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Thread: Brandishing Question

  1. #1
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    Brandishing Question

    After reading the McDonald's post in this thread I had a quick question to something that ed wrote:

    I may have told the victim to get in the corner and stay behind me. I would verbally warn the others they should leave and if they came towards me I would drop them.

    This got me thinking to ask a question about brandishing:

    1. Is putting my hand around the grip while it's holstered and telling someone to back off (in a similar situation to the McDonald's beat down) considered brandishing?
    2. Is this considered a defensive tactic so you don't get in trouble for clearing leather?

    I know the Police Officer in Skidmark's case made a poor judgment on the brandishing charge saying his hand signaled to his gun and that's brandishing (which I don't believe for one second) - though he was still initially charged.

    Hope there's an answer, good or bad.
    Last edited by bh2win; 04-26-2011 at 01:36 PM.

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    Just whatever you do, don't point your finger at them.

    Seriously, a lot of it will boil down to who contacts the police first. If you report the assault and your actions first, the police are more likely to focus their attention on the attackers. If they run away and report you first, you're more likely to face problems.

    From what I have read, there isn't a clearly defined line for what will get you charged with brandishing or not. It's mostly left to the judgment of the officers at the scene, or the individuals who apply to a magistrate for a warrant after the fact.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by bh2win View Post
    After reading the McDonald's post in this thread I had a quick question:
    Is putting my hand around the grip while it's holstered and telling someone to back off (in a similar situation to the McDonald's beat down) considered brandishing?
    Yes.
    18.2-282. ...brandishing firearm...

    A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony
    Carry On.

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    Regular Member TFred's Avatar
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    The fact that is being overlooked is that there are two words, "brandishing".

    There is the verb, and there is the crime.

    The verb is not a crime for: "any person engaged in excusable or justifiable self-defense."

    18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

    Now of course, there is all kinds of baggage that comes along with the phrase, "excusable or justifiable self-defense", so that is why you would need to consult an attorney for the ultimate answer here.

    TFred
    Last edited by TFred; 04-26-2011 at 01:50 PM. Reason: Add last.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by TFred View Post
    The fact that is being overlooked is that there are two words, "brandishing".

    There is the verb, and there is the crime.

    The verb is not a crime for: "any person engaged in excusable or justifiable self-defense."

    18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

    Now of course, there is all kinds of baggage that comes along with the phrase, "excusable or justifiable self-defense", so that is why you would need to consult an attorney for the ultimate answer here.

    TFred
    Both you and Ed are correct. It's a very off shade and open to interpretation and often abuse by the police.

    My OPINION and that''s what it is, my opinion, and this is also how I was trained...If you put your hand on it as if to draw, the next step is to shoot him/her.

    Don't try to scare people into submission. It doesn't always work. If you're going to use the gun, use it...otherwise leave it alone.

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    Regular Member ProShooter's Avatar
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    The bigger problem that I see is not whether or not deadly force is appropriate, but rather the fact that the brandishing statute only excuses "self-defense". A more proper wording should read "self-defense, or the defense of another".

    Since deadly force can be used to defend yourself or the life of another innocent person, a crafty prosecutor could (IMHO) hang someone out to dry for brandishing while they are defending another. In my mind's eye, I would have no problem drawing my gun in defense of another who is clearly being beaten to death by multiple attackers.

    Its one of those statutes that needs cleaning up in my eyes. I've been meaning to bring that one to the attention of the VCDL to see if we can get it cleaned up a bit.
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    Quote Originally Posted by peter nap View Post
    Both you and Ed are correct. It's a very off shade and open to interpretation and often abuse by the police.

    My OPINION and that''s what it is, my opinion, and this is also how I was trained...If you put your hand on it as if to draw, the next step is to shoot him/her.

    Don't try to scare people into submission. It doesn't always work. If you're going to use the gun, use it...otherwise leave it alone.
    I would agree with this, with one caveat: The situation can change significantly while you are in the process of drawing. If the attacker backs down while you are drawing but before you can fire, then you shouldn't fire just because you drew your gun.

    As I understand it, you can be charged with brandishing for the mere act of making your firearm (more) visible or noticeable, even if you never touch it. (For example, opening your jacket to show that you are carrying concealed, or even the mere act of telling someone that you are armed.) Unfortunately, the charge of brandishing rests too much in the eye of the beholder.
    Alma 43:47 - "And again, the Lord has said that: Ye shall defend your families even unto bloodshed...."
    Self defense isn't just a good idea, it's a commandment.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by ProShooter View Post
    The bigger problem that I see is not whether or not deadly force is appropriate, but rather the fact that the brandishing statute only excuses "self-defense". A more proper wording should read "self-defense, or the defense of another".

    Since deadly force can be used to defend yourself or the life of another innocent person, a crafty prosecutor could (IMHO) hang someone out to dry for brandishing while they are defending another. In my mind's eye, I would have no problem drawing my gun in defense of another who is clearly being beaten to death by multiple attackers.

    Its one of those statutes that needs cleaning up in my eyes. I've been meaning to bring that one to the attention of the VCDL to see if we can get it cleaned up a bit.
    Just an FYI Jim...Brandishing and Skidmarks case is being followed by a Senator and a Delegate at OVN's request.
    Hopefully we can have some real change in this absurd law.

    This doesn't involve hoeing taters or flattening Dog Hunter tires and is out of OV's normal lobby efforts, so it would be nice if VCDL jumped on it.

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    Thanks for the answers guy's, the law I agree seems obscure and you're pretty much at the courts to interpret as the prosecutor's see fit.

    What can be done to help clean up this law? I'd like to help if possible so people do not get in trouble for using their fire arms to protect others under the law.

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    Accomplished Advocate peter nap's Avatar
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    Quote Originally Posted by bh2win View Post
    Thanks for the answers guy's, the law I agree seems obscure and you're pretty much at the courts to interpret as the prosecutor's see fit.

    What can be done to help clean up this law? I'd like to help if possible so people do not get in trouble for using their fire arms to protect others under the law.
    My opinion.....

    Until meaningful changes are proposed in the General Assembly, supporting Skidmark is the most helpful thing anyone can do. If law enforcement knows that they will be held liable both as a Department and as an Individual, they will be very careful about charging people wit bogus crimes just because they can.

    Encourage VCDL to take an interest in the case. So far they consider it more a Constitutional issue and not so much a gun matter.

    Talk to the candidates in your area about this and all the other concerns you have. Make your opinion known and don't be timid about it.

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    Regular Member riverrat10k's Avatar
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    After reading and re-reading this law, because of skidmark...

    ..the problem I see with it is that in one part it defines brandishing as, wait for it, brandishing!

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    Regular Member TFred's Avatar
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    Quote Originally Posted by riverrat10k View Post
    ..the problem I see with it is that in one part it defines brandishing as, wait for it, brandishing!
    Yes, see my post from earlier in the thread:

    Quote Originally Posted by TFred View Post
    The fact that is being overlooked is that there are two words, "brandishing".

    There is the verb, and there is the crime....
    The "crime" of brandishing includes the "verb" of brandishing and other actions as well. Does that make sense? Maybe, maybe not.

    TFred

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    Moderator / Administrator Grapeshot's Avatar
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    There is the distinct probability that Skidmark's case in Surry will institute more productive change/improvement in the "brandishing" law via the GA than we might have otherwise expected. This one thing could set the tone for certain fall elections too.

    Senators, delegates, the AG's office, commonwealth attorneys and LEAs are all following this case with more than a little interest. There is more at stake in this one than the interruption of a sightseeing trip.
    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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    Quote Originally Posted by ProShooter View Post
    Its one of those statutes that needs cleaning up in my eyes. I've been meaning to bring that one to the attention of the VCDL to see if we can get it cleaned up a bit.
    The code section needs to be re-written, or repealed. Making threats -- assault -- is already illegal.

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    Quote Originally Posted by TFred View Post
    Yes, see my post from earlier in the thread:


    The "crime" of brandishing includes the "verb" of brandishing and other actions as well. Does that make sense? Maybe, maybe not.

    TFred
    Many have noted that. For the purposes of this section, "brandishing" means brandishing. Circular, much?

    How about, void for vagueness?

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    I'm thinking that one might like to read the PDF file that Peter Nap posted in the thread about Skidmark's recent motions. There is an error, though - in paragraph 24, I kept saying, "Jackson", when I meant, "Morris". The judge picked up on that and translated appropriately, though he denied the motion to dismiss on the basis of the Morris case.

    I think Morris was decided incorrectly, because while Morris displayed a flare gun in a way intended to show that he meant business, he did not do so in a way that was designed to create a threat of an immediate attack. It was still tentative as long as the gun was stuck in his waistband and he hadn't pulled it out. Theoretically, were there any question about what "brandishing" meant (as there obviously was, otherwise, why bother to quote a dictionary definition), then the defendant is supposed to get the benefit of any ambiguity. The statute should have been construed most strictly against the state. Finally, the fact that the word occurs in a series with more specific terms means that "brandishing" should have been construed in a way that is specifically consistent with the other terms, and limited by those terms. So "point" and "hold" should control the meaning of the more general term, "brandish". To my knowledge, this last point has never been argued in any case appealed to the Ct. Apps. or the Sup. Ct., or in any published circuit court case in Virginia.

    However, Judge Zepkin indicated that the only basis for his having denied the motion to dismiss was his opinion that Morris is binding precedent. I'll be drafting another memorandum on the subject to attempt to influence the law to be applied at trial. That's sort of as a backup, since I think Skidmark will win just on the facts. There never was any brandishing, even under the Morris definition.
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    Santa says, "Don't do this in Surry."

    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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