One question that comes up in the Utah Concealed Firearms Permit course is “when can I draw my gun in self defense?” I can not give you legal advice and I can provide some insight as a retired Utah Police Officer and my experiences with person’s being arrested for drawing or threatening someone with a dangerous weapon that were not justified and they ended up being arrested. Check with your attorney for sound legal advice when considering something that can get you into some serious legal trouble.
You should be in fear of your life, if you draw a gun or threaten someone with a dangerous weapon and you should not be doing that in an angry and threatening manner. The legal answer is when you have an imminent threat of serious bodily injury or death to yourself or another person and you reasonably believe that it’s necessary to stop that threat. These situations can be tough to decide for some people, good judgment is key.
Another situation in which Utah law allows you to threaten someone with or use deadly force, is to prevent a forcible felony from occurring to either yourself or another person. Forcible felonies as defined by the Utah legislature can be found under Utah Criminal code 76-2-402, (as amended in 2019) some examples of a forcible felony would include but not limited to robbery, kidnapping, arson, aggravated arson, aggravated assault, murder, rape, sexual assault of a child, mayhem, forcible sodomy, “forcible felony” also includes any other felony offense that involves the use of force or violence against an individual that poses a substantial danger or death or serious bodily injury. The law also requires that you entered and remained on the property when the use of force occurred.
There are some exceptions where you will not be justified in drawing a gun;
1. If you provoked the situation with the intent to use force to inflict bodily harm.
2. You were attempting to or are fleeing the commission or attempted commission of a felony,
3. You were the aggressor, or were engaged in mutual combat by agreement unless the person withdraws from that mutual combat and effectively communicates that to the other combatant and that other person continues or threatens to continue with the use of unlawful force. The key in all of this is being reasonable.
If a law enforcement officer finds you were not acting in self defense when drawing your gun you could be facing criminal charges, usually Threatening to use a dangerous weapon in a fight or a quarrel, Utah criminal code 76-10-506, the elements to this class A misdemeanor offense are:
- Has to be in the presence of 2 or more individuals, not including yourself
- Draws or exhibits a dangerous weapon in an angry and threatening manner
- Threatens to use a dangerous weapon in a fight or a quarrel.
A common situation in which persons are charged with this crime are road rage incidents; two people pull over to settle their differences and one pulls out a gun to scare or intimidate them, they are always in an angry and threatening manner and don’t appear to be protecting themselves. Think about this, if you were in fear of your life and found it necessary to draw your gun on an attacker, would you appear to be angry and threatening, or would a witness describe your demeanor in some other way? Perhaps assertive, defensive or fearful when telling the attacker to disengage? We have done scenarios like this in our Utah Concealed firearms courses and the students watching have not described the persons defending themselves to be angry and threatening, which is specific required demeanor to be found guilty of this crime.
I would also like to add, if you do find yourself drawing your gun on someone in self defense to not point the gun at them, unless you meet the criteria for deadly force. Pointing the gun at someone, looks more serious than simply responding to a serious threat and having the gun held at your side, or down in front of you
Another possible criminal charge if you unreasonably drew your gun, or threatened someone with it without legal justification would be a crime of 76-5-103 (Aggravated assault), which is a 3rd degree felony in Utah. That conduct requires the actor to one of these acts:
- attempt with unlawful force or violence to do bodily injury to another
- A threat accompanied by a show of immediate force or violence to do bodily injury to another, or creates a substantial risk of bodily injury to another.
- Or an act committed with unlawful force or violence to do bodily injury to another, or creates a substantial risk of bodily injury.
- And the acts above includes the use of a dangerous weapon.
- It’s is also a crime of aggravated assault do any act that impedes the breathing, or the circulation of blood of another person by the actors unlawful use of force that is likely to cause a loss of consciousness by the use applying pressure to the neck, throat of a person, or obstructing the nose, mouth or airway of a person.
Some good news is that the Utah Legislature passed a new law called HB 227. That bill say’s that if you are charged with a class A misdemeanor, or a felony as a result of defending yourself with your gun, you may request a hearing to determine whether or not you were legally justified in defending yourself. The burden of proof lies with the prosecutor, and they must prove with clear and convincing evidence that you were NOT defending yourself. If the prosecutor can not meet that burden, the charges are dropped and they can not re-file them. This new law was designed to protect person’s finding themselves in self defense situations from unnecessary or politically influenced prosecutions of law abiding citizens protecting themselves.
This new law does not apply if the person you were involved with was a police officer, or involves a crime of domestic violence.
So to summarize, the decision to draw or threaten someone with a gun, should always appear to be in self defense and is a personal call that you will need to make, your personal safety should be your biggest priority if your are having to make a decision to do this. The demeanor of the person drawing will be scrutinized by law enforcement if a complaint is made against you and if you do find yourself drawing a gun on someone to protect yourself, you should never point the gun at anyone unless you have made a mental decision to fire and are acting under Utah law. You have excellent, pro self defense laws in Utah that are on your side if you find yourself having to use a gun to protect you and yours.
Register for a Utah concealed firearms course here;
gunclassutah.com/schedule
Stay safe out there and stay informed of the laws
Phil Snyder
Unified Police Officer of SLC, (Retired)
NRA and BCI Certified Concealed Firearms Instructor.