Degrees of Defensive Display

And the associated legal risks

Not long ago, firearms instructor and CCW Safe contributor Steve Moses published a two-part article (Part 1, Part 2) that describes a spectrum of “ready positions” concealed carriers can use in a self-defense encounter. While the unjustified display of a firearm can be a serious crime, over the past months, CCW Safe has published a number of articles showing that when a defender faces an imminent threat of great bodily harm or death, a proper defensive display can be an effective less-lethal alternative to firing the weapon.

Steve writes, “A solid ready position can increase the speed at which a concealed carrier can deploy his or her handgun and use it effectively, reduce the risk of negligently shooting others due to the increased focus on the orientation of the muzzle, and in some instances stop a potential attack due to the competent manner in which the intended victim handled their defensive firearm.”

To illustrate Steve’s point that a competently executed defensive display can stop a potential attack, I’ll remind you of the McClatchy case where Sheri McClatchy, a laundromat attendant, was attacked by an angry, unarmed patron. After escaping to the parking lot, McClatchy retrieved her pistol, holding it in a firm Low Ready position. When the angry patron tried to re-engage, McClatchy confidently and swiftly raised the weapon, and the attacker wisely retreated, safely ending the conflict. McClatchy was not charged for her defensive display.

I’ve been pleasantly surprised that the more I am exposed to Steve Moses’ technical expertise, the more I discover that good tactical advice frequently translates well into good sound legal considerations for defenders forced to justify a defensive display or the use of force for self-defense.

In Steve’s articles, he describes a range of ready positions — from Holstered Ready to High Ready. Each has its own advantages and disadvantages, but each serves the purpose of getting a defender closer to a secure firing position if a threat should warrant it, and serves the purpose of telegraphing the defenders’ ability and willingness to use the firearm WITHOUT pointing the muzzle at the potential threat.

Recently, Steve and I spoke with CCW Safe National Trial Counsel Don West about these ready positions, and Don suggested that, while the law does not objectively draw distinctions between the legal risk associated with each position, from a subjective point of view, each position communicates something different about the defender’s intentions. For example, a Holstered Ready position, with the gun visible but not drawn, is subjectively less imminently threatening than, say, a Low Ready position where the gun is out and the muzzle exposed, and it’s likely a law enforcement officer or a prosecutor would take that distinction into account when investigating a defensive display event.

Steve also expressed that, while some ready positions are more aggressive than others, defenders aren’t required to move through them in any prescribed sequence of escalation. Faced with an imminent deadly threat, a shooter may not have the time to assume a Holster Ready position and then graduate into a Low Ready position; he might simply have to draw and fire if the deadly circumstances require it. However, when time and distance allows discretion, a defender can choose to move between ready positions, including dialing down the readiness if a more aggressive display successfully reduces the imminence of a potential attack.

In the articles referenced, Steve doesn’t describe a position where the gun is pointed at a threat, but I have spoken with him about this in a past podcast. Basic gun safety tells us we never point the muzzle at anything we’re not prepared to shoot, and Steve suggests that we should never point a firearm at an attacker unless we have the intent to fire at them.  He also added that this is the only time when it is permissible for the concealed carrier to place their finger on the trigger.

That said, Steve stresses that just because a defender points a gun at an attacker does NOT mean they MUST shoot. He cites the Michael Drejka case where Markis McGlockton violently shoved Drejka to the ground after an argument over a parking space. When Drejka pulled his pistol, McGlockton took several steps back. He broke off the attack, and Drejka had the opportunity to ratchet back to a different ready position. Unfortunately, Drejka fired and was later convicted of manslaughter.

From a legal risk point of view, what’s great about the degrees of defensive display Steve Moses describes is that it gives defenders a vocabulary to describe their tactical decisions in the wake of a self-defense encounter.  Don West says, “Displaying a weapon in a public place or pointing a gun at somebody without being able to clearly articulate exactly why you felt threatened enough to warrant the display of the firearm can be treacherous legal territory to navigate.” However, if you include voice commands with the mix of defensive display alternatives, Don says it “allows a defender to communicate to a jury in a court of law that they took necessary steps before going to the point of threatening somebody with a firearm — or actually shooting them.”

One of the toughest problems that armed defenders encounter is meeting an unarmed threat with a firearm. Defenders who understand that defensive display offers a range of less-lethal options have a better ability to discern the severity of a threat and to potentially deter an attacker without violence. If a threat persists, a properly-trained defender who takes advantage of the degrees of defensive display will feel more confident that an attacker truly posed an imminent threat, and they will have the vocabulary necessary to articulate their justification for using force to an investigator, to a prosecuting attorney, or perhaps even a jury.

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