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Is this brandishing?

2a4all

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It doesn't look like the woman with the sign is very afraid. Therefore, he's not causing fear.
Who else witnessing these guys (that you can't see) might be frightened by their stances? Both of these guys appear to be carrying "at the ready", as opposed to having the rifle slung over their backs, in a "hands free" posture.

Wasn't "brandishing" the BS charge that a Virginian was charged with, and the matter to the VA Supreme Court, where he lost?

I certainly hope removal of this whole section of code is on VCDL's radar.
Yes, he did lose, and he wasn't even aware of the "victim" until he was arrested days after the incident. VCDL has tried unsuccessfully to get this statute modified to require "intent" by the gun carrier.

I noticed that as well, but the gentleman in camo was a more overt example. I think I recall a member on here mentioning that to be on solid ground, keep your hands off entirely, no resting hands on the firearm. Wouldn't take anything for one of the protestors to suddenly "feel" threatened.
The "fear" is in the perception of the person feeling "threatened". You may or may not be aware of their presence. (They could be standing a distance behind you.)
 

Fallschirjmäger

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Who else witnessing these guys (that you can't see) might be frightened by their stances? Both of these guys appear to be carrying "at the ready", as opposed to having the rifle slung over their backs, in a "hands free" posture.
Is there some legal requirement that arms be slung 'over the back' or carried in a sheath/rifle case in public?

Why is a rifle slung from a single-point sling in front of the body more 'dangerous' than a pistol thrust into a leather or plastic holster? I'd wager that a pistol could be quicker into action than a long arm. Anyone want to make a few videos for comparison?
 

Grapeshot

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Brandashing in Virginia (handgun or long gun) depends not one iota on your intent, actions, or conduct. It ONLY relates to how others claim to be effected. The required correction is to delete that section of the Code.
 

Firearms Iinstuctor

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Why is a rifle slung from a single-point sling in front of the body more 'dangerous' than a pistol thrust into a leather or plastic holster? I'd wager that a pistol could be quicker into action than a long arm. Anyone want to make a few videos for comparison?

Lots of factors in what would be faster I have spent thousands of hours and thousands a rounds working on both.

A lot depends on the stimulation that would make you shoot.

It is not just one or the other kind of thing.

Range is a big factor if passed 10 yards a long gun is almost always faster to get hits.

Also how well trained the shooter is with each type.

it really a personal thing depending on your skill levels and experience.
 

Fallschirjmäger

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Fine.

Let's simplify things then.
Why not use the photo provided since we all seem to agree that it shows......
Two armed individuals
Both with long guns slung from single-point slings in front of their bodies
One of which has a magazine (can we agree it's not empty?) in the magazine well
One of which has no magazine (again, agreeing it's not empty) stuck in his pocket
At least one of whom has a pistol (can we agree it's not empty?) stuck in an inexpensive 'Level-1' nylon holster

The opposing side is at a distance of between 2 and 4 yards.


Now, which do you think is more "dangerous", the unloaded rifle or the openly carried ̶p̶i̶s̶t̶o̶l̶ rifle with a magazine already inserted?

Edited to correct 'pistol' to 'rifle'
 
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WalkingWolf

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Brandashing in Virginia (handgun or long gun) depends not one iota on your intent, actions, or conduct. It ONLY relates to how others claim to be effected. The required correction is to delete that section of the Code.

That needs to be fixed, simple act of resting your arm on your sidearm could get you charged, if it is up to the 'victim'. At the very least their claims should only be taken seriously when they are reasonable.
 

Firearms Iinstuctor

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Fine.

Let's simplify things then.
Why not use the photo provided since we all seem to agree that it shows......
Two armed individuals
Both with long guns slung from single-point slings in front of their bodies
One of which has a magazine (can we agree it's not empty?) in the magazine well
One of which has no magazine (again, agreeing it's not empty) stuck in his pocket
At least one of whom has a pistol (can we agree it's not empty?) stuck in an inexpensive 'Level-1' nylon holster

The opposing side is at a distance of between 2 and 4 yards.


Now, which do you think is more "dangerous", the unloaded rifle or the openly carried pistol with a magazine already inserted?

The guy with his hands on the rifle well be faster if it is loaded.
 
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color of law

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You guys need to read Morris v. Com., 607 SE 2d 110 - Va: Supreme Court 2005.
https://scholar.google.com/scholar_...4961337&q=18.2-282+and+hold&hl=en&as_sdt=4,47

Brandishing a Firearm

As noted supra, Morris was charged with pointing, holding, or brandishing a firearm in such a manner as to reasonably induce fear in the mind of another, pursuant to Code § 18.2-282. Morris argues "[t]here was insufficient evidence that [he] pointed, held or brandished the firearm, and there was insufficient evidence that there was reasonable fear in the mind of Peter Molina."

Morris says that although Peter Molina saw the flare gun in Morris's waistband, he never testified that he was in fear of the gun. Morris asserts that Molina, solely out of concern for his wife, insisted that they should leave the area where Morris was sitting. Indeed, Morris states, Molina indicated in his testimony that he "may have stayed where he was had his wife not been there."

Morris says further that he "never touched the gun in the presence" of Molina or his wife and there is no evidence that "he pointed the flare gun." Hence, Morris concludes, the evidence is insufficient to support a conviction for brandishing a firearm.

We disagree with Morris. "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd] like that," and then

*115 pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner. And Morris brandished the weapon in such a manner as to reasonably induce fear in the mind of Peter Molina. Although Molina may not have said he was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is sufficient to prove the "induced fear" element of a conviction for brandishing a firearm under Code § 18.2-282.
The pictures shown in the OP's post does not rise to the level of "pointing, holding or brandishing" in a threatening way.
 

2a4all

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You guys need to read Morris v. Com., 607 SE 2d 110 - Va: Supreme Court 2005.
https://scholar.google.com/scholar_...4961337&q=18.2-282+and+hold&hl=en&as_sdt=4,47

The pictures shown in the OP's post does not rise to the level of "pointing, holding or brandishing" in a threatening way.
Sez you! The armed individuals in the picture are actually "holding" their weapons. As I pointed out earlier, another observer not in the photo could easily feel threatened for the safety of themselves or of the bystander shown in the picture.

Again, in Virginia, the perception of the victim determines whether brandishing has occurred. "I saw a gun, I was afraid" has been sufficient for a conviction. The "brandisher" doesn't even have to be aware of the presence of a victim. A third party's observation that "The armed individual didn't seem threatening to me." doesn't mitigate the apprehension of anyone else who might feel threatened.
 

color of law

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Sez you! The armed individuals in the picture are actually "holding" their weapons. As I pointed out earlier, another observer not in the photo could easily feel threatened for the safety of themselves or of the bystander shown in the picture.

Again, in Virginia, the perception of the victim determines whether brandishing has occurred. "I saw a gun, I was afraid" has been sufficient for a conviction. The "brandisher" doesn't even have to be aware of the presence of a victim. A third party's observation that "The armed individual didn't seem threatening to me." doesn't mitigate the apprehension of anyone else who might feel threatened.
Apparently you have a comprehension problem. The Virginia Supreme Court in Morris didn't even come close to say what you are saying. In Morris the guy didn't even point, hold or brandish. Morris with words of intent of harm and showing the gun equals brandishing according to the Virginia SC. The court made clear that point and hold are synonymous with brandish; even showing a weapon can fall into the definition as long as there is some intention of harm conveyed to the victim.
 

WalkingWolf

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Sez you! The armed individuals in the picture are actually "holding" their weapons. As I pointed out earlier, another observer not in the photo could easily feel threatened for the safety of themselves or of the bystander shown in the picture.

Again, in Virginia, the perception of the victim determines whether brandishing has occurred. "I saw a gun, I was afraid" has been sufficient for a conviction. The "brandisher" doesn't even have to be aware of the presence of a victim. A third party's observation that "The armed individual didn't seem threatening to me." doesn't mitigate the apprehension of anyone else who might feel threatened.

And some snowflakes, probably many would feel threatened by a holstered handgun. The standard in law is reasonable. Considering that this type of carry is standard for law enforcement when in public, IMO, would lend it to a reasonable form of carry. Letting a rifle swing on a sling, would make as much sense has wearing a handgun in a lanyard around the neck, it would be clearly insecure. Common sense is often associated with reasonable, that could be why LE did not arrest the carriers in the photo.
 

WalkingWolf

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Apparently you have a comprehension problem. The Virginia Supreme Court in Morris didn't even come close to say what you are saying. In Morris the guy didn't even point, hold or brandish. Morris with words of intent of harm and showing the gun equals brandishing according to the Virginia SC. The court made clear that point and hold are synonymous with brandish; even showing a weapon can fall into the definition as long as there is some intention of harm conveyed to the victim.

IMO you are correct, lifting a shirt to display a weapon IS brandishing. Even though the weapon is not touched, or it stays in a holster. I can pretty much guarantee that any LEO is going to take offense to a citizen lifting their shirt to display the handgun.
 

color of law

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IMO you are correct, lifting a shirt to display a weapon IS brandishing. Even though the weapon is not touched, or it stays in a holster. I can pretty much guarantee that any LEO is going to take offense to a citizen lifting their shirt to display the handgun.
I would agree IF the showing the firearm was to convey dominion over another or convey an evil intent.
 

2a4all

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Apparently you have a comprehension problem. The Virginia Supreme Court in Morris didn't even come close to say what you are saying. In Morris the guy didn't even point, hold or brandish. Morris with words of intent of harm and showing the gun equals brandishing according to the Virginia SC. The court made clear that point and hold are synonymous with brandish; even showing a weapon can fall into the definition as long as there is some intention of harm conveyed to the victim.

Morris was about an overt act. However, brandishing (in Virginia) by statute doesn't require any overt act toward an individual. It only requires that the "victim" experience fear as a result "...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...".

(See http://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-282/)

There are plenty of folks out in public who would be intimidated or downright afraid if they witnessed a scene like that in the photo, and would and have called the cops. Doesn't always result in a brandishing charge, but are you familiar with http://forum.opencarry.org/forums/showthread.php?113853-The-Tale-of-Henrico-Chapter-2-in-a-Ferry-Tale-Arrested-for-following-the-law? It's about scouser and his brandishing conviction in Henrico County in 2013 (Post Morris, I believe.). He didn't even know that his actions had been observed by the "victim", and had no contact with him (then or ever). He appealed his case, conviction was upheld, VSC declined to hear a further appeal.
 

color of law

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Morris was about an overt act. However, brandishing (in Virginia) by statute doesn't require any overt act toward an individual. It only requires that the "victim" experience fear as a result "...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...".

(See http://law.lis.virginia.gov/vacode/title18.2/chapter7/section18.2-282/)

There are plenty of folks out in public who would be intimidated or downright afraid if they witnessed a scene like that in the photo, and would and have called the cops. Doesn't always result in a brandishing charge, but are you familiar with http://forum.opencarry.org/forums/showthread.php?113853-The-Tale-of-Henrico-Chapter-2-in-a-Ferry-Tale-Arrested-for-following-the-law? It's about scouser and his brandishing conviction in Henrico County in 2013 (Post Morris, I believe.). He didn't even know that his actions had been observed by the "victim", and had no contact with him (then or ever). He appealed his case, conviction was upheld, VSC declined to hear a further appeal.
Life isn't fair. So, I suggest you read your hero's white paper :). http://www.virginialegaldefense.com/tempname/petition01.pdf With that said, I'm not going to rehash a case that was a travesty.

Unfortunately Virginia is a suburb of the District of Columbia.
 

The Truth

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Let me see if I have this right....

Two men, both of whom are carrying slung weapons but one is 'brandishing' based upon the position of his hands, notwithstanding that changing one's grip takes mere fractions of a second and there is nothing in the Code referencing hand position, correct?

And MrCamo is the more 'dangerous' of the two in spite of the fact that MrMaroon has a magazine inserted and is a mere flick of the safety away from 'making the streets run red with blood' whereas MrCamo would have to insert a magazine into the magazine well and pull the charging handle in order to fire, also correct?

Could you give us a rough idea of how many fractions of a second separate 'non-brandishing' from 'brandishing' in this instance? Do I need a stopwatch or would a watch with a sweep second hand be sufficient?


Why would not openly carrying a holstered pistol be considered 'brandishing' since it would also be mere fractions of a second away from being discharged?

The point of my post was simply to illustrate the subjectivity when deciding what is brandishing in VA. I've seen some wacky cases of "brandishing" here.

A holstered handgun is not in your hand.
 

The Truth

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I'll go out on a limb here and say confidently that the easiest way to brandish is with one's hands. You'd be hard pressed to find a likely scenario involving brandishing without manipulating something with one's hand, one would think.
 
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The Truth

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Nor does a handgun have to be in one's hand in order to be brandished....

If you can carry a baseball bat in your hands without 'brandishing' it automatically, then you can carry a long arm in your hands without brandishing.

Yeah well, are you going to carry a baseball bat in public with the same grip you would use if you were ready to swing, or would you hold it down by your side with one hand?

Better yet, would you wear a bat holster?
 

Fallschirjmäger

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Thank you, that was the point I was trying to make.

The mere carrying of arms is not necessarily brandishing or arms, it should require an overt act intended to induce fear.
 
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