Does everyone already know the new law?

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I was talking to a friend of the family today who happens to be not only a gun nut but also a very good and popular lawyer today. He informed me that the DEFINITION of brandishing a firearm has been changed recently. I think this is a state law but if Virginia (of all states) has such a loose and scary definition, then it's very possible that more states will/have made changes to existing laws. Here is how the law reads now.


§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

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. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.

C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.

(Code 1950, § 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)

Let the :banghead:commence!

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357luvr wrote:

I was talking to a friend of the family today who happens to be not only a gun nut but also a very good and popular lawyer today. He informed me that the DEFINITION of brandishing a firearm has been changed recently. I think this is a state law but if Virginia (of all states) has such a loose and scary definition, then it's very possible that more states will/have made changes to existing laws. Here is how the law reads now.


§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

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. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.

C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.

(Code 1950, § 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)

Let the :banghead:commence!

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New law!!

What the hell are you doing scaring thecrap out of everybody with a thread title like that? Especially just a few days before most new laws take effect in VA.

VCDL made no mention of a change to the brandishing law in the last two General Assemblies.

That's an old law. Well, 2005, anyway.

Jeez! I need a drink to get over the shock.



DON'T DO THAT!!

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My bad, I've been out of the gun scene for a while and only got back into it a few months ago. The last time I talked to that guy was probably before 2005 and he knew I was a fellow gun enthusiest so he told me about a 'new law' that had been passed 'recently.' He never mentioned a date. Either way, seriously, I apologize.

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OK. I think I can talk again.

No worries on the latest version of the brandishing statute.

It does not criminalizecarrying a weaponin a holster. In fact it doesn't mention carry or bear arms at all.

Itsclearly aimed at brandishing a weapon.

As opposed to a situation where some irrationally fearfulidiotgets the swoons and vapors at the sight of a slung rifle or holstered handgun.

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357luvr wrote:

SNIP Either way, seriously, I apologize.

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You can demonstrate your sincere contrition, if you like, by sending me a bottle of Glennfiddich Special Reserve.

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Basically the way the lawyer friend described it, I was basically at risk of some nut job who happens to know the law having me arrested for walking in the local gas station with a glock on my hip for no other reason than the fact that he was scared of theglock on my hip.

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357luvr wrote:

Basically the way the lawyer friend described it, I was basically at risk of some nut job who happens to know the law having me arrested for walking in the local gas station with a glock on my hip for no other reason than the fact that he was scared of theglock on my hip.

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The law says "in such a manner as to".

A simple open carry of aweapon into your local gas station should not scare any normal person with an IQ over 56. :lol:

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357luvr wrote:

Basically the way the lawyer friend described it, I was basically at risk of some nut job who happens to know the law having me arrested for walking in the local gas station with a glock on my hip for no other reason than the fact that he was scared of theglock on my hip.

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I wonder if he was mixing in memories ofreports from other states where cops use "inducing panic", etc.

For sure he didn't get it from a close reading of this statute.

At any rate, all cleared up, I should think.

Feel better? I know I do!!

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Yeah I feel much better. I thought I was never going to risk OC again but I think as long as I have witnesses (including survielance video)that can testify that I never touched my gun, then I think I'll be okay. Still warming up (again) to OC and finding more speed bumps than were here before. Again, sorry for the scare and thanks for straightening me out.

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Your friend was not too far off, but you looked to the wrong branch of government that made the change. The Virginia court of appeals recently clarified the understanding of the words cited in your post above:

[align=left]Huffman v. Commonwealth, __, Va. App. __ S.E.2d __,__ (2008).[/align] [align=left]"Baron testified that Huffman was intoxicated and "just going off," that is, he was "[d]oing a lot of yelling and just being loud," all while holding the gun in his hand. Baron also witnessed Huffman load the two bullets in the gun. Baron explained that Huffman was angry and complaining because she and Caruso had arrived home a day later than expected from an out-of-state trip. In addition, Huffman wanted Caruso to leave with him, but Baron would not permit Caruso to do so.[/align] [align=left]
Upon hearing a "commotion" from the direction of the driveway while working in his backyard, James went to investigate. He found Moon, Baron, Caruso, and Huffman in Moon's yard, with Huffman "raising Cain about something" and "waving a gun around." Among other things, James stated to Huffman, "why don't you put that gun down before you hurt somebody," at which time Huffman threatened to shoot James... [/align] [align=left]Huffman contends the evidence was insufficient to prove he violated Code § 18.2-282(A) as to Moon. We disagree. [/align] [align=left]As to the first element, Huffman does not challenge the fact that he brandished a firearm in Moon's presence, for purposes of Code § 18.2-282(A). As to the second element, however, he argues there was insufficient evidence to establish that he brandished a gun in such a manner as to induce fear in the mind of Moon.[/align] [align=left]
This Court has held, in connection with robbery, that "'the word "fear" . . . does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'" Seaton, 42 Va. App. at 749, 595 S.E.2d at 14 (quoting 3 Wayne R. LaFave, Substantive Criminal Law § 20.3(d), at 187-88 (2d ed. 2003)) (emphasis in original). [/align] [align=left]
In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (quoting Charles E. Torcia, 4 Wharton's Criminal Law § 462, at 21 (15th ed. 1996)) (emphasis in original). The dispositive issue in this case, therefore, is whether there was sufficient evidence for a rational trier of fact to find beyond a reasonable doubt that Moon was reasonably apprehensive of bodily harm induced by Huffman brandishing the gun in her presence. This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts. It also ensures that we remain faithful to our duty not to substitute our judgment for that of the trier of fact, even were our opinion to differ.Seaton, 42 Va. App. at 747-48, 595 S.E.2d at 13 (citations and internal quotation marks omitted). In light of the totality of the circumstances, we conclude that Moon's request of Huffman to put his gun away was sufficient evidence of Moon's requisite apprehension of bodily harm."[/align]

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I'm a layman so use laymans terms please. I am so confused right now.:question: LOL

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357luvr wrote:

I'm a layman so use laymans terms please. I am so confused right now.:question: LOL

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You're from Barboursville. We understand! :lol:

j/k

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Just read the last paragraph of the case cited above. The word fear in the statute has been construed to mean Apprehension. "In other words, "'[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'"

I hope this helps.

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Sheriff wrote:

357luvr wrote:

I'm a layman so use laymans terms please. I am so confused right now.:question: LOL

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You're from Barboursville. We understand! :lol:

j/k

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At least I'm not bad as someone who lives in Greene County. Orange county sucks but Greene is worse.:lol::lol::lol::lol:

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357luvr wrote:

Yeah I feel much better. I thought I was never going to risk OC again but I think as long as I have witnesses (including survielance video)that can testify that I never touched my gun, then I think I'll be okay. Still warming up (again) to OC and finding more speed bumps than were here before. Again, sorry for the scare and thanks for straightening me out.

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You would do OK. I would think that friends and neighbors who could report or testify that you regulary carry responsibly, etc. would outweigh a claim that you brandished. Especially since they would also have to manufacture a reason that you got mad enough to brandish. Its not like people are going to believe that a calm, responsible guy is going to suddenly brandish, "because he thought I stole his grocery cart." Or at least I wouldn't thinkpolice, ajudge, or jurywould believe it.

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Citizen wrote:

357luvr wrote:

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Yeah I feel much better. I thought I was never going to risk OC again but I think as long as I have witnesses (including survielance video)that can testify that I never touched my gun, then I think I'll be okay. Still warming up (again) to OC and finding more speed bumps than were here before. Again, sorry for the scare and thanks for straightening me out.

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You would do OK. I would think that friends and neighbors who could report or testify that you regulary carry responsibly, etc. would outweigh a claim that you brandished. Especially since they would also have to manufacture a reason that you got mad enough to brandish. Its not like people are going to believe that a calm, responsible guy is going to suddenly brandish, "because he thought I stole his grocery cart." Or at least I wouldn't thinkpolice, ajudge, or jurywould believe it.

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Very good point even though I don't know how much trust I have in our justice system at this point (completely unrelated to the dismissall of the DC ban) but yeah, I'm feeling better and better about OC.

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Virginiaplanter wrote:

Your friend was not too far off, but you looked to the wrong branch of government that made the change. The Virginia court of appeals recently clarified the understanding of the words cited in your post above:


[align=left]Huffman v. Commonwealth, __, Va. App. __ S.E.2d __,__ (2008).[/align]

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So it looks like the change was to change from scared-type fear, to worry-type fear. Really just clarifying which was meant. Of course, it would still include scared-type fear.

So, they didn't really change anything about what the guycarrying the gunhas to be doing. They just clarified the range of intensity of emotionthe person on the receiving end would have to feel.But,what thefearing person feels is not the only element. He or she can't just feel apprehensive or worse for any old reason. The person with the gun has to be doing something with it--see the statute for the somethings--to reasonably cause theother's apprehensiveness.

Thanks for the quote and cite, VirginiaPlanter.

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Sheriff wrote:

The law says "in such a manner as to".

A simple open carry of aweapon into your local gas station should not scare any normal person with an IQ over 56. :lol:

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Hey now, lets not slight persons with disabilities by comparing them to the MMM or Brady group

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357luvr wrote:

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.

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'Nuff said.

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This is not new.... it didn't change, I read it, and it's EXACTALLY the same... there is no change to the law. If there is any change (and I can't see one) it's so minute that it doesn't matter.