livitup
Regular Member
imported post
I havea friend who is new to personal defense firearms and is eager to learn about firearms related laws, OC, CC, etc. He and I toss around ideas with the hope to educate eachother.
Reciently he asked me the following question. As I have learned to do from this forum, I prepared a well researched response, laden with citations. Since it is a good, and common question, and since I don't have a blog, I figured I would post it here in case it helps someone else. Comments are, of course, welcome.
First, his question:
Here is my response:
As always in these kinds of situations, I prefer to start by looking at the actual laws on the books:
§ 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.
Ok, let's break that down and apply it to your scenario.
Did you "point, hold, or brandish any firearm"?
Let's define brandish. It's not defined in the Virginia code anywhere. However, the Virginia Court of Appeals has done so. Donovan Morris was a drunk who threatened a good guy and his wife with a flare gun. There's a lot of discussion about if a flare gun is a gun, which is not important to this discussion. But luckily for us, Morris lifted his shirt to reveal the flare gun in his waistband while making threatening comments at good guy's wife. So that's basically what we are doing here, right? Unconcealing a previously concealed firearm. Morris was charged with violating 18.2-282, specifically the brandishing component. In response to the appeal, the court wrote: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1032714&invol=1 (the quote below is from the bottom of the opinion)
We disagree with Morris. "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd] like that," and then pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner. And Morris brandished the weapon in such a manner as to reasonably induce fear in the mind of Peter Molina. Although Molina may not have said he was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is sufficient to prove the "induced fear" element of a conviction for brandishing a firearm under Code 18.2-282.
So, yeah, I'd say you're guilty of brandishing in the scenario you describe. You did "exhibit or expose in an ... agressive manner" and you did do it to "induce fear in the mind of another". Granted that fear was designed to keep them from kicking your ass, but it's still fear.
Finally, let's take the situation one step further. Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts. It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event. So lets say you show the piece, and things escalate, and you end up shooting a badguy.
From: Darryl Carneal Law v. Commonwealth, Va. App.(2001)
Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958) (citations omitted). If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985) (citing Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933)).
So yeah, you're screwed.
So what would I do in your situation? After telling them to knock it off, and they start advancing on me:
1) Run like hell
2) Run some more
3) If I can't run any more, they catch me, or I am backed into a corner
4) Draw, point, and shoot to stop the threat.
Note that draw, point, and shoot are all one step.
IANAL.
I havea friend who is new to personal defense firearms and is eager to learn about firearms related laws, OC, CC, etc. He and I toss around ideas with the hope to educate eachother.
Reciently he asked me the following question. As I have learned to do from this forum, I prepared a well researched response, laden with citations. Since it is a good, and common question, and since I don't have a blog, I figured I would post it here in case it helps someone else. Comments are, of course, welcome.
First, his question:
Code:
If you're in an uncomfortable situation (run into teen vandals, semi-tame road rage, etc) and you're concealed carrying... It might be a deterrent to show that you are armed. As in:
GG: Hey pesky kids, you shouldn't be here doing this.
BG: Oh yeah old man? Come on gangstas, lets kick his ass.
GG: I wouldn't do that if I were you. (Pulling up shirt to reveal concealed handgun.)
BG:Lets get out of here!
This effectively moves you from a CC to an OC situation; neither is illegal. But at the same time, you're making your situation MORE visible, and in a way, threatening. Could this be seen as brandishing?Here is my response:
As always in these kinds of situations, I prefer to start by looking at the actual laws on the books:
§ 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.
Ok, let's break that down and apply it to your scenario.
Did you "point, hold, or brandish any firearm"?
Let's define brandish. It's not defined in the Virginia code anywhere. However, the Virginia Court of Appeals has done so. Donovan Morris was a drunk who threatened a good guy and his wife with a flare gun. There's a lot of discussion about if a flare gun is a gun, which is not important to this discussion. But luckily for us, Morris lifted his shirt to reveal the flare gun in his waistband while making threatening comments at good guy's wife. So that's basically what we are doing here, right? Unconcealing a previously concealed firearm. Morris was charged with violating 18.2-282, specifically the brandishing component. In response to the appeal, the court wrote: http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=va&vol=1032714&invol=1 (the quote below is from the bottom of the opinion)
We disagree with Morris. "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner." Webster's Third New International Dictionary, 268 (1993). When Morris looked at Ms. Molina, said "[he'd] like that," and then pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner. And Morris brandished the weapon in such a manner as to reasonably induce fear in the mind of Peter Molina. Although Molina may not have said he was in fear for his own safety, he stated unequivocally that he feared for the safety of his wife, and that is sufficient to prove the "induced fear" element of a conviction for brandishing a firearm under Code 18.2-282.
So, yeah, I'd say you're guilty of brandishing in the scenario you describe. You did "exhibit or expose in an ... agressive manner" and you did do it to "induce fear in the mind of another". Granted that fear was designed to keep them from kicking your ass, but it's still fear.
Finally, let's take the situation one step further. Virginia's application of justifiable homicide is also not in the code, but has been defined by the coursts. It requires you to retreat to the fullest extent possible, and to be innocent of any escalation in the event. So lets say you show the piece, and things escalate, and you end up shooting a badguy.
From: Darryl Carneal Law v. Commonwealth, Va. App.(2001)
Justifiable homicide in self-defense occurs where a person, without any fault on his part in provoking or bringing on the difficulty, kills another under reasonable apprehension of death or great bodily harm to himself." Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, 31 (1958) (citations omitted). If an accused "is even slightly at fault" in creating the difficulty leading to the necessity to kill, "the killing is not justifiable homicide." Perricllia v. Commonwealth, 229 Va. 85, 94, 326 S.E.2d 679, 685 (1985) (citing Dodson v. Commonwealth, 159 Va. 976, 981, 167 S.E. 260, 261 (1933)).
So yeah, you're screwed.
So what would I do in your situation? After telling them to knock it off, and they start advancing on me:
1) Run like hell
2) Run some more
3) If I can't run any more, they catch me, or I am backed into a corner
4) Draw, point, and shoot to stop the threat.
Note that draw, point, and shoot are all one step.
IANAL.
