What would you do with your gun?

If you carry a weapon for self-defense, and were accosted by an aggressive individual, how would you use your gun?  Say, for instance, you are in your car, driving along, and minding your own business when an aggressive driver begins tailgating you, honking the horn and making rude gestures at you.  When you try to de-escalate the situation and leave the area, you find that you are being followed by this person.  You have a weapon in the center console of your car, so you decide to pull it out in case you need it.  What do you do with it then?  You can draw and point it or you can display it in a manner that says “I’m armed.  Please don’t mess with me.”  Both of these two eventualities are governed by Arizona law:

• If you pull out your weapon and point it at another person, that’s aggravated assault because the act of pointing a weapon at another is “reasonably likely” to place the other person in fear of “imminent bodily injury.” A.R.S. § 13-1203(A)(2) and -1204(A)(2). Aggravated assault is a class 3 dangerous felony and carries mandatory prison time because the offense involves the use of a firearm. The other person need not be actually physically injured, only frightened. So, be careful where you point that gun.
• If you pull out your weapon and point it at the ground or in the air or otherwise brandish it without actually pointing it at anyone – maybe you just want the other guy to “back off” – under Arizona law, you could be guilty of felony disorderly conduct, a class 6 felony. The relevant statute, A.R.S. § 13-2904(A)(6) provides that one commits disorderly conduct if one “recklessly handles, displays or discharges a deadly weapon or dangerous instrument” and does so “with the intent to disturb the peace and quiet of a person, family, or neighborhood.” This offense, although technically not as serious, also carries mandatory prison time because it, too, involves the use of a firearm.

Arizona has very relaxed gun laws.  We have a long frontier tradition of easy firearm laws and minimal restrictions on the right to carry and possess.  Any qualified person, i.e., not mentally ill and not a felon, can carry a gun openly and in public.  And most individuals may carry a weapon concealed in many circumstances.  But now in possession of this gun, can you do anything with it? In Arizona, you may use or threaten to use deadly physical force to protect yourself and your property.  And there is no duty to retreat when you are accosted – you can stand your ground, so to speak, in most situations where you have not initially and deliberately provoked the other person.  A.R.S. § 13-405 and § 13-411. So it is troubling that we’ve encountered at least three cases in the past year, all similar to the hypothetical we described above, where our county attorney has refused to plead down legitimate self-defense claims involving A.R.S. § 13-2904 to anything less than a full felony.  Under normal circumstances, a misdemeanor would be available for a class 6 felony charge.  And under normal circumstances, based on the law, one would assume that one would have the right to stand up to road ragers, bullies, and aggressors with the non-threatening display of a weapon.  But apparently not here in Maricopa County.  What good is the right to carry if one cannot display the gun in an attempt to ward off a potential attacker?  This is particularly so if one is in a public place, such as the Orlando nightclub or the Aurora movie theater, and is confronted with a would-be killer.  Should we permit the criminal laws of this state to turn potential aggressors into victims when they confront an armed citizen who displays a gun? The laws for legal gun possession can be quite complex, so if you are a gun owner, it would be well for you to familiarize yourself with the relevant Arizona statutes.  Any concealed weapon course should contain a thorough run down of the relevant provisions.  If you haven’t already taken such a course, you should.  If you continue to have questions about your rights and responsibilities, seek legal counsel and give us a call.  We are available to assist.   DISCLAIMER:  This article is intended to inform and provoke discussion and comment.  It is not intended to give legal advice or create any attorney client relationship between the reader and the authors.  All readers are encouraged to do their own research and consult counsel for any questions they may have.