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Old May 12, 2009, 01:54 AM   #16
BillCA
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Join Date: November 28, 2004
Location: Silicon Valley, Ca
Posts: 7,117
Quote:
It's unfortunate that in some states and locales, case law has turned it to mean the mere sight of a weapon.

Some States still preserve that last meaning.
California is infamous for that. California law defines it as "in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner..." yet cops will arrest and charge for merely having the gun in one's hand.*

Once you can justify lethal force due to some threat, it becomes problematic to charge "brandishing" because the gun is visible. Even if the threat disappears, you were still justified in drawing the weapon. To claim that it becomes brandishing the moment the threat flees or capitulates is not only naive but requires prescience on the user's part.


* A neighbor's brother was so charged after reporting a prowler. When police arrived, he was on his front porch, in his bathrobe and BVDs, shining a flashlight in the bushes while holding a snubby .38 by his leg. It took 4 weeks for the lawyer to convince the D.A. that the mere presence of the firearm was not "threatening" as the cops said it was.
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