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<blockquote data-quote="Dave70968" data-source="post: 2983242" data-attributes="member: 13624"><p>Actually, that's exactly the state of the law. Let's look at the relevant statutes:</p><p></p><p>This is judged on a "reasonable man" standard: would the reasonable man believe that you're offering to visit violence upon his person ("create the apprehension that you will..." is the legal term of art). Hold out your hand as if to offer a handshake? No reasonable man would take that as a threat, absent some really strange additional circumstances. Ball up your fist and draw it back? Yeah, I think I'm fixing to get punched.</p><p>(Do note the difference between assault--the threat--and battery, the actual <em>use</em> of force. 21 O.S. 642: "A battery is any willful and unlawful use of force or violence upon the person of another." It may seem like I'm being pedantic, but if we're going to discuss the law, we need to be precise.)</p><p>Now, let's step over to 21 O.S. 645:</p><p></p><p>So, if your actions cause a reasonable person to believe you're about to hurt him, that's going to be assault. If you reach down and draw your gun, I'm damned sure going to feel threatened, which makes it assault; since it's a gun--a "dangerous weapon" by any measure--it's going to be ADW. So, if you draw in anger, <em>you have committed ADW</em>. Period, end of discussion.</p><p></p><p>Now, here's where it gets interesting. In law, there's a concept called an "affirmative defense." That's a fancy way of saying "yes, I did it, but it was justified (or should be excused)." It <em>doesn't</em> mean you didn't commit the underlying offense, just that the circumstances justified what you did. Self-defense is the classic one: if you shoot a robber who breaks into your house at night, <em>you have committed homicide</em>. Period, end of sentence. Homicide, however, is not <em>per se</em> illegal. Murder and manslaughter are illegal, but homicide is merely the taking of a human life. In our example, the homicide was justified by the threat our uninvited midnight guest presented. Homicide, yes, but justifiable; not murder.</p><p></p><p>That little bit of subtlety addressed, we can now look at our "brandishing"* situation. Critter threatens you; you draw; he experiences a Sudden Outbreak of Common Sense and either surrenders or runs off; you heroically restrain yourself and don't shoot him. Is it a crime? Well, 645 would seem to say yes, but we have a justification statute in 21 O.S. 643:</p><p></p><p>(The omitted sections don't apply to this scenario, or really to anything most of us are likely to encounter.)</p><p></p><p>So. We have an ADW, but as long as the force you offer is proportionate (again, by a reasonable man standard), you're covered by the justification statute. Dude comes at you with a ball bat or lead pipe? That could be easily fatal; draw at will. Dude is 6'4", 300lb of muscle, and you're a scrawny little guy with your arm in a sling? Disparity of force says you're in serious danger; slap that leather! (You Kydex guys...you're unredeemable.) Dude is a 98lb weakling with a bright orange squirtgun? Yeah, maybe you'd best leave it in the holster, Quickdraw. At the end of the day, what matters is your ability to articulate to a jury of twelve nominally-reasonable people why you thought you were in imminent danger of death or grievous bodily harm, which is the same standard as if you actually proceed to "front sight, press," and install some non-OEM ventilation in the critter's corpus.</p><p></p><p>So...there's the standard, with citation to, and quotation of, the relevant statutes. To put it succintly, if you touch your gun, you don't have to shoot somebody, but you <em>do</em> have to be justified in doing so <em>at the time you touch it/draw</em>. If circumstances evolve such that it's no longer necessary, great; that's a win for everybody. If they don't change, well, having it out of the holster is just going to make the job that much quicker. But you're not justified in offering that force--again, in the eyes of a reasonable man, who is likely to interpret you even putting hand on it as a threat, whether or not it leaves the leather--then you're not justified in drawing.</p><p></p><p></p><p>* Point of interest: "brandishing" is not defined as a crime in the Oklahoma Statutes; in fact, the word (or any derivative of "brandish") occurs exactly once in Title 21 (Crimes and Punishments), at §21-1362.</p><p></p><p>"Brandishing" only becomes a crime <em>per se</em> when it disturbs the peace, but it's never actually defined in the statutes. I'd guess Black's Law Dictionary probably has a definition for it, but I really don't feel like digging out my copy right now. In any case, it's not relevant; it's the ADW statute that governs here.</p></blockquote><p></p>
[QUOTE="Dave70968, post: 2983242, member: 13624"] Actually, that's exactly the state of the law. Let's look at the relevant statutes: This is judged on a "reasonable man" standard: would the reasonable man believe that you're offering to visit violence upon his person ("create the apprehension that you will..." is the legal term of art). Hold out your hand as if to offer a handshake? No reasonable man would take that as a threat, absent some really strange additional circumstances. Ball up your fist and draw it back? Yeah, I think I'm fixing to get punched. (Do note the difference between assault--the threat--and battery, the actual [I]use[/I] of force. 21 O.S. 642: "A battery is any willful and unlawful use of force or violence upon the person of another." It may seem like I'm being pedantic, but if we're going to discuss the law, we need to be precise.) Now, let's step over to 21 O.S. 645: So, if your actions cause a reasonable person to believe you're about to hurt him, that's going to be assault. If you reach down and draw your gun, I'm damned sure going to feel threatened, which makes it assault; since it's a gun--a "dangerous weapon" by any measure--it's going to be ADW. So, if you draw in anger, [I]you have committed ADW[/I]. Period, end of discussion. Now, here's where it gets interesting. In law, there's a concept called an "affirmative defense." That's a fancy way of saying "yes, I did it, but it was justified (or should be excused)." It [I]doesn't[/I] mean you didn't commit the underlying offense, just that the circumstances justified what you did. Self-defense is the classic one: if you shoot a robber who breaks into your house at night, [I]you have committed homicide[/I]. Period, end of sentence. Homicide, however, is not [I]per se[/I] illegal. Murder and manslaughter are illegal, but homicide is merely the taking of a human life. In our example, the homicide was justified by the threat our uninvited midnight guest presented. Homicide, yes, but justifiable; not murder. That little bit of subtlety addressed, we can now look at our "brandishing"* situation. Critter threatens you; you draw; he experiences a Sudden Outbreak of Common Sense and either surrenders or runs off; you heroically restrain yourself and don't shoot him. Is it a crime? Well, 645 would seem to say yes, but we have a justification statute in 21 O.S. 643: (The omitted sections don't apply to this scenario, or really to anything most of us are likely to encounter.) So. We have an ADW, but as long as the force you offer is proportionate (again, by a reasonable man standard), you're covered by the justification statute. Dude comes at you with a ball bat or lead pipe? That could be easily fatal; draw at will. Dude is 6'4", 300lb of muscle, and you're a scrawny little guy with your arm in a sling? Disparity of force says you're in serious danger; slap that leather! (You Kydex guys...you're unredeemable.) Dude is a 98lb weakling with a bright orange squirtgun? Yeah, maybe you'd best leave it in the holster, Quickdraw. At the end of the day, what matters is your ability to articulate to a jury of twelve nominally-reasonable people why you thought you were in imminent danger of death or grievous bodily harm, which is the same standard as if you actually proceed to "front sight, press," and install some non-OEM ventilation in the critter's corpus. So...there's the standard, with citation to, and quotation of, the relevant statutes. To put it succintly, if you touch your gun, you don't have to shoot somebody, but you [I]do[/I] have to be justified in doing so [I]at the time you touch it/draw[/I]. If circumstances evolve such that it's no longer necessary, great; that's a win for everybody. If they don't change, well, having it out of the holster is just going to make the job that much quicker. But you're not justified in offering that force--again, in the eyes of a reasonable man, who is likely to interpret you even putting hand on it as a threat, whether or not it leaves the leather--then you're not justified in drawing. * Point of interest: "brandishing" is not defined as a crime in the Oklahoma Statutes; in fact, the word (or any derivative of "brandish") occurs exactly once in Title 21 (Crimes and Punishments), at §21-1362. "Brandishing" only becomes a crime [I]per se[/I] when it disturbs the peace, but it's never actually defined in the statutes. I'd guess Black's Law Dictionary probably has a definition for it, but I really don't feel like digging out my copy right now. In any case, it's not relevant; it's the ADW statute that governs here. [/QUOTE]
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