Obligatory disclaimer: I am not a lawyer. I don’t even play one on TV. I’m just a lay person reading the law and laying out my logic. Take this all with a grain of salt.

I was at a presentation by a couple of lawyers on the topic of Montana self defense law last month. The question came up that if you are threatened with bodily harm, can you draw your weapon and point it at the threat?

MCA 45-3-311 (2):

 If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon.

MCA 45-3-311(2)

This concerns being threatened with bodily harm, not deadly force. Someone raises their fist and walks towards you while yelling that they’re going to give you a beat down. Can you point your gun at them?

There are two words used in the statute that are otherwise not defined anywhere else in the MCA: drawing and presenting. What about Montana case law? No case in Montana seems to have defined these terms. At the federal level, there are quite a few cases that cover the question of whether law enforcement may point their guns at suspects as part of a Terry stop. In each of these cases, drawing and pointing a weapon are treated as part of the same act.

Back in the stone age when I learned to draw, I was taught three steps: Pull, Rock, Extend.

• Pull – clear any concealment garment(s) and pull the gun straight up out of the holster.
• Rock – Rotate the gun 90 degrees towards the target, form your grip.
• Extend – Push the gun out toward the target.

Clearly, the common definition of “draw” in the field of firearms training includes pointing the gun at the threat. It’s literally the second step in a three step process. If the statute only meant to include the first step of “Pull” and not pointing the gun at the target, they could have written it as “unholster” or even “pull.”

“Present” is similarly undefined. Does it mean unholster the gun and show it at low ready? Does it mean clear the concealment garment(s) to show that you have a gun? There is no law in Montana against “brandishing” a weapon. MCA 45-3-311(2) was clearly meant to codify that it is not illegal to let someone know you are armed if they are threatening you.

The statute says both “draw” and “present,” which logically entails that you can either fully draw the weapon (which includes pointing it at the target), or merely show that you have a weapon (e.g., expose a concealed, holstered gun) without risking a charge of “brandishing.”

The Montana courts haven’t ruled on this yet and the statute is somewhat vague. So what should you do when threatened with bodily harm but not deadly force as per the scenario given above? Here’s what I would do; you should figure out your personal plan for yourself.

• Let them know I’m armed. “I’m armed! Stay back!”
• Show them the gun (present). Clear my concealment garment and put my hand on my gun.
• If they keep advancing, I would fully draw, making sure to keep my finger off the trigger.
• If they continue advancing with my gun pointed at them, I shoot to stop the threat.

My concern here is that my muscle memory of tens of thousands of training draws would include prepping the trigger and firing when I reach full extension. So I want to make sure that for step 3 I’m keeping my finger off the trigger. My muscle memory is for seeing the dot on paper or steel, so hopefully seeing it on an actual person wouldn’t “trigger” me to fire.

If they continue to advance on someone that has shown that they’re armed, my natural assumption would be that they had escalated to the threat of deadly force. Clearly you can point a gun at someone where it would be legal to use deadly force. Otherwise the law would have to be interpreted to mean that you cannot aim when shooting to stop a deadly threat. In my example above, where a threat continued to advance after they’d seen my gun, I’d assume they meant to take my weapon away from me and probably use it on me. You can’t let them get within grabbing distance, which is probably farther away than you think.

If they don’t advance or otherwise present a threat after I’ve presented my gun, then the threat is over. Get out of there. I personally had exactly that situation happen many years ago. The bad guy seemed to recognize what “left hand on the chest, right hand clearing the coat” meant and it was a total attitude adjustment on his part. Thankfully my gun never left the holster. I’m not sure he even saw the gun. Another defensive gun use that might have saved a life that won’t be counted in the studies.

It’s a shame that the Montana law is not more specific. It would be outrageous if someone had to serve time merely because they read the law and used the common definitions of the words in the law.