Actual text of the bill is here. Basically it allows you to verbally announce you’re armed to an attacker, allows a transition from concealed to open carry when under threat of physical force (not necessarily deadly physical force). It also would appear to allow you to draw into the ready position under threat of physical force. Based on a quick review of Arizona’s criminal statutes, it doesn’t appear to be unlawful to draw a gun on someone as long as you’re justified in using deadly force, even if you don’t have to shoot. Arizona’s self-defense statute would appear to remove self-defense as a justification if you are responsible for escalating the confrontation. So a question I would have is, if you draw one someone threatening physical force (not deadly physical force), and they don’t back down, then what? They are threatening physical force, you’re threatening deadly physical force. If you end up shooting him, do you lose justification?
16 thoughts on “More on Arizona Justification Bill”
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I think the Gov. vetoed this one: http://www.eastvalleytribune.com/story/117267.
Disregard… I see you already knew that. The present tense in the current article fooled me. Mea Culpa.
Actually an assailant threatening physical force was not justification under the bill she used her veto stamp on. Only actually using or attempting to use unlawful physical force or deadly physical force. The law would not have justified either aiming your gun at or shooting an assailant – determining justification of either of those actions would have remained under the current use of deadly force statutes.
Just for clarification the legislation would not have forced anybody to decide to use that tactic (revealing the fact that you have a concealed weapon before use of deadly force is justified) – it simply would have justified anyone who who were to decide they wanted to based on the circumstances of a given situation.
I just don’t think there’s any circumstances where that’s wise. Physical force isn’t necessarily someone beating you to a bloody pulp with their fists (that would be deadly force in most circumstances), it can be as minor as someone pushing you, or refusing to allow you to pass. I don’t think, in that situation, bringing deadly force into the equation, or the threat of it, is a wise idea. Now, if the other guy says “I’m going to pull out a knife and stab you,” by all means, draw. Even if he said “I’m going to beat you to within an inch of your life” and he’s big enough to do it, you have a force disparity defense.
The applicable statute is in 13-1203 A2″Assault: Intentionally placing another person in reasonable apprehension of imminent physical injury” & 13-1204 A2 Aggravated Assault:”2. If the person uses a deadly weapon or dangerous instrument.” “B. Except pursuant to subsections C and D of this section, aggravated assault pursuant to subsection A, paragraph 1 or 2 or paragraph 9, subdivision (a) of this section is a class 3 felony except if the victim is under fifteen years of age in which case it is a class 2 felony punishable pursuant to section 13-604.01.”
So in summary, you can be charged & convicted of a Class 2 or 3 felony of Agravated assault in Arizona for simply “brandishing” a deadly weapon causing a thug to have “reasonable apprehension of imminent physical injury” – no exception is listed for brandishing a deadly weapon in self defense. I know of a case where an elderly gentleman simply moved his handgun from a concealed location in his vehicle onto his dashboard to scare away a car of thugs who were attempting to drive him off the road which did scare them away, and he was charged with agravated assault. I’m trying to find the specifics of that story, will post it when I find it.
I wasn’t able to find his name but there is a reference here citing some things John Wentling said during the Senate hearing. John Wentling wrote the text in AZ to train AZ ccw instructors & has done some law enforcment training concerning the use of deadly force & gun laws in Arizona. During his testimony he stated that fairly regularly people in Arizona who are considered to be law abiding citizens simply displaying their weapon in self defense against criminal assailants have been charged & convicted with agravated assault. You can listen to his testimony here:
http://azleg.granicus.com/ViewSearchResults.php?view_id=7&keywords=HB2629
The reference I mentioned is here: http://www.azstarnet.com/dailystar/226348
“John Wentling . . . cited an incident where some “gangbangers” were trying to run an elderly man off a highway.
“All he did is place his gun up on the dashboard as a message: ‘Leave me alone, I’m armed,’ ” Wentling said. He said someone apparently called DPS, and the man was charged with aggravated assault.”
That man (a volunteer lay minister) was sentenced to 3 1/2 years in Florence Prison. Wentling also cited a similar incident envolving a law abiding female real estate broker who displayed a weapon in self defense against a carload of thugs while driving towards Flagstaff who was also charged & convicted of aggravated assault.
Correction – I incorrectly stated John Wentling wrote the text to train AZ CCW instructors. I was actually discussing Michael Anthony who gave testimony in the Senate Hearing. John Wentling gave testimony in the House hearing. Sorry about any confusion I caused. :)
Unfortunate cases, as applied, but it you can also imagine incidents where someone displays a gun in a road rage incident, that really is a clear cut case of assault, and there’s nothing the state can do. In Pennsylvania, displaying a firearm is simple assault, which is a second degree misdemeanor… which is a lesser misdemeanor in our state than a first degree. Simple assault is a third degree misdemeanor if you end up scuffle with someone where you’re both willing participants. It’s only a first degree misdemeanor if it’s against a minor. Only moves to aggravated assault if you wave a firearm at a cop.
I think aggravated is probably a too harsh unless you actually shoot at someone, but in the case mentioned, you’re in a car. If they are verbally harassing you, ignore them. If they try to run you off the road, well, to me that’s getting serious, and you should have a defense against any charge of assault. That’s not to say I wouldn’t support a correction if prosecutors are abusing the statute, but I wouldn’t want to cripple the state from being able to punish people who exercise remarkably poor judgment in conflict resolution. The first thing I’d try is to reduce brandishing to a low level misdemeanor.
Yes that would be a good option, that & adding an exception to the aggravated assault statute allowing for self defense, since that exception was completely left out.
Self-defense as a justification exists in Arizona law already. Look under Title 13 under justifications. Even if it wasn’t statute, self-defense almost always exists as a defense as a matter of common law.
Tell that to the poor fellow rotting away in Prison for 3 1/2 years defending himself against thugs attempting to run him off the road. In theory yes, as applied by anti gun prosecutors, no.
Just for clarification, justification for self defense use of deadly force exists, but not for aggravated assault in the form of displaying a firearm without shooting. Kind of silly I know, but it was just something AZ lawmakers left out of the Aggravated Assault statute.
My understanding is there’s always a self-defense justification in common law, even if it’s not explicit in the statute. But looking at the statutes:
13-1203 – Assault
13-1204 – Aggravated Assault
This is actually very similar to Pennsylvania’s classifications on Assault and Aggravated Assault. Brandishing in Arizona appears to be merely assault, whereas only use is aggravated, unless it’s against a government officer or in a few other circumstances where display would also be.
Actually brandishing is aggravated assault if it involves a deadly weapon. See 13-1204 A2:
A. A person commits aggravated assault if the person commits assault as prescribed by section 13-1203 under any of the following circumstances:
2. If the person uses a deadly weapon or dangerous instrument.
Ah, OK… i missed the detail.