CC => OC transition vs. "brandishing a firearm"

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We all know that OC is legal here within certain limitation.
Many of us have Concealed Carry permits as well.

In general if you're carrying concealed and you fail to maintain concealment, you can (technically) be charged with brandishment of a firearm.

So.... When both CC and OC are legal (assuming you have the CC permit) is this enforcable?

Here's the specific scenario I'm thinking of: I'm (legally) carrying concealed with a jacket on. As long as the jacket remains on, my weapon is fully concealed. If I remove my jacket then I should be legal under open carry provisions. Why doesn't the transition from one state to the other constitute brandishment?

Looking for Legal opinions.. Local experiences...

Thanks!

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Brandishment as a crime requires bringing the weapon to a ready state with intent to threaten or intimidate. Brandishing a weapon is pulling it out and waving it around. If you never touch your gun, never remove it from its holster, etc. it is not brandishment. By that same logic you can move your gun, in its holster, to a different carry mode or position without brandishing it. The line is crossed when you remove it from its holster, hold it in a manner by which you can immediately fire it, and someone is threatened or intimidatedby that action.

Intimidation caused by adisplayed weapon that is not "brandished"is incidental; the person intimidated by the display of a holstered weapon has no reasonable cause to assume that the weapon will be drawn and used in their presence, much less against them.

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+1

Dead on description.

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Liko81 wrote:

Brandishment as a crime requires bringing the weapon to a ready state with intent to threaten or intimidate. Brandishing a weapon is pulling it out and waving it around. If you never touch your gun, never remove it from its holster, etc. it is not brandishment. By that same logic you can move your gun, in its holster, to a different carry mode or position without brandishing it. The line is crossed when you remove it from its holster, hold it in a manner by which you can immediately fire it, and someone is threatened or intimidatedby that action.

Intimidation caused by adisplayed weapon that is not "brandished"is incidental; the person intimidated by the display of a holstered weapon has no reasonable cause to assume that the weapon will be drawn and used in their presence, much less against them.

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I am not sure it applies in Colorado, but in some states the following is another example:The rare instance where someone could be consideredbrandishing when carrying concealed, and during a confrontation, the concealed carrier pulls back the jacket/shirt and exposes the weapon in the holster with the sole intent to intimidate the other person into backing down.

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Interesting.... then maybe "brandishing" isn't the right term, that's just what I've heard it called in other states regardless of any active or passive intent to threaten. I know when I had a CC permit in Alabama that you could (techincally) be cited for brandishing if you had an inadvertint exposure. Now in practice I don't know of any case where this was persued, but I remember it being pointed out in the NRA CCW course I took at that time.

Still we're getting away from the heart of my question. The point is... failure to maintain concealment and if / how that's an issue since OC is legal in CO whether accidental or in transition from concealed to open.

Thanks!

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RockyMtnScotsman wrote:

Interesting.... then maybe "brandishing" isn't the right term, that's just what I've heard it called in other states regardless of any active or passive intent to threaten. I know when I had a CC permit in Alabama that you could (techincally) be cited for brandishing if you had an inadvertint exposure. Now in practice I don't know of any case where this was persued, but I remember it being pointed out in the NRA CCW course I took at that time.

Still we're getting away from the heart of my question. The point is... failure to maintain concealment and if / how that's an issue since OC is legal in CO whether accidental or in transition from concealed to open.

Thanks!

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As an Alabama resident, I don't believe you are correct in your assertion. I know of no such "brandishing" statute in the Code of Alabama. I am also curious as to what county you lived in, as there is no state requirement in Alabama for a Concealed Carry course (though there are many offered across the state). With the leewaytaken bysheriff's (in spite of COMPLETEstate pre-emption on the subject of handguns)due tothe "qualified/unqualified" rhetoric in the relevant codesection, I do see where I sheriff may impose this requirement before he will issue a license.

Remember, NRA instructors are not lawyers. In Alabama, as I'm sure you know, the majority of the "common knowledge" about laws in general is mere folklore, and I believe your instructor may have been under the influence of ignorance. A quick glance over section 13 of the Code of Alabama will quickly bring this to light.

Like your NRA instructor, I too am not a lawyer.

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Deco, what your describing is more like menacing in order to cause alarm. Whether it be brandishing or menacing, it's still a no-no. If you're gonna either draw or show in a confrontation, you'd better be ready to use it and be able to justify it.
I think it all comes down to context. If your CCing with a shoulder rig and you have to open your jacket to answer the cell phone, some folks might get freaked out and call the Po-Po. Hopefully the LEO will understand that it wasn't menacing because you weren't intentionally trying to "cause alarm". Those are the key words in the definitions of menacing. Even if you don't show or draw, but instead you make mention that you are carrying a firearm with the intent to "cause alarm", that's illegal. Now if you proclaim that you're carrying to a mugger or other BG, then you're clear. But even then it gets a bit sticky.
I have a friend up in Leadville area that had a guy come into his house and demand money (I believe it was a debt owed). My friend was backed up into his own house by this guy who came in uninvited (trespass), threatened physically (criminal intent to cause bodily harm), and thoroughly harassed. My bud grabbed his iron and told the guy to take a hike. They guy left and immediately called the cops. My friend was arrested and convicted of brandishing and menacing just because he didn't dial 911 before the perp did. The invader was not charged with anything to my understanding.

Through all my research I've discovered that not only does the armed citizen have to be situationally aware of his surroundings at all times, but they also need to be legally aware of what they are partaking in. When the wise ones on this site say that it's a huge responsibility, they aren't kiddin!!!

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vmathis12019 wrote

As an Alabama resident, I don't believe you are correct in your assertion. I know of no such "brandishing" statute in the Code of Alabama. I am also curious as to what county you lived in, as there is no state requirement in Alabama for a Concealed Carry course (though there are many offered across the state). With the leewaytaken bysheriff's (in spite of COMPLETEstate pre-emption on the subject of handguns)due tothe "qualified/unqualified" rhetoric in the relevant codesection, I do see where I sheriff may impose this requirement before he will issue a license.

Remember, NRA instructors are not lawyers. In Alabama, as I'm sure you know, the majority of the "common knowledge" about laws in general is mere folklore, and I believe your instructor may have been under the influence of ignorance. A quick glance over section 13 of the Code of Alabama will quickly bring this to light.

Like your NRA instructor, I too am not a lawyer.

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I lived in Madison County (Huntsville) and this was nearly 20 years ago. You're right, there's no course requirement and it was very easy to get a permit from the Sherriff at that time. But my wife wanted to take the course when she got her permit and would only take it if I joined her so.....

Good point on the hearsay "legal opinions" and it's been quite a while since I reviewed the Alabama statutes for this area.

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Evil Ernie wrote:

I have a friend up in Leadville area that had a guy come into his house and demand money (I believe it was a debt owed). My friend was backed up into his own house by this guy who came in uninvited (trespass), threatened physically (criminal intent to cause bodily harm), and thoroughly harassed. My bud grabbed his iron and told the guy to take a hike. They guy left and immediately called the cops. My friend was arrested and convicted of brandishing and menacing just because he didn't dial 911 before the perp did. The invader was not charged with anything to my understanding.

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That's pretty surprising - particularly for a city off the Front Range. I wonder if this was before Colorado passed the "make my day" law few years ago where you have no duty to retreat within your home.

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Actually it was this past summer. I know I was suprised too.

Here's a little bit I pulled from the RMGO site. Hopefully this will clear out some of the confusion around terminology.

18-9-106. Disorderly conduct.

(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

(3) An offense under…(1) (f) of this section is a class 2 misdemeanor.

18-3-206. Menacing.

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

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I know this is a Colorado forum, but I feel a Michigan AG opinion will be usefull. Read the following for an interpretation of "brandishing"

http://www.ag.state.mi.us/opinion/datafiles/2000s/op10176.htm

Here is basically what it says, "In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

So, if you go from CC to OC (at least in Michigan, and I'm sure Colorado) it will not be considered "brandishing." There may be some other law you are violating though...something like, "causing alarm"...

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Evil Ernie wrote:

18-9-106. Disorderly conduct.

(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

(3) An offense under…(1) (f) of this section is a class 2 misdemeanor.

18-3-206. Menacing.

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

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Boy this stuff is broad enough to throw a cat through if you parse these phrases enough.

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I live in Washington which is an open carry state, as well. I've looked a bit at Colorado law, and this is what I can gather. If you simply remove your jacket, this is niether brandishing nor disorderly conduct. Brandishing is the act of showing your weapon as a form of intimidation. The disorderly conduct charge that "calculates alarm" is also nothing I would worry about. There is case law that says that a weapon that is in it's holster does not consitute alarm in the average citizen. I wish I could find it but it is very clear on that point. If you ever did have police encounter, simply show them your CWP to show them you do have the "right" to conceal, and then kindly remind them that Colorado is an Open Carry state and that you were hot and wanted to remove your jacket and if being hot is crime, then by all means please arrest me.

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RockyMtnScotsman wrote:

Still we're getting away from the heart of my question. The point is... failure to maintain concealment and if / how that's an issue since OC is legal in CO whether accidental or in transition from concealed to open.

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The only place where this might be relevant in Colorado is in Denver or some other place where open carry is prohibited and concealed carry is allowed. In that case, failure to maintain concealment would be a violation but not necessarily brandishing. As pointed out above, brandishing requires the display to be intentional and intended tocause alarm or intimidateanother, which is not the case with simple failure to maintain concealment.

In states where open carry is restricted or prohibited, failure to maintain concealmentcan more easily be construed to represent brandishing and some states define brandishing to include any display of a weapon, accidental or otherwise, but in Colorado, this is not the case.

As long as you do not reveal the weapon during any sort of altercation or dispute and you are not in an area where carry is restricted, simply removing your jacket for comfort purposes is not an issue. In mentioningaltercations above, I refer to any type of dispute no matter how minor it may be, because choosing that moment to reveal a previously concealed weapon could be construed as a display to intimidate the other party. For example, a case I am aware of involved a person who felt he was being overcharged for work performed on his vehicle at a dealership and was disputing thecharges with the manager. At one point during the encounter, the man removed his jacket for comfort purposes, which revealed his handgun. Although the discussion had been completely civil throughout and no threats were made in any way, the dealership manager immediately excused himself from the office and called 911, reporting the man as threatening him with a gun. The next person the man say enter the office was a police officer who immediately disarmed him. Fortunately, the officer in this case was well informed on the states carry laws and despite the insistence of the manager as feeling threatened by the sight of the man's firearm, the officer determined the manhad not threatened the manager or violated any other laws and returned his weapon without further incident.

In short, brandishing requires the intent to intimidateor cause alarm. Although simply removing a jacket for comfort is not brandishing, consider the circumstance you are in before transitioning. Personally, I do not open carry into any circumstance where Iintend to dispute anything. While I will carry concealedin such cases, I do not reveal my weapon in order to avoid the other party accusing me of intimidation.

Just my thoughts on the subject.

Doc

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"Brandish" does not appear in the Colorado Revised Statutes. Here's the applicable law, previously quoted by Evil Ernie:

18-3-206. Menacing.
(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:
(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

My opinion is thatin general, if you remove a coat on entry to a heated spaceand reveal a pistol, or the wind blows up your coat and reveals it, that is nota violation of 18-3-206. Now if a punk is hassling you and you open your coat to deliberately reveal a pistol, that probably would be felony menacing.

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Evil Ernie wrote:

Actually it was this past summer. I know I was suprised too.

Here's a little bit I pulled from the RMGO site. Hopefully this will clear out some of the confusion around terminology.

18-9-106. Disorderly conduct.

(1) A person commits disorderly conduct if he or she intentionally, knowingly, or recklessly:

(f) Not being a peace officer, displays a deadly weapon, displays any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon, or represents verbally or otherwise that he or she is armed with a deadly weapon in a public place in a manner calculated to alarm.

(3) An offense under…(1) (f) of this section is a class 2 misdemeanor.

18-3-206. Menacing.

(1) A person commits the crime of menacing if, by any threat or physical action, he or she knowingly places or attempts to place another person in fear of imminent serious bodily injury. Menacing is a class 3 misdemeanor, but, it is a class 5 felony if committed:

(a) By the use of a deadly weapon or any article used or fashioned in a manner to cause a person to reasonably believe that the article is a deadly weapon; or

(b) By the person representing verbally or otherwise that he or she is armed with a deadly weapon.

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Not in your home. You have the ABSOLUTE right to use any force--including deadly force, if in fear of your life or great bodily harm. Any doubt is set on the side of the homeowner. There has to be more to it than this. You can use reasonable force--in any state of the union, to remove a trespasser. The so called "make my day laws," and Colorado was the first in the nation to pass it, codify the right to use deadly force in your home. Even in Massachusetts your friend was completely legal in what he did--and would probably have gotten off if he blew the guy away assuming the guy was bigger, younger, whatever.