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Thread: Brandishing a ... finger?

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    Regular Member TFred's Avatar
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    Brandishing a ... finger?

    This article on the Free Lance-Star web page today mentions that a 16 year old was charged with brandishing, but does not explicitly say that the suspect was in possession of a gun.

    A commenter observed that one may be charged with brandishing even if they do not have a gun, and a quick read of the code shows that it says "any firearm [...] or any object similar in appearance", which would seem to support such a conclusion, if the person were holding their hand, "gun style" under a shirt or jacket.

    So my question is, does anyone know of any case where a person has actually been convicted of brandishing their finger?

    TFred

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    Regular Member CRF250rider1000's Avatar
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    That is funny but I could see how it would be true since some people are stupid enough to hold up a place doing said act. What my question is is what if I shoot that person in self defense because I believe that they did have a gun only to find out that I just shot an unarmed person?

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    Quote Originally Posted by CRF250rider1000 View Post
    That is funny but I could see how it would be true since some people are stupid enough to hold up a place doing said act. What my question is is what if I shoot that person in self defense because I believe that they did have a gun only to find out that I just shot an unarmed person?
    well, people have been convicted when they rob a bank by passing a note to the teller claiming to have a gun or bomb but actually don't.

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    Regular Member CRF250rider1000's Avatar
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    Quote Originally Posted by nova View Post
    well, people have been convicted when they rob a bank by passing a note to the teller claiming to have a gun or bomb but actually don't.
    What about a strictly self defense case though?

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    Quote Originally Posted by CRF250rider1000 View Post
    What about a strictly self defense case though?
    A gun isn't the only thing one can use to threaten one's well-being.

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    Regular Member CRF250rider1000's Avatar
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    Quote Originally Posted by nova View Post
    A gun isn't the only thing one can use to threaten one's well-being.
    True. I'm guessing that said person would probably say something to back up their actions as well. Just makes me wonder. hmm

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    Quote Originally Posted by CRF250rider1000 View Post
    True. I'm guessing that said person would probably say something to back up their actions as well. Just makes me wonder. hmm
    yeah there would have to be something besides someone randomly just making a "gun" with their fingers.

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    Regular Member TFred's Avatar
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    The common thread between both brandishing and justified self-defense seems to be that a reasonable person would be in fear. So as with all such cases, it would come down to the particular facts and the skill with which the respective attorneys presented those facts, to determine the outcome.

    IANAL, but it seems to me it would be entirely possible to be found justified in a shooting of someone who presented a finger in their jacket as a gun with the intent to threaten your life.

    TFred

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    After reading the title of this thread, I immediately thought of this


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    Regular Member CRF250rider1000's Avatar
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    Quote Originally Posted by hunter45 View Post
    After reading the title of this thread, I immediately thought of this

    haha that was such a good movie!

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    Regular Member paramedic70002's Avatar
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    I have gotten a conviction for brandishing when the object was a BB gun. Was working security and saw a guy flash it from under his shirt to a girl in a a car. Sucka nearly got ventilated. Idiot!
    "Each worker carried his sword strapped to his side." Nehemiah 4:18

    Guns Save Lives. Paramedics Save Lives. But...
    Paramedics With Guns Scare People!

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    Regular Member Walt_Kowalski's Avatar
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    Quote Originally Posted by hunter45 View Post
    After reading the title of this thread, I immediately thought of this

    hey.. thats me!

    har har har
    "The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good"
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    Well...if this is the case, it makes me feel a little better about one of the more stupid things I've done since I started OCing. This happened right after I first started OCing, and before I found OCDO and had a chance to learn from the good people here. I was in traffic waiting to go through the Mid-Town tunnel off of Brambleton, in Norfolk, heading home to Portsmouth. While I was in the section on the bridge with the double white lines (crossing the double white lines carries a $250 fine), a car tried to pull in front of me...and I didn't let the car in. The car got in behind me, right on my bumper, and I looked in the rear view mirror to see a young African-American woman pointing her finger at me, making the motion of a hammer falling, then blowing the tip of her finger...like she just shot me...to which I responded by pulling my Colt Combat Commander from its holster, holding it up by the grip about shoulder level (pointed at the roof, finger no where near the trigger, not even gripping tightly enough to disengage the grip safety) and nodding my head. All of a sudden I had at least a car length between her and I the rest of the way to the tunnel opening where traffic merges. Luckily nothing ever came of it. Yes it was stupid, I've never done anything like that since...and yes, I was guilty of brandishing...nice to know, so was she.

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    Regular Member TFred's Avatar
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    Quote Originally Posted by fully_armed_biker View Post
    Well...if this is the case, it makes me feel a little better about one of the more stupid things I've done since I started OCing. This happened right after I first started OCing, and before I found OCDO and had a chance to learn from the good people here. I was in traffic waiting to go through the Mid-Town tunnel off of Brambleton, in Norfolk, heading home to Portsmouth. While I was in the section on the bridge with the double white lines (crossing the double white lines carries a $250 fine), a car tried to pull in front of me...and I didn't let the car in. The car got in behind me, right on my bumper, and I looked in the rear view mirror to see a young African-American woman pointing her finger at me, making the motion of a hammer falling, then blowing the tip of her finger...like she just shot me...to which I responded by pulling my Colt Combat Commander from its holster, holding it up by the grip about shoulder level (pointed at the roof, finger no where near the trigger, not even gripping tightly enough to disengage the grip safety) and nodding my head. All of a sudden I had at least a car length between her and I the rest of the way to the tunnel opening where traffic merges. Luckily nothing ever came of it. Yes it was stupid, I've never done anything like that since...and yes, I was guilty of brandishing...nice to know, so was she.
    Yes, you were lucky!

    I don't think she was brandishing, if you knew immediately it was only her finger, and you had no reasonable fear. Although the newspaper article didn't go into the specifics of this case, I suspect the only way you could be brandishing with a finger would be from inside a pocket, etc, where your finger became "similar in appearance" to a firearm.

    IANAL, so who knows.

    TFred

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    It really wasn't until she blew at the tip of her finger that I realized it wasn't a gun, that it was her hand...and I was already in the motion of pulling my gun from its holster at that point.

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    Regular Member Ronsmag's Avatar
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    Quote Originally Posted by fully_armed_biker View Post
    Well...if this is the case, it makes me feel a little better about one of the more stupid things I've done since I started OCing. This happened right after I first started OCing, and before I found OCDO and had a chance to learn from the good people here. I was in traffic waiting to go through the Mid-Town tunnel off of Brambleton, in Norfolk, heading home to Portsmouth. While I was in the section on the bridge with the double white lines (crossing the double white lines carries a $250 fine), a car tried to pull in front of me...and I didn't let the car in. The car got in behind me, right on my bumper, and I looked in the rear view mirror to see a young African-American woman pointing her finger at me, making the motion of a hammer falling, then blowing the tip of her finger...like she just shot me...to which I responded by pulling my Colt Combat Commander from its holster, holding it up by the grip about shoulder level (pointed at the roof, finger no where near the trigger, not even gripping tightly enough to disengage the grip safety) and nodding my head. All of a sudden I had at least a car length between her and I the rest of the way to the tunnel opening where traffic merges. Luckily nothing ever came of it. Yes it was stupid, I've never done anything like that since...and yes, I was guilty of brandishing...nice to know, so was she.
    Yes, that was wrong but who on here hasn't want to do that one time or another

  17. #17
    kittyhawk63
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    Quote Originally Posted by nova View Post
    well, people have been convicted when they rob a bank by passing a note to the teller claiming to have a gun or bomb but actually don't.
    Not relevant to question. Saying something is not the same thing as brandishing.

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    1) The essence of the crime of brandishing is the intent to intimidate or coerce another person with the threat to use a weapon.

    2) Assault is the unprivileged [offer, threat, attempt] to offensively touch the person of another, without cause, justification or excuse. On the civil side, it requires that the person have "the apprehension of an immediate battery" ("apprehension" means understanding or belief, not fear); on the criminal side it requires the actual means to carry out the battery if the person being threatened is unaware of the threat (e.g., the .30-06 in the U.Tx. bell tower before the shooting started). Battery is the touching (regardless of the degree of damage inflicted) - assault does not involve a touch. Assault with a deadly weapon is like brandishing, but it requires the presence of an actual weapon and the ability to do real harm.

    3) The self defense rule has nothing to do with "fear" or any other emotional state - it doesn't matter whether you're afraid or perfectly calm and collected. It has to do with whether you have the reasonably held good faith belief, based on objective fact, that you or another innocent third party is faced with the threat of imminent serious bodily injury.

    Cops shoot people more often than you'd think because they suddenly pull out a pen or go into a pocket and pull out a cell phone or zippo. "I saw him suddenly produce a shiny object which he held in a threatening manner; I heard a sound like a round being chambered in a gun; I believed he had a gun and that I and my partner were in immediate danger. I fired and killed the suspect." -- justifiable homicide. Same rule applies to everyone, except that cops get a special dose of undeserved credibility with the court. (Credibility ought not have anything to do with one's status or job, especially if one is an agent of the State, in my opinion.)
    Last edited by user; 10-20-2010 at 05:41 PM.

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    Quote Originally Posted by kittyhawk63 View Post
    Not relevant to question. Saying something is not the same thing as brandishing.
    Ok then, people have been convicted of brandishing when they wern't in possession of an actual firearm. Within a year or two there was a ruling that upheld a conviction of a guy who used a replica gun to threaten someone.

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    Activist Member Wolf_shadow's Avatar
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    Quote Originally Posted by nova View Post
    Ok then, people have been convicted of brandishing when they wern't in possession of an actual firearm. Within a year or two there was a ruling that upheld a conviction of a guy who used a replica gun to threaten someone.
    A replica gun when used in the context of making a threat is still brandishing. It was used to instill fear. and the use of a replica like that against the wrong person could get you killed!

    If someone threatens me with a gun like object, I'm not stopping to ask if it's a toy, replica, etc.. I will take cover or move while I draw and fire as quick as I can.

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    I have a case currently in the works that I brought before the court which deals with this thread. It's more than a "finger point" but less than a real, working handgun (the brandishing charge by me was up'ed by the Commonwealth's Attorney to "using a firearm (or something similar in appearance) in the commission of a felony" which is 2 year mandatory minimum sentence in prison. I hate to be so generic, but I won't provide any further information because it's an active case and involves a lot more than what was hinted. I have gone back and forth in my mind about brandishing. I still can't come up with a certain "line to draw". For me, it depends on the circumstances.

    I have been told by the Commonwealth Attorney there is recent case law to say that brandishing does not need to be an actual firearm capable of shooting. He went further to state that there is a case being reviewed that may change case law, and should be decided in the next month or so. Sorry, I wish I would've asked which case it was.

    When it comes to someone using a "finger" to portray they have a firearm, I highly doubt you would get a brandishing charge. With that said, I think that someone using a finger as a firearm (tucked in the shirt, etc) is liable to be treated by someone who believes they have a firearm. Example, If you are walking down the street and someone uses their finger to "display" they have a gun and demand your money... you would be legally justified in shooting that person. In most instances, brandishing (a class 1 misdemeanor) isn't debated because more serious charges are pending in a situation. Usually, using a "finger" to display you have a weapon will involve more serious charges.

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    Quote Originally Posted by NovaCop10 View Post
    I have a case currently in the works that I brought before the court which deals with this thread. It's more than a "finger point" but less than a real, working handgun (the brandishing charge by me was up'ed by the Commonwealth's Attorney to "using a firearm (or something similar in appearance) in the commission of a felony" which is 2 year mandatory minimum sentence in prison. I hate to be so generic, but I won't provide any further information because it's an active case and involves a lot more than what was hinted. I have gone back and forth in my mind about brandishing. I still can't come up with a certain "line to draw". For me, it depends on the circumstances.

    I have been told by the Commonwealth Attorney there is recent case law to say that brandishing does not need to be an actual firearm capable of shooting. He went further to state that there is a case being reviewed that may change case law, and should be decided in the next month or so. Sorry, I wish I would've asked which case it was.

    When it comes to someone using a "finger" to portray they have a firearm, I highly doubt you would get a brandishing charge. With that said, I think that someone using a finger as a firearm (tucked in the shirt, etc) is liable to be treated by someone who believes they have a firearm. Example, If you are walking down the street and someone uses their finger to "display" they have a gun and demand your money... you would be legally justified in shooting that person. In most instances, brandishing (a class 1 misdemeanor) isn't debated because more serious charges are pending in a situation. Usually, using a "finger" to display you have a weapon will involve more serious charges.
    Keep in mind... "charged with" is a lot different than what someone is "convicted of".

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    Moderator / Administrator Grapeshot's Avatar
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    Using a "digital display" will never endear you to your audience and may get you more attention than you wish.
    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 jmb_nova's Avatar
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    So what if you point a finger at someone as IF to make like you have a weapon... but the whole time you were CCing... Would that have any impact if drama was made over the event?

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    Moderator / Administrator Grapeshot's Avatar
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    Quote Originally Posted by jmb_nova View Post
    So what if you point a finger at someone as IF to make like you have a weapon... but the whole time you were CCing... Would that have any impact if drama was made over the event?
    Good question - I think it could have, particularly if you later felt the need to draw your gun. No doubt if your perceived intent was to intimidate someone, it might come back to haunt you..

    Simple answer - I never joke about or make light of guns/carrying.
    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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