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Thread: Brandishing

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    Regular Member afcarry's Avatar
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    Brandishing

    So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?
    An individual should not choose the caliber, cartridge, and bullet that will kill an an animal when everything is right; rather, he should choose ones that will kill the most efficiently when everything goes wrong

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    Regular Member sohighlyunlikely's Avatar
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    Soooo

    Would you be as so kind as to give me info on this specific "brandishing" law you are speaking of?

    Doc

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by sohighlyunlikely View Post
    Would you be as so kind as to give me info on this specific "brandishing" law you are speaking of?

    Doc
    The law the OP is referring to is 571.030.1(4):

    571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
    .
    .
    .
    (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or
    The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.

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    Regular Member sohighlyunlikely's Avatar
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    Quote Originally Posted by cshoff View Post
    The law the OP is referring to is 571.030.1(4):



    The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.
    I knew the one you quoted. Which is the law I suppose he is stretching to try to apply to his question, but as it is written it seems plain and simple in it's wording and would make his premise a little absurd.

    Doc

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by sohighlyunlikely View Post
    I knew the one you quoted. Which is the law I suppose he is stretching to try to apply to his question, but as it is written it seems plain and simple in it's wording and would make his premise a little absurd.

    Doc
    I suppose it would be quite possible for some anti-gunner to call in a person who is openly carrying a firearm and claim that "the person displayed it in a threatening manner", even if the person didn't. It would then become a "his word against mine" situation. That said, under RSMO 575.080.1, it is unlawful to make a false accusation of a crime against another person (a Class B misdemeanor). I can honestly say I've never heard of this happening in Missouri - not saying it hasn't happened, just saying I've never heard of it happening.
    Last edited by cshoff; 08-12-2010 at 11:35 PM.

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    Regular Member Big Boy's Avatar
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    People who make MWG calls are always going to throw around the word brandishing, simply because they don't know any better. However, once you encounter the LEO responding to the call, even if he is not a supporter of OC, he will see that you are not displaying your weapon in a threatening manner. You wouldn't get arrested for it, and even if you did, it obviously wouldn't stand in court.

    I think with OC we are in fact treading quite a ways away from the brandishing "line".

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    Somewhere back in the 1980's came the sexual harassment revolution and it resulted in a fairly dramatic change not only in our country but in the way many of our laws get interpreted. Some folks just call it the *&((^fication of America.

    The change was from the actual action one committed to how that action made another FEEL. Now before the typical bandwagon starts rolling, I am not speaking ill of victims, I am speaking directly to how it altered the way laws get interpreted.

    It actually got pretty stupid for a while and has yet to return to something one could call "normal" if there is such a thing. Suzi could drop the f-bomb five times a day, but if a man she did not like said it, she only had to say it offended her and made her feel degraded. Her own use of the word was not to be considered as she must not have been using it in an offensive manner and the man did. He failed to understand she would be offended and suddenly feel subhuman when he said the same thing she did.

    This new consideration to the victim began to spread and it started getting used. Victims rights became the political hot button of the season. It was no longer important what a person did, but how others chose to feel about it that drive the system. The prosecutors saw an opportunity, put the victim in front of the jury and they will look to punish anyone for the pain they saw without regard for guilt.

    This has by no means come full circle and is the basis for the MWG calls. Think about how many videos you see where the cop says "your making people nervous" "it bothers people" "your scaring the hell out of folks and they have a right not to be scared" because folks have bought the victim thing hook, line and sinker, even to the point it interferes with rights.

    This is why the "normalizing" behavior Doc and some others participate in actually is a positive and effective tool, it is also why some of those looking to turn the tables and make police into victims and get paid are bad for the cause. Cops are not to play judge and jury but some do and when they make a mistake, we are not supposed to play judge and jury but many do.

    Everyone is concerned with the "victim" instead of the behavior and its legality. I offer that laws are even written to "protect" the victim which is really the opposite of the intent of "innocent until proven guilty" as the system by design was to protect the accused to assure a violation indeed occurred before condemning the person.

    As long as the sheeple cry every time they see the sheep dog because they are scared of the wolf, others shall condemn the sheepdog for looking like the wolf.

    I am sorry if my bark has bothered anyone here, I know I have tossed around a lot of harsh words, but I have bitten no one and the reality is, you are not a victim, nor is the lady who freaked out over seeing your gun and called the cops, nor is the cop who came to question the report, we are ALL victims of what we have allowed to change within our social systems. It is time to stop whining and complaining about it and step up and change it back to what it was always supposed to be.

    I am not at all convinced a vast majority of the people in general or here on OCDO are ready for that at this point, it just does not appear that way at all.

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    Regular Member Big Boy's Avatar
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    Quote Originally Posted by LMTD View Post
    This is why the "normalizing" behavior Doc and some others participate in actually is a positive and effective tool, it is also why some of those looking to turn the tables and make police into victims and get paid are bad for the cause. .
    Where is the applaud .gif? That's my main goal of OC, and should be every one's in the end. Something normal. You're not out to get recognized or show off, just doing your daily routine. I'm never looking for a fight. I will politely educate them on the law, let them no I will no longer be shopping there, and then leave if they so wish.

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    Regular Member afcarry's Avatar
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    Very good. LMTD caught the point. No matter what you do walking through the mall, how you act in everyday life, what you say to your friends or strangers, what shirt you wear, who you are sitting with at a restaurant, no matter what your drinking at a bar, there is ALWAYS a chance that someone will misinterpret your actions. Now I am in the military and one thing is made painfully clear to us (in more words than the following, of course) from day one: The tears of the victim will say more than admissible evidence will ever be able to. With the way the legal system is being used to protect peoples feelings nowadays, there is virtually no way to be sure - other than to follow statutes and ordinances to the letter - that you are safe from harassment in carrying on a casual day to day basis. Im not saying we shouldn't, Im not saying I wont. On the contrary, I agree that we need to more in order to promote OC, but hopefully that illustrated my intentions with this post.
    An individual should not choose the caliber, cartridge, and bullet that will kill an an animal when everything is right; rather, he should choose ones that will kill the most efficiently when everything goes wrong

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    Quote Originally Posted by afcarry View Post
    So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?

    Crash course time. DO NOT use anything Wiki as a legal reference. Their definitions do not apply in court. You will need the legal definition within any particular State's statutes as they may differ from State to State.

    And yes, there's a fine line on the issue. How you act holds a little bearing on this type of situation. Any person can see your clearly holstered open carry (we know it's not a threat) and then claim that the mere presence of a firearm is threatening to them. However, they would lose their butt in court on the issue as I could say that their attempt to control my 2A rights is a direct threat to my safety and to the safety of those accompanying me....and I'd likely win such a rebuttal in court in a countersuit. Gotta love how the stretched world of the frivolous lawsuit works.

    So goes the conflict with private property in many States, specifically Missouri.

    So on this particular issue, stay holstered, stay professional, stay controlled, and above all else maintain control over your firearm. You cannot be determined a threat until that firearm comes out of a holster. That's not to say some dirtbag lawyer might not drag you into court and try to stretch it into that, but you can get clearly into the definition of the word "use" in that situation in that if it remains holstered it is not being used, nor is it brandished in any threatening manner.
    Last edited by heresyourdipstickjimmy; 08-17-2010 at 12:48 PM.

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    The definition that he gave seemed fair. I would say that the argument of a personís perception is fair also. But, there is a great word that Law Enforcement has to use to prove anything. The word is reasonable. To me that would mean many over few, as in perception of many vs. just one or two people. True that only a single person's peace has to be disturbed to in order to get some sort of disturbance charge, but that would not be an unlawful use or possession charge. It would be peace disturbance. I think that some crack-pot who just gets freaked out about guns would not have much to stand on if all they could say to the police is that, the 6ft 6in white male with a goatee, and sun glasses looks very intimidating. I would only assume that the police would just advise you that Ms. Betty Crocker was intimidated by you and that be it. I can't think of any real reason for arrest specifically regarding a firearm.

    I called a few LEO friends of mine when I first read this post. I asked them what they considered brandishing a weapon. They all agreed that it would have to be out in plain view, and not secured in some sort of holster, so that it is instantly useable.

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    State Researcher Bill Starks's Avatar
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    This is why you work with the various local LEO departments and get them to issue "Training Bulletins" on Open Carry. This training is also passed onto the 911 dispatchers so that they ask the right questions when a call comes in.

    Example - I was sitting on a park bench on the Tacoma waterfront when I was approached by a LEO. He said they received a call but after observing me for the last 10 minutes he saw that I was not doing anything illegal and wished me a good day. I requested the 911 tapes and you can hear the dispatcher asking the caller, "is he holding the weapon?, is he pointing it at anyone? what's he doing with the weapon?" The callers reply..."no, no, none of those things, its in that thingy on his hip." Dispatcher - ma'am, what he is doing is legal in Washington but we will send an officer out to investigate."

    For some samples look at the ones we have got here in Washington State:
    http://forum.nwcdl.org/index.php?action=downloads;cat=1

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by ALOTAGLOCK View Post
    <snip>.....I called a few LEO friends of mine when I first read this post. I asked them what they considered brandishing a weapon. They all agreed that it would have to be out in plain view, and not secured in some sort of holster, so that it is instantly useable.
    And even that definition isn't exactly in line with the way the State of Missouri defines brandishing:

    571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
    .
    .
    .
    (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or
    The mere presence of a firearm, even openly carried outside of a holster, doesn't, in and of itself, constitute "brandishing". It is the person's actions with the firearm that matter. Not the method of carry.

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    Quote Originally Posted by afcarry View Post
    So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?
    I think I am following your question but wonder what are you thinking. A quick presentation of two pulls and return to the holster? Why in the world are you pulling your gun out? The rest of your question seems to be that you are in fear of your life and pull your gun out. The last thing you worry about in this case is a brandishing charge.

    It sounds to me like you are worried about being charged with brandishing if you pull your gun to scare someone that you are afraind of. If this is your thought do us a favcor and sell your guns. You never pull your gun to scare someone, you only pull it to defend yourself and if need be pull the trigger. Never pull it with the thought of putting in back in or worry about brandishing.

    Now if you are talking about pulling your gun to show it off then you need to be sure that everyone around knows what you are doing and be careful. That is how negligent discharges happen and they aren't accidental.

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    I took the "two pulls" part to mean a double tap... you know, two pulls on the trigger... I could be wrong tho.

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    Quote Originally Posted by Cavvet2 View Post
    I took the "two pulls" part to mean a double tap... you know, two pulls on the trigger... I could be wrong tho.
    You may be correct but if you draw your weapon, shoot twice at someone and put it back in your holster I still say the brandishing is the least of your worries.

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    Quote Originally Posted by cshoff View Post
    The law the OP is referring to is 571.030.1(4):



    The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.
    We've seen a rash of this with LEOs in Missouri of late. LEOs operating on the he said/she said info and not actually investigating anything before they present deadly force upon a citizen. It's a relevant post, so let's see where it goes.

    If it's in a holster and stays there, there is no threat. No matter how mad a person gets, no matter how heated it gets (as long as it's not physical), if the firearm stays holstered it is not a threat. Remember, a firearm cannot be a threat without the involvement of a human action. The human is the threat and that's how it needs to be addressed.

    I'm still a firm believer that those who make the senseless "man with a gun" calls need to be promptly arrested and charged for making a false police report. It's a resource lost when officers respond to bogus calls like that and the agency should be allowed to recoup that loss.


    Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under cshoff's statute citation.)
    Last edited by heresyourdipstickjimmy; 08-18-2010 at 01:29 PM.

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    Regular Member cshoff's Avatar
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    Quote Originally Posted by heresyourdipstickjimmy View Post

    <snip>......Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under cshoff's statute citation.)
    Missouri doesn't have a definition specifically for the act of "brandishing". What Missouri uses is the language, "Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner". That, in a nutshell, is "brandishing", and it's unlawful.

    Open carry, whether in a holster or not, is NOT, in and of itself, brandishing. The act of "brandishing" can only take place as a result of a person's irrational behavior with the firearm.

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    Quote Originally Posted by heresyourdipstickjimmy View Post
    We've seen a rash of this with LEOs in Missouri of late. LEOs operating on the he said/she said info and not actually investigating anything before they present deadly force upon a citizen. It's a relevant post, so let's see where it goes.

    If it's in a holster and stays there, there is no threat. No matter how mad a person gets, no matter how heated it gets (as long as it's not physical), if the firearm stays holstered it is not a threat. Remember, a firearm cannot be a threat without the involvement of a human action. The human is the threat and that's how it needs to be addressed.

    I'm still a firm believer that those who make the senseless "man with a gun" calls need to be promptly arrested and charged for making a false police report. It's a resource lost when officers respond to bogus calls like that and the agency should be allowed to recoup that loss.


    Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under Cshoff statute citation.)
    People still call Native Americans by the term Indians. Misused terms are rampant in modern lingo. Brandishing is not a legal term and is their for moot for legal debate. It has a broad definition. It is most commonly referred to as a negative or aggressive manner in the media, like "The criminal brandished his 9mm and demanded the money". So I believe now a lot of people have a incomplete understanding of the word. Websters definitions:

    1 : to shake or wave (as a weapon) menacingly
    2 : to exhibit in an ostentatious or aggressive manner

    Doc

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    Ya mean I can't twirl my 1911 like Doc Holiday did the cup in Waytt Erp (Val Kilmer played Doc) and not be brandishing? I mean if I am smilin and such

    I have also HEARD that pretending to draw or putting your hand on your pistol acting like you were getting ready to draw can gain the brandishing charge.

    Most police officers (bad source at times) have indicated it makes the call for them as to muzzle direction more than anything. In the hand pointed at ground or safe direction ok, point it at a person or in unsafe manner, hook em up and haul em in, let the judge decide.


    Is it just me or has this place turned into a lot of legal debates instead of open carry promotion and discussion?

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    Quote Originally Posted by LMTD View Post

    Is it just me or has this place turned into a lot of legal debates instead of open carry promotion and discussion?
    No, not just you .

    You'd think this was a lawyer forum at times, and the fact is, everyone is just stating the way they feel the law is read. I wouldn't bet my life on anything that the intrawebz lawyers on here say, I know that.
    Last edited by Festus_Hagen; 08-19-2010 at 09:11 AM.

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    Quote Originally Posted by cshoff View Post
    Missouri doesn't have a definition specifically for the act of "brandishing". What Missouri uses is the language, "Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner". That, in a nutshell, is "brandishing", and it's unlawful.

    Open carry, whether in a holster or not, is NOT, in and of itself, brandishing. The act of "brandishing" can only take place as a result of a person's irrational behavior with the firearm.
    Quote Originally Posted by sohighlyunlikely View Post
    People still call Native Americans by the term Indians. Misused terms are rampant in modern lingo. Brandishing is not a legal term and is their for moot for legal debate. It has a broad definition. It is most commonly referred to as a negative or aggressive manner in the media, like "The criminal brandished his 9mm and demanded the money". So I believe now a lot of people have a incomplete understanding of the word. Websters definitions:

    1 : to shake or wave (as a weapon) menacingly
    2 : to exhibit in an ostentatious or aggressive manner

    Doc

    I'm in agreement with you both. The dictionary term is the way our local PD is supposed to address the issue and they've agreed that Missouri dropped the ball by the way it's worded as the term brandishing comes up, even with officers doing the reports, and it's not a term actually used with any clarity in the statutes. Which is why I wish instructors (not just CCW either) would learn to not use the word brandishing in their classrooms and use what's actually in their statutes as that's the reference students need to be directed to.

    Thankfully, many of us who exercise 2A often have web resources to find municipal codes and State statutes.

    It might be interesting if someone were charged for unlawful use of a weapon and when getting to court the officer used the word brandishing, then the defendant responds with it does not exist in Missouri Statute...I request my case be dismissed and my record be expunged for a false arrest and false prosecution under something that does not exist within the Statute. I have to wonder if the right attorney could ever make a case on this premise.
    Last edited by heresyourdipstickjimmy; 08-19-2010 at 11:08 AM.

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    Quote Originally Posted by heresyourdipstickjimmy View Post
    I'm in agreement with you both. The dictionary term is the way our local PD is supposed to address the issue and they've agreed that Missouri dropped the ball by the way it's worded as the term brandishing comes up, even with officers doing the reports, and it's not a term actually used with any clarity in the statutes. Which is why I wish instructors (not just CCW either) would learn to not use the word brandishing in their classrooms and use what's actually in their statutes as that's the reference students need to be directed to.

    Thankfully, many of us who exercise 2A often have web resources to find municipal codes and State statutes.

    It might be interesting if someone were charged for unlawful use of a weapon and when getting to court the officer used the word brandishing, then the defendant responds with it does not exist in Missouri Statute...I request my case be dismissed and my record be expunged for a false arrest and false prosecution under something that does not exist within the Statute. I have to wonder if the right attorney could ever make a case on this premise.
    Except the word "brandished" IS used in our statutes and it is implied that the act is a "criminal offense" by those statutes. Check out subdivisions, 1,2,3,4,5,7,8,10,12,13,14,15,16, and 17 of RSMO 571.107 and you will see that all of them use the language. "Possession of a firearm in a vehicle on the premises of [insert place defined in the statute(s) here] shall not be a criminal offense so long as the firearm is not removed from the vehicle or brandished while the vehicle is on the premises;"

    That leads us right back to RSMO 571.030.1 (4), which plainly states that:

    571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
    .
    .
    .
    (4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or
    My guess is that your argument above would likely fall on deaf ears when you present it to a judge.

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    Quote Originally Posted by cshoff View Post
    Except the word "brandished" IS used in our statutes and it is implied that the act is a "criminal offense" by those statutes. Check out subdivisions, 1,2,3,4,5,7,8,10,12,13,14,15,16, and 17 of RSMO 571.107 and you will see that all of them use the language. "Possession of a firearm in a vehicle on the premises of [insert place defined in the statute(s) here] shall not be a criminal offense so long as the firearm is not removed from the vehicle or brandished while the vehicle is on the premises;"

    That leads us right back to RSMO 571.030.1 (4), which plainly states that:



    My guess is that your argument above would likely fall on deaf ears when you present it to a judge.
    I agree. Quite foolish to include something there is no statute definition for within the laws. Where such an argument could be made is this: implied = color of law. Color of law = unlawful and unenforcible. But again, it would likely fall upon deaf ears.
    Last edited by heresyourdipstickjimmy; 08-28-2010 at 01:35 AM.

  25. #25
    Regular Member cshoff's Avatar
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    Quote Originally Posted by heresyourdipstickjimmy View Post
    I agree. Quite foolish to include something there is no statute definition for within the laws. Where such an argument could be made is this: implied = color of law. Color of law = unlawful and unenforcible. But again, it would likely fall upon deaf ears.
    Not really. "Brandishing" clearly is the act of exhibiting, "in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner". Just because the word "brandishing" is not given it's own spot in the definitions section of the statutes, doesn't make the word any less valid. The words "angry" and "threatening" are also not defined by statute, but do you think that would make any difference in a court of law?

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