Brandishing on my own property?

Trespassor in the burbs on Christmas Eve

Back to the original story from the OP.

I had a similar thing happen this weekend which is really unusual since I was at the Burb House.

I was waiting for the kids to come over for Christmas Eve dinner when someone knocked on the door. That was strange. The kids just walk in, to get to my front door you have to go through two gates after walking through an acre of farm equipment I move back and forth from the farm...kinda messy most of the time. There are posted signs and I am well known for my pineapple with a circle slash (Colonial Unwelcome Symbol), and a Great Dane who chases people for fun.

I have some woods because I built there 30 years before city people came in and started putting miserable little half acre lots in.

Anyway, there stood a man with an absolutely spotless and new hunting vest. He introduced himself as a neighbor (hell I don't know my neighbors and don't want to) and he said he had shot a Deer with his crossbow in HIS back yard (one of the half acre people) and it had run into my woods. He just wanted to let me know he was there because he knew I didn't like trespassers.

Well....there were a couple of things wrong with that. First, it's illegal to shoot a cossbow there since the Burbites took over, second, telling me he was there didn't change the fact that I didn't like trespassers and last, he was too damn neat and clean to be a hunter...(I think the idiot really did shoot a Deer though. I found a blood trail)

Anyway, I stuck a little 444 Derringer in my jacket pocket and took him back in the woods and explained that if there was a Deer there, he needed to drag it the hell out of there NOW and if there wasn't one, he better get his ass out NOW. He seemed to understand.

I did find a blood trail, it jumped my creek into another old piece that was fairly large (8 acres), then into a subdivision. I told him to find it and hope none of the soccer moms called the cops.

He left and hopefully understands that NO TRESPASSING is not French for welcome, and I had him covered the whole time and he never knew it.

PT111 said:

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.

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Thanks. Just for the record and a reality bite, I avoid verbal/symbolic confrontations with others when going armed. The law is not going to look kindly upon me or anyone else who challenges someone for just being a jerk or flipping someone off in traffic because they cut you off. Best to quell one's steaming head and let it pass when there is a piece on your person.

SouthernBoy said:

Thanks. Just for the record and a reality bite, I avoid verbal/symbolic confrontations with others when going armed. The law is not going to look kindly upon me or anyone else who challenges someone for just being a jerk or flipping someone off in traffic because they cut you off. Best to quell one's steaming head and let it pass when there is a piece on your person.

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I was going to point this out last night I think when I saw this bit. Its one thing to get wound up in an event and coincidentally being armed. However, as User says, the brandishing would be a perception of the public around the event. In most cases, because of NoVA being what it is, the first thing someone is going to notice/say is that one party is armed. Sadly, the firearm will play no part in this show, it will be some huge sticking point because most of the sheeple will consider it to be some sort of unfair equalizer.

I like your style neighbor. Whats the point in getting all steamed over a dumb person doing a dumb thing and pulling you into their dumb cycle of life?

user said:

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.

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This incident occurred in Radford and the two individuals happen to be my roommates. There was a get together at our house and afterwards there was an argument that escalated to a fight inside the house, it was my two roommates against 4 to 5 other people. My roommates managed to lock themselves in the house with the attackers outside but the attackers broke out one of our house windows and car windows and started trying to climb into the house. At that point my roommates got their firearms, a 12 gauge and a 9mm, and showed them from an upstairs window as they told the attackers to leave.

The police were called and came to our house and kicked down our door without even a knock, then preceded to kick down every bedroom door (except mine which was not locked) and arrested my roommates.

I was not home at the time but I was contacted in the middle of the night to be informed that the police were going to conduct a search warrant at my house. The warrant was "requested for offense of felony brandishing a weapon within 1000 feet of a school" and was for "any shotgun, rifle, or other long weapons, even though they were only charged with misdemeanor brandishing.

The police took both of my roommates firearms, and all 3 of mine although I was not home at the time. I was unable to hunt this season because of the confiscation of my hunting muzzle loader and they gave me no info as to how to go about getting it back. The police even had the nerve to call and wake me up again at 5 in the morning because they left one of the "confiscated" shotguns in the house and had to come back and get it.

So all in all, although the fight that took place between the parties was 4 or 5 strangers vs the 2 residents of our house, my roommates were arrested for brandishing a firearm at their own place of residence while none of the attackers were charged with anything and were allowed to leave.

Even though my roommates blood all over the floor from his injuries and we had our house windows knocked out by the attackers attempting to enter the home and even though the attackers knocked out some of our car windows, it was my roommates arrested for "brandishing in their own home".

By the way they are still going through the court process and are brothers which is putting much financial strain on the family. Not to mention one has already been kicked out of school for the charges, and one could risk being discharged from the marines because of the charges.

-Sorry for being some what off topic but I felt I should share this.

Welcome to the board Zach!

While researching the latest Tech Shooting, I ran across this case and it's interesting. The police reports that have been released are sketchy, but it looks like what you just said (Some of which I was unaware of) is pretty much correct.

I don't understand the Police response. There was some drinking involved and you're roommate did have a couple of minor alcohol related skirmishes with the ABC laws, but nothing to justify how this was handled. In fact the only history I saw was basically "Boys will be Boys" stuff.

There doesn't seem to be much argument that your roommate was attacked and tried to lock them out. If memory serves me (I don't have my notes handy) they tried to call the police for help and terminated the call when the fellows tried to break in.

I think you have some grievances with the Police since your room probably is a separate residence. I'm not savvy enough to say that for sure though. Maybe User will jump in on that.

I have this one on my watch list.

Thanks for the Welcome!

But yes the initial fight started inside the house near the end of a party. It started out as boys will be boys, as the initial argument was over the stranger talking to my roommates girlfriend, and that argument became physical. The person and his friends were asked to leave the house but remained to hang out in the driveway in the back of the house. My roommate came out and told him to leave but at that point the person rushed him and took him to the ground and began to ground and pound him while my roommate could not defend himself. At that point his brother (my other roommate) jumped in to protect his brother, but the attackers friends jumped in. My roommates managed to retreat into the house and get the door shut behind them and that's when they started knocking out windows and my roommates "brandished" their weapons.

I don't understand how they are the ones facing charges and the police still have all of our firearms, mine included, when the other party refused to leave the property, destroyed our property, and was attempting to break and enter the house. I assume it's because we are located only 10 minutes or so from Tech.

Not to mention there were friends of ours there, a girl and a guy, who were outside the house when the police arrived and ordered to the ground at gunpoint. The officer even held down the guy with a foot in his back while the other officer forced entry.

But anyhow that's my point of view on the situation. Take into consideration I did not witness it firsthand, but got the account from my roommates, the witnesses of whom I knew, and a mutual friend of the attackers that was "on their side" during the incident.

Also would you mind if you still know the link to where you heard about this to send it to me so I can check out whats on record?

Thanks

ZachRU said:

Also would you mind if you still know the link to where you heard about this to send it to me so I can check out whats on record?

Thanks

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I got the initial case by checking firearms arrests at the Radford GD and Circuit Court. I was just fishing for prior cases that Ashley might have been associated with. I'm still puzzled by that....anyway, the information that's public is on file with the Clerk now.

I'm curious about one thing (actually, a lot of unanswered questions) Did the School take any action against you since your firearms were seized also?

I haven't been involved in the matter in any way except that I still don't have the firearms that were taken. Thankfully

ZachRU said:

...I still don't have the firearms that were taken. Thankfully

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Sorry to steer this off topic even further. The warrant was for the siezure of all of the firearms. Does that warrant pertain exclusively to the house, the individual(s), or all of the registered firearms? If you had stored one or more of your guns elsewhere- say a relatives house, safe deposit box, other undisclosed location- I wonder if you would still have to forfeit it, despite its location... Just a thought

sol said:

Sorry to steer this off topic even further. The warrant was for the siezure of all of the firearms. Does that warrant pertain exclusively to the house, the individual(s), or all of the registered firearms? If you had stored one or more of your guns elsewhere- say a relatives house, safe deposit box, other undisclosed location- I wonder if you would still have to forfeit it, despite its location... Just a thought

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Kind of hard to discuss the warrant w/o seeing a copy of it.

The are no registered firearms other than Class III in Virginia.

Grapeshot said:

Kind of hard to discuss the warrant w/o seeing a copy of it.

The are no registered firearms other than Class III in Virginia.

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That's exactly right Grape. I have some serious questions about the search warrant but it hadn't been released when I ran across this and haven't had much time to follow up on it since.

When I first saw this in the records search, I just made a note but t keeps popping up in different places. I won't be able to say anything definite until everything comes to light but from what I've seen so far, this kid is getting screwed.

As to the search warrant I had believed it to be legitimate, in the fact that what they took was covered by the warrant but I was the only one to get a copy. I'm more concerned of the fact that they used a supposed felony charge to attain the warrant that was very general in including any long guns. Two of my scoped rifles were taken when there was no mention of a scope in the incident.

ZachRU said:

As to the search warrant I had believed it to be legitimate, in the fact that what they took was covered by the warrant but I was the only one to get a copy. I'm more concerned of the fact that they used a supposed felony charge to attain the warrant that was very general in including any long guns. Two of my scoped rifles were taken when there was no mention of a scope in the incident.

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I don't think the sight type would be an identifier.

My concern is twofold right now.
First, can they search a private residence (Your room) for evidence of a crime you were not involved in ad there is no indication that your firearms were used?

My second concern is, is it brandishing to resist a violent entry into one's home. Another question is it a violation of the Federal 1000 ft rule in your own home.

§ 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.

This wasn't enumerated in the warrant but is part of the charge I guess although I think the 1000 foot rule is only federal.

§ 18.2-308.1. Possession of firearm, stun weapon, or other weapon on school property prohibited.

A. If any person possesses any (i) stun weapon as defined in this section; (ii) knife, except a pocket knife having a folding metal blade of less than three inches; or (iii) weapon, including a weapon of like kind, designated in subsection A of § 18.2-308, other than a firearm; upon (a) the property of any public, private or religious elementary, middle or high school, including buildings and grounds; (b) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (c) any school bus owned or operated by any such school, he shall be guilty of a Class 1 misdemeanor.

B. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material while such person is upon (i) any public, private or religious elementary, middle or high school, including buildings and grounds; (ii) that portion of any property open to the public and then exclusively used for school-sponsored functions or extracurricular activities while such functions or activities are taking place; or (iii) any school bus owned or operated by any such school, he shall be guilty of a Class 6 felony.
C. If any person possesses any firearm designed or intended to expel a projectile by action of an explosion of a combustible material within a public, private or religious elementary, middle or high school building and intends to use, or attempts to use, such firearm, or displays such weapon in a threatening manner, such person shall be guilty of a Class 6 felony and sentenced to a mandatory minimum term of imprisonment of five years to be served consecutively with any other sentence.
The exemptions set out in § 18.2-308 shall apply, mutatis mutandis, to the provisions of this section. The provisions of this section shall not apply to (i) persons who possess such weapon or weapons as a part of the school's curriculum or activities; (ii) a person possessing a knife customarily used for food preparation or service and using it for such purpose; (iii) persons who possess such weapon or weapons as a part of any program sponsored or facilitated by either the school or any organization authorized by the school to conduct its programs either on or off the school premises; (iv) any law-enforcement officer; (v) any person who possesses a knife or blade which he uses customarily in his trade; (vi) a person who possesses an unloaded firearm that is in a closed container, or a knife having a metal blade, in or upon a motor vehicle, or an unloaded shotgun or rifle in a firearms rack in or upon a motor vehicle; or (vii) a person who has a valid concealed handgun permit and possesses a concealed handgun while in a motor vehicle in a parking lot, traffic circle, or other means of vehicular ingress or egress to the school. For the purposes of this paragraph, "weapon" includes a knife having a metal blade of three inches or longer and "closed container" includes a locked vehicle trunk.
As used in this section:
"Stun weapon" means any device that emits a momentary or pulsed output, which is electrical, audible, optical or electromagnetic in nature and which is designed to temporarily incapacitate a person.
(1979, c. 467; 1988, c. 493; 1990, cc. 635, 744; 1991, c. 579; 1992, cc. 727, 735; 1995, c. 511; 1999, cc. 587, 829, 846; 2001, c. 403; 2003, cc. 619, 976; 2004, cc. 128, 461; 2005, cc. 830, 928; 2007, c. 519; 2011, c. 282.)

There appear to be some serious problems with both the charges and the search warrant!

peter nap said:

My concern is twofold right now.
First, can they search a private residence (Your room) for evidence of a crime you were not involved in ad there is no indication that your firearms were used?

My second concern is, is it brandishing to resist a violent entry into one's home. Another question is it a violation of the Federal 1000 ft rule in your own home.

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This interests me as well because we are all on our own leases, it's not just one lease for the entire house. I also think that naming a house as the location of a search is too general and that specific locations to be searched should be expressed on the warrant. Especially when they don't even describe the house in said correctly, the house is 3 stories not 2.

Sounds to me like you (and your roommates even more so) definitely need to get competent legal representation and immediately. The part of the Virginia brandishing code concerning the 1000 foot school rule says this:

"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."

If this took place entirely on private property (how can inside a house NOT be private?), the school portion (Class 6 felony) does not appear to apply at all.

It sounds to me like this department needs a five-figure lesson on civil rights violations.

TFred

How many of your guns did they get?

TFred said:

Sounds to me like you (and your roommates even more so) definitely need to get competent legal representation and immediately. The part of the Virginia brandishing code concerning the 1000 foot school rule says this:

"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."

If this took place entirely on private property (how can inside a house NOT be private?), the school portion (Class 6 felony) does not appear to apply at all.

TFred

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I completely agree with you on this I don't think the charge on the warrant is legitimate for a search. But if the officer believed it to be legitimate at the time then the good faith clause might come into play.


And the guns taken in the warrant were my roommates 12gauge, and bb gun. My 12gauge, 22 rifle, and my muzzleloader were taken.

TFred said:

The part of the Virginia brandishing code concerning the 1000 foot school rule says this:


TFred

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Thanks TF, I missed that.