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.
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.
