I give to Concealed Pistol License holders, I have the following advice for what you need to say if interviewed by police once you have shown or used your gun in self defense: