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Thread: Brandishing

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    Brandishing

    I have read the thread concerning brandishing in Henrico County.

    Question that I have is more a general understanding of the law. Rumor has it that merely touching your weapon is brandishing, seems over-reactive to me. Please provide experiences...thoughts...understandings...etc

    D

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    Moderator / Administrator Grapeshot's Avatar
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    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.
    https://leg1.state.va.us/cgi-bin/leg...0+cod+18.2-282

    Since open carry is lawful in Virginia merely exposing a concealed weapon accidentally is surely not brandishing within the meaning of the law. IMO to brandish must be an intentional act to threaten or intimidate another.

    We have several technical problems: Brandishing is not defined by Code of Virginia therefore we must refer to dictionary definition. “Brandish” means “to exhibit or expose in an ostentatious, shameless, or aggressive manner.” Webster's Third New International Dictionary, 268 (1993).

    So from that we can conclude that yes, under the right circumstances, merely touching your gun could be considered brandishing. Much depends on intent - often that is like mind reading - not sufficient to warrant a conviction.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by rev.david View Post
    I have read the thread concerning brandishing in Henrico County.

    Question that I have is more a general understanding of the law. Rumor has it that merely touching your weapon is brandishing, seems over-reactive to me. Please provide experiences...thoughts...understandings...etc

    D

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    What Grape said. This law is very much open to interpretation. There have been cases in Va Beach, not recently thankfully, of people being charged with brandishing for having a shotgun in a truck gunrack.

    FWIW, it is being worked on and a bill should have been introduced this year. We won't get into why it wasn't but next year there are going to be some new fellas in town. It should be put in for consideration then. Will the Governor sign it if passed???????????????????

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    Regular Member Maverick9's Avatar
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    I've never really understood the brandishing laws, the inducing of fear part of exposing one's firearm of touching or doing like LE does and resting your hand on the firearm.

    There are a lot of things which people, not very nice people, do to induce fear in someone else. You have to wonder if there was really rash of fear producing firearm touching that required a 'law'.

    Ideally, if touching or indicating you have a firearm in a SD-defusing situation happens it's better than actually shooting and harming.

    IMO, I can see lawmakers freaking out with their over-active imaginations saying 'oh people are going to be rattling sabers, shaking glocks at each other on the freeway, we can't have that, think of the children'. It's really a stupid law. For another reason it's really easy for some jerk to lie and claim someone brandished because they might suspect the person is a gun owner.

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    Campaign Veteran skidmark's Avatar
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    Don't get me started.

    "Brandishing" is one of those crimes that are based on the apprehension (supposedly logical conclusions) of the victim as to what the intent of the accused was. As opposed to some objective behavior of the accused. Which, if it were not for a long and sordid body of case law, ought to make the statute unconstitutionally vague.

    Strangely, most of the case law regarding brandishing does not involve the accused actually pointing the gun at the victim.

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    Regular Member TFred's Avatar
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    Two major points to add here.

    First, the very next sentence after the code snippet posted by Grapeshot says this:

    "However, this section shall not apply to any person engaged in excusable or justifiable self-defense."

    So yes, if you are engaged in an appropriate self defense situation, you should be OK.

    Second, one of the most useful resources I've found in understanding the scope of brandishing is the opinion rendered that upheld the conviction of Morris in Morris v. Virginia. It's a fairly easy read, and not too long. Most of the opinion is regarding the possession, but there are also sections on the brandishing charge.

    The gist of the brandishing portion of that case is that Mr. Morris' conviction for brandishing was upheld, even though he never actually touched his weapon (which was merely a flare gun, by the way.) His "act" was to lift up his tee-shirt, exposing the gun in his waistband, in response to a mildly confrontational conversation with a man about an offensive remark Morris made regarding the man's wife.

    The point is, if you employ the fact that you possess or have easy access to a gun in an effort to alter someone's behavior, that's likely to cause the required components of the law to be reached, and I think you are likely to be brandishing, at least in Virginia.

    TFred

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by TFred View Post
    Two major points to add here.

    First, the very next sentence after the code snippet posted by Grapeshot says this:

    "However, this section shall not apply to any person engaged in excusable or justifiable self-defense."

    So yes, if you are engaged in an appropriate self defense situation, you should be OK.

    Second, one of the most useful resources I've found in understanding the scope of brandishing is the opinion rendered that upheld the conviction of Morris in Morris v. Virginia. It's a fairly easy read, and not too long. Most of the opinion is regarding the possession, but there are also sections on the brandishing charge.

    The gist of the brandishing portion of that case is that Mr. Morris' conviction for brandishing was upheld, even though he never actually touched his weapon (which was merely a flare gun, by the way.) His "act" was to lift up his tee-shirt, exposing the gun in his waistband, in response to a mildly confrontational conversation with a man about an offensive remark Morris made regarding the man's wife.

    The point is, if you employ the fact that you possess or have easy access to a gun in an effort to alter someone's behavior, that's likely to cause the required components of the law to be reached, and I think you are likely to be brandishing, at least in Virginia.

    TFred
    With excusable or justifiable both require that one plead guilty to the charge first, then trust that the court will be in a agreement. Then to be involved in self-defense one would need to be responding to a credible threat or attempt to kill or seriously harm. Now introduce the reasonable man doctrine. These combine to make me want to avoid a brandishing charge.

    OTOH - I would prefer placing my hand on my gun to stop a situation from escalating to a point of no return.

    I just gets better n' better from there.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member Maverick9's Avatar
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    Quote Originally Posted by TFred View Post
    Two major points to add here.

    First, the very next sentence after the code snippet posted by Grapeshot says this:

    "However, this section shall not apply to any person engaged in excusable or justifiable self-defense."

    So yes, if you are engaged in an appropriate self defense situation, you should be OK.

    Second, one of the most useful resources I've found in understanding the scope of brandishing is the opinion rendered that upheld the conviction of Morris in Morris v. Virginia.
    TF usually you have good input but in this case 'Morris' was a felon, which is apparent in the first sentence of the brief.

    Second, 'excusable or justifiable' would be a definition applied by the court.

    Let's say there are 100 acts of brandishing, i.e. touching, uttering, exposing and three of them are by a person of ill repute, or someone who is not pristine in a SD situation. The problem is (discussing it as a layperson here) that 97 of these acts should not be legally actionable since they are really defensive, even diffusing the situation.

    This is one of those 'crimes' where the supposed victim can all too easily, and usually unsupported, can say 'oh he/she waved their weapon; I felt threatened; I know he has guns' and get an arrest and the 'innocent' defender gets dragged into the legal system.

    If there's going to be a brandishing statute, ISTM it should be VERY, VERY hard to get this charge applied. I should have a list of elements, including, perhaps that the person doing it has already got a felony on their record, has actually pointed the firearm at the person and said 'I'm going to shoot/harm you', and witnesses beyond just someone's friend. It is almost one of those things where I'd say a LEO has to be present. After all if NOTHING HAPPENS and someone comes down and swears out a complaint the next day, should it really be heard?

    Anyway, rant off...

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    Quote Originally Posted by Maverick9 View Post
    TF usually you have good input but in this case 'Morris' was a felon, which is apparent in the first sentence of the brief.

    Second, 'excusable or justifiable' would be a definition applied by the court.

    Let's say there are 100 acts of brandishing, i.e. touching, uttering, exposing and three of them are by a person of ill repute, or someone who is not pristine in a SD situation. The problem is (discussing it as a layperson here) that 97 of these acts should not be legally actionable since they are really defensive, even diffusing the situation.

    This is one of those 'crimes' where the supposed victim can all too easily, and usually unsupported, can say 'oh he/she waved their weapon; I felt threatened; I know he has guns' and get an arrest and the 'innocent' defender gets dragged into the legal system.

    If there's going to be a brandishing statute, ISTM it should be VERY, VERY hard to get this charge applied. I should have a list of elements, including, perhaps that the person doing it has already got a felony on their record, has actually pointed the firearm at the person and said 'I'm going to shoot/harm you', and witnesses beyond just someone's friend. It is almost one of those things where I'd say a LEO has to be present. After all if NOTHING HAPPENS and someone comes down and swears out a complaint the next day, should it really be heard?

    Anyway, rant off...
    I agree completely. Skidmark's and Scouser's trial transcripts should required reading on the subject!

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by peter nap View Post
    I agree completely. Skidmark's and Scouser's trial transcripts should required reading on the subject!
    Cliff Notes versions only.....time is of the essence.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by Grapeshot View Post
    Cliff Notes versions only.....time is of the essence.
    For those that weren't there...this is why the Commonwealths attorney says he wanted to prosecute for brandishing and it didn't have anything to do with a gun or finger.


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    I was speaking to a Representative of the NRA at a gun show in Winchester a couple weeks ago and I asked about this. I do some physical banking, (I go in the Navy Federal) and they have a strict no weapons policy. SO I asked, "If I have to unholster my weapon in the confines of my vehicle to secure it there, am I brandishing?" His short answer was No. BUT, it depends on the officer as well. If hes a gung ho type, or a "Only cops should have guns" person, then youre getting a ticket. While they are easy to fight he said, its a pain in your rear. I try to not be obvious when Im switching from holster to locking console but you never know. The truck is high enough to not be easily seen but my car, well thats a different matter.

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    Quote Originally Posted by 3D Dave View Post
    I was speaking to a Representative of the NRA at a gun show in Winchester a couple weeks ago and I asked about this. I do some physical banking, (I go in the Navy Federal) and they have a strict no weapons policy. SO I asked, "If I have to unholster my weapon in the confines of my vehicle to secure it there, am I brandishing?" His short answer was No. BUT, it depends on the officer as well. If hes a gung ho type, or a "Only cops should have guns" person, then youre getting a ticket. While they are easy to fight he said, its a pain in your rear. I try to not be obvious when Im switching from holster to locking console but you never know. The truck is high enough to not be easily seen but my car, well thats a different matter.
    Based on several well known incidents.... its not 'a ticket', and its not 'easy to fight'. Unfortunately, fighting it can be quite time consuming and costly... and even still, there is no guarantee that you will 'win' (even if you did absolutely nothing wrong... bad... illegal... whatever term you want to use).

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    Accomplished Advocate peter nap's Avatar
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    Yeah...ask Scouser or Skidmark how easy they are to fight or how they got dragged out of their houses instead of getting a ticket or the tens of thousands of dollars it took to defend them...and Scouser is STILL fighting.

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    Quote Originally Posted by peter nap View Post
    For those that weren't there...this is why the Commonwealths attorney says he wanted to prosecute for brandishing and it didn't have anything to do with a gun or finger.

    Sadly, this is the same stupidity that currently resides in the Governor's mansion. You can’t fix stupid and both Poindexter and McAfful prove it!


    1. poindexter:

    one who looks and acts like a nerd but does not posses the super-natural intelligence of a nerd.

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by va_tazdad View Post
    --snipped--

    1. poindexter:

    one who looks and acts like a nerd but does not posses the super-natural intelligence of a nerd.
    A sweet potato likely has more smarts. Drat, now I'm going to have to apologize to vegetable lovers everywhere.

    Hmmm, there might be something good there - a country boy nickname. Poindexter aka Sweet Potato.
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Accomplished Advocate peter nap's Avatar
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    I love the comment. Does this look like a gun? No but he said boy...he said Big Boy

    Moral is. You can point your finger at someone, just don't call him a Big Boy.

    Funny as that is, the hell he put Skidmark through is no joking matter.

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    Regular Member SouthernBoy's Avatar
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    Quote Originally Posted by peter nap View Post
    For those that weren't there...this is why the Commonwealths attorney says he wanted to prosecute for brandishing and it didn't have anything to do with a gun or finger.

    Mr. P'dexter certainly sounds like a racist to me with that comment.
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    Sounds good to me

    Quote Originally Posted by Grapeshot View Post
    A sweet potato likely has more smarts. Drat, now I'm going to have to apologize to vegetable lovers everywhere.

    Hmmm, there might be something good there - a country boy nickname. Poindexter aka Sweet Potato.
    Although I detest everything about Sweet Potatoes, (Taste, texture, color, and smell) I believe it is an appropriate nickname, and not slanderous to the nasty orange root.

    2 Of a kind, ugly, stupid and useless.

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    One last comment from me...the way I read this then, the swaggering LEO walking up to my car during a tragic stop with his hand on the butt of his weapon (NOT his other butt) is brandishing his weapon in a threatening manner...would that be a correct read?

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    Make that a "traffic" stop...slip of the autocorrect

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by rev.david View Post
    One last comment from me...the way I read this then, the swaggering LEO walking up to my car during a tragic stop with his hand on the butt of his weapon (NOT his other butt) is brandishing his weapon in a threatening manner...would that be a correct read?

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    That would be correct. Good luck ever getting a judge to buy it.

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    Quote Originally Posted by TFred View Post
    <snip>

    The point is, if you employ the fact that you possess or have easy access to a gun in an effort to alter someone's behavior, that's likely to cause the required components of the law to be reached, and I think you are likely to be brandishing, at least in Virginia.

    TFred
    Sounds like the purpose of OC to me.
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    The brandishing statute and the ways in which the courts' interpretations have warped it are discussed in the petition for appeal I've filed in the Henrico Co. case - you can download a copy off of my website, scroll down to the set of links marked, "useful stuff" and it's the last in that set. It is, of course, highly technical legal stuff, and some of it is in Latin, but I reckon you can get the gist of it.
    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 rev.david View Post
    One last comment from me...the way I read this then, the swaggering LEO walking up to my car during a tragic stop with his hand on the butt of his weapon (NOT his other butt) is brandishing his weapon in a threatening manner...would that be a correct read?

    Sent from my SAMSUNG-SGH-I337 using Tapatalk

    Think this way, if I where to do they same thing not being a Leo as I approached someone could be construed to have violated the law? If I'm wrong to do this then sous the LEO.
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