• We are now running on a new, and hopefully much-improved, server. In addition we are also on new forum software. Any move entails a lot of technical details and I suspect we will encounter a few issues as the new server goes live. Please be patient with us. It will be worth it! :) Please help by posting all issues here.
  • The forum will be down for about an hour this weekend for maintenance. I apologize for the inconvenience.
  • If you are having trouble seeing the forum then you may need to clear your browser's DNS cache. Click here for instructions on how to do that
  • Please review the Forum Rules frequently as we are constantly trying to improve the forum for our members and visitors.

Brandishing

peter nap

Accomplished Advocate
Joined
Oct 16, 2007
Messages
13,551
Location
Valhalla
imported post

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 ?

page4.jpg
 

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
imported post

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
 

peter nap

Accomplished Advocate
Joined
Oct 16, 2007
Messages
13,551
Location
Valhalla
imported post

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.
 

DrMark

Lone Star Veteran
Joined
Jan 13, 2007
Messages
1,559
Location
Hampton Roads, Virginia, USA
imported post

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...

:uhoh:
 

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
imported post

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
 

peter nap

Accomplished Advocate
Joined
Oct 16, 2007
Messages
13,551
Location
Valhalla
imported post

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...

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

peter nap

Accomplished Advocate
Joined
Oct 16, 2007
Messages
13,551
Location
Valhalla
imported post

81 E.g., Kelsoe v. Commonwealth, 226 Va. 197, 308 S.E.2d 104 (1983) (‘‘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.
 

nova

Regular Member
Joined
Aug 19, 2007
Messages
3,149
Location
US
imported post

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).
 

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
imported post

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
 

packingdressagerider

Regular Member
Joined
Mar 15, 2007
Messages
300
Location
Some where in Rockbridge County, Virginia, USA
imported post

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 ?

page4.jpg
That's just confusing, and why I won't ever open carry. They made the explanations/requirements too ambiguous.
 

TFred

Regular Member
Joined
Oct 13, 2008
Messages
7,750
Location
Most historic town in, Virginia, USA
imported post

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
 

user

Accomplished Advocate
Joined
Feb 12, 2009
Messages
2,516
Location
Northern Piedmont
imported post

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.)
 

Grapeshot

Legendary Warrior
Joined
May 21, 2006
Messages
35,317
Location
Valhalla
imported post

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
 

skidmark

Campaign Veteran
Joined
Jan 15, 2007
Messages
10,444
Location
Valhalla
imported post

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
 

2a4all

Regular Member
Joined
Jul 1, 2008
Messages
1,846
Location
Newport News, Virginia, USA
imported post

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
 
Top