Brandishing

LMTD said:

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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No, not just you . :uhoh:

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.

cshoff said:

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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sohighlyunlikely said:

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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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.

heresyourdipstickjimmy said:

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.

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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:
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(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

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My guess is that your argument above would likely fall on deaf ears when you present it to a judge.

cshoff said:

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.

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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.

heresyourdipstickjimmy said:

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.

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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?