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Thread: Brandishing in Virginia Beach - Head Scratching

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    Brandishing in Virginia Beach - Head Scratching

    I was strolling through our municipal ordinances sticky thread and started pondering something that I noticed with regard to a Virginia Beach ordinance regarding brandishing vs. the Code of Virginia. I noted some minor differences between the two (cited in part below to make reading easier, full cite at bottom) which got me to thinking about what that difference might mean.

    Q1: Virginia Beach ordinance seems to eliminate from the act of brandishing holding a firearm and simply inducing fear?

    • Virginia Beach: "Point or brandish" -- "as to reasonably induce fear in the mind of another; OR hold -- "reasonably induce fear in the mind of another of being shot or injured"
    • Virginia: "Point, hold or brandish" -- "as to reasonably induce fear in the mind of another" OR "hold...in such a manner as to reasonably induce fear in the mind of another of being shot or injured."

    Q2: Justified vs. Justifiable? I can't find a definition of either of those terms in VA Code, or in several law dictionaries, but a basic dictionary definition came up with Justified means "it has been thought about and given reason" and Justifiable means "that it is possible to find a good reason for action." Which although, subtle, seems to indicate a difference between the two terms (i.e., "is it justified?" or "is this justifiable?") in that with "justified" you came up with a reason, and with "justifiable" it needs to be only possible to come up with a good reason? Meaning that Virginia Beach's ordinance would require providing the specific reason while the Commonwealth of Virginia only requires that you could possibly come up with a reason?

    • Virginia Beach: Does not apply to "any person engaged in justified or excusable self-defense."
    • Virginia: Does not apply to "any person engaged in excusable or justifiable self-defense."

    Q3: Conflicting definition of a "weapon"? Virginia Beach includes "pneumatic pressure" while Code of Virginia doesn't provide for that inclusion?

    • Virginia Beach: "...ammunition may be used or discharged by explosion or pneumatic pressure."
    • Virginia: "...by the action of an explosion of a combustible material."


    Virginia Beach Municipal Code Sec. 38-5. - Pointing or brandishing firearm or object similar in appearance.

    (a)
    It shall be unlawful and a Class 1 misdemeanor for any person to point or brandish any firearm or any object similar in appearance to a firearm, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another, or hold a firearm in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured; however, this section shall not be applicable to any person engaged in justified or excusable self-defense.
    (b)
    Any police officer, in the performance of his duty in making an arrest under the provisions of this section shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding or brandishing a firearm or object which was similar in appearance to a firearm, with intent to induce fear in the mind of another.
    (c)
    For purposes of this section, the word "firearm" shall mean any weapon in which ammunition may be used or discharged by explosion or pneumatic pressure. The word "ammunition," as used herein, shall mean cartridge, pellet, ball, missile or projectile adapted for use in the firearm.
    (Code 1965, 38-7; Ord. No. 1994, 8-7-90)

    Virginia Code 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

    A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

    B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.

    C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.

    (Code 1950, 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)
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    Regular Member TFred's Avatar
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    My first question would be, doesn't this local ordinance run afoul of 15.2-915?

    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute.

    I suppose the answer to that comes down to whether brandishing falls under "carrying" or not.

    It is widely accepted that localities may enact ordinances governing the discharge of a firearm. Is there an undefined space for "brandish" in between "carry" and "discharge"?

    TFred
    Last edited by TFred; 04-23-2013 at 03:31 PM. Reason: ETA: Clarify last sentence

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    Quote Originally Posted by TFred View Post
    My first question would be, doesn't this local ordinance run afoul of 15.2-915?
    A. No locality shall adopt or enforce any ordinance, resolution or motion, as permitted by 15.2-1425, and no agent of such locality shall take any administrative action, governing the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof other than those expressly authorized by statute.

    I suppose the answer to that comes down to whether brandishing falls under "carrying" or not.

    It is widely accepted that localities may enact ordinances governing the discharge of a firearm. Is there an undefined space for "brandish" in between "carry" and "discharge"?

    TFred
    The space was defined prior to the enactment of 15.2-915. Its a criminal use.
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    Quote Originally Posted by Citizen View Post
    The space was defined prior to the enactment of 15.2-915. Its a criminal use.
    So does that mean that they are allowed to have conflicting laws or is this another example of things that "need to be fixed" for our listing?

    I'm hoping that someone schmart legally (like user, et. al.) will come along and hit on specifics such as the justified or justifiable.

    Frankly all of this (and nitpicking these) is on my mind because of user's post and the whole other building situation regarding brandishing. I can't help but wonder if all of the above may seem harmless but could easily become potential areas for further abuse.
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    Quote Originally Posted by drdan01 View Post
    So does that mean that they are allowed to have conflicting laws or is this another example of things that "need to be fixed" for our listing?

    I'm hoping that someone schmart legally (like user, et. al.) will come along and hit on specifics such as the justified or justifiable.

    Frankly all of this (and nitpicking these) is on my mind because of user's post and the whole other building situation regarding brandishing. I can't help but wonder if all of the above may seem harmless but could easily become potential areas for further abuse.
    I wouldn't worry too much about the seeming contradictions.

    Trust me, if you ever threaten someone with a physical gun, as compared to threaten by verbally referring to a gun, the cop and court ain't gonna worry much about the arrangement of semi-colons.

    Same for the difference between justified and justifiable. They're going to look at whether a person had good reason to be afraid, not whether he could come up with a reason to be afraid. Sorta like the reasonable man standard--would a reasonable man feel x, y, or z?

    Aside from that, the government agents will abuse whatever and however they think they can get away with if they've a mind to. Skidmark was charged with brandishing for pointing a finger!
    Last edited by Citizen; 04-23-2013 at 06:21 PM.
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Campaign Veteran skidmark's Avatar
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    Let me work this backwards and start with justified vs excusable.

    As I was taught, justified as in jstified homicide,is the basic self defense claim. "He was coming at me with a knife and yelling he was going to slice out my liver." Shooting him was justified. Excusable is more the defense of innocent others. But we will wait for user to give the unofficial official word - doing what he says ususlly keeps/gets you out of trouble.

    The VB ordinance deals with using a firearm, not with anything in the preemption law. We still need a better definition of brandishing than the act of brandishing. VB appears to be trying to get there but as noted they have a way to go yet. One of the biggest issues is the current very subjective point of view of the "victim". We know that pointing your finger while carrying is not brandishing. We are just at the beginning of finding out if putting your gun in a secured container is brandishing.

    stay safe.
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    Quote Originally Posted by skidmark View Post
    Let me work this backwards and start with justified vs excusable.

    As I was taught, justified as in jstified homicide,is the basic self defense claim. "He was coming at me with a knife and yelling he was going to slice out my liver." Shooting him was justified. Excusable is more the defense of innocent others. But we will wait for user to give the unofficial official word - doing what he says ususlly keeps/gets you out of trouble.

    The VB ordinance deals with using a firearm, not with anything in the preemption law. We still need a better definition of brandishing than the act of brandishing. VB appears to be trying to get there but as noted they have a way to go yet. One of the biggest issues is the current very subjective point of view of the "victim". We know that pointing your finger while carrying is not brandishing. We are just at the beginning of finding out if putting your gun in a secured container is brandishing.

    stay safe.
    Yes, and it is also your case that has me trying to parse the exact meanings and whether they're doing it intentionally. That they could take pointing a finger and be brandishing is beyond belief. I myself first came here after being accused by a resident inside my neighborhood watch area (and who didn't like me for it) saying that he was going to report me for brandishing because I was taking a walk while OC'ing (and not, btw, in conjunction with neighborhood watch duties!).

    So accepting your justified vs. excusable....how does the justified vs. justifiable play out in your mind? If user can distinguish between them, am looking forward to that....but I keep coming back to the differences by common definition being that you have a valid reason (justified) vs. it is possible to have a good reason (justifiable).

    Definitely agree that the term brandishing needs much more clarity. I for one will certainly think twice about the simple act of moving my weapon from say, an uncomfortable holster worn for several hours car ride vs. putting it into my glove box knowing that some out there are trying to turn that into brandishing!
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    Founder's Club Member Skeptic's Avatar
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    Phew.. I am actually a bit relieved. From the thread title I worried someone had been charged with brandishing for scratching their head while OC. I mean if Surry can charge for finger pointing.... and given all the bogus confiscations being talked about in the sticky, I saw this thread and cursed...

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    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by drdan01 View Post
    Yes, and it is also your case that has me trying to parse the exact meanings and whether they're doing it intentionally. That they could take pointing a finger and be brandishing is beyond belief. I myself first came here after being accused by a resident inside my neighborhood watch area (and who didn't like me for it) saying that he was going to report me for brandishing because I was taking a walk while OC'ing (and not, btw, in conjunction with neighborhood watch duties!).

    So accepting your justified vs. excusable....how does the justified vs. justifiable play out in your mind? If user can distinguish between them, am looking forward to that....but I keep coming back to the differences by common definition being that you have a valid reason (justified) vs. it is possible to have a good reason (justifiable).

    Definitely agree that the term brandishing needs much more clarity. I for one will certainly think twice about the simple act of moving my weapon from say, an uncomfortable holster worn for several hours car ride vs. putting it into my glove box knowing that some out there are trying to turn that into brandishing!
    I probably mis-typed.

    Consider "justified" and "justifiable" to be the same thing.

    Also, Mea Culpa Maximus I got "justifiable" and "excusable" completely switched around. See http://en.wikipedia.org/wiki/Justifiable_homicide -

    justifiable is (usually) the defense of innocent others and excusable is the defense of self even if the killer had some responsibility in provoking the incident. I like the way it is explained here http://legal-dictionary.thefreedicti...sable+Homicide

    Justifiable or Excusable Homicide: A homicide may be justifiable or excusable by the surrounding circumstances. In such cases, the homicide will not be considered a criminal act. A justifiable homicide is a homicide that is commanded or authorized by law. For instance, soldiers in a time of war may be commanded to kill enemy soldiers. Generally, such killings are considered justifiable homicide unless other circumstances suggest that they were not necessary or that they were not within the scope of the soldiers' duty. In addition, a public official is justified in carrying out a death sentence because the execution is commanded by state or federal law.

    A person is authorized to kill another person in self-defense or in the defense of others, but only if the person reasonably believes that the killing is absolutely necessary in order to prevent serious harm or death to himself or herself or to others. If the threatened harm can be avoided with reasonable safety, some states require the person to retreat before using Deadly Force. Most states do not require retreat if the individual is attacked or threatened in his or her home, place of employment, or place of business. In addition, some states do not require a person to retreat unless that person in some way provoked the threat of harm. Finally, police officers may use deadly force to stop or apprehend a fleeing felon, but only if the suspect is armed or has committed a crime that involved the infliction or threatened infliction of serious injury or death. A police officer may not use deadly force to apprehend or stop an individual who has committed, or is committing, a misdemeanor offense. Only certain felonies are considered in determining whether deadly force may be used to apprehend or stop a suspect. For instance, a police officer may not use deadly force to prevent the commission of Larceny unless other circumstances threaten him or other persons with imminent serious injury or death.

    Excusable homicide is sometimes distinguished from justifiable homicide on the basis that it involves some fault on the part of the person who ultimately uses deadly force. For instance, if a person provokes a fight and subsequently withdraws from it but, out of necessity and in self-defense, ultimately kills the other person, the homicide is sometimes classified as excusable, rather than justifiable. Generally, however, the distinction between justifiable homicide and excusable homicide has largely disappeared, and only the term justifiable homicide is widely used.
    Just don't let user read that last sentence.

    stay safe.
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