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One of the essential rules of firearm safety is to never point a gun at anything or anyone you do not intend to shoot. It also seems to be a consensus that whenever it wouldn't be lawful to shoot someone in self-defense, brandishing a gun would also not be lawful.

I would like to clear this question more. Is there a conceivable situation in which it would be completely legal to point a gun at a person, but not be legal to pull the trigger?

I know that the two have different severity. I also know that brandishing a gun, even in a situation it was illegal, could have a lesser chance of prosecution, mainly because there is less evidence (while shooting someone will leave plenty of evidence). So, it can happen that in a situation both are illegal, but only shooting will be prosecuted. This is not what I'm asking. I'm asking whether it can be that one would be legal but the other not.

I'm mainly interested in the USA and Europe, if there is a difference.

This question is purely theoretical, it was inspired by a comment on this answer. I would also like to keep it in the realms of civilian self-defense.

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Examples

  1. Detention: A person suspected of a felony can be detained at gunpoint (and, in many jurisdictions, subject to "citizen's arrest"). A more clear example is when you encounter someone committing a felonious assault. You can brandish your gun and order them to stop. If they do stop, then you cannot shoot them unless there is no alternative to preventing them from inflicting grievous bodily harm on another.

  2. Defense: If you reasonably feel that another person poses a real and grievous physical threat, you can brandish a gun in defense. A common example is the slight woman followed into a vacant alley by a large man. She can brandish a gun to keep him at bay, but she cannot shoot him if he is not making explicit threats and (supposing one accepts the "Tueller rule") makes no aggressive motion within 21 feet of the woman.

Law

One helpful explanation of the distinction, by a MO attorney citing the MO Supreme Court:

While deadly force can only be used to meet the threat of deadly force, the threat implied by brandishing is justified by a low level threat. “When a person has reasonable cause to apprehend on the part of another a design to inflict a great personal injury, and there was reasonable cause for him to apprehend immediate danger of such design being accomplished he is justified, and has the right, ‘to avert such apprehended design,’ and in proper circumstances the right of attack may be essential to the right of self-defense.”

More detailed analysis can be found of California Penal Code 417 (California's law against "Brandishing," which is similar to brandishing laws in most states):

[I]f you were lawfully defending yourself or defending another person, California's self-defense laws will excuse your otherwise criminal act. You lawfully act in self-defense or in defense of others when you

  1. reasonably believe that you or another person is about to suffer imminent harm, and

  2. you fight back with no more force than is reasonably necessary to defend against that danger.

I.e., sometimes it's enough to say, "Stop!" But sometimes it's necessary to present a gun for the bad guy to get the message.

Additionally:

Simply drawing or exhibiting a weapon isn't enough to justify a conviction for 417 PC. In order for prosecutors to convict you of brandishing a weapon or firearm, you must do so in a rude, angry, or threatening manner.

The same law review provides illuminating comparisons with the related offense "Assault with a Deadly Weapon" (ADW — CA 245 PC).

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There are many situations, I will only give you one.

A soldier in a war zone is generally allowed (and may be required) under the rules of engagement to point their weapon at a party approaching a check-point. They are only allowed to discharge it when they believe the party represents a clear and present danger.

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You have to account for many factors. One fact you have left out is whether you hit the person when you pulled the trigger.

Pointing a firearm at someone is an assault. For it to be legal, it would have to be a situation that is an exception to assault.

If you pull the trigger, that's an assault as well. In some jurisdictions, it would be an aggravated assault. And it might violate a statute against the discharge of a firearm. We do not have facts from you that would establish if an exception would apply.

If you hit someone, that would be a battery. Again, we don't have facts as to whether an exception to battery applies.

If you killed someone, that would be a homicide. Yet again, we don't have facts as to whether the homicide would be justifiable.

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    The question is to explain whether the legal distinctions between the assault of pointing a gun at a person, and the assault and higher charges associated with firing a gun at a person, are such that a scenario could make the former legally justified but the latter not. – feetwet Jul 24 '16 at 17:51
  • You missed the fact, that firing and pointing create two sets of crimes that have differing justificiations. – user3344003 Jul 25 '16 at 15:39
  • Right, and the question is whether assault by brandishing is excusable in situations when assault by firing is not. It's a little bit like asking, "Is it conceivable for the same set of facts to convict someone of manslaughter but acquit them of murder?" – feetwet Jul 25 '16 at 16:28
  • No, because firing the gun is often assault plus another crime. – user3344003 Jul 26 '16 at 16:12

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