Firearms Owners Against Crime
Institute for Legal, Legislative and Educational Action
Institute for Legal, Legislative and Educational Action
Brandishing a weapon without firing it is sometimes the appropriate response to a threat.
Yesterday the Michigan Court of Appeals handed down a decision in a highly public and very controversial case that gun owners across the United States should applaud. In short, it demonstrates and validates the value of armed self-defense even when you do not pull the trigger and — crucially — have no cause to pull the trigger. It justifies the brandishing of a gun as pre-emptive measure to block the use of unlawful force.
What do I mean? Hang with me for a moment, because this case is a bit complicated. At its heart is a dispute between Siwatu-Salama Ra, an African-American concealed-carry permit holder from Detroit, and a woman named Channel Harvey. Ra was put on trial for assault with a dangerous weapon and possessing a firearm while committing a felony after she brandished her unloaded pistol at Harvey during a heated confrontation outside Ra’s mother’s house.
The facts are hotly disputed, but Ra claimed that during the course of an argument, Harvey backed her car into Ra’s vehicle — while Ra’s two-year-old daughter was inside, playing. Ra claims she grabbed her daughter out of the car, then grabbed her unloaded gun, “pointed the gun at Harvey’s car” and then again demanded that Harvey leave. Harvey testified that Ra was the aggressor, and that she hit Ra’s car on accident only after Ra pointed the gun at her. The jury apparently believed Harvey’s version of events, and Ra received a two-year prison sentence.
The case was immediately controversial, with critics of the verdict claiming that the case represented “yet another instance of a black gun owner, with the permits to legally carry, defending themselves against violence — and getting punished for it.” The NRA tweeted in support of Ra:
No one should be imprisoned for exercising their right to self-defense. https://t.co/ZWkYJ5dL3K #2A
— NRA (@NRA) May 7, 2018
Yesterday the Michigan Court of Appeals threw out her conviction. It didn’t hold that the jury got the outcome wrong but rather that it didn’t have a true opportunity to get it right. It was improperly instructed on the law, and the trial court placed too high a burden on Ra to justify her decision to brandish her weapon.
The jury was instructed only on the affirmative defense of self-defense through the use of “deadly force.” To prove that deadly force was appropriate, a defendant has to prove that she “reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.” (Emphasis added.)
Under this reasoning, a person could brandish a weapon only when she has the legal right to fire the weapon.
The court of appeals, however, said that’s not the law. When one brandishes a weapon without firing it, they don’t, in fact, use “deadly force.” They use nondeadly force, and the legal standard for the use of nondeadly force only requires the defendant to prove that she “reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.” (Emphasis added.)
Under this reasoning, a person can brandish a weapon to prevent the imminent use of force from escalating to a threat of imminent death.
As the court noted, “merely to threaten death or serious bodily harm, without any intention to carry out the threat, is not to use deadly force, so that one may be justified in pointing a gun at his attacker when he would not be justified pulling the trigger.” There’s a commonsense element to this conclusion. Police officers, for example, sometimes point a weapon at an individual as a means of preventing unlawful force even when they don’t have the legal right to fire a shot.
Crucially, this legal doctrine does not create a license to kill. Nondeadly force becomes deadly force the very instant a person pulls the trigger, and when a person pulls the trigger they have to prove the threat of imminent death or great bodily harm. The doctrine does — as a practical matter — allow citizens to use the threat of decisive force to deter unlawful violence.
A contrary rule places civilians in an untenable position. They could not even pull their weapon until the threat of death is actively upon them. They would be forced to maintain maximum vulnerability right up until the point of maximum danger — a legal position that would be most threatening to people of slight physical stature who lack alternative effective means of self-defense.
Now, some important caveats. This is a Michigan case. It is not setting rules for other jurisdictions. Don’t rely on Michigan law to determine your actions in, say, Ohio. Moreover, even under legal standards similar to Michigan’s it’s still a grave decision to pull a weapon from a holster or from the glove compartment of your car. It’s legally consequential and extremely dangerous. But the Michigan case outlines what should be the proper legal standard. The sight of a gun has the power to deter violence, and banning its use outside of the threat of imminent death would — perversely enough — allow too many confrontations to escalate.
Prosecutors have a right to appeal the decision to their state supreme court. They should not. Ra has suffered immensely. She gave birth while imprisoned, and her child was taken from her two days later. She spent months separated from her newborn – after a conviction under the wrong legal standard. The court of appeals reached the just result. Ra’s legal ordeal needs to end.