“Does anyone here have experience or knowledge about the legality of brandishing under these circumstances?”
For Ohio......
“BRANDISHING A FIREARM…..SHOWING IT TO “SCARE” OR SHOW YOU ARE ARMED.
If you must pull your weapon, use it to deadly effect or you have already lost.
From Ohio Guide to Firearms Law by Ken Hanson, Attorney and Co-Founder of Buckeye Firearms Foundation:
Edited for brevity and clarity....
Revealing a concealed weapon and/or statements indicating the presence of a weapon.
Any deliberate action on your part that introduces lethal force into the encounter in a manner that makes the other person aware of the lethal force, IS THE USE OF LETHAL FORCE.
If you make reference to lethal force, show lethal force, hold lethal force in your hand etc., those actions are simply an alternative use of lethal force, short of pulling the trigger.
If you are in a non-lethal encounter, and have displayed lethal force, even in this round-about, alternate way, you are the one who escalated the encounter. You can not claim self defense beyond that point.
Prosecutors use other terms for brandishing weapons: attempted felonious assault.
Pulling out or stating you have a gun just to “defuse the situation” is a legal non-starter. Do not be tempted to do this. If the gun comes out of the holster, the gun owner had better be justified in immediately employing it fully.
This author understands the theory that the presence of a firearm might eliminate a confrontation. However, what if the aggressor pulls his firearm and shoots you? You just brandished your self into a body bag and the attacker maneuvered himself in a “defense of life” defense...if the prosecutor even bothers.
Removing a handgun from a holster, or uncovering or indicating its presence is a criminal act. Do not draw your gun unless you shoot someone. Shoot them instantly. If they have a chance to turn and run you are screwed.
This is an accurate assessment of Ohio law. It has withstood the test of time and appellate cases.
The Ohio Guide to Firearm Laws.
Ken Hanson, Esq.
If they turn and run it certainly doesn’t mean they’re disengaging. They can just as easily be running for cover to continue the fight to their advantage or secure a hidden weapon or... Shooting them in the case of flight doesn’t mean you lose in court. You lose in court because you hired a second rate lawyer.
Hanson is trying to make something of nothing, IMHO.
Yes, you pull it out if you are justified in using it.
But something like 19 times out of 20, when the opposition sees you have a firearm, it is sufficient to defuse the situation.
It does vary by state.
In Arizona, we passed a "defensive display" statute, specifically to prevent prosecution when a person was showing another they were armed.
It is one of the reasons open carry is positive. You are already showing you are armed. You do not have to "brandish"."Brandish" is an imprecise term, generally not used in the law. To give a counter example to Hanson.
A homeless man approaches you. He pulls out a knife.
You order him to stop.
He doesn't.
You draw your gun, as he sees it, he drops the knife and runs.
This is a pretty common situation, yet according to Hanson, you screwed up because you did not shoot and kill the man before he dropped the knife.
Most defensive gun uses are not gunfights.