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Thread: Just had to laugh

  1. #1
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    I'm pretty sure I'm right on this one.

    Had a go-round with a guy on a motorcycle board about carrying while on a bike.

    The gist is, someone mentioned unzipping your jacket while riding to let the wind blow open your jacket to expose your sidearm while being tailgated. Now, I think that could be taken as a threatening (i.e. brandishing) with a zealous lawyer.

    But later down the discussion, somebody tried to quote the VA law, even copy/paste, trying to prove that if you expose your weapon at all that it's brandishing.

    So according to this guy, every OC dinner we have where someone goes from CC to OC before entering - YOU'RE BRANDISHING!:what:



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    Regular Member ProShooter's Avatar
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    Brandishing is perhaps one of the least understood laws by the public. Many people use the term brandish if they can simply see the gun, not the fact of whether you were doing anything with the gun at the time.


    James Reynolds

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    ProShooter wrote:
    Brandishing is perhaps one of the least understood laws by the public. Many people use the term brandish if they can simply see the gun, not the fact of whether you were doing anything with the gun at the time.

    Agreed.

    To simply carry or transport it with no intent to use it to cause alarm.. would not be brandishing in my book. If I had a book.

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    Regular Member SouthernBoy's Avatar
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    I just attended a seminar this past Saturday evening on the use of deadly force. The question of brandishing did come up. Basically, it is offering the gun as a threat as I understood it to be. In other words, pulling it out and threatening someone with it. exposing it if it is concealed with the intend to intimidate or put someone in fear, or even deliberately drawing attention to it for the same purpose (fear and intimidation).

    I do hope I'm getting this correct.

    However, someone experiencing fear from seeing you open carrying a firearm when you are not doing anything to warrant such behavior would not constitute brandishing (a lot of LEOs would be in trouble here if this were the case). Someone else's irrational fear at your "normal" presentation does not constitute brandishing.

    IANAL

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    It's only brandishing if you expose your firearms with a threatening or aggressive manner.

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    Regular Member Neplusultra's Avatar
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    Chuckles wrote:
    It's only brandishing if you expose your firearms with a threatening or aggressive manner.
    So I would imagine if the motorcyclist who was being tailgated would not be guilty of brandishing if he opened his jacket to expose his gun while riding IF he had had no prior interaction with the tailgater. If he shook his fist at them or acted aggressively to try and get them to back off and then exposed the gun that would be different....

    I think it would just be better to have the gun out in the open in the first place. I mean who would tailgate this guy :^)?:



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    Founder's Club Member - Moderator ed's Avatar
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    sitedzn wrote:
    unzipping your jacket while riding to let the wind blow open your jacket to expose your sidearm while being tailgated.
    If your intent was to show the tailgater that you are carrying and that they better back off.. that would be brandishing.

    If you just ride while OCing then your problem is solved.


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    Regular Member VAopencarry's Avatar
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    sitedzn, What motorcycle board?
    "The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants." - Thomas Jefferson

  9. #9
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    ed wrote:
    sitedzn wrote:
    unzipping your jacket while riding to let the wind blow open your jacket to expose your sidearm while being tailgated.
    If your intent was to show the tailgater that you are carrying and that they better back off.. that would be brandishing.

    If you just ride while OCing then your problem is solved.
    Ed is correct. Changing from concealed carry to open carry in response to a tailgater could be classified as brandishing.

    Pulling to the side of the road then removing and stowing your jacket...or rearranging it as desired should not be classified as brandishing.

    IANAL

  10. #10
    Campaign Veteran skidmark's Avatar
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    Perhaps theultimate determiningcase law on brandishing remains Morris v. Commonwealth http://www.courts.state.va.us/opinio...wp/1032714.pdf.

    There's more at www.virginia1774.com , one of the best places to look for Virginia case law regarding firearms, Constitutional rights, and the like.

    Wish, hope, pray, opine all you want, as well as give out SWAGs and uninformed legal opinions like they were candy. It's only when you go to the sources, determine what's "good law" and what's not, that you stand a chance of keeping yourself out of jail. Sharing your source is always helpful so that others can check behind you to see if you are off base or not. (h/t to one of our upstanding law enforcement professionals for the reason to fact-check.)

    As for the OP's question - per Morris revealing your handgun to a tailgater is likely to get you both charged and convicted of brandishing. As for OC dinners, it's a completely different context and the mere carrying of a handgun in an "open carry" manner does not meet any of the elements of the petit crime of brandishing (that's my educated opinion and worth every cent you paid to get it).

    stay safe.

    skidmark
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  11. #11
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    VAopencarry wrote:
    sitedzn, What motorcycle board?
    http://www.hondashadow.net/forum/index.php

    There are a few guys on there that carry.

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    useful_idiot wrote:
    ed wrote:
    sitedzn wrote:
    unzipping your jacket while riding to let the wind blow open your jacket to expose your sidearm while being tailgated.
    If your intent was to show the tailgater that you are carrying and that they better back off.. that would be brandishing.

    If you just ride while OCing then your problem is solved.
    Ed is correct. Changing from concealed carry to open carry in response to a tailgater could be classified as brandishing.

    Pulling to the side of the road then removing and stowing your jacket...or rearranging it as desired should not be classified as brandishing.

    IANAL
    I would agree. And re-reading thru the thread, it seems to me hard to figure out how this other person was calling it brandishing. Reading the individual post (to me) makes the guy sound like an idiot. But in context of the entire thread, it could seem as if he's talking about the original idea (in response to intimidate).

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