View Full Version : What constitutes brandishing?
May 21, 2009, 04:00 PM
For an act to be considered brandishing, does it have to be an intentional display of a pistol? I ask this because today, I was out in the driveway refinishing a dresser, and I had my PM9 in my IWB holster. It's so small and comfortable, it's easy to forget it's there. Meanwhile, my neighbor and her 3 yr old son are out in their yard maybe 20 yds away from me. While I am messing around with the dresser, I realize my shirt has come up and is stuck behind the grip, so the pistol is hanging out in the open. I also then realize she and her son have gone inside. I think it was coincidental, but it got me to thinking. If she had an issue with it, could it have been considered brandishing? Does it matter that I rent my place and was therefore not techinically on MY property? I would hope that such an "accident" wouldn't really be defined as brandishing, but I want to know for sure. I am in VA FWIW, I assume it's a state law and not federal. Thanks.
May 21, 2009, 04:39 PM
It's a state law issue.
In Virginia (where I believe you say you are) the statute reads as follows:
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.
The circumstance you describe surely does not satisfy the requirement that you induced fear in the mind of the mother or her child of being shot or injured.
However, one may "brandish" a firearm that is stuck inside his belt, under certain circumstances. Here's what the Supreme Court of Virginia wrote in a 2005 case:
“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
Since open carry is lawful in Virginia merely exposing a concealed weapon accidentally is surely not brandishing within the meaning of the law.
May 22, 2009, 09:46 AM
You need to check state laws regarding what are considered premises under your control. In Texas that includes such things as an RV, car, hotel room and some other stuff.
May 24, 2009, 11:58 PM
Normally,it means actually taking a handgun out with your hand and using it's presence to create a fear you might actually use it when no percieved real physical threat exists.
But you can get in trouble just as well if you have a weapon in a holster,you are in a argumant and you show a holstered weapon with a look that says this is for you.
The whole legal argument stems from the fact that you are using the weapon before the fact to instill fear into someone and to coerce them into acting (or not acting) a certain way.
Taken to an extreme by a gun hater,just the mere appearance of a handgun on your belt fits that definition.
Thankfully,if you are acting like a mature adult carrying the handgun in full compliance with the laws where you are,in a way that totally exposes the other person as a blithering idiot,you should have no problem but as others have said-you need to check your local laws FIRST before you get yourself potentially into this type of situation.
Nothing is easy,but in a a situation where you are accused of this-your composed,adult explanation of the events that lead up to the other person accusing you of this can cause the responding police officer to actually not give you any grief.
I had this happen to me about twenty years ago with a fishing knife I carried on me that had a leather sheath of it.
It was a Rapala fillet knife I used on my job becauase I could do things with it a box knife could'nt plus because of it's length,it was never totally concealed.
You could easily see the handle when it was in my pocket.
Anyway,I was in a cafeteria on M street on D.C. one afternoon eating my lunch when this apparently homeless guy nutcase walked up to me and was really interested in what I was eating ,did I have any money blah-blah-blah.
Well,I did my best to ignore the guy and he got really upset about being ignored.
I was just trying to enjoy my frikken lunch.
I had the knife in a my left pocket at the time and I am right handed-so I took the knife from my left pocket while still seated and put it into my right pocket-just in case Mr. Nutcase homeless guy decided to jump me for the crime of trying to eat my lunch.
Well,as soon as I moved the knife-into my right pocket still in it's sheath-nut case goes-"Oh,so THATS how it IS!Oh I GOT YOU NOW!"
Nutcase guy walks quickly out of the cafeteria and I calm down thinking,"Well FINALLY.I can eat my lunch." Well.NOT QUITE.
About three minutes later,three D.C.patrol cars pull up in front of the glass window I'm looking out of,as I eat,with nutcase guy pulling at the one of the officers and pointing at me.
They come in the cafeteria and one of them says to me,"You got a knife?"
I said,"Yea,it's in my pocket."
At which time I placed my hands in the air over my head even with my head.
Long story short,the police officer asked my if I PULLED THE KNIFE on the guy.
I told him NO- I just moved the knife from my left pocket to my right because the guy was acting irratic and was starting to concern me that he might go "off".
He asked me if I ever took the knife out of the sheath-I told him the truth-I said NO.
The police officer then asked nutcase guy if I ever took the knife out of the sheath and to my surprise he actually told the truth and said No.
Thoroughly upset that he had been placed on a wild goose chase,the police officer gave me back my knife,in the sheath, made a comment that it would be better if I did'nt have it the next time he saw me and I went on to finish my now thouroughly ruined lunch.
Working in D.C. can be a real adventure sometimes.
May 25, 2009, 12:15 AM
Brandishing is exhibiting your firearm in such a manner as to make other believe you are willing to use it against them or others in the immediate area. Most, but not all, state laws have as an element of the crime that the gun be exhibited in some "threatening" or "angry" manner.
In California, it's displaying a firearm "in a rude, angry or threatening manner". The mere presence of the firearm, in a holster isn't generally enough to sustain a brandishing charge. However, pointing out the gun (or lifting your shirt to display it) whilst telling someone to park in front of a different house is considered threatening.
May 25, 2009, 01:37 AM
All you did is accidentally open-carry.
In Texas that would be a (minor) crime. Still not brandishing.
In VA? Open carry is LEGAL. So is accidental open carry :).
Don't sweat it.
May 25, 2009, 11:36 PM
In CA basicaly it is displaying in a rude and threatening manner.
May 26, 2009, 02:16 PM
It depends on your state and local laws. Here in Indiana, you would have committed no crime as OC is legal here. Some of the less gun-friendly states, however, are different stories.
May 26, 2009, 02:31 PM
Does it matter that I rent my place and was therefore not techinically on MY property?
Virginia law says that a rental agreement may not include a provision that would prevent you from having firearms. If it does include such a provision, it cannot be upheld in court and is not a grounds for eviction. So if you legally rent the place, it is technically yours and you can do what you wish with your firearms as it were your own property.
May 29, 2009, 11:42 AM
Jim March, used to live in Pittsburg before I got wise and moved to Texas ... here, on your own property, you have committed no crime if your handgun is visible in a holster ... if exposed when you're out and about, it could be a misdemeanor of some sort, so keep it covered ...
May 29, 2009, 11:55 AM
Fortunately for us in PA, there is no brandishing law at all.
Open carry is legal without a license, except in a City of the First Class(Philly), in a vehicle, or during declared state of emergency - those of which require a license to OC and CC.
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