marshaul
Campaign Veteran
I sent what I can spare using Bill Pay. 10/18 is the delivery date, supposedly.
I'm going to try to interview some of the jurors next week. I don't know when yet...depends on the hunting.
I've been following this thread (closely, I thought), and this is the first time I've seen this bit of specificity about the defendant's actions.One of my pet peeves is the "model jury instructions", which, to my mind, are designed to confuse juries, not educate them. They don't explain what the law is, they just lay a bunch of legal jargon on the jury with technical words (the trick about "legalese" is that it looks just like English, but the words mean something other than what you'd think). I offered one instruction, which was refused because it's not a "model" instruction, saying that a person has a right to be armed and that the jury cannot infer from the mere fact that he had a gun that he is guilty of the crime or of any of its elements. I think that, in this case, had that instruction been given, the outcome might have been different.
I like to think that I am not in the category of lawyers the second paragraph castigates.
There are a number of problems with the brandishing statute, but the two biggest have been created by appellate court decisions. First, the term, "brandish", has been defined by a dictionary definition rather than by an existing canon of judicial construction which says that a list of descriptive words has to be taken as meaning about the same thing, so that each of the terms in the phrase, "point, hold, or brandish", have to be taken as pretty much synonymous. So, as I read the language of the statute, those terms all means something like, "to aim", or "to allow the muzzle to go a certain way"; "hold", thus, does not mean merely to have the gun in one's hand, and "brandish" does not mean "to display in a shameful or ostentatious manner". Which leads me to my second issue: the crux of the violation is the phrase, "in such manner". The defendant has to have held, pointed, or brandished a firearm in a certain way, such that a reasonable person would have been placed in fear of his life. I read that to say that the defendant has to have done a specific act "in such manner", regardless of whether a witness actually had fear or apprehension. This tracks the judicial history of the parallel crime of assault. If a reasonable person standing in the shoes of that witness would have believed that he was about to be shot, then there's a violation.
In this case, the Commonwealth's evidence was that the Defendant seated in the driver's side of his car held the handgun pointed in a safe direction (up) for about three seconds as he inserted a magazine, and the driver of the vehicle behind him at a stop light saw that happen and "did not know what he might do next." That driver said that he "felt" the Defendant "glare at him" via the rearview mirror, although the Defendant was wearing sunglasses. He said that the Defendant "mouthed the word, 'okay." And, of course, he "felt fear". In other words, the driver thought that the Defendant, who was in possession of a firearm, might have subsequently have pointed, held, or brandished the firearm in such manner as to put him in fear of bodily injury, but that never actually happened. The Defendant, having held the gun up, holstered the gun in a compartment in the dash. So the Defendant in this case has been convicted for what the driver thought might have happened subsequently, but which never did, in fact, happen.
SNIP...In this case, the Commonwealth's evidence was that the Defendant seated in the driver's side of his car held the handgun pointed in a safe direction (up) for about three seconds as he inserted a magazine, and the driver of the vehicle behind him at a stop light saw that happen and "did not know what he might do next." That driver said that he "felt" the Defendant "glare at him" via the rearview mirror, although the Defendant was wearing sunglasses. He said that the Defendant "mouthed the word, 'okay." And, of course, he "felt fear". In other words, the driver thought that the Defendant, who was in possession of a firearm, might have subsequently have pointed, held, or brandished the firearm in such manner as to put him in fear of bodily injury, but that never actually happened. The Defendant, having held the gun up, holstered the gun in a compartment in the dash. So the Defendant in this case has been convicted for what the driver thought might have happened subsequently, but which never did, in fact, happen.
I've been following this thread (closely, I thought), and this is the first time I've seen this bit of specificity about the defendant's actions.
I have to say, if I were to see that same action conducted by anyone (in or out of a motor vehicle) in public, I would have the same concerns as the bus driver, whether the individual saw me or not. I'd seriously think about calling the cops, too.
What firearm safety course teaches that if you're going to load your gun while in your car, be sure to point it up (a safe direction) while you insert the magazine? Is that technique supposed to assure any bystanders that you mean no harm? And the defendant's reason for doing this was what, again?
And the defendant's reason for doing this was what, again?
@2a4all: had your post come from someone newer to OCDO or whose posts I hadn't read before, I would have assumed you were coming onto this thread with the sole purpose of stirring up some troll stew by attacking a man who was only recently knocked down.
@The Central Committee: Just for clarification, is the bolded part above what Scouser DID, or what the sniveling cowardly, unlicensed, self-contradicting (lying), vengeful bus/van driver SAYS he did?
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While there is disagreement about where the handgun was held in relation to the driver's body and how much could be seen by the driver of the van behind him (see photo of van type below), that is what happened.
stay safe.
View attachment 10884
One's reaction to an observed action doesn't depend on the dictionary classification of a verb.Pretty much everybody concerned (Scouser and User) agree that it may not have been the most elegant decision. However, that does not mean it was dangerous, threatening, or designed/intended to induce fear or apprehension in the mind of another. That someone besides yourself also expressed concern as to "what might happen" still does not get us to - or at least should not get us to - inducing fear. (http://www.thefreedictionary.com/induce "induce" is a transitive verb. Sadly, the law seems to completely ignore that fact. You also appear to be ignoring it.)
stay safe.
While there is disagreement about where the handgun was held in relation to the driver's body and how much could be seen by the driver of the van behind him (see photo of van type below), that is what happened.
stay safe.
View attachment 10884
@peter nap: so would it be safe to say Graham may have chosen to go upwards since it is the easier (from driver's side, since the steering wheel gets in the way) path of movement to get the gun into the holster?
Haven't made any judgments yet. As I said in my earlier post, I thought I had the whole story, but User's description of events surprised me. My questions are based on those (heretofore unknown to me) facts. I realize that they are pretty much what the bus driver saw (or thinks he saw), but it's his reaction to his observation that is the issue. And as I stated, if I had seen what has been stated here, I would be concerned. The level of concern might be tempered (or enhanced) by the context of the situation, but concerned nevertheless.Going any direction but up would have involved juggling the gun in his lap which obviously is a bad idea, or raising it high Gangsta style to lock the magazine in place, then down and out to the holster.
And 2a4all....judgement calls without knowing the facts is beneath you.
Doesn't the jury have to believe the guy was trying to scare the bus driver *on purpose* in order to reach a guilty verdict?
It has to be a reasonable fear.
Reasonable is open to interpretation.
I have difficulty seeing how you can get reasonable from this
It has to be a reasonable fear.
Reasonable is open to interpretation.
I have difficulty seeing how you can get reasonable from this
What are you trying to illustrate here? Is the upper compartment where the gun was initially, and the open glove box it's destination? And the path (of visibility) would be?