The vast majority of defensive firearm uses involve the defensive display of the firearm…without ever pulling the trigger. In some states, it’s illegal to display a gun for defensive purposes without risking a felony. Mere display is considered brandishing and the use of deadly force.
Estimates of defensive gun uses vary form about 100,000 to 3 million each year, yet only 1,500 to 3,000 people are justifiably killed. About five to ten times that many are shot requiring hospitalization. About five to ten times as many are shot at without being hit. The number of times when no shots are fired comprise 90 – 95 percent of all defensive cases.

In numerous states, anti-self defense prosecutors have charged people who were defending themselves. The defenders used restraint and didn’t have to pull the trigger, but were then charged with illegal use of deadly force. Because of those abuses, Arizona, Florida, Iowa and other states have enacted defensive display laws similar to an Oklahoma bill now working its way through the legislature.  

The current law — which virtually requires gun owners to pull the trigger if they draw a firearm —  is an incentive to turn a dangerous situation into a deadly one. SB40 changes that in Oklahoma.

From the bill’s text:

A person pointing a weapon at a perpetrator in self-defense or in order to thwart, stop or deter a forcible felony or attempted forcible felony shall not be deemed guilty of committing a criminal act.

In an article about the bill, Oklahoma Representative Bobby Cleveland makes the case:

A newly proposed Oklahoma state law, formally known as Senate Bill 40, could make it legal for people to brandish guns in an act of self-defense.

As they currently stand, state laws forbid the deliberate exposure of firearms except in instances of deadly force, according to Tulsa World.

“When you go and get your (concealed carry) license, that instructor tells you that you don’t bring your gun out, you don’t show your gun, you don’t intimidate somebody with your gun,” said Slaughterville Representative Bobby Cleveland.

“If you bring it out, you have to shoot.”

Representative Cleveland is showing the absurdity of that advice.

What about the numerous cases where people draw guns, and the perpetrator flees? Should the defender shoot at a fleeing felon? What about a defender who is menaced with a knife, or a club, or a mob threatening to kill them? Must they shoot? It would be irresponsible to shoot once the menace has stopped being a threat.

The Oklahoma bill is simple common sense. Requiring someone to shoot when they draw a gun is a deadly legislative mistake.

SB 40 passed the Oklahoma Senate, 36-5 and passed the Oklahoma House 82-8. It still needs a procedural vote in the Senate before it goes to Governor Mary Fallin. 

©2017 by Dean Weingarten: Permission to share is granted when this notice is included.
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32 COMMENTS

    • That’s what I’d like to know. Even in NY you can use deadly force if threatened with deadly force. But you don’t have to, AFAIK.

  3. If the mere showing of your firearm deters a threat, it has done its duty to you and why you carry it. Shoot when you HAVE to, not when you WANT to.

    • Defensively display and widely practiced open carry should actually help reduce crime rates (except amongst fellow criminals). A deterred threat who now sees most people carrying guns might end up growing a second brain cell and get a new job

  4. Finally some sense is starting to perculate into gun law. Next maybe we can get warning shots.

    …cause 9/10 people decide NOT to attack a guy that is shooting at them.

    Our gun laws in this country are designed around one thing. Killing. Since its a hell of a lot easier NOT to kill someone than the opposite, it would be nice if a person could NOT go to jail for NOT killing someone.

  5. “When you go and get your (concealed carry) license, that instructor tells you that you don’t bring your gun out, you don’t show your gun, you don’t intimidate somebody with your gun,” said Slaughterville Representative Bobby Cleveland… “If you bring it out, you have to shoot.”

    The first parts of this paragraph are reasonably consistent with the current law- that you’re not bringing your gun out to show it off or ‘intimidate’ others short of a scenario that may call for deadly force. But under no law do you ‘have to shoot’ upon drawing your gun as if it is some mythic samurai sword. If the threat evaporates when you draw your firearm you no longer have need to shoot just as you have no need to shoot someone 15 times even though they dropped after the first.

    Of course, some conceal carry instructors may indeed tell students such things. I’ve heard instructors tell students all kinds of crazy crap when it comes to legal matters.

    • The problem, as I understand it, is that even if you bring your gun out of concealment with the intent of using it, but don’t for some reason or another, activist prosecutors can still charge you with brandishing or threatening.

      It’s absurd, but remember that there are people like Kamela Harris out there, who think it’s their job to look for ways to punish people for owning guns, have the legal training to find justifications (however slim) and who are in position to act.

    • The problem is two-fold (more in some states and apologies for the length here).

      First, prosecutors may not fairly apply the law because of a personal bias or the law may have been imprecisely written.

      An example of the second part of that is in my current state of Colorado. The plain text of the law says that you cannot be under the influence of alcohol or drugs and possess a firearm or you’re guilty of a Class 2 misdemeanor. However, the law doesn’t define what “under the influence” means. So, it was left to the courts to do so. Adjudicated cases in the Colorado Circuit Court system have resulted in the conclusion that “under the influence” means legally or visibly intoxicated.

      Now, that has a few implications that the courts and legislature have not yet hashed out. It is quite clearly legal to have a drink or two while armed in this state provided that you do not reach a state of intoxication that is visible or “legal”. But what does that actually mean in practice well, that’s going to vary. For example, you can be charged with DWAI with a BAC of 0.04 or simply because the officer said you were intoxicated. While this allows room for people who are not drunk and may be intoxicated on an “unknown substance” it’s also ripe for abuse. Give a cop lip during a traffic stop and suddenly you’re DWAI and you basically have no defense because the cop’s word is good enough. You can run and go get a blood test and they’ll just say it’s an “unknown substance” which you can’t test for and therefore you’re stuck not being able to martial evidence that you were, in fact, sober. CCWing during the stop? Well, you might get another misdemeanor charge for that too.

      On top of that, were you to refuse a breathalyzer or have blood taken from you for some other reason, that blood will contain the metabolites of any alcohol you’ve consumed for about the past 72 hours and you will test positive for each of those delicious adult beverages you’ve had in the past three or so days (this is how a buddy of mine got an aggravated DUI while stone-cold sober). So, it’s theoretically possible under Colorado law that you could have two drinks Friday night, two more Saturday night, not drink Sunday, get pulled over on your way home from church, give the cop an attitude and end up testing positive for four drinks, be considered legally drunk and end up with a DUI and a charge for being intoxicated while in possession of a weapon.

      Secondly, and related to the second part of issue #1 is what actually happened and what the court hears are not necessarily the same thing. One man’s “DGU without shots fired” is another man’s (DA potentially) brandishing case. Having been on a jury and seen this first hand, I cannot stress this enough: Do not assume that your whole story will be presented in court. Clever lawyers can use the rules of evidence to exclude key information or sometimes whole sections of testimony or other evidence from being seen by the jury.

      In the case I was on the jury for, a child molestation case, we were told the state had a strong case. Most of the five days we were on the case we sat outside yaking, smoking cigarettes and soaking up sun because the lawyers were arguing procedure over evidence that we ended up not being allowed to see. As it turned out (in Colorado the judge can tell you about this after the verdict has been delivered), it all hinged on the fact that the state had the little girl testify before they introduced a bunch of other evidence and that somehow precluded the rest of the evidence from being introduced. The defense attorney knew the evidence rules backwards and forwards while the DA made a mistake. The result was that the state was not able to show us (the jury) about 85% of their evidence.

      In deliberations we asked “Did the guy molest the girl?” We agreed that yeah, he probably did. “Does he deserve to go to prison for it?” Yeah, he probably does. However, being a pretty serious jury we returned a unanimous “Not Guilty” verdict in about 15 minutes because the state’s case was so weak due to their lack of being allowed to show us their evidence. They simply didn’t meet the burden of proving their case and we took the instructions seriously. We simply could not, in good faith, return a guilty verdict and send this guy up the river for 20+ years based on the evidence we’d been presented.

      Now, reverse that situation, where the DA runs circles around your lawyer on evidence issues in a DGU case and prevents a lot of your evidence from being introduced to the court. Guess what someone like me is going to be forced to do? Vote “Guilty” on your gun charge because I don’t get to see most or any of the evidence that exonerates you.

      Keep in mind that the criminal guy who forced you to pull a gun on him and then lost his nerve when the gun came out is unlikely to tell the “whole truth and nothing but the truth” if the cops or DA talk to him about it. He or she is going to blame you and make it sound like you’re a bad, scary guy who pulled a burner on them while they were innocently asking you for a few bucks for gas so they could go see their mother who’s sick in the hospital. That story is catnip for an anti-gun prosecutor.

      • “Guess what someone like me is going to be forced to do? Vote “Guilty” on your gun charge because I don’t get to see most or any of the evidence that exonerates you.”

        This is where jury nullification comes in. Although the courts don’t want citizens to know this and act as though it isn’t true, juries are legally constituted intentionally independent entities. Most defensive gun cases, not even necessarily those brought by activist anti-gun prosecutors or tried activist anti-gun judges, are already so politicized that attaining justice is a fantasy. Juries can vote to acquit, despite how or what kind of evidence is presented and despite how or what kind of instruction the court provides.

        • Garrison,

          It is going to be hard for a jury to find someone not guilty if the judge suppresses all of the evidence that makes it apparent that the defendant is truly not guilty.

        • A jury cannot render a verdict in line with the truth if it never sees evidence that shows what is true.

        • I knew someone was going to bring up nullification.

          Look, it’s this simple: The jury sees what the Judge says that they can see and the jury bases their judgement on that.

          In case where someone tries to rob you in the parking lot of a gas station, you pull a gun and they run off, if the rules of evidence don’t go your way then the only things that the jury gets is what the BG tells the cops and what the witnesses/cops testify to. There’s security camera video of the guy advancing on you with a knife? Great. Jury doesn’t see it because your lawyer screwed up? Well, then it may as well not exist.

          This is a situation where both sides spin a yarn and the jury decides which is more believable based on the story and any evidence that backs up that story. When part of your story is missing and/or the evidence to back up that story is missing, you’re effectively fucked because the jury is being kept in the dark as to the real nature of the situation you were in.

          In our case we were left wondering “Where the hell is the rest of the evidence that the DA promised to show us?” Without it they basically had an accusation and nothing else.

          Another thing to keep in mind is that many juries are not made up of politically motivated people. In fact both the defense and the prosecutor get to ask a ton of questions and strike jurors that appear to have any dog in the fight. This case ended up with 12 jurors and 12 alternate jurors out of an original pool of over 1000 people. Over 150 of those people survived “round one” and were brought into the court room to have questions asked of them by both side’s attorney’s before we got down to 24 people.

          Nullification sounds great and all until you’ve actually been on a jury for a serious criminal case. Then you realize that the chances you get someone who nullifies your case are very, very, very slim. By the time your done you end up with people who take the “rules” seriously. We had a guy booted and replaced with an alternate because we weren’t supposed to discuss the case outside the court room or deliberation room. He brought up how sleazy he thought the defendant and his lawyer came across in opening statements while we were outside the courtroom. He got shitcanned for that within five minutes of court going back into session.

      • Strych,

        I still don’t understand how that precludes jury nullification. I understand how it limits the people who will CHOOSE to nullify, and those who TALK about nullification might be stricken, but that doesn’t eliminate someone who has their sh*t together deciding that nullification is the right action and undertaking the steps necessary to be in a position to do so.

        If you point is simply that the system is rigged to make the possibility of jury nullification very, very low, then point taken, and great post on an underdiscussed topic.

  6. I remember 2 longhaired refinery workers travelling through Utah. We stopped at a gas station and were getting warm while pouring a couple of thermos full of coffee.

    The owner must not of liked our looks and opened his jacket to show us his revolver. I paid him and thanked him for having that, because it could save a customers’ life(like us).

    He probably tells the story of the hippies that he ran off and forced to pay for the food and gas we were going to steal. We were travelling for work, making good money and were friendly(maybe too friendly?), why would we risk going to jail before we could start our jobs?

  9. This whole thing doesn’t even make sense. Deadly force is always legally justified if a person reasonably believes that they are in imminent danger of grievous bodily harm or death. If a person is legally justified to use deadly force (ala shooting an attacker), then they have to also be justified to use deadly force (ala brandishing).

    And if someone is going to claim that brandishing is less than deadly force, then a person who is legally justified to use deadly force is also justified to use less than deadly force.

    If a prosecutor in some jurisdiction is going to somehow try and prosecute a person for brandishing when that person was legally justified to use deadly force, the people in that jurisdiction should promptly consider whether or not to hang any such prosecutor from the nearest lamp post.

    • ” Deadly force is always legally justified if a person reasonably believes that they are in imminent danger of grievous bodily harm or death.”

      As I understand it, that can depend on the jurisdiction.

      ‘Duty to retreat’ laws can throw a big wrench into that defense…

      • Geoff PR,

        Good point about Duty to Retreat jurisdictions … I was referring to jurisdictions where the victim does NOT have a duty to retreat.

  10. If you show a thug your gun to scare him off he can call 911 and tell them there is a MWAG and your the one getting arrested.
    That’s the problem with brandishing law.

  12. We had a rash or bugleries in a space of ten days. One man killed an home invader. Another man chased off to car prowlers with a shot gun and when two prowlers were casting a house, the woman inside knocked on the window….with her pistol. They left. The sheriff remaked it was “Open season on crooks.” None of the homeowners had any legal problem with their actions.

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