Monday, June 5, 2017

Is the Defensive Display of Gun Legal in Nevada?

Several states have laws that allow a firearm to be drawn or displayed in self-defense to deter a threat against life. This protects someone who draws their gun or even points it at an attacker, but does not shoot them, because the gun successfully convinced the bad guy that pressing the attack would be hazardous to their health. This is the most common form of armed self-defense and is rarely reported. Protections include holding a gun down by the leg, at the low ready, or even in a position aimed and ready to shoot. Without such legal protections, one might be excused for killing someone in self-defense, but guilty of another crime for a defensive display of a gun.

In most places, common sense prevails. Even though Nevada doesn’t have such a law, most likely because the Legislature has always assumed Nevadans and our legal system will make reasonable decisions, the legal concepts exist throughout state law.

First, to kill in self-defense, “the danger” must be “so urgent and pressing that, in order to save the person’s own life, or to prevent the person from receiving great bodily harm, the killing of the other was absolutely necessary,” NRS 200.200. Bare fear (for example just saying “I was in fear for my life” when you weren’t) is not a defense. “It must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the person killing really acted under the influence of those fears and not in a spirit of revenge,” NRS 200.130.

Resistance sufficient to prevent the offense may be made by the party about to be injured, NRS 193.240. The methods of permitted resistance are not specified, but it could be anything that hinders or obstructs the crime. This can’t be taken to the extreme. Yes, killing a shoplifter will prevent them from stealing, but it is not reasonable for the crime and a threat to life is required to justifiably kill.  Without this statute, it could be considered assault to grab the hand of a robber trying to snatch a purse and shove him away or fight off someone who jumped you.

A threat is criminal harassment when one “without lawful authority” threatens to “cause bodily injury,” NRS 200.517. “Lawful authority” is discussed below. A threat is a “declaration of an intention or determination” and can be made verbally or non-verbally; we can all agree that a gun pointed at you is implying a threat of being shot. A threat becomes wrong when one indicates they are going to do something illegal to you, often to intimidate.

A threat is not wrong when it is used to deter someone by indicating you intend to use legal force. In a way, you are saying: “If you do that thing you are not supposed to do, I will take this legally permitted action to prevent you, so please reconsider your actions and stop before I must act.” A warning is nice, but is not required.

Now how does drawing a weapon in order to prevent a crime come into play? Brandishing is essentially displaying a weapon in a way that draws attention, often in a manner to intimidate maliciously, usually as an implied threat. Here we run into a contradiction in state law because “drawing or exhibiting” a weapon in self-defense is not prohibited, but aiming it at a person in self-defense is not exempted by the second statute.

NRS 202.320, the brandishing section, prohibits drawing or exhibiting a weapon “in a rude, angry or threatening manner not in necessary self-defense” in the presence of two or more persons.
NRS 202.290, “aiming”, stipulates that it is illegal to aim “any gun, pistol, revolver or other firearm, whether loaded or not, at or toward any human being.” Intent or malice is not referred to in this section.

Brandishing prior to 1967 called for a punishment of not more than $500 or up to six months in jail. “Aiming” became a gross misdemeanor, with the stiffer punishment of up to a year in jail, in 1989, effectively making “aiming” double the original punishment of brandishing. So, aiming is the worse crime.
Obviously, a gun pointed at someone is more intimidating than waiving it around and an accidental shot while aimed at a person could very well prove deadly. The Legislature wanted to punish people who drew guns and those who pointed them at people for malicious purposes, otherwise it would be legal to maliciously threaten someone with a gun, as long as you didn’t shoot them.

Clearly, a firearm being drawn or pointed at another is an unspoken threat of imminent violence (whether malicious or self-defense). NRS 200.275 states that ”the infliction or threat of bodily injury is justifiable, and does not constitute mayhem, battery or assault, if done under circumstances which would justify homicide.” This clause a two-part statement; at first it is general, then it includes specifics.

“The infliction or threat of bodily injury is justifiable” is stating that (for our discussion) that the threat of bodily injury is permitted, “if done under circumstances” where it would be legal to use deadly force in self-defense. The bill summary from AB 190 of 1983 explained the legislative intent: "...circumstances which would justify homicide are also adequate justification for inflicting or threatening to inflict injury." Next, the statute states some criminal violations that explicitly do not apply under the correct circumstances.

Mayhem, battery, or assault is specifically not criminal if it would otherwise be excusable to kill the other in self-defense; essentially to prevent someone who merely wounds their attacker from being charged with a crime that would have been excused had the attacker died. This is clarification to confirm that those specific laws would not apply in this case.

So does the “aiming” section truly prohibit pointing a gun at someone who is trying to hurt you or someone else? On it’s face yes, but this would be overridden by the intent of other sections. If “aiming” was never excusable, it would also create the absurd situation where after a defensive shooting, one would be innocent of homicide, but guilty of pointing a gun at the attacker. The Supreme Court has confirmed that the law cannot create absurdities.

A common-sense interpretation of the law indicates that drawing a gun or pointing it at someone, where the legal justification to actually shoot them exists, is permissible by taking the statutes as a whole. The only “anomaly” in the statutes is the “aiming” section and that is more likely a simple oversight because the Legislature expected judges and prosecutors to use common sense.

What’s the bottom line? If it is truly necessary in defense of life to draw a firearm (or threaten you will use it), whether you aim it at the attacker or not, there is no crime. A threat, whether shouted or communicated non-verbally by the barrel of a gun, that deters a crime is certainly preferable to becoming a victim.

Disclaimer: We are not lawyers or a Supreme Court. This is just informed opinion.

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