Is a toy gun or a prop used in shows considered an assault even if the intent was to scare and not to hurt?

UPDATED: May 31, 2009

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Is a toy gun or a prop used in shows considered an assault even if the intent was to scare and not to hurt?

A person trespassing on my land is asked to get off. He refuses and I tell him if you dont I’ll go to my house and get my gun. He says to “go ahead and get your gun” which I do. He was an off duty police officer He baited me into this situation. Is that worth getting sentenced to five years to serve? Does this punishment fit the crime?

Asked on May 31, 2009 under Criminal Law, California


B. B., Member, New Jersey Bar / FreeAdvice Contributing Attorney

Answered 13 years ago | Contributor

You need to get a tough, experienced criminal defense attorney, right away.  One place to find qualified lawyers is our website,

Assault includes an attempt to scare, and if the toy or prop looks real enough, under the circumstances, it doesn't make any difference.

However, there may be some help in the law of self-defense, and defense of property, since you didn't actually shoot and didn't actually place the individual in any danger of harm.  This area of the law is very fact-sensitive, and I'm not a California lawyer (which matters).  You need to explore this with your attorney, in confidence (not on the internet!).

And I don't know if you've filed trespassing charges against the police officer.  You should discuss that, too, with your lawyer, before doing or saying anything more.

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