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Thread: Brandishing on my own property?

  1. #1
    Regular Member Old Virginia Joe's Avatar
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    Brandishing on my own property?

    Does anyone know if the standard to be considered brandishing is affected in my favor if I am on my own real estate (outside)? If so, does it matter if the real estate I own on which I am standing is my home, or just some other non-home property that I own? IOW, do I get the benefit of the doubt against a brandishing accusation or charge if I am at home, versus if I am somewhere other than my home property? Am I allowed more lattitude, in avoiding violating a brandishing definition at home? Thanks.
    VCDL, Army Vet, Virginia Native

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    Regular Member 2a4all's Avatar
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    Brandishing does not appear to be dependent on one's location or ownership of the property.

    18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
    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.
    B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
    C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
    A law-abiding citizen should be able to carry his personal protection firearm anywhere that an armed criminal might go.

    Member VCDL, NRA

  3. #3
    Founder's Club Member - Moderator ed's Avatar
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    Quote Originally Posted by 2a4all View Post
    Brandishing does not appear to be dependent on one's location or ownership of the property.
    Agreed.

    Kinda reminds me of this story: http://www.huffingtonpost.com/2009/1..._n_330037.html
    Carry On.

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    Regular Member Mayhem's Avatar
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    If what you say were true.. I could stand in my house and point my gun at people outside scaring them and not be punished so easily. ha-ha

    I do not know about you guys and gals... But I do not ever plan to point or display my pistol unless I am in a situation where I may need to actually shoot someone to defend life. If this were the case... my location would make no difference. I would be otherwise justified to display a firearm.
    Last edited by Mayhem; 12-19-2011 at 08:09 AM.

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    Campaign Veteran skidmark's Avatar
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    Presuming that you are not going to be using it in a defensive shooting, why would you have your gun out while you are outside?

    If you wanted to show it to someone you could walk back inside, or go in your garage if you owned one. (Sorry, carports do not count.)

    There has just got to be a good story behind your question.

    stay safe.
    "He'll regret it to his dying day....if ever he lives that long."----The Quiet Man

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    I don't see where brandishing would have any bearing on where you are at the time. Brandishing has nothing to do with property rights but rather your actions and threatening someone.

  7. #7
    Regular Member Marco's Avatar
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    "Brown bagging it " takes on awhole new meaning on your own property.
    If you think like a Statist, act like one, or back some, you've given up on freedom and have gone over to the dark side.
    The easiest ex. but probably the most difficult to grasp for gun owners is that fool permission slip so many of you have, especially if you show it off with pride. You should recognize it as an embarrassment, an infringement, a travesty and an affront to a free person.


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  8. #8
    Accomplished Advocate user's Avatar
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    This sentence from subsection "A" is the key, and if you read carefully, you'll find it doesn't really make sense. And if you read appellate opinions interpreting it, it makes even less sense:

    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.
    So, to parse that sentence, : "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.)

    So there are two clauses, separated by the conjunction, "or". So if you violate either of the two, that's a violation of the statute.

    The first prohibits "pointing, holding, or brandishing", while the second only prohibits "holding". So the first clause covers a much wider range of behavior than the latter.

    However, the latter only applies "in a public place". That's an important phrase, because there is a similar phrase that means something different. Consider the misdemeanor commonly called, "drunk in public": the phrase, "in public" means "in a place where one would be visible to members of the public if they happened to stroll by." On the other hand, "in a public place", means being physically located in a place that is generally open to the public (i.e., not your house, not the curtilage of your home, not in a friends house, etc.), such as a shopping mall or a public street.

    Also, clause one only requires that the observe be reasonably induced to experience fear, a very general statement. Any kind of fear, apparently, as long as it's reasonably related to the brandishing, such as the fear that the hat one's companion is wearing may be perforated. However, clause two requires that there be fear that the hypothetical observer will experience specific fear that he, himself (as opposed to his companion) will be "shot or injured".

    But since one violates the entire statute if he violates the first clause, why is the second clause there at all? No one knows. It's never used. The first clause is so broad and covers almost everything, the police, prosecutors, and courts routinely ignore the second clause. Why would anyone want to have to prove more facts than he has to in order to obtain a conviction?

    However, in the words of Senior District Judge J.R. Zepkin whom we all know from the Surry County Finger Brandishing Case, you have to "do something" with the gun in order for it to be a case of brandishing. However, it makes absolutely no difference at all as to clause one of subsection "A" where you "do" that something.

    Finally, you'd think that the adverbial phrase qualifying the "doing", "in such manner as to reasonably induce fear in the mind of another", would describe the behavior of the person charged with brandishing. "in such manner", would presumably make that pretty clear. But the Virginia Supreme Court has determined that the plain meaning of the phrase is to be ignored completely, and treats the adverbial phrase describing the prohibited behavior as a requirement that a specific person experience - wait - get this - not "fear", as it says in the statute, but "the apprehension of an immediate battery", as though the charge were one of assault.

    So the way the statute is being prosecuted, if fifty people observe you standing on your front porch holding your firearm in an "ostentatious or shameful display" (a dictionary definition relied upon by the Court to determine what "brandish" means) such that they might theoretically form the conclusion, without any fear at all, that their companions' hats might be hit by bullets, then you're guilty of fifty counts of brandishing a firearm.

    The statute makes no sense to begin with; it is internally inconsistent and very badly written; but given how it is written, the Courts have completely discarded the "plain meaning rule" of statutory construction and imported definitions and meanings not present in the statute, and completely ignored the grammar of the sentences, in order to make its effect much broader than the legislature intended. It is being used by prosecutors as a blunt weapon in an anti-gun crusade. And the first thing the cops do when they arrest someone for brandishing is confiscate "weapons".

    A guy was recently charged with brandishing in a Virginia municipality for defending his home against attackers actually engaged in the act of breaking and entering - a violation of the "daytime burglary" statute. He was using his own shotgun at the time. The town cops came and arrested him and his brother and took not only their firearms, an heirloom police nightstick that had belonged to the guy's grandfather, and pocket and fishing knives, but also broke into the separate residences of his room-mates within the house and stole their firearms as well. Every door was flattened and no receipt was provided to any of the persons whose firearms were taken. It didn't matter that the guy was defending himself and his brother in their own home, and the perpetrators of the attack appear to have been "confidential informants" and were not charged with any crimes.

    In my mind, this was a clear act of terrorism, as that crime is defined by the United States and Virginia Codes. They call it "brandishing a firearm".

    Sorry for derailing the original point of the thread. I hope I answered the question.
    Last edited by user; 12-20-2011 at 06:37 AM.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  9. #9
    Regular Member 45acpForMe's Avatar
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    Quote Originally Posted by Old Virginia Joe View Post
    Does anyone know if the standard to be considered brandishing is affected in my favor if I am on my own real estate (outside)? If so, does it matter if the real estate I own on which I am standing is my home, or just some other non-home property that I own? IOW, do I get the benefit of the doubt against a brandishing accusation or charge if I am at home, versus if I am somewhere other than my home property? Am I allowed more lattitude, in avoiding violating a brandishing definition at home? Thanks.
    " in such manner as to reasonably induce fear in the mind of another"

    We have gotten into discussions about such scenarios as someone breaking into your car and you walk out your front door with a shotgun. It could be seen as brandishing if you are pointing the gun at the robber since deadly force isn't allowed in defense of property. But if you walk out with the gun pointed in a safe direction it would be ok. You should be able to walk around your property with a properly holstered pistol or shotgun/rifle in a sling or pointed in a safe direction. I did read a thread a while ago where someone walking from their car to their house carried the pistol and some hopliphobe neighbor called the cops on him so be aware that you may still get harrassed.

    So basically you can never try to induce fear with any gun unless your are in direct danger of being attacked (or defense of another person). In that case the perp's fear should be more of the flying bullets than the gun, IMHO. :-)

  10. #10
    Accomplished Advocate user's Avatar
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    Makes perfect sense to me, but...

    The problem arises when you get charged with "brandishing" for merely "holding" the shotgun, while approaching the thief. The prosecutor will argue that the mere fact that you're armed and apparently willing to use the gun "induces fear". I'm telling you, we really need to just get rid of that statute. It's being used as a substitute for a charge of assault, but because it's so whacked-out both by being badly written and "interpreted", one can find himself convicted of "brandishing" even where there was no assault. I'm really serious about this, we have to get this statute repealed, entirely.
    Daniel L. Hawes - 540 347 2430 - HTTP://www.VirginiaLegalDefense.com

    By the way, nothing I say on this website as "user" should be taken as either advertising for attorney services or legal advice, merely personal opinion. Everyone having a question regarding the application of law to the facts of their situation should seek the advice of an attorney competent in the subject matter of the issues presented and licensed to practice in the relevant state.

  11. #11
    Regular Member 45acpForMe's Avatar
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    Quote Originally Posted by user View Post
    The problem arises when you get charged with "brandishing" for merely "holding" the shotgun, while approaching the thief. The prosecutor will argue that the mere fact that you're armed and apparently willing to use the gun "induces fear". I'm telling you, we really need to just get rid of that statute. It's being used as a substitute for a charge of assault, but because it's so whacked-out both by being badly written and "interpreted", one can find himself convicted of "brandishing" even where there was no assault. I'm really serious about this, we have to get this statute repealed, entirely.
    +1,000,000!!!

    Now how? I understand that there "can" be threats and intimidation but how can it be clearly written such that no innocent gun carrier gets abused. If it can simply be repealed great, if not re-written to an extent that we don't have to fear even hoplophobic idiots! Are there any other states that have a better statute we can use as a starting point?

    ETA: And can we put something special in it to protect Dad's from any brandishing charges from potential suitors for their daughters. :-) http://www.youtube.com/watch?v=XYgCLKIy-ME
    Last edited by 45acpForMe; 12-19-2011 at 01:43 PM.

  12. #12
    Regular Member mk4's Avatar
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    Quote Originally Posted by 45acpForMe View Post
    ETA: And can we put something special in it to protect Dad's from any brandishing charges from potential suitors for their daughters. :-)
    let's just make sure it's worded to cover uncles and potential suitors of their nieces! i've got six!

  13. #13
    Regular Member 45acpForMe's Avatar
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    Quote Originally Posted by mk4 View Post
    let's just make sure it's worded to cover uncles and potential suitors of their nieces! i've got six!
    Definitely I have two of those myself! Nothing like a Dad and Uncle double teaming a boy coming to see one of our girls. I would ask my brother to be cleaning one of my larger blades as I oiled up my shotgun though!

  14. #14
    Regular Member mk4's Avatar
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    Quote Originally Posted by 45acpForMe View Post
    Definitely I have two of those myself! Nothing like a Dad and Uncle double teaming a boy coming to see one of our girls. I would ask my brother to be cleaning one of my larger blades as I oiled up my shotgun though!
    my brother and two brothers-in-law have had some very interesting discussions. bwahahaha!

  15. #15
    Regular Member Old Virginia Joe's Avatar
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    Quote Originally Posted by skidmark View Post
    Presuming that you are not going to be using it in a defensive shooting, why would you have your gun out while you are outside?


    There has just got to be a good story behind your question.

    stay safe.
    I don't know if it qualifies as a "good story" or not, but since your shindig at Surry C.H. recently, I have assessed my own past actions, and tried to reflect on the details of a time I may have been accused of the "B" word. Here it was:
    As a former plant manager, I had to fire a particular man once. That night, after dark, his car rolled up my rural driveway, and several people got out. I determined it had something to do with the termination of the employee, and being alone and nervous as to what the intent was, got my .357 out and went to the side-rear porch where they were gathered. It was the former employee, with his wife and kids, to plead, as it turned out, for reinstatement. When I saw they were not to be violent, I laid my pistol on the porch table to my side, to avoid the potential threat it posed in my hand, but that is when he saw it for the first time. He reacted, and said "Aw, man, what did you need that for?" I responded that I did not know exactly what he had in mind when he arrived unannounced, after dark. It turned out OK (but he remained fired), but, did I violate the letter of the law in this case? I assume you will say legally I was wrong. If so, the world is completely upside down!

    I would say, for some idiots I have read about in stories on OCDO, me simply having the gun OC in a holster on the streets would qualify as inducing fear in the mind of another, right? Must this "another" meet the "reasonable person" standard? If so, what good is OC as a legal deterent? It is doomed! How far are we going to let this go, before the statute gets fixed, as User proposes? Are we thinking the tide is moving MORE in our favor as time goes on, and we have a better chance at public opinion and a favorable change as time proceeds? I doubt that. Did the Confederacy do itself any favors by waiting and pacifying for decades to fight the WBTS, until the North was so industrialized that it could not be beat? Do we ever learn from history? This should be our No. 1 issue in the GA!
    VCDL, Army Vet, Virginia Native

    Hey, Libtards, it's the "Bill of Rights," not the "Bill of Needs" . . . . .

    If the 2A does not apply to modern weapons, then the 1A does not apply to modern communications like the Internet! How do you like them apples!?

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    Regular Member 45acpForMe's Avatar
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    I could in no way see laying a pistol down as a threat or brandishing. The only way it could would be if the other person lied to police about your actions which is another area we have to worry about when it is their word against ours.

    That is why a voice recorder or some other means of gathering evidence to support our word helps.

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    The problem with any brandishing law is there is no real way to determine what it is and what is in the minds of the parties involved. In the old westerns you always saw one person would pull back their coat to expose their gun to show that they meant business. How is the other party suppose to take that action and what is really meant by that action. In most case it was clearly a case of brandishing even though the gun was never touched. In the case of walking out holding a shotgun to approach someone breaking into your car. It does not matter how you are holding the shotgun your intentions are very clear that you want the BG to know that you are armed. To me that would not be brandishing but how would a jury feel about it.

    You are out cutting your grass while OC. Some kids walk by and their basketball bounces in front of your lawnmower. You stop and one runs over to pick it up. You stop the mower and get off to say Hi to the kids but as you do they see your gun and start to run off screaming claiming that you threatened to shoot them. You did nothing wrong or illegal but how are you going to prove it and convince a jury of your intentions. Something to think about as you have 5 kids saying one exaggerated thing and you trying to claim your innocence.

  18. #18
    Accomplished Advocate peter nap's Avatar
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    Brandishing is probably the most abused gun related law on the books.

    Every major LEA in the state has had at least one case of an Officer abusing the statute and in some like Henrico, Hanover, Richmond, Chesterfield and in the old days, Va. Beach (who used to charge people who had guns in gun racks), it is/was, standard operating procedure when they couldn't think of anything else to charge someone with.

    The law needs changing and the conflicting Supreme Court decisions as shown by User in Skidmarks case, just make it harder to defend in court.

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    Regular Member 45acpForMe's Avatar
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    I support its repeal.

    Why should it be a crime to show a gun under any circumstances. It simply makes it clear that the person is armed. I would actually prefer a bad guy show me that he is armed before engaging. It removes any doubt of whether I will use deadly force. :-)

    Now I would support reckless endangerment for someone waving a gun around sweeping people with a muzzle.

  20. #20
    Regular Member Mayhem's Avatar
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    Quote Originally Posted by 45acpForMe View Post
    I support its repeal.

    Why should it be a crime to show a gun under any circumstances. It simply makes it clear that the person is armed. I would actually prefer a bad guy show me that he is armed before engaging. It removes any doubt of whether I will use deadly force. :-)

    Now I would support reckless endangerment for someone waving a gun around sweeping people with a muzzle.
    I hear ya!! If someone is armed.. I WANT to know! And if you are dumb enough to threaten someone else who happens to also be armed.... you deserve what you get.

    But should it be OK for someone to pull up his shirt and cause an unarmed family to fear they could be shot and killed by the gun tucked in his pants? It would be no different than someone making a fist and walking up to you making you think you would be hit you even if it it was not going to really happen. Just so they could enjoy watching you flinch and laugh at you.

    So I agree in part that there should be two charges... One to simply show it and make an implied threat. And another if you sweep people with the business end.

  21. #21
    Regular Member TFred's Avatar
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    Quote Originally Posted by 45acpForMe View Post
    I support its repeal.

    Why should it be a crime to show a gun under any circumstances. It simply makes it clear that the person is armed. I would actually prefer a bad guy show me that he is armed before engaging. It removes any doubt of whether I will use deadly force. :-)

    Now I would support reckless endangerment for someone waving a gun around sweeping people with a muzzle.
    I think the answer is that there are definitely times when one can display a gun in a criminal fashion. But the question that needs to be answered is what User posted earlier:

    Quote Originally Posted by user View Post
    The problem arises when you get charged with "brandishing" for merely "holding" the shotgun, while approaching the thief. The prosecutor will argue that the mere fact that you're armed and apparently willing to use the gun "induces fear". I'm telling you, we really need to just get rid of that statute. It's being used as a substitute for a charge of assault, but because it's so whacked-out both by being badly written and "interpreted", one can find himself convicted of "brandishing" even where there was no assault. I'm really serious about this, we have to get this statute repealed, entirely.
    This falls into a category of a law that is not needed, but was probably instigated by people who hate guns, and because nobody was able to convincingly sell the point to enough legislators that it was already against the law to commit assault, the bill became law. In that regard, it is by no means alone, there are many "gun crimes" that are not really crimes, or are already crimes without regard to the gun. We need to work to clean up all these types of laws.

    TFred

  22. #22
    Regular Member 45acpForMe's Avatar
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    Quote Originally Posted by Mayhem View Post
    I hear ya!! If someone is armed.. I WANT to know! And if you are dumb enough to threaten someone else who happens to also be armed.... you deserve what you get.

    But should it be OK for someone to pull up his shirt and cause an unarmed family to fear they could be shot and killed by the gun tucked in his pants? It would be no different than someone making a fist and walking up to you making you think you would be hit you even if it it was not going to really happen. Just so they could enjoy watching you flinch and laugh at you.

    So I agree in part that there should be two charges... One to simply show it and make an implied threat. And another if you sweep people with the business end.

    I disagree with the bolded statement. If someone implies a threat you should have the right to deal with it proactively rather than charge them with a crime. It would go a long way toward waking people up to their own responsibility to defend themselves. I say let people threaten all they want just make their threat a waiver to being sued if they get dealt to them what they threatened to others.

  23. #23
    Regular Member Old Virginia Joe's Avatar
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    OK, Skidmark asked me to tell my story. I did, and asked for your opinions. So far, no takers, in almost 24 hours. What, no opinions forthcoming on OCDO?! Must be the holidays . . . . . .
    VCDL, Army Vet, Virginia Native

    Hey, Libtards, it's the "Bill of Rights," not the "Bill of Needs" . . . . .

    If the 2A does not apply to modern weapons, then the 1A does not apply to modern communications like the Internet! How do you like them apples!?

  24. #24
    Regular Member Old Virginia Joe's Avatar
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    [QUOTE=PT111;1669731]The problem with any brandishing law is there is no real way to determine what it is and what is in the minds of the parties involved. In the old westerns you always saw one person would pull back his coat to expose their gun to show that they meant business. [QUOTE]

    I thought they pulled back the coat to get it out of the way, so the duster flaps did not slow them down in the draw.......not so much as a warning. By the time they pulled the coat back (Virginia Tuck?) they were past the point of choosing whether there would be gunsmoke issued or not.
    VCDL, Army Vet, Virginia Native

    Hey, Libtards, it's the "Bill of Rights," not the "Bill of Needs" . . . . .

    If the 2A does not apply to modern weapons, then the 1A does not apply to modern communications like the Internet! How do you like them apples!?

  25. #25
    Regular Member Mayhem's Avatar
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    Quote Originally Posted by 45acpForMe View Post
    I disagree with the bolded statement. If someone implies a threat you should have the right to deal with it proactively rather than charge them with a crime. It would go a long way toward waking people up to their own responsibility to defend themselves. I say let people threaten all they want just make their threat a waiver to being sued if they get dealt to them what they threatened to others.
    While I understand what you are saying and agree that people should be in a position to defend their own lives... What do we do with people who flash their gun to scare people knowing they are not going to do anything with it?

    Most people on the street are not armed. So someone can walk around all day scaring the crap out of people. How do you even justify shooting them? After all... it would not even be a crime and legal to do.

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