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Thread: State and local city Code on brandishing

  1. #1
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    State and local city Code on brandishing

    I noted that here in the city of Hampton that there is no excusable reason for brandishing according to the city code. Yet looking at Chesapeake and Virginia Beach and the State of Virginia Code it states the usual about brandishing but also includes "However, this section shall not apply to any person engaged in excusable or justifiable self-defense."

    Norfolk Portsmouth and Newport News don't even address brandishing. Should I assume that cities that don't address it will use state Code guidelines and the city of Hampton would be the only one that would not allow brandishing regardless of state code.

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    Under preemption, city/localities can not adopt any firearm laws. That is the purpose of State Preemption

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    Accomplished Advocate peter nap's Avatar
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    Even before preemption Localities had to follow state code unless given specific authorization by the General Assembly to do otherwise. Dillon Rule.

    Many local Ordinances stray from the State Code but are unenforceable.
    Last edited by peter nap; 09-22-2010 at 10:28 PM.

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    Regular Member TFred's Avatar
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    Interesting question. The preemption statute is explicitly restricted to these actions:

    the purchase, possession, transfer, ownership, carrying, storage or transporting of firearms, ammunition, or components or combination thereof

    "Carrying" is probably the closest, but IMHO, a good argument could be made that brandishing is not within the scope of this law.

    TFred

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    Campaign Veteran skidmark's Avatar
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    But under case law "brandishing" has been defined, described, and the "four corners" of the act writ large. An attorney worth his/her fee would do a Lexis/Nexus search for the relevant Virginia case law and demonstrate that the excusable/justifiable act of shooting in self defense was not "brandishing" and was further allowed/permitted discharge of a firearm within city limits.

    To go further with the OP's query - my reading of the law (I am a lawyer but not an attorney) is that brandishing is never a permitted act in Virginia. Further, Virginia does not seem to recognize "defensive display of a firearm" in any fashion. In other words, if you pull it you had better have met all of the criteria for self defense. If somewhere between pulling it and igniting the primer the BG stops their behavior that threatened imminent death or serious bodily harm it looks like you are supposed to put it away. Just how fast you do that may be a question that neither you nor I would want to answer.

    stay safe.

    Rdit to add: http://www.courts.state.va.us/opinio...wp/1032714.pdf - Virginia Supreme Court's say-so on brandishing.
    Last edited by skidmark; 09-23-2010 at 12:39 AM. Reason: add case law citation

  6. #6
    Regular Member TFred's Avatar
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    Quote Originally Posted by skidmark View Post
    But under case law "brandishing" has been defined, described, and the "four corners" of the act writ large. An attorney worth his/her fee would do a Lexis/Nexus search for the relevant Virginia case law and demonstrate that the excusable/justifiable act of shooting in self defense was not "brandishing" and was further allowed/permitted discharge of a firearm within city limits.

    To go further with the OP's query - my reading of the law (I am a lawyer but not an attorney) is that brandishing is never a permitted act in Virginia. Further, Virginia does not seem to recognize "defensive display of a firearm" in any fashion. In other words, if you pull it you had better have met all of the criteria for self defense. If somewhere between pulling it and igniting the primer the BG stops their behavior that threatened imminent death or serious bodily harm it looks like you are supposed to put it away. Just how fast you do that may be a question that neither you nor I would want to answer.

    stay safe.

    Rdit to add: http://www.courts.state.va.us/opinio...wp/1032714.pdf - Virginia Supreme Court's say-so on brandishing.
    I'm confused by your statement in bold above.

    In the statute, Paragraph A defines what brandishing is, then explicitly says, "However, this section shall not apply to any person engaged in excusable or justifiable self-defense." So, unless you are trying to twist the meaning to be that your action is not "called" brandishing if you are doing it in the act of self-defense, it seems clear to me that brandishing is allowed under those defined circumstances.

    What am I missing?

    TFred

  7. #7
    Campaign Veteran skidmark's Avatar
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    Quote Originally Posted by TFred View Post
    I'm confused by your statement in bold above.

    In the statute, Paragraph A defines what brandishing is, then explicitly says, "However, this section shall not apply to any person engaged in excusable or justifiable self-defense." So, unless you are trying to twist the meaning to be that your action is not "called" brandishing if you are doing it in the act of self-defense, it seems clear to me that brandishing is allowed under those defined circumstances.

    What am I missing?

    TFred
    Justifiable and excusable self defense are in fact justified or excusable homicide under Virginia law. There is nothing less than that which carries the label of justified or excusable. No justified or excusable wounding with intent to maim, which is what a shot to the arm or leg would be if not charged as attempted (some variant of homicide). Not justified or excusable aggravated assault, or assault & battery.

    Therefore, my claim.

    In reality, there might be a time when someone produces the gun but the imminent threat stops before the trigger is pulled and the bullet is propelled out the muzzle, and some cop charges the individual with brandishing. But I doubt it has happened yet. If it does happen, then there is the exemption to fall back on.

    Hope that clarifies things.

    stay safe.

    Edit to add: This is a good reason why it would be nice to see the Code of Virginia amended to allow for "defensive display of a deadly weapon". Anybody know a member of the GA that might carry a bill on that?
    Last edited by skidmark; 09-24-2010 at 07:19 PM. Reason: good idea

  8. #8
    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by skidmark View Post
    Anybody know a member of the GA that might carry a bill on that?
    I know several...if they weren't so sick of hearing about P4P, Hunting leases, VDOF and mandatory sanctions for illegal searches.....they hide when they see me coming.

    Maybe next year.

  9. #9
    Campaign Veteran skidmark's Avatar
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    Peter,

    You have mighty shoulders from carrying so much of the load for so long. But yours are not the only shoulders.

    stay safe.

  10. #10
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    For what it's worth, I held a guy at gunpoint in my yard for peeping tom at 1:00 am while I waited for the police to show up. When they did, all eight or so of them, none gave me any troubles for having drawn my gun and actually praised me for a job well done. This was in Newport News in 2005.

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