I was speaking with a coworker who was using an example of pulling a loaded gun to drive away a mugger who as armed with a knife, with the mugger fleeing without shots being fired. He said the gunowner's actions were completely legal and no legal action would happen even if the encounter witnessed by police.

My understanding is that would still count as an assault (or some other charge?) legally, but that he would have an affirmative defense. He would be found innocent, but he still officially committed an assault and could be forced to justify it.

Is it true that no assault, or other crime, was committed by the gunowner in this scenario?

  • 3
    It seems to me that you are asking if pulling a gun is assault? With self-defense being an affirmative defense when the act happens to be in self defense.
    – SJuan76
    Apr 30, 2021 at 20:14
  • When conduct that would otherwise be a crime has a legal justification we say that no crime is committed. For example, when police arrest someone, we don't say that they committed the crime of kidnapping but had legal justification to do so. Status as a crime element v. an affirmative defense is a question of proof and court procedure, but if an affirmative defense is present no crime has been committed.
    – ohwilleke
    May 4, 2021 at 0:22

2 Answers 2


Yes to everything.

Justified use of force is assault / battery / homicide (as appropriate).

"Assault" means that a person has placed someone in fear of their life or person.
"Battery" means that a person has physically struck someone in some way.
"Homicide" means that a person has killed another human.
None of these definitions speak to the legality of the action. You are right about the example being assault.

Justified use of force is de facto legal.

Assault, battery, and homicide are normally crimes, but the justifications for using force carve out exceptions. If the circumstances fit within the justification, the person using the justified force has not committed a crime. (Generally speaking, the person targeted by said force has.) If the situation you describe fits within the laws of justification within the state (and to be fair, it probably does), then your co-worker is right about the actions being perfectly legal.

Police are picky about what they investigate, and prosecutors are picky about what they charge.

If it's 100% clear from the evidence that you were justified in your use of force, prosecutors will (typically) not press charges, and so police will not bother with an arrest or further investigation. It's really not worth the time and effort for a case that has 0% chance of producing a conviction. However, if the police and prosecutors have some doubts (e.g., they think your force was excessive and therefor not justified), they can still press charges. Being charged with a crime does not mean you have committed a crime. And vice-versa.

Justification is an affirmative defense against charges of assault / battery / homicide.

An affirmative defense does not mean "I confess to the crime but have a really good excuse." It means that you admit to certain facts that would normally be beneficial to the prosecution, but claim additional facts that either mitigate or make you innocent of the given charges. In the case of justified force, you are admitting to the action of assault, but claiming innocence.

When making your defense, your theory of defense must be internally consistent. You cannot admit to a fact when convenient and deny it when it is inconvenient.

"I was in Santa Fe at the time, and anyway, Sam did it," is an example of a self-consistent theory that gives multiple reasons to acquit. That's good, because the jury only needs one reason that gives them pause, and now you've got two chances at that.

"I was in Santa Fe at the time, and anyway, he was threatening my life," is not internally consistent. If you argue justification, you explicitly declaim any alibi. This situation is more dangerous, because your defense rests entirely on the credibility of the justification. But if you argue an alibi, you implicitly declaim any justification. So building your defense on things the prosecution can disprove is much worse than taking an affirmative defense of justification.

Laws on this in the US vary by state, so I will use as an example.

Findlaw's page "Maryland Assault and Battery Laws" says:

Historically, assault has been closely associated with battery as assault often refers to threats of, or attempts to cause, physical harm to another while battery refers to actual physical harm. However, in the modern era, assault and battery are defined differently among states, with some states incorporating all related crimes under assault.

That's the case in Maryland which has different degrees of assault (not battery) based on the type of harm involved. For example, while common assault or second degree assault involves threats of, or actual, offensive physical contact, first degree assault involves threats of, or actual, serious physical injury. Offensive physical contact is that which a reasonable person would find offensive while serious physical injury is defined as those which:

  • Create a substantial risk of death; or
  • Cause permanent or protracted serious disfigurement or functional loss or impairment of body parts or organs.

Thus pointing a gun at someone under circumstances which convey a threat to shoot that person is a "threat of ... serious physical injury" using a firearm, and so constitutes first degree assault (with 2nd degree as a lesser included offense). However The page also says that:

Defenses include:

  • Self-defense
  • Defense of others
  • Mistake of fact
  • Lack of Intent
  • Coercion
  • Duress

The actual law § 3-202. Assault in the first degree provides that:

(a) Prohibited

(1) A person may not intentionally cause or attempt to cause serious physical injury to another.

(2) A person may not commit an assault with a firearm

But does not define "assault" specifically.

This page from a Law firm says:

Maryland criminal statutes consider “assault” to include the crimes of assault, battery, and assault and battery. Assault is the attempted touching of a person without his or her consent, including under those circumstances where the person feels fearful that a touching will occur.

This page from another law firm says:

Assault in the Second Degree can be committed in a variety of ways including an Intent to Frighten, an Attempted Battery, or a Battery.

In order to convict a defendant of Second Degree Assault under the Intent to Frighten theory, the State must prove:

  1. That the defendant committed an act with the intent to place the victim in fear of immediate offensive physical contact/physical harm;
  2. That the defendant had the apparent ability, at that time, to bring about the offensive physical contact/physical harm; and
  3. That the victim reasonably feared immediate offensive physical contact/physical harm; [and]
  4. That the defendant’s actions were not legally justified.


As with any assault charge, it is a defense if the defendant committed the assault (1) in defense of others; (2) in defense of his/her habitation; (3) in defense of property; or (3) in self-defense. Each of these defenses have specific elements and constitute a legal justification for the defendant’s assaultive act.

In short, pulling a gun on a mugger as described in the question would, at least technically, constitute First Degree Assault in Maryland. However self-defense would be a valid defense, and would preclude any conviction.

In practice, if a police or other witness saw the act and it seemed clear that the action was in fact one of self defense, the police would be unlikely to arrest the person who pulled the gun or refer such a case to the prosecutor, but they could if they so chose, and might if they were unsure that the case was truly one of self defense.

If such a case was referred to the prosecutor, s/he would normally decline to prosecute if satisfied that it was a case of self defense, or even if the issue of self defense was enough to raise a reasonable doubt. But that is a judgement call to be made by the prosecutor (or a lawyer on the prosecutor's staff).

At trial, if the jury (or judge) believed that the accused acted in self defense or had a reasonable doubt as to whether the accused acted in self defense, there should be an acquittal. Of course that depends on the exact evidence presented, and how the jury (or judge in a bench trial) views it. But that is what the law provides.

I think that if the prosecution evidence showed that the accused acted in self defense, that would end the case, so this is not technically an affirmative defense that must be raised by the defendant. But self defense is most often presented as part of the defense case when it is an issue.

So the events described could be viewed as an assault, but with a fairly obvious defense, if the witness was accurate.

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