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Thread: NM Law re: Brandishing?

  1. #1
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    Curious as to if any of you know the answer:

    Say you are CCing with a cover garment like a jacket or button up shirt...the wind blows your cover garment and your pistol is exposed...

    I've found no law on "brandishing" and OC is legal so any opinions???

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    Regular Member virginiatuck's Avatar
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    Here's my non-lawyer opinion for you: (This is not advice, just my opinions)

    The term "brandishing a firearm" typically implies that one is displaying it in a threatening manner. Although, definitions may vary from state to state and planet to planet. The M&W dictionary includes the term "ostentatious manner" as a second definition for brandish. As in, it would be ostentatious for you to stand on top of a street vent, knowing well that there is air blowing out of it, so that the wind would blow your [dress] and expose your once-concealed gun for all to see.

    Here in Virginia, which is a "gold star open carry state" just as New Mexico is, a concealed handgun being exposed by the wind as you describe; or even moving your body in such a way as to inadvertently expose the handgun; is not considered brandishing. And in Virginia there *are* separate laws against brandishing weapons ( § 18.2-282 and § 18.2-282.1). Those laws consider brandishing to be "reasonably induc[ing] fear in the mind of another." Another opinion is that just because someone is afraid doesn't mean that you reasonably induced the fear. I could be out walking my dog on a leash and pass someone who is irrationally afraid of all dogs; just because they see my dog they become afraid, run away, and call animal control about a man with a scary dog on the street. I certainly didn't use my dog in a threatening manner, the person wasn't attacked, and I wasn't breaking any laws. Therefore the fear that the person felt was not reasonable and could not be considered brandishing or assault.

    New Mexico may not have any laws using the word "brandish," although the assault law would cover brandishing a firearm:
    30-3-1. Assault.
    Assault consists of either:
    A. an attempt to commit a battery upon the person of another;
    B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or
    C. the use of insulting language toward another impugning his honor, delicacy or reputation.
    Whoever commits assault is guilty of a petty misdemeanor.



    If it is in fact lawful in New Mexico to carry a handgun in plain sight, then it is probably acceptable to accidentally expose a concealed handgun. It's probably also lawful to expose a concealed handgun by removing your shirt or jacket, as long as you are not doing so in order to threaten someone.

    The only thing that would make it unlawful, as far as I know, is a law specifically stating that an already concealed firearm must remain concealed at all times while in public.

    For some examples of the situation in other states: Texas prohibits open carry, but the penal code states that the failure to conceal the handgun must be intentional for it to be an offense:

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    See here for complete law.


    However, South Carolina's code, which also prohibits open carry, is worded such that even unintentional exposure of a handgun could be criminal:

    SECTION 16-23-20. Unlawful carrying of handgun; exceptions.
    It is unlawful for anyone to carry about the person any handgun, whether concealed or not, except as follows, unless otherwise specifically prohibited by law:

    <snip>
    (b) concealed on or about his person, and he has a valid concealed weapons permit pursuant to the provisions of Article 4, Chapter 31, Title 23;
    <snip>

    See here for complete law.





    To be more thorough, I will also suggest that you research New Mexico case law. Specifically, those cases dealing with firearms and/or assault.

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    Awesome reply. Thank you very much. PS- VA rocks, I have a VA non resident permit instead of a NM permit..

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    You will want to keep an eye on NM law here, this from the Dept of Public Safety FAQs:

    "Question: Is my out-of-state permit (i.e. Florida, Utah) valid in place of a NM concealed carry license when I move to/live in New Mexico?

    Answer: As of December 2008, the answer is “yes” (as long as it is from a state that NM recognizes). However, there may soon be legislation passed requiring NM residents who want to carry concealed to obtain a NM concealed carry license."

    For now, tho, you appear to be good...

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    Yea, I spoke with DPS and they said they'll update it if anything changes. I figured I'd just check after every legislative session..

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    Founder's Club Member ixtow's Avatar
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    virginiatuck wrote:
    Here's my non-lawyer opinion for you: (This is not advice, just my opinions)

    The term "brandishing a firearm" typically implies that one is displaying it in a threatening manner. Although, definitions may vary from state to state and planet to planet. The M&W dictionary includes the term "ostentatious manner" as a second definition for brandish. As in, it would be ostentatious for you to stand on top of a street vent, knowing well that there is air blowing out of it, so that the wind would blow your [dress] and expose your once-concealed gun for all to see.

    Here in Virginia, which is a "gold star open carry state" just as New Mexico is, a concealed handgun being exposed by the wind as you describe; or even moving your body in such a way as to inadvertently expose the handgun; is not considered brandishing. And in Virginia there *are* separate laws against brandishing weapons ( § 18.2-282 and § 18.2-282.1). Those laws consider brandishing to be "reasonably induc[ing] fear in the mind of another." Another opinion is that just because someone is afraid doesn't mean that you reasonably induced the fear. I could be out walking my dog on a leash and pass someone who is irrationally afraid of all dogs; just because they see my dog they become afraid, run away, and call animal control about a man with a scary dog on the street. I certainly didn't use my dog in a threatening manner, the person wasn't attacked, and I wasn't breaking any laws. Therefore the fear that the person felt was not reasonable and could not be considered brandishing or assault.

    New Mexico may not have any laws using the word "brandish," although the assault law would cover brandishing a firearm:
    30-3-1. Assault.
    Assault consists of either:
    A. an attempt to commit a battery upon the person of another;
    B. any unlawful act, threat or menacing conduct which causes another person to reasonably believe that he is in danger of receiving an immediate battery; or
    C. the use of insulting language toward another impugning his honor, delicacy or reputation.
    Whoever commits assault is guilty of a petty misdemeanor.



    If it is in fact lawful in New Mexico to carry a handgun in plain sight, then it is probably acceptable to accidentally expose a concealed handgun. It's probably also lawful to expose a concealed handgun by removing your shirt or jacket, as long as you are not doing so in order to threaten someone.

    The only thing that would make it unlawful, as far as I know, is a law specifically stating that an already concealed firearm must remain concealed at all times while in public.

    For some examples of the situation in other states: Texas prohibits open carry, but the penal code states that the failure to conceal the handgun must be intentional for it to be an offense:

    Sec.46.035.UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a)A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

    See here for complete law.

    However, South Carolina's code, which also prohibits open carry, is worded such that even unintentional exposure of a handgun could be criminal:

    SECTION 16-23-20. Unlawful carrying of handgun; exceptions.
    It is unlawful for anyone to carry about the person any handgun, whether concealed or not, except as follows, unless otherwise specifically prohibited by law:

    <snip>
    (b) concealed on or about his person, and he has a valid concealed weapons permit pursuant to the provisions of Article 4, Chapter 31, Title 23;
    <snip>

    See here for complete law.

    To be more thorough, I will also suggest that you research New Mexico case law. Specifically, those cases dealing with firearms and/or assault.
    In Florida, it is much more subjective. Statutorily, it is a Felony to Print or expose even by accident. But there are documented cases of unintentional exposure and printing in which a decent officer and/or judge opted not to prosecute or allow prosecution. You'll notice that the decision to prosecute/arrest or not, is tied directly to the political slant of the area in which the matter occurred. If it happened in a Democrat area, well, kiss you life and freedoms goodbye, you're going to jail for a very long time. In a Rural or Republican area, there usually isn't even an MWAG call, and if there is, the cops are generally not asswipes about it.... Unless that Rural Republican area is Polk, Hernando, or Citrus Counties. The cops in those counties (and others, these are just the most notorious) run the methamphetamine business, and lead the world in production of the substance. They'll kill you for looking at them funny, forget if you accidentally expose your gun.... The officer will tell the press "he had a gun," case closed, your body is dropped off, no questions asked. If someone asks too many questions, well, s/he will probably be fitted for a body bag, too.

    Unless you're in a safe area, or pals with the LEOs in the unsafe area, I'd honestly recommend not carrying and not having a Florid permit for them to look up. You're at more risk of being killed or becomming a missing person at the hands of LEOs than any criminal element. They seem to view the entire citizenry as a bunch of bodies they haven't had a chance to kill without witnesses yet. Why do you think there are so many missing people (not) here?
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  7. #7
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    Mark (IL) wrote:
    You will want to keep an eye on NM law here, this from the Dept of Public Safety FAQs:

    "Question: Is my out-of-state permit (i.e. Florida, Utah) valid in place of a NM concealed carry license when I move to/live in New Mexico?

    Answer: As of December 2008, the answer is “yes” (as long as it is from a state that NM recognizes). However, there may soon be legislation passed requiring NM residents who want to carry concealed to obtain a NM concealed carry license."

    For now, tho, you appear to be good...
    I have time to answer this now.

    There is a huge difference in introducing legislation, and passing legislation.

    I can tell you with some authority thatit is highly unlikely legislation to require NM residents to have a NM license will be passed, regardless of the note offered by NM DPS on the FAQ site.

    If NM DPS wishes to remove a state that is no longer in compliance with our established requirements for honors or reciprocity of another state, they can certainly do that.

    However, imposing a requirement on all NM residents to have a NM license to carry in their home state, and another license to enable them to carry in other states that do not recognize NM licenses, when NM recognizes a state that offers reciprocity with that other state that is recognized where that licensee needs to travel is simply not going to fly.

    For example, if I normally travel to LA, MS, GA and SC, regardless of where I live, if I decided that it was in my best interest to have an AZ license that's honored in NM, I should be able to do that and save myself the cost of training in NM, fingerprint cards, the cost to the state for the license and TODAY - be excluded from the unnecessary and onerous requirement to requalify my ability to handle my firearms listed on the license in front of a certified instructor every2 years - on a 4 year license. That translates to a 2 year license - regardless of what the legal BS says in the statute. I say TODAY becausethere is legislation currently filed in the Senate - SB212 - to remove that requirement. Senator Rod Adair has also introduced SB232 on Friday that does the same thing, but also extends the licensure period and reduces the renewal fees.

    I hope that answersthe question whether NM DPS can change that requirement any time soon.

    Steve Aikens

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