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Thread: 'Intentional' Brandishing - Is this what we want?

  1. #1
    Regular Member Repeater's Avatar
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    'Intentional' Brandishing - Is this what we want?

    Delegate Lingamfelter has a bill that would require intent:

    HB 560 Brandishing a firearm; intent to induce fear, etc., penalty
    Brandishing a firearm; intent; penalty. Requires that a person pointing, holding, or brandishing a firearm or similar weapons must have the intent to induce fear in the mind of another or know or reasonably should know that his conduct would induce such fear in order to be convicted of the crime of brandishing. Currently, the perpetrator's intent is not an element of the offense.
    The potential problem might be the reasonable clause. Hoplophobes are always unreasonable, but do juries always recognize that or care?

    And fear of what? The bill doesn't specify. I would suggest fear of being killed or wounded.

  2. #2
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    I'd take that - I'm happy Mr. Lingamfelter's taking my remarks on the subject seriously and acted on it in a thoughtful way. I've been after him about it for a couple of years. The real change in this language is to shift from a "general intent offense" to a "specific intent offense" - I'd have preferred to see it repealed entirely, but this is the next best thing. I hope he's either removed the redundant language or added the same change to it as well (there are two brandishing offenses defined in the statute and the language is almost identical).
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

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    <chuckle> So, I guess air-drying my gun by waving it around after I fall in a puddle is out of the question, huh?
    Last edited by Citizen; 01-13-2016 at 07:04 PM.
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    Quote Originally Posted by Citizen View Post
    <chuckle> So, I guess air-drying my gun by waving it around after I fall in a puddle is out of the question, huh?
    Only if you are air drying your gun incorrectly.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

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  5. #5
    Campaign Veteran skidmark's Avatar
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    First, this still relies on the use of multiple dictionary definitions of the concepts of "holding" and "pointing" to define what brandishing is, as opposed to providing an objective description of the action. I can see walking past a group of Mommies from Everytown Demanding Something with a holstered openly carried handgun as meeting the "definition" of this crime, as I "reasonably should know that [the] conduct would induce such fear". Back to Square One again - pandering to the feelze of the hoplophobes.

    Further, it still leaves us with the good guidance User has repeatedly provided - if you clear the holster you had better shoot. No room for the act of drawing deescalating the situation. (Insert my copyrighted rant #327982 on the need for a "defensive display of firearm" statute.)

    The proposed statute needs clear, unequivocal wording that leaves the intent of the GA crystal clear and leaves the courts little room to impose an interpretation that strays from the intent. IMHO the proposed change not only does not do that, it creates even more opportunity to bring and convict on the charge of brandishing. If I had my druthers I'd start by trying to work out eliminating the "intent to induce such fear" and move towards some sort of statement regarding the intent of the actor to offer the use of deadly force in a situation that does not meet the existing excuse/justification for the use of deadly force.

    But then I'm a self-avowed pedant who also holds the title of Curmudgeon Emeritus.

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    I recall that the most telling evidence in Scouser's trial was when the complaining witness said that the reason he felt fear was not because Scouser had actually done something with the gun that was threatening, but because he "didn't know what he might do." Scouser was convicted in the GDC and again in Circuit, basically because the standard jury instruction gave the jury a reason to think that it didn't matter whether Scouser intended to cause that fear or not. This bill will correct that problem.
    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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