Incident at a "No Services" rest area

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Posted by CA Raider: maybe its time for us to re-visit the definition of brandishing.
Why?

Do we have reason to believe that the legal exposure of one who purposely exhibits or displays a weapon to another person without lawful justification would necessary be limited to the charge of "brandishing"?

In the sticky thread linked in Post #32, the variety in the ways that such an action might be addressed was discussed.

Whether the state would be able or even attempt to prove beyond a reasonable doubt that the actor committed a crime of any kind is far from predictable. One problem is that his words here might well work against him in a defense of justification.

A more realistic risk, as scaatylobo has pointed out, is that, had the incident been reported, and with today's technology one should not bet otherwise, his actions could have led to what might have been an unpleasant law enforcement action--at best.

The OK links on open carry by permitted nonresidents are not entirely clear; the previously cited AG opinion indicates that it is not permitted, but other sections indicate otherwise.

Under the circumstances described by the OP, I most certainly would have armed myself. Had I been confident that my carrying openly would have been lawful, I most probably would have elected, again under those circumstances, to carry openly.

I would hope that my actions would not be subject to an unfavorable interpretation.

One of the common things about discussions here is that people tend to see the armed citizen as the "good guy" and everyone else a a potential threat. In reality, however, that will remain to be seen, and it will be determined by others on the basis of evidence available after the fact. That evidence will include the actions and statements of the armed citizen. After the dust settles, the other folks may turn out to have been "good guys", and an inappropriate action or statement on the part of the armed citizen can turn him into a "bad guy" very effectively.
 
Ah, I see how you're reading it. Again, he didn't *show* them a gun, he allowed them to see his holster his gun which I contend is not the same thing at all. My "original post" is way back at the bottom of page one.

Back to the topic:

Let's look at it from a different angle. Imagine you're sitting in your car with your wife at a rest stop late at night- you've pulled in to make a cell phone call because you're such a law abiding citizen. Now you notice me pull in and I park away from you. I take two dogs out of the back seat on leads, then I open the trunk. You see me holster a handgun, pull my sweatshirt over it and walk with the dogs away from where you're parked. At no time do I even so much as look your way. Do these actions frighten or intimidate you? More importantly, do these actions present to a reasonable man that my intention was to intimidate you?

I say no. If you called the police and reported those actions it’s unlikely they’d send a car. None of those actions are unlawful on their face, and a reasonable man would not find them to be threatening.
 
Hmmm...

I'll forego all the talk and opinions about the subject of brandishing...enough has been said (and is still being said) about that by other people.

Suffice it to say that I'm happy things didn't turn out badly for you, but that I would have handled it differently.


If I'm traveling alone (and I often do) I carry concealed in all the states I'm allowed and otherwise carry in my vehicle according to the state laws in which I'm not allowed to carry concealed. As part of my normal routine, I case any stop I make for potential conflict...and avoid it outright whenever my spidey-sense tingles, if at all possible.

If not possible, then I take other reasonable means to increase my safety margin. However, displaying a firearm is a risky business that I only do as a last resort. As a rule, I would rather keep that option concealed to my advantage, though I may take steps to make it more readily accessible.

Since most crimes are crimes of opportunity, I'd work angles to otherwise make myself appear less opportune.
 
Posted by Mainsail: Again, he didn't *show* them a gun, he allowed them to see his holster his gun which I contend is not the same thing at all.
I wouldn't want to bet the cost of one billable hour of an attorney's time on that contention.

You have to keep in mind that there are numerous appellate rulings, some incorporated in jury instructions, that make it abundantly clear that a firearm need not actually be shown for a conviction for its unlawful exhibition, display, etc. to occur.

Let's look at it from a different angle. Imagine you're sitting in your car with your wife at a rest stop late at night- you've pulled in to make a cell phone call because you're such a law abiding citizen. Now you notice me pull in and I park away from you. I take two dogs out of the back seat on leads, then I open the trunk. You see me holster a handgun [edited to add "turned sideways toward them so they could plainly see what I was doing."], pull my sweatshirt over it and walk with the dogs away from where you're parked. At no time do I even so much as look your way. Do these actions frighten or intimidate you? More importantly, do these actions present to a reasonable man that my intention was to intimidate you?

I say no.
So do I, but consider who you are, and who I am. And then think about all of the other people out there--those who do not like guns, and those who are made very, very uncomfortable by the mere presence of one.

If you called the police and reported those actions it’s unlikely they’d send a car.
Don't count on it.

Of course, what they would be more likely to do under the circumstances is put out a call for your apprehension.

None of those actions are unlawful on their face, and a reasonable man would not find them to be threatening.
You have stated or implied that several times, but that would be up to others to decide.

Would a sufficient number of "reasonable men" conclude that the evidence showed otherwise, beyond a reasonable doubt? Who knows?

Probably not. But getting to a decision to not charge, or failing that, to not convict, could come at the end of a most unpleasant journey.
 
Mainsail said:
None of those actions are unlawful on their face, and a reasonable man would not find them to be threatening.

The same could be said about pulling into a rest stop with your buddy. Yet, here we are in a discussion where that very same thing caused a person to feel they needed to grab a firearm and show it to others.

Perception, it's the whole world.
 
Just imagine = please

Just for the moment imagine that those 2 men see your gun and are frightened or just being ignorant = no matter the reason.

they call the police and the officer approaches with gun drawn [ I would have ] and he asks you IF your wearing a handgun on your right side and is it loaded and in a black holster [ that is what the 2 men observe ] that being the case ,and you say yes.

the officer disarms you and with a signed deposition,your arrested.

NOW = do you see a possible problem with your "display" of a handgun under circumstances that did not warrant use of DEADLY PHYSICAL FORCE = gun ?.

All the 2 men need do is state they felt threatened by your "display" and if they felt like exaggerating ,they could say they swore the muzzle was pointed in their direction.

you might win in court.

After arrest and bond posting AND car AND dogs towed.
 
I wouldn't want to bet the cost of one billable hour of an attorney's time on that contention.

You have to keep in mind that there are numerous appellate rulings, some incorporated in jury instructions, that make it abundantly clear that a firearm need not actually be shown for a conviction for its unlawful exhibition, display, etc. to occur.
I don't completely disagree with you and it's important to remember every state is maddeningly different.

Insofar as 'rulings', there are more than enough of those to go around for and against both sides. Florida v. J. L., 529 U.S. 266 (2000) in summary says that a mere report of a man with a gun is not grounds for a Terry stop.

Here in Washington we like to trot out State vs Casad as often as we can because it gives us some insight into the mind of our courts. Casad, a felon, went for a stroll to a pawnshop in the middle of the afternoon carrying two rifles wrapped in towels. A woman thought it odd and called police, who stopped him at gunpoint. Long story short (google it, it's a good read) the appellate court threw out the conviction saying,

We note that, in connection with this case, several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the street in broad daylight. Casad’s appellate counsel conceded that she would personally react with shock, but she emphasized that an individual’s lack of comfort with firearms does not equate to reasonable alarm. We agree. It is not unlawful for a person to responsibly walk down the street with a visible firearm, even if this action would shock some people.

So that's the environment from which I form my opinion, an environment that may not exist in your state. So we can argue the semantics of 'alarm' and 'intent' and 'intimidate' or 'shock', but to the law it's not semantics- those words have meanings and limits.

Nothing the OP did was unlawful or even alarming to a reasonable person.
 
If I missed this explained in an earlier post then delete.
One question I have not seen answered is the one that should answer most of the questions/bickering. Does Oklahoma law allow him to carry concealed or open in Oklahoma? Texas, Colorado and California laws really don't come into play here. In some states he could pull his gun out of his truck and carry it in whatever manner he saw fit. I wasn't there so I can't say that what he did could be "brandishing" but what if he had pulled out an AR-15 from the trunk and carried it to the back seat? The people in the truck would certainly have seen the rifle and, if so inclined, would have been intimidated. If open carry is legal for him then he isn't "brandishing" just because someone sees him with a gun. This assumes he didn't make an obvious show of directing the firearm towards the other truck.
Of course his actions can be called into question in many ways using hypotheticals. IMO by merely showing that he saw the truck he would have run off most potential bad guys as they don't want to attack an alert person. Of course I use the word "most" but really serious criminals would have attacked him immediately with more firepower than he could muster.
Those of us who carry regularly are aware that the mere presence of a gun can cause near seismic reactions from seemingly calm people. If I have good reason to believe that my life is in danger then I will do what I deem necessary. In this crazy gun law environment we all live in we just have to be aware that there is a lawyer attached to every bullet and every action. This is why I don't carry outside the Southeast. Too many local laws to keep up with.
 
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Posted by Mainsail: Insofar as 'rulings', there are more than enough of those to go around for and against both sides. Florida v. J. L., 529 U.S. 266 (2000) in summary says that a mere report of a man with a gun is not grounds for a Terry stop.

Here in Washington we like to trot out State vs Casad ... the appellate court threw out the conviction saying,

"We note that, in connection with this case, several individuals have commented that they would find it strange, maybe shocking, to see a man carrying a gun down the strs"
Certainly, the risk we have been discussing is not one of a "man with a gun" report.

The risk is one of the possibility that someone will report that a person displayed or exhibited a firearm in a threatening or intimidating manner.

Whether true or not.

The complainant's ability to describe the method of carry could provide a basis for probable cause. That happens. The suspect's having spoken publicly about the incident could work against him. That happens, too.

Had someone in the car been recording the action, that knowing and willful "turn" would be there for others to interpret--favorably or unfavorably.

Nothing the OP did was unlawful or even alarming to a reasonable person.
There you go again.

Others will decide whether there is reason for reasonable men to evaluate the facts, and those persons, and not you and I, will decide whether your conclusion has merit.
 
Kleanbore said:
While OK law permits persons with an OK carry permit to carry openly, an AG opinion linked on Handgunlaw.us states that persons with permits from other states must keep their handguns concealed.

I do not know if that is current.

Sorry for the delay in getting an affirmative answer to this. Since I'm not an OK SDA instructor, all appropriate salt should be applied.

Most websites with OK law on them have not been updated so we need to pull the relevant new law directly from SB 1733 to see what the law now says.

https://www.sos.ok.gov/documents/legislation/53rd/2012/2R/SB/1733.pdf

Page 63 has the reciprocity language.

SECTION 44. AMENDATORY 21 O.S. 2011, Section 1290.26, is amended to read as follows:

Section 1290.26.

RECIPROCAL AGREEMENT AUTHORITY

The State of Oklahoma hereby recognizes any valid concealed or unconcealed carry weapons permit or license issued by another state.

Any person entering this state in possession of a firearm authorized for concealed or unconcealed carry upon the authority and license of another state is authorized to continue to carry a concealed or unconcealed firearm and license in this state; provided the license from the other state remains valid. The firearm must either be carried fully unconcealed or concealed from detection and view, and upon coming in contact with any peace officer of this state, the person must disclose the fact that he or she is in possession of a concealed or unconcealed firearm pursuant to a valid concealed or unconcealed carry weapons permit or license issued in another state. Any person who is twenty-one (21) years of age or older having a valid firearm license from another state may apply for a concealed handgun license in this state immediately upon establishing a residence in this state.


Ah, finally found an up to date website:

http://www.oscn.net/applications/oscn/DeliverDocument.asp?CiteID=69809

The State of Oklahoma hereby recognizes any valid concealed or unconcealed carry weapons permit or license issued by another state, or if the state is a nonpermitting carry state, this state shall reciprocate under the permitting law of that state.

A. Any person entering this state in possession of a firearm authorized for concealed or unconcealed carry upon the authority and license of another state is authorized to continue to carry a concealed or unconcealed firearm and license in this state; provided the license from the other state remains valid. The firearm must either be carried unconcealed or concealed from detection and view, and upon coming in contact with any peace officer of this state, the person must disclose the fact that he or she is in possession of a concealed or unconcealed firearm pursuant to a valid concealed or unconcealed carry weapons permit or license issued in another state.

B. Any person entering this state in possession of a firearm authorized for concealed carry upon the authority of a state that is a nonpermitted carry state and the person is in compliance with the Oklahoma Self-Defense Act, the person is authorized to carry a concealed firearm in this state. The firearm must be carried fully concealed from detection and view, and upon coming in contact with any peace officer of this state, the person must disclose the fact that he or she is in possession of a concealed firearm pursuant to the nonpermitting laws of the state in which he or she is a legal resident. The person shall present proper identification by a valid photo ID as proof that he or she is a legal resident in such a non-permitting state. The Department of Public Safety shall keep a current list of non-permitting states for law enforcement officers to confirm that a state is nonpermitting.

C. Any person who is twenty-one (21) years of age or older having a valid firearm license from another state may apply for a handgun license in this state immediately upon establishing a residence in this state.
 
Posted by jrdolall: Does Oklahoma law allow him to carry concealed or open in Oklahoma?
Apparently so, if he has a Minnestota permit.

Don't rely on that, but that's what the OK website seems to indicate.

Texas, Colorado and California laws really don't come into play here. In some states he could pull his gun out of his truck and carry it in whatever manner he saw fit.
The issue it hand is not one of lawful carry. It is one of how one conducts himself with a firearm or other weapon. It pertains to certain aspects of the use of force laws.

Pertinent areas in which the relevant laws vary somewhat from state to state include the following:
  • The threshold for the lawful justification for presenting, drawing, or defensively displaying a weapon varies among states.
  • The classification of, and punishment for, an offense also differs.
  • The procedures for investifation and enforcement vary.

Regarding the first, one's feeling the need for alertness due to the arrival of a couple of people in a truck would not suffice in any jurisdiction.

And as Frank Ettin pointed out in our ST&T sticky linked in Post #32,

This can become a question of why, and under what circumstances, you are displaying your gun.

If you are you displaying your gun to intimidate someone, to assure that someone keeps his distance or leaves, to secure his compliance, etc., your display could well be seen as a threat. And that sure seems to be your most likely purpose in displaying your gun, at least as you've posed the question. Or are you suggesting that you're displaying your holstered gun just so someone can admire the craftsmanship of your fancy grips?

The usual definition of assault, based on the Common Law, is:

an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.
In the laws of some States this crime might be given another name. For example, in Alabama it's called "menacing." But by whatever name it is called, it is a crime in every State.

So a display of a firearm or telling someone you have a gun, when done for the purposes of intimidation, is, in all States, an assault of some type. You are effectively putting someone in fear of an imminent harmful or offensive contact, i. e., getting shot
.​

Emphasis added.

I wasn't there so I can't say that what he did could be "brandishing" but what if he had pulled out an AR-15 from the trunk and carried it to the back seat? The people in the truck would certainly have seen the rifle and, if so inclined, would have been intimidated.
I think the term brandishing is overused in these discussions. The applicable term could be brandishing, or it could be unlawful exhibition, menacing , assault, aggravated assault, or a combination of those.


If open carry is legal for him then he isn't "brandishing" just because someone sees him with a gun.
Very true.

On the other hand, people can be and have been convicted of offenses of this kind without having ever shown the gun.
 
Again, he didn't *show* them a gun, he allowed them to see his holster his gun which I contend is not the same thing at all.

You can contend whatever you want, but we have the actual words of the OP to know exactly what happened and what his intent was without your interpretation.

As I holstered my pistol I turned sideways toward them so they could plainly see what I was doing.

I think that if I hadn't made a point of letting them know that I was armed...

The OP showed them his gun on purpose to let them know he was armed. That is textbook brandishing in many states and could very easily land you in a court of law.

You can argue many things, but you can't logically argue against what his stated intent was...
 
Kleanbore, It is interesting that you posted this just now,as I just finished reading the stickies that you mentioned earlier. Correct me if I am wrong but everything was OK until I turned as I holstered my pistol. Had I kept everything out of sight It would have been the correct way to have handled the situation.
 
Mainsail said:
Nothing the OP did was unlawful or even alarming to a reasonable person.
There you go again.

Others will decide whether there is reason for reasonable men to evaluate the facts, and those persons, and not you and I, will decide whether your conclusion has merit.
Yes, there I go again. There is no law of which I'm aware that prohibits the holstering of a handgun in public place, nor is there any law of which I'm aware that requires the holstering of a handgun be done out of potential public view.

That's how I'm boiling it down- was the activity lawful without regard to vague things like 'intent'- and the answer is yes. What the OP did and the way in which he did it was lawful. Yes, there are ways he could have done it that might bump up against illegal, like brandishing or exhibition, but he didn't cross that threshold. He holstered a handgun and moved away from the people in the truck. Not threatening.
 
You can argue many things, but you can't logically argue against what his stated intent was...
His actual intent is of very little relevance. Imagine this senario:

JUDGE: Will the defendant please rise. You have been charged with, tried for, and convicted of the crime of aggravated murder of your wife. Do you have anything to say before I pronounce sentence?
DEFENDANT: Yes your Honor. I didn't meant to kill the broad, my intent was only to slap some sense into her.
JUDGE: Wait...what? Well sheesh, why didn't you just say that at the beginning? Since your intent was simple battery, I must set aside the jury's conviction and sentence you to time served. Bailiff, remove the handcuffs, the defendant is free to go.

Actual intent isn't relevant. Now, if an officer questioned him and he said such, then maybe he'd have some trouble. If, however, he said nothing or said simply, "I didn't want to walk my dogs without some way of protecting them from predators, heck I never noticed the truck" then actual intent become impossible to determine. In such a case the officer will apply the reasonable man doctrine.
 
Posted by Mainsail: There is no law of which I'm aware that prohibits the holstering of a handgun in public place, nor is there any law of which I'm aware that requires the holstering of a handgun be done out of potential public view.
Nor is the question at hand one of whether it is lawful to holster a gun in a public place. And "potential public view"? That's not in question either.

That's how I'm boiling it down- was the activity lawful without regard to vague things like 'intent'- and the answer is yes.
"Vague things like 'intent' make all the difference.

One more time:

This can become a question of why, and under what circumstances, you are displaying your gun.

If you are you displaying your gun to intimidate someone, to assure that someone keeps his distance or leaves, to secure his compliance, etc., your display could well be seen as a threat. And that sure seems to be your most likely purpose in displaying your gun, at least as you've posed the question. Or are you suggesting that you're displaying your holstered gun just so someone can admire the craftsmanship of your fancy grips?

Very often, intent is everything.

What the OP did and the way in which he did it was lawful.
How about why he did it that way?

Yes, there are ways he could have done it that might bump up against illegal, like brandishing or exhibition, but he didn't cross that threshold. He holstered a handgun and moved away from the people in the truck. Not threatening.
You keep conveniently leaving out "I turned sideways toward them so they could plainly see what I was doing", and that, I'm afraid, taken in combination with what caused him to do that, is the key to whether his actions would be deemed lawful.
 
His actual intent is of very little relevance. Imagine this senario:
:banghead:

The OP's stated intent is what we are discussing. No imagination required. You can contend he could lie about it to an officer, but that does not change the facts.

Why did he intentionally show them his firearm? Rhetorical question, we already know why.
 
Two comments that I find interesting were from two former LEO's.
besafe2 basically said I was good to go.

scaatylobo basically said I would likely be arrested.

Much of the outcome would seem to depend on the thinking process of any officer responding to this type of situation. This does not mean that I would do the same thing today. I would follow the advice of those that have said not to allow the weapon to be seen unless it was necessary to use it.
 
Posted by Mainsail: His actual intent is of very little relevance. ...Actual intent isn't relevant.
Read Post #91.

Intent will be the determining factor in the classification of an offense and in many cases, in determining whether an act does in fact constitute a crime at all.

But you may have something of a point. What the actor actually intended will have less to do with the outcome than what the triers of fact conclude that he intended.

Now, if an officer questioned him and he said such, then maybe he'd have some trouble. If, however, he said nothing or said simply, "I didn't want to walk my dogs without some way of protecting them from predators, heck I never noticed the truck" then actual intent become impossible to determine. In such a case the officer will apply the reasonable man doctrine.
You have switched subjects. You are now bringing up evidentiary considerations.
 
You present a very interesting situation. From my perspective, you did not over react. Your observations caused you to be cautious, and your actions, if as stated, would not be considered threatening. I always keep a weapon in my vehicle, as it seems that there are more chances to be in a situation where there are not many people around, as in your case.

This thread also reinforces the need to thoroughly know the various states' laws, rules and regulations that you are traveling through. We that carry while traveling have an obligation to prepare ourselves by becoming highly knowledgeable about not just our home state, but those that we travel in. It's what put us above the rif-raf.

Happy trails.
 
Posted by leprechaun50: Correct me if I am wrong but everything was OK until I turned as I holstered my pistol. Had I kept everything out of sight It would have been the correct way to have handled the situation.
I see nothing wrong with your having armed yourself.

In fact, had you simply strapped on the firearm and left it uncovered, you would evidently have been fine. Whether that would be wiser than concealing it is a different question on which people will disagree, and we do not need to go there.

All of this assumes that you do have a Minnesota permit.

Just a gentle reminder for everyone: when one has been involved in any kind of confrontational situation, making a public posting can end up working to one's disadvantage, should complications arise.
 
Leprechaun,

The proper answer for the legality of what you did is of course buried deep in Oklahoma law, and not the opinions of former LEO from other states. There's a lot of talk regarding the possible commission of the crime of Brandishing. Problem is, there's no such crime in Oklahoma.

Although I am in the camp that thinks you may have been unwise for surrendering a tactical advantage, nothing you did was against Oklahoma law. Now, that's not to say that people won't just flat out lie and say things to an officer that never happened... But that's back to tactical considerations.
 
Yes, there I go again. There is no law of which I'm aware that prohibits the holstering of a handgun in public place, nor is there any law of which I'm aware that requires the holstering of a handgun be done out of potential public view.

That's how I'm boiling it down- was the activity lawful without regard to vague things like 'intent'- and the answer is yes. What the OP did and the way in which he did it was lawful. Yes, there are ways he could have done it that might bump up against illegal, like brandishing or exhibition, but he didn't cross that threshold. He holstered a handgun and moved away from the people in the truck. Not threatening.






Why are you completely ignoring the fact that the OP admits he did it so they could see and to let them know his was armed? The OP even said so. That is the most important part of the discussion and you missing it completely.
 
Kleanbore, Yes I do have a valid Minnesota permit. Also I appreciate all of the discussion that this post has created. Very informative.

ClickClickD'oh, I too looked at the Oklahoma law and as near as I can tell, as long as I did not point it at them, make verbal threats or wave it around recklessly it was not mentioned.
 
One more time:
If you are you displaying your gun to intimidate someone, to assure that someone keeps his distance or leaves, to secure his compliance, etc., your display could well be seen as a threat.

You keep conveniently leaving out "I turned sideways toward them so they could plainly see what I was doing", and that, I'm afraid, taken in combination with what caused him to do that, is the key to whether his actions would be deemed lawful.
The word 'intimidate' doesn't appear anywhere in the OP, it was added later by someone opining. The OP stated he turned so they could see what he was doing. What was he doing? Holstering a gun. What wasn't he doing? Attempting to intimidate them. The way I'm reading it he was attempting to warn them that he was armed. I think that's where the divergence lies; you say intimidate I say not. No drama. In the end he arrived home safely and that's the best part.
 
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