Abortion doctor to go to trial: Gun allegedly waved at protesters at West Ashley clinic

[Common Sense Party]

An attorney for Gary Boyle argued that Boyle pointed a handgun toward the roof of his vehicle in a defensive response as he drove past protesters. "He displayed, not pointed" the weapon, attorney David McCann said during Boyle's preliminary hearing.

<snip>

For self-defense to apply in the case, Assistant Solicitor Larry Todd said, there has to be an assault, or fear that you are about to be assaulted.

<snip>

The state law he is accused of violating contends that it is "unlawful for a person to present or point at another person a loaded or unloaded firearm."

<snip>

After Boyle was detained, he and his wife told police they had seen other doctors in their profession attacked and injured by anti-abortion groups, and that they feared the protesters that day.

<snip>

Boyle has a Tennessee permit to carry the pistol. That state has a reciprocal carry agreement with South Carolina, prompting McCann to also argue that because of the self-defense statute, the charge against his client should be dismissed.

"The defendant is in his right to display his firearm," McCann said, "and that's what he did."

Whoops, forgot link: http://www.postandcourier.com/news/2011/mar/03/abortion-doctor-to-go-to-trial/

[TheWraith]

1. Sorry, but that's brandishing, and it's illegal.

You have to actually be under assault or immediate threat for the display of a weapon to be legal self defense, even if you don't point it at anyone.

[Buzz cook]

2. Brandishing is a crime and rightly so.

It is an overt action of intimidation.

Considering the history of violence against abortion providers it is possible that the doctor has a defense. But the odds are that he's going to feel the full weight of the law.

[Common Sense Party]

3. Especially since this bunch was basically standing around, doing

nothing.

Dumb move on the doc's part.

[TheWraith]

4. I can certainly sympathize with him, I've had the same sorts of impulses at times.

But there's a difference between wanting to do something and acting on it. I really want to rob a bank, but I don't. You may want to shoot the fundies, they may even deserve it, but threatening people is against the law.

[X_Digger]

5. Having worked as a PP volunteer escort.. I've been tempted, too.

Not that I'd come to the same decision the doctor did- after all, I was just some guy, not 'omg the doctor'..

[slackmaster]

6. Auto-unrec for the author's use of the inflammatory term "abortion doctor"

:nuke:

[Euromutt]

21. That was the cited article's headline

It's not Common Sense Party's wording, but the Post and Courier's.

[slackmaster]

27. Well, fucking DUH, Euromutt

:argh:

[Hoyt]

7. The NRA and permit holders say that doesn't happen.

While I don't support carrying guns in public, I have to admit that I could see myself waving my machete in the same situation.

[X_Digger]

8. Please quote someone, somewhere saying that "doesn't happen".. I'll wait. n/t

[Common Sense Party]

14. And wait. And wait.

:boring:

[PavePusher]

9. Your over-used, over-blown hyperbole merely undermines your credibility. n/t

[Common Sense Party]

10. You keep saying that permit holders say that doesn't happen.

Where has anyone actually said that, other than in your fertile and fervid imagination?

[friendly_iconoclast]

11. +. I would have gone with 'overheated and overactive imagination'.

But that's just me...

[Hoyt]

19. According to those who can't live with leaving home without a gun, these law-abiding gun

carriers -- who have permits -- hardly ever do anything wrong. They are model citizens, Ward Cleaver or something. Well, nowadays, some really think in terms of Rambo.

In any event, they are as screwed up as the rest of the population (including me), only they can't walk down the street without a gun. They are helping society deteriorate.

[Common Sense Party]

20. So now it has changed from "it doesn't happen" to "hardly ever do

anything wrong".

Your parameters have changed drastically.

Your hyperbole doesn't help your argument. Of course they CAN walk down the street without a gun. Some simply CHOOSE to exercise their right to have a gun on them, which does nothing to "help society deteriorate."

[Euromutt]

22. Repeating the assertion isn't the same as providing evidence

You were asked to provide evidence of either permit holders or "someone, somewhere" making the claim that "that doesn't happen." Restating your assertion without actually providing, say, a link to someone on this forum saying something to that effect, or an NRA spokesperson, only reaffirms that you say "they say"; it doesn't actually confirm that "they say."

If you take off your outrage-tinted glasses for five minutes, you'd find that what "they say" is that available data indicates that CCW permit holders are significantly less likely to commit criminal offenses than the general population. "Less likely" doesn't mean "it doesn't happen," it means if happens less often. And again, the available data bears this out. You can stack up incidents of CCW permit holders misbehaving (like the VPC is doing), but that's anecdotal evidence at best unless and until you can show that the misbehaving permit holders form a significant percentage of permit holders as a whole, and that permit holders commit violent crimes (which, for the purpose of this discussion, I shall define as including threatening behavior with a firearm) at a higher rate than the general population.

And "Rambo," fer fuck's sake, can't you do better than that? Rambo's weapons of choice were a knife and a compound bow, and from there he'd go straight to GPMGs and RPGs; concealed handguns weren't exactly the mainstay of his arsenal.

[lawodevolution]

12. Showing your gun when there isn't a clear danger is unprofessional but until

There is a video showing the gun in his hand brandishing it then it didn't happen. Hearsay doesn't go very far in court.

[Common Sense Party]

13. It wasn't a very good strategy, then, for his lawyer to admit in open court

that the defendant was brandishing, was it?

When you have eyewitnesses and your lawyer all saying you were showing a gun, I don't think the hearsay gambit will go very far.

[lawodevolution]

15. Sounds like it but I doubt that we are smarter about the laws involved in this case than a lawyer

In that state. I bet he walks.

This is a state where open carry is legal so they have to PROVE without a reasonable doubt to 12 people in TN that he was brandishing the gun in a way that was meant to threaten innocent people of harm. Maybe he was scratching his face with it.

[Euromutt]

24. That's not necessarily what his lawyer admitted

According to the article, the law states it is "unlawful for a person to present or point at another person a loaded or unloaded firearm." This could well hinge on the accepted definition of "to present," since in (somewhat archaic) firearms terminology, "to present" means to bring the weapon into a position from which it can be aimed and fired at someone. Less than a century ago, if you ordered a squad of British soldiers to "present arms," they would assume a firing stance.

Thus, displaying a firearm might not count as "presenting" one. IANAL, but if I were this guy's lawyer, I'd strongly consider that approach.

[speltwon]

29. Because it's not hearsay.

I think the previous poster thinks "hearsay" is equivalent to "he said it happened" when there is no "proof". That's not what hearsay even means.

[speltwon]

28. Witness testimony is not hearsay.

Do you understand what hearsay is? It's (generally speaking) one person reporting what another person said. There are admissible hearsay examples (excited utterance, present sense impression, dying declaration, admission against interest, etc.) btw, but this isn't hearsay.

[lawodevolution]

16. Openly displaying a firearm while not pointing it at someone is a fantastic way to make sure things

Remain polite and nonviolent. It would have been smarter if the doc had strapped it to his hip and displayed it to the crowd as he proudly walked around with it to shake their hands rather than lift it up.

If I were this doc (in a state where OC is legal with potentially violent protesters outside) i would have gotten out of my car with an AK on my back and if you don't reach for it you are not brandishing it but the point is still made.

The only thing going against him is that he was holding it up, though I doubt 12 people from TN are going to out him in prison for years for this.

[Euromutt]

25. South Carolina, not Tennessee

The defendant lives in Tennessee, and has a TN carry permit, but the alleged brandishing occurred in South Carolina.

[mvccd1000]

17. Defensive Display?

Arizona has a law protecting this action under SOME controlled circumstances (although it doesn't sound like this case met those circumstances):

A.R.S. §13-421. Justification; defensive display of a firearm; definition
(SB 1243, enacted July 13, 2009, effective Sep. 30, 2009.)

A. The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force.
<snip>
D. For the purposes of this section, "defensive display of a firearm" includes:

1. Verbally informing another person that the person possesses or has available a firearm.

2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect the person against another's use or attempted use of unlawful physical force or deadly physical force.

3. Placing the person's hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

Had he been in Arizona, he would have had some chance at a defense, IF the protesters appeared to be presenting imminent danger to him.


I like this law; it seems crazy that you could be in such imminent danger that it's ok to pull your weapon and shoot an assailant, but if you pull your weapon and DON'T shoot the person, you're guilty of a crime (brandishing).

Personally, I'd much rather not have to shoot if simply showing it will cause a potential assailant to head off in another direction.

[TheWraith]

18. I don't think that that's much different from brandishing laws in most other places, is it?

I.e. you don't really NEED to fire the weapon as long as you're under credible threat.

[Euromutt]

23. The criterium seems to be an imminent threat

To compare, the Revised Code of Washington (state) 9.41.270 (http://apps.leg.wa.gov/rcw/default.aspx?cite=9.41.270) states:

(1) It shall be unlawful for any person to carry, exhibit, display, or draw any firearm, dagger, sword, knife or other cutting or stabbing instrument, club, or any other weapon apparently capable of producing bodily harm, in a manner, under circumstances, and at a time and place that either manifests an intent to intimidate another or that warrants alarm for the safety of other persons.
<...>
(3) Subsection (1) of this section shall not apply to or affect the following:
<...>
(c) Any person acting for the purpose of protecting himself or herself against the use of presently threatened unlawful force by another, or for the purpose of protecting another against the use of such unlawful force by a third person; <...>

The key phrase here being "presently threatened."

[Euromutt]

26. Ah, the Southern attitude to the Second Amendment in full display

A bunch of anti-choicers in South Carolina; is anyone willing to bet what percentage of those present, when asked about gun control laws, would respond "what part of 'shall not be infringed' don't you understand?" Right up until the person exercising his individual right to keep and bear arms is someone they don't like, like an abolitionist, a civil rights activist, or an Ob/Gyn who performs abortions.