Brandishing on my own property?

TFred said:

Yes, well known and oft-quoted case Morris v. Commonwealth.

Scroll down on that page to read summary and link to opinion.

TFred

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I'm afraid Mayhem is in the almost nonexistent small minority on this one too.
IMO, this is a much more important legislative issue than EMT's with guns because it's such an often abused statute.

Old Virginia Joe said:

That sounds good, using a holster, and I do have a very nice one, but life often happens outside the neat little boxes we expect, and being home, alone, after dark, in the house, I was not wearing the gun. I saw visitors, got nervous, and grabbed the pistol, and moved out. No time to don a holster and belt. That's why it went the way it did. Just clarifying . . . . .

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Why would you not be wearing your gun at home? Short of sleeping and being in the shower, my sidearm is on me from the time I wake up until I go to bed at night. I've heard too many stories of thugs kicking in doors as part of a home invasion or having somebody approach you as you are are getting in or, or out of your car as you get home so as to not have a sidearm readily available puts you at an instant disadvantage. I've been doing that for close to 10 years now, and not only do I not notice it anymore, I feel "off" if I don't feel the weight on my belt.

ChinChin said:

Why would you not be wearing your gun at home? Short of sleeping and being in the shower, my sidearm is on me from the time I wake up until I go to bed at night. I've heard too many stories of thugs kicking in doors as part of a home invasion or having somebody approach you as you are are getting in or, or out of your car as you get home so as to not have a sidearm readily available puts you at an instant disadvantage. I've been doing that for close to 10 years now, and not only do I not notice it anymore, I feel "off" if I don't feel the weight on my belt.

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yup & yup.

A few years back, a member here was arrested for "brandishing" on his own property. Don't know what the exact laws were at the time of which it happened, but if it happens to any one of us, it could happen to any other one(s) of us?


Edit, old thread, post 13: http://forum.opencarry.org/forums/s...e-mounted-holster&highlight=brandishing+house

But I don't know where he was coming from to his house?

ChinChin said:

Why would you not be wearing your gun at home? Short of sleeping and being in the shower, my sidearm is on me from the time I wake up until I go to bed at night. I've heard too many stories of thugs kicking in doors as part of a home invasion or having somebody approach you as you are are getting in or, or out of your car as you get home so as to not have a sidearm readily available puts you at an instant disadvantage. I've been doing that for close to 10 years now, and not only do I not notice it anymore, I feel "off" if I don't feel the weight on my belt.

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Well, yeah, I would kind of like to have that right, too, but as I have mentioned on another thread, as a veteran state employee who gets to work alot of ghetto neighborhoods, I am prohibited from carrying, in any fashion, so almost all my waking hours are spent defenseless. I wish someone would stand up for us who try to serve our fellow man each day, but I am not allowed to lobby. It seems a little late to strap one on when I get home, although I guess I could jump on it, but as my kids are running to greet me then, it would seem a little weird. Same as when I served in military uniform, I found out after I made the plunge that some of my rights as an American were denied me and my fellow soldiers. Each phase of my life, I have had to find out that my rights were less than the average hoodlum. Trust me, I spend alot of time trying to find a self employment opportunity, so I can do what I want, but so far, nothing I can go with.

peter nap said:

I'm afraid Mayhem is in the almost nonexistent small minority on this one too.
IMO, this is a much more important legislative issue than EMT's with guns because it's such an often abused statute.

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Don't be afraid....

I am not you or the others on here. I have my own mind and am free to believe what I wish. But thank you for taking the time to point out the obvious. Some others, including me, could probably not have figured it out without you bringing it to light. hahahahahaha

Old Virginia Joe said:

PT111 said:

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.

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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.

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Actually just some more hollywood dramatics either way. If you are going to face someone in the middle of the street for a high noon showdown would you really be wearing your duster with it pulled back to expose your gun only to have it flop back over hiding it when you go to draw. In reality we should use most of the movie stuff as what NOT to do rather than an example of what works. In today's world if you are standing there having a strong conversation with someone and pull your coat back to expose your gun I would consider it brandishing but I don't know that I would consider it illegal or a good idea.

My thoughts on brandish and assault...

The brandish code, like User mentioned, is so wide ranging. Point, hold... to induce fear. The way I look at a good defense is to see how far I would take it myself. Some of us might remember when Hunter45 went to the DMV in Fair Oaks and had a security officer pop the hood on his holster with hand on the grip while walking up. My thought is if I was in a similar situation, on either end as the victim or suspect, that could have been a brandish charge and possible conviction depending on representation. If someone relieves retention on a firearm and has established a grip, then they have committed about 50% to using that tool on their belt. However, if someone is approaching in a threatening manner (balled fists, bladed stance, or possibly swinging) and this person is much larger than myself and I seriously fear that this person is going to kill me, I am justified in removing the gun from deep cover and issuing verbal commands. But on the other end, if this guy was seven feet tall, three hundred pounds, and has formal training in martial arts or some sort of physical violence, he could just as easily report the event of being in fear of his life to the police and warrants could be sworn out against me. Brandish is a catch all charge that can be used when a weapon is involved in an altercation. Same as a disorderly conduct or drunk in public can be levied on a loud mouth or a generally belligerent drunk person. While it is not more than fifty to one hundred dollars fine plus court fees, it is an annoyance to go to court for the disorderly or DIP charges.

Assault is a similar catch all type of statute. The way I remember assault in Virginia is basically "swing and a miss." Of course it can be much more, but that is my memory key. So if I am at some social event and a cat squares up, takes a swing, but misses due to intoxication, he has committed an assault. Same thing would be true if he cocked his arm back with his hand in a fan shape or fist that would indicate he is about to strike myself or my misses, or someone else. The comparison is that brandish is almost a common law comparison to assault in Virginia. Assault is like a weaponless-brandish in essence. If we take the instance of the social event swing and a miss scenario, but instead placed a baseball bat in this suspect's hand, he could be hit with a variety of charges instead of two at the minimum from the original scenario. If he swings the bat but misses, brandishing and assault. Yet, if the bat is wielded with success and connects with a victim in the body, malicious wounding possibly, assault and battery, brandish, possibly disorderly conduct or DIP as a catch all. If the suspect connects in the head of a victim, it goes to aggravated malicious wounding if there is long term damage/suffering foreseeable. While all of these are possible charges, it all comes down to what happens in court. Commonwealth Attorneys might reduce charges in effort to get a conviction rather than going for the initial charge. Criminal history, interviews, officer and witness testimony would also play a large part.

In a scenario when protection of property is the primary focus... Like approaching your car that is being vandalized or having property being removed with the intent to deprive permanently. We cannot draw and hold this suspect by force because we have not been met with force. Best case scenario is to be a good witness and just let the police handle it. But to complicate the situation, maybe a firearm, weapon, or precious property is in the vehicle, meet the suspect with verbal commands. If the suspect wields a knife, in what he believes is for HIS defense, then lethal force is available. This person has just brandished a weapon and put you in fear for your life. Articulation is the key... Even if he only had a tire iron, if this suspect backs you into an entirely defensive position and you fear for your life, lethal force will be justifiable as long as it can be explained.

Ultimately charges versus what is actually convicted can differ greatly. Sometimes crimes are so heinous the book is thrown at the criminal. Conversely, sometimes a significant charge and a supplementary charge is placed on the criminal just to get it to the CA to see how far they are willing to go.

I am definitely not a lawyer, but this is my understanding of lethal force and when it can be applied. Sadly it is not always the cut and dried easy bad guy lost, good guy won. It has to go through the entire trip from a system of enforcement to the judicial system. I carry in hopes I never have to use it. But practice scenarios, role plays, and education is the best bet that if the situation ever arise, I am confident in my decision and can, in good conscious, defend my decision accurately and intelligently.

Aggravated Malicious Wounding http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-51.2
Malicious Wounding http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-51
A+B http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-57
Brandish http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+18.2-282

Excellent post Nightmare. Good job.

SouthernBoy said:

Excellent post Nightmare. Good job.

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I had a serious moment of clarity last night. It doesnt happen often, so I thought I would capitalize on it

Merry Christmas neighbor

@nightmare - I cannot disagree with anything you said in your post and you make some excellent points. I had not made the comparison between brandishing and assault before but as I understand them you are correct in the comparison. And as you say it is a very slippery slope that very much depends on surrounding circumstances and the states of mind of the two parties.

NightmareSHANIQUA said:

I had a serious moment of clarity last night. It doesnt happen often, so I thought I would capitalize on it

Merry Christmas neighbor

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Merry Christmas to you, your lady, and your family. May the New Year bring all of you prosperity and the blessings and joys of life.

SouthernBoy said:

Merry Christmas to you, your lady, and your family. May the New Year bring all of you prosperity and the blessings and joys of life.

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And to you as well sir! hope you get everything you wanted and more. Maybe one weekend we will do our usual meet up at McDonalds and catch up.

As for the subject at hand, PT1111, Thank you sir. Its one of those things where I think the best defense is thinking where I would go, or just the most extreme it could go. Same thing as going to the store and wondering which guy might try to turn the grocery store or mall into the next news worthy active shooter. I don't do it all the time, but it is something I do often. Keeps my mind sharp and also allows me to analyze what some people might be doing. Keeping an eye on hands, furtive movements, stuff like that.

PT111 said:

@nightmare - I cannot disagree with anything you said in your post and you make some excellent points. I had not made the comparison between brandishing and assault before but as I understand them you are correct in the comparison. And as you say it is a very slippery slope that very much depends on surrounding circumstances and the states of mind of the two parties.

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Yep, and I think NightMare will back me up on this. Let's say you exit your car and adjust your sidearm which also entails grasping the grip for a moment. Are you brandishing? Not hardly. If someone saw you do this and was alarmed, again I would say not hardly because your intent was not to instill fear in others around you.

Now you are in a store, waiting in a cashier line to pay for your purchase and there is a fellow who is arguing with the cashier and being very belligerent and aggressive. You ask him to cool it and he turns on you, telling you where you can put a certain part of your anatomy. You point to your sidearm and tell him to back off. Are you brandishing. I would say almost definitely. (I reserve the almost in the event the incident suddenly turns to much more than words).

Your demeanor and actions will say alot about how others perceive you, whether or not you are armed. The fact that you are armed just heightens the situation.

NightMare's post is one of the best I have seen on the topic that is not the product of an attorney. One would do quite well to remember his words. Oh and by the way, if I am wrong on any of the above, please jump in and correct me good people.

NightmareSHANIQUA said:

And to you as well sir! hope you get everything you wanted and more. Maybe one weekend we will do our usual meet up at McDonalds and catch up.

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Let's do it. I have some catching up to do with you.. some stuff to run by you. Any time is fine with me. Why not here sometime during the holidays?

SouthernBoy said:

.... a fellow who is arguing with the cashier and being very belligerent and aggressive. You ask him to cool it and he turns on you, telling you where you can put a certain part of your anatomy. You point to your sidearm and tell him to back off. Are you brandishing. I would say almost definitely. (I reserve the almost in the event the incident suddenly turns to much more than words).

Your demeanor and actions will say alot about how others perceive you, whether or not you are armed. The fact that you are armed just heightens the situation.....

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One thing I haven't seen mentioned is the difference between respect and fear. To be brandishing they should have to prove you intended to make the man fearful for his life, regardless of his actions. If he behaves like a lawful human being then no threat of harm would come to him, only if he crossed the line into unlawfulness.

If you showed the belligerent man your gun communicating to him that you have the means to back up your words with actions should the need arise, I don't think that is brandishing and simply is putting an offensive person in their place. An armed society is a polite society. If he is sane he will respect the ability of the gun to be used to put him in his place if he crosses a line. Just like when someone is intentionally coming toward you on a dark night and you shout back-off, would make them aware that their current actions were an affront to you and your words wouldn't be an assault on them.

Having a weapon and being prepared to use it defensively should never be interpretted to trying to put fear into someone.

I still think brandishing laws will always be widely interpreted and misused so I support getting rid of them totally.

45acpForMe said:

One thing I haven't seen mentioned is the difference between respect and fear. To be brandishing they should have to prove you intended to make the man fearful for his life, regardless of his actions. If he behaves like a lawful human being then no threat of harm would come to him, only if he crossed the line into unlawfulness.

If you showed the belligerent man your gun communicating to him that you have the means to back up your words with actions should the need arise, I don't think that is brandishing and simply is putting an offensive person in their place. An armed society is a polite society. If he is sane he will respect the ability of the gun to be used to put him in his place if he crosses a line. Just like when someone is intentionally coming toward you on a dark night and you shout back-off, would make them aware that their current actions were an affront to you and your words wouldn't be an assault on them.

Having a weapon and being prepared to use it defensively should never be interpretted to trying to put fear into someone.

I still think brandishing laws will always be widely interpreted and misused so I support getting rid of them totally.

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I agree. Brandishing is a broad and encompassing statute. However, I believe assault is one as well. Something as simple as a bladed stance could be considered an assault. Assault and Brandish... Might as well be called the common law catch all statutes. I think that those two are so broadly defined. By leaving it open to "fear of" statutes, anyone can say "I thought I was going to be hit/shot." However, in common society... And when I say common society, I mean Northern VA society, violence is a diiiiiirrrrrttttyyy word. No one uses violence... Until it is used on someone to enter a home, steal a purse, or rob a bank. Then the gun control activists start gnashing their teeth. Its such a vicious cycle we have gotten into.

SouthernBoy said:

Let's do it. I have some catching up to do with you.. some stuff to run by you. Any time is fine with me. Why not here sometime during the holidays?

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Im here for you buddy. Maybe Tuesday morning before I head back up to your old stomping grounds.

SouthernBoy said:

Yep, and I think NightMare will back me up on this. Let's say you exit your car and adjust your sidearm which also entails grasping the grip for a moment. Are you brandishing? Not hardly. If someone saw you do this and was alarmed, again I would say not hardly because your intent was not to instill fear in others around you.

Now you are in a store, waiting in a cashier line to pay for your purchase and there is a fellow who is arguing with the cashier and being very belligerent and aggressive. You ask him to cool it and he turns on you, telling you where you can put a certain part of your anatomy. You point to your sidearm and tell him to back off. Are you brandishing. I would say almost definitely. (I reserve the almost in the event the incident suddenly turns to much more than words).

Your demeanor and actions will say alot about how others perceive you, whether or not you are armed. The fact that you are armed just heightens the situation.

NightMare's post is one of the best I have seen on the topic that is not the product of an attorney. One would do quite well to remember his words. Oh and by the way, if I am wrong on any of the above, please jump in and correct me good people.

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To me you have given two very good examples of almost the same action but with two different definitions. I agree that the second one is brandishing although it may not fit the legal definition is some cases but the intent is the same. The perception of our actions by others means more than the actual actions in many cases.

Assault requires a calculated action (that is, intentionally) designed to create the "apprehension of an immediate battery" in the mind of another person. The word, "apprehension", does not mean alarm, fear, anxiety, merely that the person "apprehends", or grasps (the literal etymological translation) that he's about to be struck.

Although the brandishing statute(s) (there's a new one just for people with machetes) use the phrase, "induce fear", the Sup. Ct. has "interpreted" that language to mean "apprehend an immediate battery", and has basically created a brand new assault statute that does not depend on the acts or intent of the defendant, but on the perception of onlookers. Badly written statutes make it easy for the Court to do what it wants with the language regardless of the will of the people expressed by their legislature.