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What if someone lies?

R

Rusty

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Dec 7, 2009
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San Jose, California, USA
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What would happen, if while you were UOCing, someone claimed that you were brandishing?

This is a question of concern for me. If someone who was very anti-gun saw you UOC, they could quite easily lie to the police and say that you were brandishing. I don't think you would have much protection against even a false claim of this nature.

Has anyone heard of this type of thing happening before?

I doubt an audio recording that you make would even be of much help, if admissible at all.
 
D

dirtykoala

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Jan 27, 2009
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I think audio and a friend would be your best defense. Keep in mind also that if you were to yell at someone or get in a heated argument while uocing, it could still be considered brandishing, even if your gun never leaves the holster.
 
Y

yelohamr

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Sep 30, 2009
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Vista, California, USA
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False accusations is one of the reasons I turn on my video camera before I get out ofthe car and since it isn't time and date stamped, I announce the time, date and location.

One of the things I learned in LE is if you are confronted by someone that likes to scream and yell and create a scene and you know that no matter what you say isn't going to calm them down, just turn around and walk away. If they come after you and touch you in any way it's a whole new ballgame.
 
O

oc4ever

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Brandishing a firearm is a misdemeanor. That means a police officer can not arrest you for it unless it is committed in his presence. The person who claimed he saw you brandishing it would have to place you under citizen's arrest if the LEO was not present.. Most people don't want to do this because they can be sued for false arrest (rightly or wrongly).

If the gun remains in the holster, and you are not yelling and waiving it around creating a disturbance, or challenging to fight someone (like an idiot), you should have no problem with this law. I also suggest that your hand not touch the gun unless you intend to draw it and use it.


Here is a California Jury instruction lifted from another site to be specific:


Brandishing a firearm: (Penal Code section 417(a)(2)

(CALCRIM 983)

To prove that the defendant is guilty of this crime, the People must prove that:

1. The defendant drew or exhibited a firearm in the immediate presence of someone else;
2. The defendant did so in a rude, angry, or threatening manner;
OR
2. The defendant unlawfully used the firearm in a fight or quarrel;

AND
3. The defendant did not act (in self-defense/[or] in defense of someone else).]

Included in the instructions for this crime is CALCRIM 250 (Union of Act and Intent; General Criminal Intent)

Every crime charged in this case requires proof of the union, or joint operation, of act and wrongful intent.

In order to be guilty of the crime of [PC 417(a)(2)], a person must not only commit the prohibited act, but must do so intentionally or on purpose. The act required is explained in the instructions for each crime. However, it is not required that he or she intend to break the law.
 
Y

yelohamr

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Someone complaining about your gun: It happens

Getting in your face about your gun: Annoying

Getting them to admit (on video) they belong to CalGuns: Priceless
 
C

Chrisc411

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Sep 8, 2009
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Lemon Grove, Ca.
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yelohamr wrote:
Someone complaining about your gun: It happens

Getting in your face about your gun: Annoying

Getting them to admit (on video) they belong to CalGuns: Priceless
Click to expand...
lmao now that the stuff wheres my mastercard when i need it lol
 
B

Bill Carson

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Wipe your gun down clean before holstering it, holster it with gloves, no fingerprints on weapon= no brandishing.
 
Statesman

Statesman

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Lexington, Kentucky, USA
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Bill Carson wrote:
Wipe your gun down clean before holstering it, holster it with gloves, no fingerprints on weapon= no brandishing.
Click to expand...
Good luck finding fingerprints on a checkered frontstrap or wood diamond patterend handle (Kimber).
 
N

Nutczak

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Dec 2, 2008
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The Northwoods, lakeland area, Wisconsin, USA
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An anonymous tip does not meet probable cause, This is all covered in "Terry"

The way it is supposed to happen according to law and case law, is the officer is supposed to observe to see if they can get probable cause or reasonable articulate suspicion first before making contact with the subject in question.

Imagine one of your neighbors is mad at you, they decide to call the cops and say you are dealing drugs, this tip does not give them P-C to get a warrant, enter your home, or make an arrest until they witness evidence to corroborate the informants tip.

Does it happen that way? Only sometimes! It would be your word against the complainant with no evidence otherwise.
 
G

greg36ff

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Nov 21, 2009
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oc4ever wrote:
Brandishing a firearm is a misdemeanor. That means a police officer can not arrest you for it unless it is committed in his presence. The person who claimed he saw you brandishing it would have to place you under citizen's arrest if the LEO was not present.. Most people don't want to do this because they can be sued for false arrest (rightly or wrongly).

If the gun remains in the holster, and you are not yelling and waiving it around creating a disturbance, or challenging to fight someone (like an idiot), you should have no problem with this law. I also suggest that your hand not touch the gun unless you intend to draw it and use it.
Click to expand...


Please do not forget the second option. If the person did refuse to make a citizens arrest, the officer would still probably document the incident, if only to cover himself "The guy pointed a gun at me and the cops did nothing!!".

That report would then get forwarded to the detectives and possibly the DA.

The DA could then issue a notice to appear or an arrest warrant.

Ask Thesus about this. From whatI read, the on scene officers did not arrest him.

Ask Ben Cannon about false accusations.

As far as wiping it for prints, most parts of a gun that you touch when holding it, are not condusive to prints (wood grip, textured trigger, ect). I guess that a light thread tied around some part of the the gun and the holster could be helpful (along with good video and audio). If the thread is not broken, the gun could not have come out.

A bit on the paranoid side, but it would work.
 
C

Ca Patriot

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I think the only way to guard against a false accusation is to have a second person video taping you.

This is the America we live in.
 
Gundude

Gundude

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Sep 30, 2009
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Sandy Eggo County
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If someone calls 911 and says you are brandishing or threatening, and the video evidenceshows otherwise, they can be prosecuted for making a false police report, and their nose will grow.
 
C

CA_Libertarian

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Joined
Jul 18, 2007
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Location
Stanislaus County, California, USA
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Gundude wrote:
If someone calls 911 and says you are brandishing or threatening, and the video evidenceshows otherwise, they can be prosecuted for making a false police report, and their nose will grow.
Click to expand...
I'd even go as far as letting the person make the citizen's arrest before letting the officer know you have video to prove your innocence. Give the person enough rope to really hang themselves. They could go down for false arrest then too. Not to mention further civil liability.

But, I've never heard of this happening, and doubt it will any time soon. Still good to be prepared for when it does.
 
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