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Brandishing

afcarry

Regular Member
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Jul 22, 2010
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Southeast of KC Mossouri
So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?
 

cshoff

Regular Member
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Messages
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, Missouri, USA
Would you be as so kind as to give me info on this specific "brandishing" law you are speaking of?

Doc

The law the OP is referring to is 571.030.1(4):

571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
.
.
.
(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.
 

sohighlyunlikely

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Overland, Missouri, USA
The law the OP is referring to is 571.030.1(4):



The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.

I knew the one you quoted. Which is the law I suppose he is stretching to try to apply to his question, but as it is written it seems plain and simple in it's wording and would make his premise a little absurd.

Doc
 

cshoff

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, Missouri, USA
I knew the one you quoted. Which is the law I suppose he is stretching to try to apply to his question, but as it is written it seems plain and simple in it's wording and would make his premise a little absurd.

Doc

I suppose it would be quite possible for some anti-gunner to call in a person who is openly carrying a firearm and claim that "the person displayed it in a threatening manner", even if the person didn't. It would then become a "his word against mine" situation. That said, under RSMO 575.080.1, it is unlawful to make a false accusation of a crime against another person (a Class B misdemeanor). I can honestly say I've never heard of this happening in Missouri - not saying it hasn't happened, just saying I've never heard of it happening.
 
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Big Boy

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STL, MO
People who make MWG calls are always going to throw around the word brandishing, simply because they don't know any better. However, once you encounter the LEO responding to the call, even if he is not a supporter of OC, he will see that you are not displaying your weapon in a threatening manner. You wouldn't get arrested for it, and even if you did, it obviously wouldn't stand in court.

I think with OC we are in fact treading quite a ways away from the brandishing "line".
 

LMTD

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Somewhere back in the 1980's came the sexual harassment revolution and it resulted in a fairly dramatic change not only in our country but in the way many of our laws get interpreted. Some folks just call it the *&((^fication of America.

The change was from the actual action one committed to how that action made another FEEL. Now before the typical bandwagon starts rolling, I am not speaking ill of victims, I am speaking directly to how it altered the way laws get interpreted.

It actually got pretty stupid for a while and has yet to return to something one could call "normal" if there is such a thing. Suzi could drop the f-bomb five times a day, but if a man she did not like said it, she only had to say it offended her and made her feel degraded. Her own use of the word was not to be considered as she must not have been using it in an offensive manner and the man did. He failed to understand she would be offended and suddenly feel subhuman when he said the same thing she did.

This new consideration to the victim began to spread and it started getting used. Victims rights became the political hot button of the season. It was no longer important what a person did, but how others chose to feel about it that drive the system. The prosecutors saw an opportunity, put the victim in front of the jury and they will look to punish anyone for the pain they saw without regard for guilt.

This has by no means come full circle and is the basis for the MWG calls. Think about how many videos you see where the cop says "your making people nervous" "it bothers people" "your scaring the hell out of folks and they have a right not to be scared" because folks have bought the victim thing hook, line and sinker, even to the point it interferes with rights.

This is why the "normalizing" behavior Doc and some others participate in actually is a positive and effective tool, it is also why some of those looking to turn the tables and make police into victims and get paid are bad for the cause. Cops are not to play judge and jury but some do and when they make a mistake, we are not supposed to play judge and jury but many do.

Everyone is concerned with the "victim" instead of the behavior and its legality. I offer that laws are even written to "protect" the victim which is really the opposite of the intent of "innocent until proven guilty" as the system by design was to protect the accused to assure a violation indeed occurred before condemning the person.

As long as the sheeple cry every time they see the sheep dog because they are scared of the wolf, others shall condemn the sheepdog for looking like the wolf.

I am sorry if my bark has bothered anyone here, I know I have tossed around a lot of harsh words, but I have bitten no one and the reality is, you are not a victim, nor is the lady who freaked out over seeing your gun and called the cops, nor is the cop who came to question the report, we are ALL victims of what we have allowed to change within our social systems. It is time to stop whining and complaining about it and step up and change it back to what it was always supposed to be.

I am not at all convinced a vast majority of the people in general or here on OCDO are ready for that at this point, it just does not appear that way at all.
 

Big Boy

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This is why the "normalizing" behavior Doc and some others participate in actually is a positive and effective tool, it is also why some of those looking to turn the tables and make police into victims and get paid are bad for the cause. .

Where is the applaud .gif? That's my main goal of OC, and should be every one's in the end. Something normal. You're not out to get recognized or show off, just doing your daily routine. I'm never looking for a fight. I will politely educate them on the law, let them no I will no longer be shopping there, and then leave if they so wish.
 

afcarry

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Southeast of KC Mossouri
Very good. LMTD caught the point. No matter what you do walking through the mall, how you act in everyday life, what you say to your friends or strangers, what shirt you wear, who you are sitting with at a restaurant, no matter what your drinking at a bar, there is ALWAYS a chance that someone will misinterpret your actions. Now I am in the military and one thing is made painfully clear to us (in more words than the following, of course) from day one: The tears of the victim will say more than admissible evidence will ever be able to. With the way the legal system is being used to protect peoples feelings nowadays, there is virtually no way to be sure - other than to follow statutes and ordinances to the letter - that you are safe from harassment in carrying on a casual day to day basis. Im not saying we shouldn't, Im not saying I wont. On the contrary, I agree that we need to more in order to promote OC, but hopefully that illustrated my intentions with this post.
 

heresyourdipstickjimmy

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Jul 13, 2010
Messages
279
Location
Mo.
So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?


Crash course time. DO NOT use anything Wiki as a legal reference. Their definitions do not apply in court. You will need the legal definition within any particular State's statutes as they may differ from State to State.

And yes, there's a fine line on the issue. How you act holds a little bearing on this type of situation. Any person can see your clearly holstered open carry (we know it's not a threat) and then claim that the mere presence of a firearm is threatening to them. However, they would lose their butt in court on the issue as I could say that their attempt to control my 2A rights is a direct threat to my safety and to the safety of those accompanying me....and I'd likely win such a rebuttal in court in a countersuit. Gotta love how the stretched world of the frivolous lawsuit works.

So goes the conflict with private property in many States, specifically Missouri.

So on this particular issue, stay holstered, stay professional, stay controlled, and above all else maintain control over your firearm. You cannot be determined a threat until that firearm comes out of a holster. That's not to say some dirtbag lawyer might not drag you into court and try to stretch it into that, but you can get clearly into the definition of the word "use" in that situation in that if it remains holstered it is not being used, nor is it brandished in any threatening manner.
 
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ALOTAGLOCK

Regular Member
Joined
Jul 26, 2010
Messages
61
Location
South KC, Raytown
The definition that he gave seemed fair. I would say that the argument of a person’s perception is fair also. But, there is a great word that Law Enforcement has to use to prove anything. The word is reasonable. To me that would mean many over few, as in perception of many vs. just one or two people. True that only a single person's peace has to be disturbed to in order to get some sort of disturbance charge, but that would not be an unlawful use or possession charge. It would be peace disturbance. I think that some crack-pot who just gets freaked out about guns would not have much to stand on if all they could say to the police is that, the 6ft 6in white male with a goatee, and sun glasses looks very intimidating. I would only assume that the police would just advise you that Ms. Betty Crocker was intimidated by you and that be it. I can't think of any real reason for arrest specifically regarding a firearm.

I called a few LEO friends of mine when I first read this post. I asked them what they considered brandishing a weapon. They all agreed that it would have to be out in plain view, and not secured in some sort of holster, so that it is instantly useable.
 

Bill Starks

State Researcher
Joined
Dec 27, 2007
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4,304
Location
Nortonville, KY, USA
This is why you work with the various local LEO departments and get them to issue "Training Bulletins" on Open Carry. This training is also passed onto the 911 dispatchers so that they ask the right questions when a call comes in.

Example - I was sitting on a park bench on the Tacoma waterfront when I was approached by a LEO. He said they received a call but after observing me for the last 10 minutes he saw that I was not doing anything illegal and wished me a good day. I requested the 911 tapes and you can hear the dispatcher asking the caller, "is he holding the weapon?, is he pointing it at anyone? what's he doing with the weapon?" The callers reply..."no, no, none of those things, its in that thingy on his hip." Dispatcher - ma'am, what he is doing is legal in Washington but we will send an officer out to investigate."

For some samples look at the ones we have got here in Washington State:
http://forum.nwcdl.org/index.php?action=downloads;cat=1
 

cshoff

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Joined
May 20, 2010
Messages
687
Location
, Missouri, USA
<snip>.....I called a few LEO friends of mine when I first read this post. I asked them what they considered brandishing a weapon. They all agreed that it would have to be out in plain view, and not secured in some sort of holster, so that it is instantly useable.

And even that definition isn't exactly in line with the way the State of Missouri defines brandishing:

571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
.
.
.
(4) Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner; or

The mere presence of a firearm, even openly carried outside of a holster, doesn't, in and of itself, constitute "brandishing". It is the person's actions with the firearm that matter. Not the method of carry.
 

PT111

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Jul 31, 2007
Messages
2,243
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, South Carolina, USA
So it seems there is a thin fine line that open carriers might come close to crossing more frequently than we think. Per wiki Brandishing is "The act of flourishing or waving." Those of us with good sense will never do this in public with our firearms; if we do anything at all its probably going to be a quick presentation two pulls and return to holster. Then we want the police around. But like we use deadly force when "in our judgment" we have no other option, might it be in some other person's judgment that we my be in some cases brandishing? If we "knowingly exhibit, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner" we commit the crime of unlawful use of weapons. So if we don't know we seem angry to other people, then we cannot be held for that? I guess the simple question is how much of it depends on their word versus our word? If I think I'm acting in a professional manner, but someone misinterprets my demeanor to be angry, then who's right?

I think I am following your question but wonder what are you thinking. A quick presentation of two pulls and return to the holster? Why in the world are you pulling your gun out? The rest of your question seems to be that you are in fear of your life and pull your gun out. The last thing you worry about in this case is a brandishing charge.

It sounds to me like you are worried about being charged with brandishing if you pull your gun to scare someone that you are afraind of. If this is your thought do us a favcor and sell your guns. You never pull your gun to scare someone, you only pull it to defend yourself and if need be pull the trigger. Never pull it with the thought of putting in back in or worry about brandishing.

Now if you are talking about pulling your gun to show it off then you need to be sure that everyone around knows what you are doing and be careful. That is how negligent discharges happen and they aren't accidental.
 

Cavvet2

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Aug 15, 2010
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Missouri
I took the "two pulls" part to mean a double tap... you know, two pulls on the trigger... I could be wrong tho.
 

PT111

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, South Carolina, USA
I took the "two pulls" part to mean a double tap... you know, two pulls on the trigger... I could be wrong tho.

You may be correct but if you draw your weapon, shoot twice at someone and put it back in your holster I still say the brandishing is the least of your worries.
 

heresyourdipstickjimmy

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Jul 13, 2010
Messages
279
Location
Mo.
The law the OP is referring to is 571.030.1(4):



The OP, I believe, is asking about a hypothetical, "his word against mine" situation. This is another "what if" question that can't be answered by a simple statement of law. FAR too many variables would/could be in play in a situation such as this. Suffice it to say that it is always best to conduct yourself in a calm, professional, non-confrontational manner, ESPECIALLY when you are carrying a firearm.

We've seen a rash of this with LEOs in Missouri of late. LEOs operating on the he said/she said info and not actually investigating anything before they present deadly force upon a citizen. It's a relevant post, so let's see where it goes.

If it's in a holster and stays there, there is no threat. No matter how mad a person gets, no matter how heated it gets (as long as it's not physical), if the firearm stays holstered it is not a threat. Remember, a firearm cannot be a threat without the involvement of a human action. The human is the threat and that's how it needs to be addressed.

I'm still a firm believer that those who make the senseless "man with a gun" calls need to be promptly arrested and charged for making a false police report. It's a resource lost when officers respond to bogus calls like that and the agency should be allowed to recoup that loss.


Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under cshoff's statute citation.)
 
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cshoff

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, Missouri, USA
<snip>......Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under cshoff's statute citation.)

Missouri doesn't have a definition specifically for the act of "brandishing". What Missouri uses is the language, "Exhibits, in the presence of one or more persons, any weapon readily capable of lethal use in an angry or threatening manner". That, in a nutshell, is "brandishing", and it's unlawful.

Open carry, whether in a holster or not, is NOT, in and of itself, brandishing. The act of "brandishing" can only take place as a result of a person's irrational behavior with the firearm.
 

sohighlyunlikely

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Overland, Missouri, USA
We've seen a rash of this with LEOs in Missouri of late. LEOs operating on the he said/she said info and not actually investigating anything before they present deadly force upon a citizen. It's a relevant post, so let's see where it goes.

If it's in a holster and stays there, there is no threat. No matter how mad a person gets, no matter how heated it gets (as long as it's not physical), if the firearm stays holstered it is not a threat. Remember, a firearm cannot be a threat without the involvement of a human action. The human is the threat and that's how it needs to be addressed.

I'm still a firm believer that those who make the senseless "man with a gun" calls need to be promptly arrested and charged for making a false police report. It's a resource lost when officers respond to bogus calls like that and the agency should be allowed to recoup that loss.


Doc's seems to have been hitting the OC scene pretty heavily, so what's Doc's input on this? I'll reiterate what Doc posted earlier: Definition of "brandishing" from the Missouri Statutes please. (because no such definition exists in RSMO, yet some CCW instructors are still telling folks that OC is brandishing under Cshoff statute citation.)

People still call Native Americans by the term Indians. Misused terms are rampant in modern lingo. Brandishing is not a legal term and is their for moot for legal debate. It has a broad definition. It is most commonly referred to as a negative or aggressive manner in the media, like "The criminal brandished his 9mm and demanded the money". So I believe now a lot of people have a incomplete understanding of the word. Websters definitions:

1 : to shake or wave (as a weapon) menacingly
2 : to exhibit in an ostentatious or aggressive manner

Doc
 

LMTD

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Ya mean I can't twirl my 1911 like Doc Holiday did the cup in Waytt Erp (Val Kilmer played Doc) and not be brandishing? I mean if I am smilin and such :)

I have also HEARD that pretending to draw or putting your hand on your pistol acting like you were getting ready to draw can gain the brandishing charge.

Most police officers (bad source at times) have indicated it makes the call for them as to muzzle direction more than anything. In the hand pointed at ground or safe direction ok, point it at a person or in unsafe manner, hook em up and haul em in, let the judge decide.


Is it just me or has this place turned into a lot of legal debates instead of open carry promotion and discussion?
 
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