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Can I Brandish a Gun as Pre-Emptive Measure to Block the Use of Unlawful Force?

Oct 16th, 2019 OWI Can I Brandish a Gun as Pre-Emptive Measure to Block the Use of Unlawful Force?

Yes, an unpublished Michigan Court of Appeals case suggests that you can.  The name of the case is People v. Ra[i]. In this case, the defendant, Ms. Ra, was visiting the home of her mother. Ms. Ra’s teenage niece was also at the home.  Ms. Ra and her mother were both sitting on the porch watching Ms. Ra’s two-year old daughter play in her car which was parked in front of the house. The niece’s teenage friend showed up and since it was believed that this young woman had beaten up the niece at school earlier, Ms. Ra told her to call her mother to pick her up.  The mother showed up in response to the call and proceed to create a big scene.  Ms. Ra then asked her to leave as well, and this request apparently infuriated the teenager’s mother.  At trial different versions of what happened next were presented by the two parties, but it appears that after the teenager got into her mother’s car, the mother rammed the car into the car in which Ms. Ra’s child was playing.  Ms. Ra then went to her car and retrieved a handgun from the consol.  She then pointed the gun at the other car, demanding that they leave.  The teenager’s mother got out, apparently unafraid, and took pictures of Ms. Ra holding the gun.  She then left, went to the police department, and filed a complaint.  The defendant ended up charged with two felonies; assault with a dangerous weapon (felonious assault), pursuant to MCL § 750.82, and possessing a firearm while committing a felony (felony-firearm), pursuant to MCL § 750.227b.

Ms. Ra’s was convicted of both felonies counts at trial, and on appeal her attorney that the trial court erred by refusing to instruct the jury on the use of nondeadly force in self-defense.  Her attorney argued that she used only nondeadly force by pointing her gun at the car, and that the trial court thereby unfairly restricted the circumstances justifying self-defense to whether defendant reasonably feared death or serious bodily harm.  The Court of Appeals agreed and reversed and remanded the case for a new trial.

Self-defense is an affirmative defense that justifies otherwise punishable criminal conduct, and applies when the defendant acted intentionally, but under circumstances that justified her actions. The  use  of  deadly  force  in  self-defense  requires  that  the  defendant  honestly  and reasonably believe that she or another is in danger of being killed or seriously injured, M Crim JI 7.15(3), while the use of nondeadly force in self-defense requires that the defendant honestly and reasonably  believe that  the use of force is  necessary to  protect  herself  or  others  from the imminent unlawful use of force by another.  M Crim JI 7.22(4).  Thus, the use of deadly force in self-defense requires a reasonable belief that the circumstances were more dire than the circumstances necessary to support a use of nondeadly force in self-defense.  The Michigan Self Defense Act does not define “force” or “deadly force.”  The Michigan Supreme Court, however, has applied the term “deadly force” as defined as force used in a circumstance in which the natural, probable, and foreseeable consequence of the act is death. People v Couch, 436 Mich. 414, 428 n 3; 461 NW2d 683 (1990).  In this case the Michigan Court of Appeals held that brandishing a gun, which is essentially the threat of deadly force, is itself non deadly force.  Because Ms. Ra may have honestly and reasonably believed that non-deadly force was necessary to protect her daughter from the imminent use of force by the teenager’s mother, Ms. Ra was entitled to brandish the gun in self-defense.

 

[i] No. 343202, 2019 WL 3941490, at *5 (Mich. Ct. App. Aug. 20, 2019).