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Thread: Opinions? Should this be Brandishing?

  1. #1
    Regular Member TFred's Avatar
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    Opinions? Should this be Brandishing?

    Knucklehead gone crazy over ex-girlfriend, pulls item out of his picket wrapped in a black scarf, claiming it is a gun. Turns out it's a rock, uses rock to beat one guy in the head. Multiple charges, but not Brandishing.

    Should it be?

    Link to article.

    Brandishing, from the Code of Virginia:

    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.

    TFred
    Last edited by TFred; 08-29-2013 at 10:44 AM.

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    Accomplished Advocate peter nap's Avatar
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    I can't say I've ever seen a rock that looked like a gun TFred!

    The statute says similar in appearance, not claimed to be.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by peter nap View Post
    I can't say I've ever seen a rock that looked like a gun TFred!

    The statute says similar in appearance, not claimed to be.
    True enough, but one might argue that a similar sized flat-ish rock wrapped in a black scarf looks an awful lot like a stub-nosed revovler wrapped in a scarf.

    TFred

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    What about a pop-tart eaten into the shape of a gun?

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    Maybe the rock was full of lead !

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    Campaign Veteran roscoe13's Avatar
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    The entire brandishing statute shouldn't exist, so I'd say the whole question is moot....

    Roscoe
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." - George Washington

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    Regular Member Rusty Young Man's Avatar
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    Quote Originally Posted by Defrock View Post
    What about a pop-tart eaten into the shape of a gun?
    Or a piece of paper folded to look like an 8-bit rendering of a gun?
    Or fingers pointed at a friend as a finger-gun while saying "pow"?
    Or a sign for the name of "Hunter", a deaf boy, that is actually recognized by the Signing Exact English system?

    If it was made to replicate the full likeness of a firearm (Airsoft pistols with the tip spray-painted over, blank-firing pistols, gun-shaped objects concealed within clothing) and wielded or handled like a firearm with the intent to pass it off as a all firearm to intimidate with illegal ends in mind, then yes, it should be brandishing.
    Last edited by Rusty Young Man; 08-29-2013 at 01:17 PM.

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    I wonder if the general concept of brandishing originated back in the days of swords, dirks, and knives? Maybe a common law concept that got updated half-way for guns?

    I'm thinking we need, at a minimum, to change the statute to exempt defensive displays.

    I can understand wanting to criminalize non-defensive threatening with a firearm. But, come one, defensive display may actually prevent a shooting.
    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?

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    Campaign Veteran skidmark's Avatar
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    As the confrontation escalated, police said the suspect pulled what he claimed was a gun out of his pocket. The object was wrapped in a black scarf.
    Regardless if the teen reasonably believed the object to have been a gun or not , the law is clear on the need for the object to be "a firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, ...."

    It's sort of like the concealed carry law - until the cop can determine that the object hidden from common observation is a firearm as opposed to a blueberry popover all they can do is investigate to determine what that bulge is. A gun, a blueberry popover or a rock wrapped in a black scarf all look like "something" but none of them generally look like "a firearm ... or any object similar in appearance" unless the scarf is wrapped really tightly. I'm doubtful either the object or the carrier of the object were wrapped real tight.

    stay safe.
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    Because stupidity isn't a race, and everybody can win.

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    Campaign Veteran roscoe13's Avatar
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    Quote Originally Posted by Citizen View Post
    I can understand wanting to criminalize non-defensive threatening with a firearm. But, come one, defensive display may actually prevent a shooting.
    Non-defensive threatening with a firearm is assault. Why do we need a separate statute for brandishing?

    Roscoe
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good." - George Washington

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    Quote Originally Posted by roscoe13 View Post
    Non-defensive threatening with a firearm is assault. Why do we need a separate statute for brandishing?

    Roscoe
    Because brandishing under most penal codes isn't "non defensive threatening with a firearm". At least in my state, threatening with a firearm IS assault (felony assault) as it is in most states which have some sort of Assault by means of a deadly weapon or similar charge.

    Brandishing, in my state and most others is a lesser offense. In my state it is only a misdemanor and cannot even be charged in the person's residence or business place, whereas assault by a firearm can be

    Brandishing is displaying a weapon in a manner designed to or likely to intimidate, cause alarm etc.

    For example, holding your handgun over your head and waving it around is not assault (under the RCW) but it is "brandishing" RCW 9.41.270

    I've arrested people for Assault with a firearm and for brandishing. I've written search warrants in regards to the first charge,t estified in both kinds of cases, etc and they are easily distinguishable

    So, we have seperate laws because they are substantially different crimes.

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    Quote Originally Posted by roscoe13 View Post
    Non-defensive threatening with a firearm is assault. Why do we need a separate statute for brandishing?

    Roscoe
    I see your point. Forum member User doesn't care for the VA brandishing statute. I wonder if that was part of his objection.
    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.

  13. #13
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    Quote Originally Posted by PALO View Post
    Because brandishing under most penal codes isn't "non defensive threatening with a firearm". At least in my state, threatening with a firearm IS assault (felony assault) as it is in most states which have some sort of Assault by means of a deadly weapon or similar charge.

    Brandishing, in my state and most others is a lesser offense. In my state it is only a misdemanor and cannot even be charged in the person's residence or business place, whereas assault by a firearm can be

    Brandishing is displaying a weapon in a manner designed to or likely to intimidate, cause alarm etc.

    For example, holding your handgun over your head and waving it around is not assault (under the RCW) but it is "brandishing" RCW 9.41.270

    I've arrested people for Assault with a firearm and for brandishing. I've written search warrants in regards to the first charge,t estified in both kinds of cases, etc and they are easily distinguishable

    So, we have seperate laws because they are substantially different crimes.
    I can't make sense out of that.

    Assault is assault. Reckless endangerment is its own thing. It looks like all the bases are covered under other statutes, at least in VA, anyway. Why have a separate statute?
    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.

  14. #14
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    Opinions? Should this be Brandishing?

    I guess I should at least answer the OPer's question.

    Should displaying a scarf-wrapped rock be brandishing? No.

    Ten years at hard labor for the abominable fashion choice of a black scarf, yes. Brandishing, no.
    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.

  15. #15
    Regular Member The Wolfhound's Avatar
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    The intention was clear

    I have problems with laws where "Magical lines" of some kind are crossed with no intention to cause harm. By the description given, the knucklehead did have the intent to intimidate. That same rock would get him an armed robbery charge in a bank. Why should it be different here? The muddiness of the interpretation of the brandishing statutes where there is no visible ill intent but is still used to punish those who have offended the powers that be, sometimes just by existing, I believe is the real area of displeasure. The libertarian in me believes felonies require intent or incrediblely gross negligence.
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    We need to know the important part: did he point his finger?

  17. #17
    Regular Member TFred's Avatar
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    You sort of miss the whole point of why I posted the question. See bold below:

    Quote Originally Posted by skidmark View Post
    Regardless if the teen reasonably believed the object to have been a gun or not , the law is clear on the need for the object to be "a firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, ...."

    It's sort of like the concealed carry law - until the cop can determine that the object hidden from common observation is a firearm as opposed to a blueberry popover all they can do is investigate to determine what that bulge is. A gun, a blueberry popover or a rock wrapped in a black scarf all look like "something" but none of them generally look like "a firearm ... or any object similar in appearance" unless the scarf is wrapped really tightly. I'm doubtful either the object or the carrier of the object were wrapped real tight.
    If an obvious aggressor is holding an object as if it were a gun and exhibiting behavior as if it were a gun, I suggest it would pass the "reasonable man test" to believe it might actually be a gun, thus satisfying the "similar in appearance" criteria. The law does not say to what extent one must examine the gun before deciding if it is "similar in appearance."

    Here's the key: the aggressor in this case is obviously trying to make the rock be "similar in appearance" to a gun. In other words, he specifically went out of his way to intentionally violate this code! Why not accommodate him for the effort and go ahead and charge him with it?

    Interesting discussion no doubt. I suppose in multiple trials, we would end up with several different results.

    TFred

  18. #18
    Campaign Veteran skidmark's Avatar
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    TFred,

    I agree with your line of thought all the way until we get to the Code of Virginia and what she says.

    The courts appear to believe that § 18.2-53.1. Use or display of firearm in committing felony also includes suggesting the use or display of a firearm, such as the hand in the jacket pocket (finger extended or not).

    But our case does not include any of the acts listed in 18.32-53.1, so it does not count.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

    Because stupidity isn't a race, and everybody can win.

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    Regular Member richarcm's Avatar
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    I think you would have a good case for assault but not brandishing. You can't brandish a word or a belief. You have to brandish a gun.

    I personally believe that the entire idea of "brandishing" is unnecessary. You are either threatening someone or you are not. You are either holding something that could do someone harm or you are not. If you have a gun in your hand, a rock, a sword or a hand grenade and you are threatening them....that is illegal.

    Brandishing. What a dumb slippery slope. OH! You touched your gun and made eye contact with me! BRANDISHING! Really?
    Last edited by richarcm; 08-31-2013 at 08:22 AM.

  20. #20
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    No. Brandishing specifically requires the use of a weapon. It is assault, however, also a class-one misdemeanor.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Quote Originally Posted by user View Post
    No. Brandishing specifically requires the use of a weapon.
    Or a finger.

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    Regular Member speed41ae's Avatar
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    Quote Originally Posted by KBCraig View Post
    Or a finger.
    There still has to be a weapon present. It does help if you are pointing your finger at a knucklehead also.

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    Campaign Veteran marshaul's Avatar
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    Is it common to charge a guy with brandishing after he shoots another guy?

    Wouldn't brandishing necessarily be a lesser included offense in shooting a guy? Seems like one would have to go out of their way to use a weapon without "brandishing" it first.

  24. #24
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    Quote Originally Posted by marshaul View Post
    Is it common to charge a guy with brandishing after he shoots another guy?

    Wouldn't brandishing necessarily be a lesser included offense in shooting a guy? Seems like one would have to go out of their way to use a weapon without "brandishing" it first.
    Oh, lord. Please don't give them any ideas.
    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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