CONSIDERATIONS FOR THE NON-SWORN : HOLDING SOMEONE “AT GUNPOINT”

              Executive summary:  Usually a bad idea, often a very bad idea.

[This is a follow on to prior posts, THREATENING DEADLY FORCE : MUSINGS ON “BRANDISHING” AND “WARNING” SHOTS, and “CASTLE” DEFENSE: WHAT CAN–MAY–SHOULD–MUST YOU DO]

“Can/should I hold someone at gunpoint?” A common question when the topic of guns and defensive use of deadly force is discussed.  The questioner’s “gunpoint” hypothetical usually poses a home invasion, robbery attempt of the questioner, or “in progress” interdiction of someone committing a property crime, or a violent crime against the questioner or another person. The question is another one to which I respond with my smart aleck lawyer’s answer:  “I don’t know, can/should you?”  It lends itself to analysis similar to what I discussed in prior MSW posts on the use of deadly force —  my paradigm:

CAN / MAY / SHOULD / MUST

For the purpose of this post, holding someone “at gunpoint” is not necessarily muzzling the threatened person(s), openly holding an exposed firearm in any specific “ready” position, or a mode of “display” permitted or prohibited by a state “brandishing” statute.  I use the phrase here to mean the display of a firearm coupled with the express or implied threat that a failure to obey commands will result in the use of deadly force, that is, the gunpointer WILL shoot.  (If unprivileged, usually considered a serious felony, such as an armed assault or assault with/by deadly weapon).  Consider the following for your analysis of the SHOULD element of the paradigm.

The CAN:  Yes, it has been done.  By the aged and frail, even when outnumbered. You can find the stories on the internet.  Surprisingly, stories on gunpoint failures are absent. (The embarrassed don’t admit, and the dead don’t speak).  Reality check: Anything beyond a brief taking of someone at gunpoint and then allowing/urging them to make a hasty retreat is rather complicated. It requires command presence/confidence for an extended period of time, advanced tactical skills (CQB, firearm, improvisation, less lethal), and most important —  in-hand firearm retention training.  Gunpointing is difficult at best against one adversary, and almost impossible to effect solo over multiple adversaries.  (Unless one or both are incapacitated — see example here).   Your hypothesized home invader and robber are not likely first time rodeo attendees.  He/she/they may have planned in advance to implement a response (you can bet it is ugly) if caught in the act or resisted by an uncommitted homeowner/victim.  Questions to ask yourself:  Do you know the experience, skill, or mindset of the adversary? Does he/she have a second/concealed weapon? Does your adversary know that action usually beats reaction?  Can you multitask with a gun and phone in hand to secure family members or other innocents, handle possible criminal confederates, admit/direct responding LEOs?  Does your gunpoint position give you overwatch on avenues of ingress? What is the adversary willing to risk?  What are you? Are the interests of other innocents simultaneously at stake? Do you feel lucky?

The MAY: Probably as mind-boggling as the CAN.  In analyzing whether a sustained holding of someone at gunpoint is lawful, the gunpointer may have to address these questions on state common law (cases) and statutes, and know which applies when a gap or conflict arises.  Is gunpointing the use of force?  If so, deadly or nondeadly?  When is that level of force allowed and against whom?  If gunpointing is not actual use of force, is threatening deadly force lawful? When? What kind of force can be used to stop what kind of crime? Can deadly force be threatened when only nondeadly force can be used? Can a non-sworn make a lawful arrest? If so, under what circumstances?  What are the elements of the various felonies for which use or threatened use of deadly force is permitted? What are the elements of assault, and of kidnapping and related false imprisonment crimes?  Are there exceptions for self-defense?  Defense of others? Defense of property? Apprehension of criminals? Termination of in-progress crime? Is some magic incantation required to detain someone at gunpoint or place a person “under arrest?”  May deadly force be used on a noncompliant gunpointee? Under what circumstances? Is the effect of any SYG law or its presumptions affected by holding someone at gunpoint or shooting them after they appear compliant? If I let a violent criminal held at bay go, can I be liable to others injured in his/her flight?  If I hold someone at gunpoint does any civil immunity statute protect me?

The MUST:  Taking someone at gunpoint momentarily to stop a lethal attack on you or another innocent, or an in progress crime, may be quite compelling.  Holding someone at gunpoint seems to be a horse of a different color, unless it is to prevent someone from continuing/escalating their criminal behavior, or acquiring/reacquiring a weapon.  I think it is a certainty that the more time spent in the presence of a physically unrestrained miscreant, the more likely you are to suffer serious injury.  If a miscreant can get to someone you cannot live without and hurt them, or has been wounded or grounded and you are unwilling or unable to flee the area/premises, then I suppose it must be done.  Bad analysis of any of the paradigm elements might unnecessarily place you in a MUST situation purely of your own making which runs afoul of the MAY.  Worse still, it may cost you your life.  (See prior post — MAY/MUST QUESTIONS ANSWERED CORRECTLY. . . SHOOT FIRST, LIVE).

My thoughts, what say you?

Disclaimer: No MSW post constitutes particularized legal advice, or creates an attorney-client relationship with a reader.

This entry was posted in Legal, Training by Steven Harris. Bookmark the permalink.

About Steven Harris

Steve Harris is an experienced attorney (member of Florida Bar, 1979) who has represented federal agents and local LEOs in duty related matters. He has written and lectured about officer involved shootings, self-defense, and use of force law, including "Stand Your Ground." Steve has been a seasoned and active competitive handgun shooter for over 20 years.

8 thoughts on “CONSIDERATIONS FOR THE NON-SWORN : HOLDING SOMEONE “AT GUNPOINT”

  1. Great advice for an armed citizen. The goal in any type of negative encounter if you are an armed citizen is quick resolution in your favor. Nothing is quicker than telling the bad guy to to away and having him do so. It is definitely safer as well, both from a physical standpoint and from a legal one. It is important to remember that armed citizens aren’t cops, their job is to protect them and theirs, not to apprehend criminals.

    That being said, I believe that most states would not frown upon an armed citizen conducting a “citizen’s arrest” on a dangerous felon, at least in a legal sense. This does however require, as you mentioned in your post, an understanding of the elements of the crime being committed, which john Q public generally cannot enumerate. I like that you are addressing these issues. Most trainers focus on the shooting, which is only a quarter of the battle. The majority of the battle will be fought in criminal and civil court after the shooting stops.

  2. Too often I read about the armed citizen thwarting some crime, either as a victim or as a passerby. I completely support the right to self defense. What I fear is what is not printed, as you noted.

    I live in one state that has a castle doctrine type of self defense law, and work in an adjacent state where any attempt to carry out armed defense will likely result in prosecution. Note, most LEOs are powerless, when a prosecutor acts. There is political bias in the prosecutors offices, let alone the various judges.

    Laws on the books are contrary to what has been applied and carried out in the courts.

    Professional courtesy web goes out the window, in many cases, especially when the perpetrator is from an affluent family or has means of mounting a defense where you become the defendant.

    I see the article as a bright glowing light, shining on the need for more training. Always train. Learn about the laws and how cases have been handled. Train some more.

    • Thanks for commenting.

      I do see success stories about the non-sworn taking someone at gunpoint, and the gunpointee then flees, either on his/her own volition or because they were ordered to, and from time to time, failure stories where someone fleeing is then shot.

  3. Unfortunately, to the laymen, this seems like a lot of double talk mumbo jumbo and does not clearly tell someone what to do or what they can or can’t do. For those who have seen the inside of the legal injustice system, there are always other factors in play behind the scenes.

    Always more questions than answers after a critical encounter, since the victim has seconds to make their decision in a rapidly changing environment and the legal system has months with 100s of people coming up with questions.

    Less is more when it comes to any statements. The more you say the more can be used or twisted against you. Our system does not reward honesty it penalizes it, distorts it and uses it against you. Fear, fear, fear, showing a genuine reasonable fear will help you more than most anything else. Expressing that fear in any statement will be your friend down the road. Bragging, being macho, expressing “my rights” or claiming some moral authority or high ground will be used to mitigate any fear defense or protections.

    Give no statement, request a lawyer, and if you have to say anything, make sure it expresses fear for you safety or others.

    • I plead guilty. Yes, I did not tell readers whether you can, can’t, should, or should not hold someone at gunpoint. Only you can decide that. . . when the time comes. Please standby for a later post for a bit more from me on that. And see my response to another comment, below.

      As for what to do/say after a “critical encounter,” there are numerous books and articles on that subject. I might add my own thoughts to the heap in a post next year.

  4. Andrew Branca’s Law of Self Defense 2nd edition covers this in his book.

    What I have been taught, personally, is that if I draw my weapon, I am immediately firing it afterwards. If I have no intention to fire, don’t even place my hand on it, not even defensive display.

    If the situation has escalated unavoidably to deadly force, draw, fire to stop the threat, when the threat has stopped, re-holster, make sure to kick away any weapon the attacker may have and call the police.

    Holding someone at gunpoint is a lot more risky legally than just shooting. It is also risky in that you’re taking a gamble… with your life and if you lose that gamble, you didn’t just lose your life, guess who just acquired a new firearm?

    My school of thought, anyway.

    Regards.

    • I don’t believe in training robotic responses/behaviors in deciding whether to use deadly force (with a firearm). If I understand you correctly, you already know that for all encounters you would never touch or draw a holstered firearm unless you had already decided you were going to shoot. I think there are tactical and legal shortcomings in such thinking, and thus would not teach that.

      I do not agree that holding someone at gunpoint is “more risky legally” than shooting them.

  5. Since there are gray areas when it comes to use of lethal force, I don’t agree that a person should never touch a firearm unless shooting it. However I think intentional muzzling should be considered distinctly differently from the broader context of holding someone at gunpoint.

    Readying a weapon during an ambiguous situation of potential danger is one thing. But pointing a weapon at a living human when absent justification in pulling the trigger? Why?

    I think it is never reasonable to muzzle someone. Muzzling just seems like begging for tragedy. Why point a gun at a person if there is no legal right to pull the trigger?

    I am also very disturbed at the police practices which seem to encourage muzzling. Regardless of the legal justifications or tactical rationalizations for such behavior, too many cases seems to me like the police employing a hair-trigger threat of deadly force to compel compliance, rather a reasonable tactic to save lives. If anything the practice seems to endanger lives.

    Like the Modesto drug raid where a policeman accidentally killed an unarmed 11 year old boy while he covered the boy’s back with a shotgun. Or the incident in Miami where hundreds of rounds were fired which killed two unarmed suspects while also wounding two fellow officers.

Comments are closed.