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Thread: Brandishing

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    Accomplished Advocate peter nap's Avatar
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    Since the internal memo from the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....

    I'd like to know if anyone has case law that would support it ?



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    Regular Member TFred's Avatar
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    peter nap wrote:
    Since the internal memo from the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....

    I'd like to know if anyone has case law that would support it ?
    I don't have a cite, but I remember reading a summary of one case where a conviction was upheld for brandishing when the guy just pulled back a shirt or jacket to reveal his previously concealed handgun.

    TFred


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    Regular Member wylde007's Avatar
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    Somebody got charged with brandishing for doing the VA tuck?!?! :X
    The quiet war has begun, with silent weapons
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    Accomplished Advocate peter nap's Avatar
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    wylde007 wrote:
    Somebody got charged with brandishing for doing the VA tuck?!?! :X
    If I remember that case correctly, he was in an altrication at the time and pulled the shirt to show he was armed.

    Saber rattling is the definition I recall from what little case law I've seen.

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    Lone Star Veteran DrMark's Avatar
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    peter nap wrote:
    ...the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....
    Sure! That's why every hunter carrying a rifle or shotgun out in the field gets charged with brandishing!

    Oh, wait a minute...



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    Regular Member TFred's Avatar
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    peter nap wrote:
    wylde007 wrote:
    Somebody got charged with brandishing for doing the VA tuck?!?! :X
    If I remember that case correctly, he was in an altrication at the time and pulled the shirt to show he was armed.

    Saber rattling is the definition I recall from what little case law I've seen.
    Yes, it was definitely something that happened well into an "incident", not just tucking as someone entered a restaurant.

    I guess the point I was trying to make is that since brandishing is to a large extent defined by the "victim", and their personal level of hoplophobia, it's not hard to imagine someone trying to claim that merely holding a gun in hand would qualify.

    Now whether that would hold up in court or not is another question, as I believe there are "reasonableness" factors that kick in.

    TFred

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    Accomplished Advocate peter nap's Avatar
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    DrMark wrote:
    peter nap wrote:
    ...the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....
    Sure! That's why every hunter carrying a rifle or shotgun out in the field gets charged with brandishing!

    Oh, wait a minute...

    That's silly. I always carry my rifle in a holster



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    Regular Member ProShooter's Avatar
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    I would love for them to show me where in " Va law" the 1/3 notion comes from.
    James Reynolds

    NRA Certified Firearms Instructor - Pistol, Shotgun, Home Firearms Safety, Refuse To Be A Victim
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    Accomplished Advocate peter nap's Avatar
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    81 E.g., Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983) (β€˜β€˜There are
    two elements of the offense: (1) pointing or brandishing a firearm, and (2) doing so
    in such a manner as to reasonably induce fear in the mind of a victim.’’). See Nantz
    v. State, 740 N.E.2d 1276, 1283 (Ind. App. 2001); State v. Tate, 377 N.E.2d 778 (1978).

    Sure don't see where carrying one would produce reasonable fear.

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    There are no 1/3 or "must be seen from three sides" laws, nor is it immediately brandishing by having a firearm in your hand.

    Concealed is "hidden from common observation" or "disguising the true nature of the firearm"

    and

    Brandishing is displaying a firearm (whether in a holster or in your hand) in a manner to cause fear of bodily harm to another person (with an exception for self defense).

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    I call BS on the "carrying a long gun is brandishing" statement.

    Does the law require you to use a sling?

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    Founder's Club Member - Moderator ed's Avatar
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    wylde007 wrote:
    Somebody got charged with brandishing for doing the VA tuck?!?! :X
    People get charged with carrying concealed when clearly OC too.. that should not surprise you. That's what lawyers are for.
    Carry On.

    Ed

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    Moderator / Administrator Grapeshot's Avatar
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    Glock27Bill wrote:
    I call BS on the "carrying a long gun is brandishing" statement.

    Does the law require you to use a sling?
    No.

    For NPS, their OJT commences 22 February 2010, 12:01 AM

    Expect that they will want us to grade on the curve.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    peter nap wrote:
    Since the internal memo from the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....

    I'd like to know if anyone has case law that would support it ?

    That's just confusing, and why I won't ever open carry. They made the explanations/requirements too ambiguous.

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    Regular Member TFred's Avatar
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    packingdressagerider wrote:
    peter nap wrote:
    Since the internal memo from the parks service says a firearm (rifle, shotgun or hadgun) carried in your hand is brandishing....

    I'd like to know if anyone has case law that would support it ?

    That's just confusing, and why I won't ever open carry. They made the explanations/requirements too ambiguous.
    Your premise is incorrect. They didn't "make" anything, except a terribly embarrassing mistake in their memo. They will learn, either the easy way or the hard way.

    TFred

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    Thanks for clearing that up, Tfred.

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    The essence of the crime of "brandishing" is not the weapon - it's the use of the weapon for the specific purpose of coercion or intimidation.


    A weapon carried in the hand, muzzle pointed in a safe direction, incidental to simply carrying it from one place to another, or for hunting, is not brandishing. A handgun in a holster on the hip displayed to another person in order to get him to do or not do something is brandishing.


    The NRA book that goes with the "Personal Protection Outside the Home" course contains a photograph of an older, well dressed, man, standing beside what appears to be his car, as he's being approached by "young toughs". He has his jacket swept back with his right hand uncovering his holster, and has his left hand in a "stop" gesture. That's brandishing a firearm in Virginia.

    Unless you're a cop with a responsibility for covering multiple felons to prevent escape, or serving a search warrant in a dangerous house at oh-dark-hundred a.m., you have no legal excuse for showing anyone a gun or making reference to a gun or touching a gun. When you are in a situation in which you or an innocent third party is faced with the imminent threat of serious bodily injury, such that you reasonably believe, based on objective fact, that deadly force is required, then pull the gun out and shoot to kill. In all other cases, make no reference to the gun at all.

    Your emotional state is not an issue. Whether or not you "fear for your life" is not an issue. Fear plays no part in the definition of defense of self or others. The reasonable, good faith belief, based on objective fact, that you or an innocent third party is faced with the threat of an imminent serious bodily injury is the whole definition. No emotional state you may have makes the slightest bit of difference. (I don't understand why, when police officers testify that they drew their guns and fired a shot, and always say they felt that they were in fear for their lives or the lives of other officers, the defense attorney doesn't get up on his hind legs and yell, "Objection!". I really just don't get it.)
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

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    Moderator / Administrator Grapeshot's Avatar
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    user wrote:
    snip.....
    The NRA book that goes with the "Personal Protection Outside the Home" course contains a photograph of an older, well dressed, man, standing beside what appears to be his car, as he's being approached by "young toughs". He has his jacket swept back with his right hand uncovering his holster, and has his left hand in a "stop" gesture. That's brandishing a firearm in Virginia.

    Unless you're a cop with a responsibility for covering multiple felons to prevent escape, or serving a search warrant in a dangerous house at oh-dark-hundred a.m., you have no legal excuse for showing anyone a gun or making reference to a gun or touching a gun. When you are in a situation in which you or an innocent third party is faced with the imminent threat of serious bodily injury, such that you reasonably believe, based on objective fact, that deadly force is required, then pull the gun out and shoot to kill. In all other cases, make no reference to the gun at all.
    As I understand what you are saying, there is no middle ground - no allowable action between nothing and shooting. How can this be fixed?

    Makes a strong argument for OCing.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Campaign Veteran skidmark's Avatar
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    A handy source for some of the case law on firearms can be accessed here:

    http://www.virginia1774.org/Page5.html

    Follow the pages to get your basic education. Not the be-all and end-all, but a decent place to begin learning.

    User: You wrote
    When you are in a situation in which you or an innocent third party is faced with the imminent threat of serious bodily injury, such that you reasonably believe, based on objective fact, that deadly force is required, then pull the gun out and shoot to kill.
    Would that have been a slip of the fingers, and what you were intending to say would have been along the lines of "shooting to stop the threat"?

    We all recognize that justifiable/excusable homicide is merely the affirmative defense to the killing of another human being, but is there not some legal import to taking the stance that one's intent was to stop the threat ofserious bodily injury or death and that the actual killing of the assailing party was merely a not altogether unexpected consequence?

    Else the old saw "If you need to pull it you need to shoot it" would be an absolute that does not take into consideration the possibility that the assailant could in a split second decide to call off his/her attack when faced with the possibility of lethal force. While anecdote is not the plural of data, there are more than enough reports of assailants working the OODA loop and ceasing during thev mythical 1.5 seconds it takes to draw after recognizing the imminent threat of serious bodily injury or death. Should the assailant pull up short, or veer off, during the 1.5 seconds you no longer are faced with imminent threat, but may not be able to stop your body's movements instantaneously. Shooting at the end of the draw stroke when the threat no longer exists would not be excusable nor justified.

    stay safe.

    skidmark
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    Regular Member 2a4all's Avatar
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    skidmark wrote:
    A handy source for some of the case law on firearms can be accessed here:

    http://www.virginia1774.org/Page5.html

    Follow the pages to get your basic education. Not the be-all and end-all, but a decent place to begin learning.

    User: You wrote
    When you are in a situation in which you or an innocent third party is faced with the imminent threat of serious bodily injury, such that you reasonably believe, based on objective fact, that deadly force is required, then pull the gun out and shoot to kill.
    Would that have been a slip of the fingers, and what you were intending to say would have been along the lines of "shooting to stop the threat"?

    We all recognize that justifiable/excusable homicide is merely the affirmative defense to the killing of another human being, but is there not some legal import to taking the stance that one's intent was to stop the threat ofserious bodily injury or death and that the actual killing of the assailing party was merely a not altogether unexpected consequence?

    Else the old saw "If you need to pull it you need to shoot it" would be an absolute that does not take into consideration the possibility that the assailant could in a split second decide to call off his/her attack when faced with the possibility of lethal force. While anecdote is not the plural of data, there are more than enough reports of assailants working the OODA loop and ceasing during thev mythical 1.5 seconds it takes to draw after recognizing the imminent threat of serious bodily injury or death. Should the assailant pull up short, or veer off, during the 1.5 seconds you no longer are faced with imminent threat, but may not be able to stop your body's movements instantaneously. Shooting at the end of the draw stroke when the threat no longer exists would not be excusable nor justified.

    stay safe.

    skidmark
    The commercial for Hardee's Home Baked Buscuits ("... just not in your home...")comes to mind
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

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    2a4all wrote:
    skidmark wrote:
    A handy source for some of the case law on firearms can be accessed
    The commercial for Hardee's Home Baked Buscuits ("... just not in your home...")comes to mind
    Hardee's biscuits, known locally as hockey pucks can be hard to swallow. Just like some of the opinions we read about.

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Regular Member Neplusultra's Avatar
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    Grapeshot wrote:
    2a4all wrote:
    skidmark wrote:
    A handy source for some of the case law on firearms can be accessed
    The commercial for Hardee's Home Baked Buscuits ("... just not in your home...")comes to mind
    Hardee's biscuits, known locally as hockey pucks can be hard to swallow. Just like some of the opinions we read about.

    Yata hey
    Dood, you're supposed to eat them while they're still warm and soft, not after they get old and crusty. Like some we know about.


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    We got off on this discussion by talking about brandishing. My point was that carrying a gun in the hands is not brandishing unless coupled with the intent to coerce, intimidate, or instill fear in, another person. But pulling out a gun, or even making reference to a gun, even one feels vaguely threatened, can be considered brandishing, even if the gun is not in the hand. If it is in the hand under those circumstances, it could be charged as attempted murder or assault with a deadly weapon (though that could be knocked down to simple assault at plea bargain time, depending on the court and prosecutor).

    skidmark wrote:
    ...
    User: You wrote
    When you are in a situation in which you or an innocent third party is faced with the imminent threat of serious bodily injury, such that you reasonably believe, based on objective fact, that deadly force is required, then pull the gun out and shoot to kill.
    Would that have been a slip of the fingers, and what you were intending to say would have been along the lines of "shooting to stop the threat"?
    ... Shooting at the end of the draw stroke when the threat no longer exists would not be excusable nor justified.
    ...
    No, that was not a slip of the fingers. When I've done my firearms law lectures, Jimmy Johnson, owner of VaPistol.com who's been sponsoring the events, always introduces me by telling the folks that what I say will shock them. This is why.

    However, I did fail to make two important points. First, one can always change his mind and put the gun away without shooting, if he should decide that he was wrong or that the threat has dematerialized. Second, that every word in that definition is really important, and it's a long-winded definition. You have to know it so well that you dream about it. "If you reasonably believe, based on objective fact, that you or an innocent third party is faced with the threat of an imminent serious bodily injury, then the use of deadly force is excusable."

    You have to be reasonable. It only needs to be a belief, not scientific fact, but it's got to be reasonable. Differential of potential force makes a difference in one's reasonable belief. That, alone doth not a good defense make, sinceeach of the elements of the defense has to be proved by testimony. (Hence the old aphorism, "Don't threaten a fat old geezer who isobviously in no shape to fight - he'll just kill you.")

    It has to be based on objective fact - other people watching the same events, would have seen the same things you did that led you to the reasonable belief. (That's why cops areusually exonerated because they mistakenly shot people who pulled out a shiny pen, cell phone, or cigarette lighter. It was an objective fact that the detainee pulled out a cell phone. Other people watching would have seen him pull out the cell phone. The cop had a reasonable belief, based on that objective fact, that the detainee had a dangerous weapon and that he or other officers were threatened thereby.)

    The belief has to be about a threat, not an emotional response ("Fear is not an option.")

    The threat must be imminent, right now, not five minutes from now, not five minutes ago. Imminent means immediate, like right now.

    The threat must involve serious bodily injury. Not necessarily a deadly threat, a baseball bat to the knees would probably result in a serious bodily injury.

    If you don't have all those conditions at the same time, don't even think about the gun. If you do have all those conditions at the same time, the threat is a human being, and yes, you have to stop the threat, but that means stopping that human being. You need to know this definition and what it means so well that you'll be able to apply it despite the adrenaline rush you will get in a real emergency. You have to be reasonable, even though your body is being as unreasonable as all-get-out.

    I don't like euphemisms and dancing around what's really going on. The purpose of a defensive gun is to kill people. Like a fire extinguisher, I hope, I really hope, verily I say unto you, I truly hope that I never have to use one. But when I do, I mean business. And if you're in court as a result of a shooting, you need an attorney who will not avoid the unpleasantness of your having shot someone by dancing around the eight hundred pound gorilla in the room, namely that you shot someone.

    Everyone in the room is going to know you used a gun to shoot someone, and everyone knows how horrible that is. No point in trying to pretty it up. Face it head on, and explain why you reasonably believed that it was absolutely necessary to do what you did, and why you did it. I want a client who can look at the jury and tell them the whole story and make them understand that any sane person who wants to livewould have done exactly the same thing in the same circumstances.

    And if you're in that situation, there's no getting around the fact that the gun is designed specifically to kill human beings. Everyone's going to understand that. The fact that you've lightened the trigger pull, honed the action, used hollow point bullets, and used night sights and a lasergrip, is not going to make the slightest bit of difference in the decision of whether you're guilty or not guilty. (It could be relevant to sentencing. But let's don't get to that point by doing things that could get us found guilty.)

    You'd best not shoot anyone if you don't mean to kill them. (Attempted murder is punishable to the same degree that murder is.) If you're not willing to kill another human being in a situationthat requires it, you'd best not have a gun, unless you justenjoy target practice. And you'd best not mean to kill anyone unless you "reasonably believe, based on objective fact, that you or an innocent third party is faced with the threat of an imminent serious bodily injury."

    Other than "stopping a serious felony" (rape, robbery, murder, burglary, and arson) defense of self/defense of others is the only reason to even think about pulling out a gun, unless you're a law enforcement officer. There may be a defense of excusable homicide where a non-LEO shoots a fleeing felon who represents a continuing danger to other people, that has been recognized where cops have done the shooting; but I wouldn't count on a favorable verdict in that situation. To my knowledge that defense has not resulted in any precedents where a non-LEO did the shooting, so it's an uncertain area of the law.

    For us non-LEO's it's a binary choice - unless you're faced with the "right now" kind of threat that requires deadly force, don't even think about touching the gun. It has to be a strictly defensive measure and only in circumstances that require it.

    It isn't always being fast, or even accurate that counts; it's being willing. I found out early that most men, regardless of cause or need, aren't willing; they blink an eye or draw a breath before they pull the trigger. I won't.
    - John Bernard Books played by John Wayne in "The Shootist".

    Note: the cases cited by 1774.org website are good information, but not necessarilyreliable as precedent - an "unpublished" opinion is not precedent.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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    Moderator / Administrator Grapeshot's Avatar
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    When is your next class?

    Yata hey
    You will not rise to the occasion; you will fall back on your level of training.” Archilochus, 650 BC

    Old and treacherous will beat young and skilled every time. Yata hey.

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    Thanks for asking, I don't have one lined up right now. I'm still working on logistics. I will be sure to announce it when I can do one. And I do mean to do it in Richmond, as well as other places around the Commonwealth.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

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