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Opinions? Should this be Brandishing?

TFred

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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
 
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peter nap

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I can't say I've ever seen a rock that looked like a gun TFred!:lol:

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

Rusty Young Man

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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.
 
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Citizen

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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.
 

skidmark

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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.
 

PALO

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Non-defensive threatening with a firearm is assault. Why do we need a separate statute for brandishing? :banghead:

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.
 

Citizen

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Non-defensive threatening with a firearm is assault. Why do we need a separate statute for brandishing? :banghead:

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.
 

Citizen

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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?
 

Citizen

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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.
 

The Wolfhound

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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.
 

TFred

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You sort of miss the whole point of why I posted the question. See bold below:

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
 

skidmark

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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.
 

richarcm

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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?
 
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user

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No. Brandishing specifically requires the use of a weapon. It is assault, however, also a class-one misdemeanor.
 
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