Is this brandishing - Page 2

zincwarrior · May 4, 2012, 12:43 PM

Quote:

Sure if I felt someone toying with me just to be funny, Sure Id even do more than that really if someone wants to play.

Here's the problem with that statement. Are you going to draw on the person in the car? remember I don't know about there, but in California when I was younger there were a few instances of guys on bikes shooting at cars.

Thinking to myself, yes I've actually gotten close to people. Yes there have been times when it looks like I was following someone or they I even to different lanes when it was for something else (very similar location, thinking there's something in the road I'm not seeing yet which has saved me a few times actually tec). BUT

As a hypothetical, if I'm riding along and all the sudden I notice out of the corner of my eye a guy on a bike right next to me or right in front of me with a gun drawn, I might break or I might instantly and very intentionally floor it and hit them because I'm thinking they are taking a shot at me or my family. You just became a statistic because my flying death machine that is a car is going to leave nothing of you but goo. Theres no way you win that.

I'm not trying to be hostile here. I'm saying this might be the response you get from someone thinking they themselves are about to die.

Zhillsauditor · May 4, 2012, 02:50 PM

There was in incident here in Florida recently where a man was getting his towed car back from the tow company (which had mistakenly towed the vehicle). The owner of the tow truck tried to stop him, and stated that the man made motions to run him over, so the owner shot the man fatally. However, the angle of the entry wounds showed that the shooter was not in front of the vehicle, but to the side. The owner was convicted of murder.

The defense was that the owner had only a few seconds to make a life and death decision and acted reasonably based on the perceived threat.

Bartholomew Roberts · May 4, 2012, 04:11 PM

Texas doesn't have a specific law titled "brandishing" but what you describe would appear to be covered by Section 46 of the Penal Code concerning unlawful carry of weapons:

Quote:

(a-1) A person commits an offense if the person intentionally, knowingly, or recklessly carries on or about his or her person a handgun in a motor vehicle or watercraft that is owned by the person or under the person's control at any time in which: (1) the handgun is in plain view; or...

Quote:

Sec. 46.035. UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER. (a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun....

Both are Class A misdemeanors; however having a CHL gives you an extra layer of protection in that IF you have a CHL, it is a defense to prosecution that you were justified under Section 9 of the Penal Code (as covered by JohnKSa earlier in the thread). Also note that a CHL holder must INTENTIONALLY expose the firearm. If you are just carrying under Texas's Travelling Statute and you RECKLESSLY expose the handgun to plain view (say by carrying it on a motorcycle with nothing more than a t-shirt covering it, leaving it on your dash, etc.), then you can be convicted for unlawful carry.

rose728751 · May 4, 2012, 07:17 PM

I do have CHL.

As I had said, I did not touch the gun, did not look at the guy, (No glaring look) when the T shirt blow up.

I know what I did. Aside from that, it could have been an honest error. But ................

it went in the right direction, Yes, it could have gone another way.

I did make eye contact at the very start, when I started to feel as though he was getting a bit TOOOO close. I got a look as to say, SO. that is when I attempted to let him pass

arch308 · May 4, 2012, 07:52 PM

I ride daily and know exactly how you felt. IMO it was not a wise thing to do but glad it had a positive effect. I carry in a compartment in my fairing and have been tempted to pull it several times.
Once I was intentionally run off the road into a bar ditch along the hwy. I managed to maintain control thru the grass, etc. When I finally got back up on the pavement the SOB was sitting right there. I was really pumped up and in fear of my life so slamed on the brakes and pulled my 44 spcl. Then I noticed that traffic had him surrounded and stopped. I walked up and slapped some on his door window with a few choice words then got back on my bike and traffic got moving again. Long story short next I knew I was pulled over by the police. All they knew was some crazy biker was "waving a gun around" by all the 911 calls recieved. After explaining myself 3 times they looked for the guy who ran me off the road but of course didn't find him.
I was in handcuffs on the curb thinking what a fool I was and how I was gonna post bail when the cops let me go saying there was no one to press charges and to be smarter in the future.
Even tho I was wronged and felt the threat still existed at the time I pulled my weapon, it was the wrong thing to do. Things could have gone very badly for me and I learned a valuable lesson. Don't ever pull a gun unless it is a split second away from being to late to do so, even here in Texas!

Kreyzhorse · May 4, 2012, 07:55 PM

It was intentional and as a result you brandished your firearm.

**Aguila Blanca** · May 4, 2012, 08:24 PM

Quote:

Originally Posted by TheNocturnus

Yes. Sounds like you intentionally showed your firearm to get a response from another person. Bad idea.

Agreed. The intention being the qualifying factor.

Actually, it was probably more than mere brandishing. It could very likely be construed as threatening.

Casimer · May 4, 2012, 09:25 PM

But how would the driver or police establish that his actions were intentional? His shirt flew up because he lifted his butt off the seat. That could have occurred inadvertently. So unless he admitted to deliberately displaying the pistol, I think that it would be very difficult to make a charge out of this.

And I'm not advocating breaking the law, but still the OP wouldn't be compelled to incriminate himself.

FWIW the reason that someone tails a bike in this way is to make the rider go down. They want to make you crash. So it is a mortal threat, though that would be difficult to prove as well. I think that's part of the attraction for some drivers.

Brian Pfleuger · May 4, 2012, 09:31 PM

Most people tailgate bikers because they don't know any better. Very, very few have hostile intent. I can't hardly get 5 miles without somebody 10 feet behind me.

Casimer · May 4, 2012, 09:42 PM

According to the OP's account, this wasn't innocent tailgating. They were deliberately pursuing him.

But otherwise, you're right Brian, most incidents of drivers getting too close to bikes are just negligence. I'm not claiming that every such situation is malicious.

**JohnKSa** · May 4, 2012, 09:53 PM

Quote:

No. It is not brandishing in your state.

Correct, because there isn't really any offense called "brandishing" in the TX Penal Code.

What he did was one of two things. He either intentionally carried without concealing, which is an offense, or he "used force", per the section of the penal code I quoted. Using force is not illegal, in and of itself, but it does have to be done with sufficient legal justification to be legal. Just like deadly force can only be used legally with sufficient legal justification. The difference is that force can be more easily legally justified under the TX Penal Code than deadly force can.

Quote:

But how would the driver or police establish that his actions were intentional?

For the sake of argument, if he were to claim (for example) that he was twisting in his seat to see the tailgating vehicle and the shirt blew up accidentally, then there is no intent to display and therefore no offense.

However, because he's explicitly stated that he intentionally displayed the gun, it's sort of a moot point for this discussion.

Even if the police could prove his actions were intentional, he could still legally justify his actions if he were able to convince whatever arm of the legal system he happened to run afoul of that the other person was using or attempting to use unlawful force and that he felt he had no other option but to immediately flash his gun.

wow...again · May 4, 2012, 10:34 PM

I would worry about it. You touched your firearm with your hands or your clothes with your hands. Be hard to say you brandished your firearm. And it sounds like you got your point across. There ought to be open carry all 50 states anyhow

rose728751 · May 5, 2012, 12:13 AM

OK

Lets look at this from the out side looking in.

Some one see's a biker going 55, from a distance ahead of them (lets say 200m 300m ahead of them) and a car passes them doing 65 and starts to slow and get behind the biker (from their view it looks as though the car is behind the biker, but they cant really tell how close from where they are yet.) then the car that is a way back observing this starts to get closer because the biker is doing 55 the speed limit, and now are able to see the car really close to the biker and see the biker speed up now and pull away and the car that is following do the same as the biker ( the biker is doing 65 now pulling away from the car that was observing this transpire.they are in the inside lane. The biker is in the out side lane)

Giving that you know that the T shirt flew up, but the car that was observing, i don't think they seen the gun, because I was maybe about 50m to 100m away.

just looking at this at another view.

(not trolling) I just reread this, and I would think that this is a troll

trying to get a reaction.

I was wrong, I know, for letting my T shirt fly up and letting the gun show.

I dont think that would have helped me if a LEO was called, I think they would have been long gone by that time to tell their story

**JohnKSa** · May 5, 2012, 02:54 AM

Quote:

I dont think that would have helped me if a LEO was called, I think they would have been long gone by that time to tell their story

For future reference, if you find yourself in a situation where someone uses or attempts to use unlawful force against you, requiring your immediate response with force, your best bet would be to immediately call 911 to report the incident.

If you don't report it but the other person does, it makes it harder for you to make the case that you believed your actions were justified. After all, the normal response of a law-abiding person who's just been forced to use a gun to extricate himself from a dangerous situation is to immediately report the attempted crime against him.

**Aguila Blanca** · May 5, 2012, 08:17 AM

Quote:

Originally Posted by rose728751

Some one see's a biker going 55, from a distance ahead of them (lets say 200m 300m ahead of them) and a car passes them doing 65 and starts to slow and get behind the biker (from their view it looks as though the car is behind the biker, but they cant really tell how close from where they are yet.) then the car that is a way back observing this starts to get closer because the biker is doing 55 the speed limit, and now are able to see the car really close to the biker and see the biker speed up now and pull away and the car that is following do the same as the biker ( the biker is doing 65 now pulling away from the car that was observing this transpire.they are in the inside lane. The biker is in the out side lane)

???

Remedial English meets Tuesdays and Thursdays at 10:00 in room 238.

The above paragraph must have meant something to you when you wrote it, but I've just read it twice and I can't figure out what it's trying to say.

reloader32 · May 5, 2012, 03:00 PM

Its not like you were driving down the road waving it at anyone.

BoogieMan · May 8, 2012, 09:44 AM

If you brandish or the driver of the car thought you did than wouldnt he be in his/her right to defend themselves? You could have ended up as pizza on the road. 150gr bullet isnt much defense against a 2 ton car.
Just a thought. Sucks that someone would tailgate a bike.

MLeake · May 8, 2012, 06:37 PM

Try getting tailgated by a semi on a wet day on I-5 sometime. On a dry day, I could have lost him easily. On a day with wet roads, I really didn't want to sustain outrun speed for long.

Never knew what set the guy off, or if nothing set him off and he just thought it was funny to get right up on bikes. Either way, when a driver appears to go out of his way to tailgate a bike, it's very threatening to the biker.

And no, I would not want to try to shoot from a bike against a paper target (balance could get interesting, as I have never practiced that), let alone at a multi-ton vehicle that might decide to become a battering ram.

But evasion isn't always a ready option. Depends on location and conditions.

ClayInTx · May 8, 2012, 07:16 PM

Rose, you made a mistake.

In the OP you should have said, “My shirt accidentally blew up and exposed the gun.”

.

May 4, 2012, 07:17 PM	#29
rose728751 Member Join Date: March 11, 2011 Location: Far West Texas Posts: 69	I do have CHL. As I had said, I did not touch the gun, did not look at the guy, (No glaring look) when the T shirt blow up. I know what I did. Aside from that, it could have been an honest error. But ................ it went in the right direction, Yes, it could have gone another way. I did make eye contact at the very start, when I started to feel as though he was getting a bit TOOOO close. I got a look as to say, SO. that is when I attempted to let him pass Last edited by rose728751; May 4, 2012 at 07:33 PM.

May 4, 2012, 07:55 PM	#31
Kreyzhorse Senior Member Join Date: April 12, 2006 Location: NKY Posts: 12,463	It was intentional and as a result you brandished your firearm. __________________ "He who laughs last, laughs dead." Homer Simpson

May 4, 2012, 09:31 PM	#34
Brian Pfleuger Moderator Emeritus Join Date: June 25, 2008 Location: Austin, CO Posts: 19,578	Most people tailgate bikers because they don't know any better. Very, very few have hostile intent. I can't hardly get 5 miles without somebody 10 feet behind me. __________________ Nobody plans to screw up their lives... ...they just don't plan not to. -Andy Stanley

May 4, 2012, 10:34 PM	#37
wow...again Junior member Join Date: May 4, 2012 Posts: 1	Sounds like some punk giving you a hard time... I would worry about it. You touched your firearm with your hands or your clothes with your hands. Be hard to say you brandished your firearm. And it sounds like you got your point across. There ought to be open carry all 50 states anyhow

May 5, 2012, 12:13 AM	#38
rose728751 Member Join Date: March 11, 2011 Location: Far West Texas Posts: 69	OK Lets look at this from the out side looking in. Some one see's a biker going 55, from a distance ahead of them (lets say 200m 300m ahead of them) and a car passes them doing 65 and starts to slow and get behind the biker (from their view it looks as though the car is behind the biker, but they cant really tell how close from where they are yet.) then the car that is a way back observing this starts to get closer because the biker is doing 55 the speed limit, and now are able to see the car really close to the biker and see the biker speed up now and pull away and the car that is following do the same as the biker ( the biker is doing 65 now pulling away from the car that was observing this transpire.they are in the inside lane. The biker is in the out side lane) Giving that you know that the T shirt flew up, but the car that was observing, i don't think they seen the gun, because I was maybe about 50m to 100m away. just looking at this at another view. (not trolling) I just reread this, and I would think that this is a troll trying to get a reaction. I was wrong, I know, for letting my T shirt fly up and letting the gun show. I dont think that would have helped me if a LEO was called, I think they would have been long gone by that time to tell their story Last edited by rose728751; May 5, 2012 at 12:23 AM.

May 4, 2012, 02:50 PM	#27
Zhillsauditor Senior Member Join Date: October 19, 2008 Posts: 635	There was in incident here in Florida recently where a man was getting his towed car back from the tow company (which had mistakenly towed the vehicle). The owner of the tow truck tried to stop him, and stated that the man made motions to run him over, so the owner shot the man fatally. However, the angle of the entry wounds showed that the shooter was not in front of the vehicle, but to the side. The owner was convicted of murder. The defense was that the owner had only a few seconds to make a life and death decision and acted reasonably based on the perceived threat.

May 4, 2012, 07:52 PM	#30
arch308 Senior Member Join Date: November 6, 2011 Location: DFW, Texas Posts: 876	I ride daily and know exactly how you felt. IMO it was not a wise thing to do but glad it had a positive effect. I carry in a compartment in my fairing and have been tempted to pull it several times. Once I was intentionally run off the road into a bar ditch along the hwy. I managed to maintain control thru the grass, etc. When I finally got back up on the pavement the SOB was sitting right there. I was really pumped up and in fear of my life so slamed on the brakes and pulled my 44 spcl. Then I noticed that traffic had him surrounded and stopped. I walked up and slapped some on his door window with a few choice words then got back on my bike and traffic got moving again. Long story short next I knew I was pulled over by the police. All they knew was some crazy biker was "waving a gun around" by all the 911 calls recieved. After explaining myself 3 times they looked for the guy who ran me off the road but of course didn't find him. I was in handcuffs on the curb thinking what a fool I was and how I was gonna post bail when the cops let me go saying there was no one to press charges and to be smarter in the future. Even tho I was wronged and felt the threat still existed at the time I pulled my weapon, it was the wrong thing to do. Things could have gone very badly for me and I learned a valuable lesson. Don't ever pull a gun unless it is a split second away from being to late to do so, even here in Texas!

May 4, 2012, 09:25 PM	#33
Casimer Senior Member Join Date: April 23, 2007 Location: Pennsylvania, USA Posts: 1,918	But how would the driver or police establish that his actions were intentional? His shirt flew up because he lifted his butt off the seat. That could have occurred inadvertently. So unless he admitted to deliberately displaying the pistol, I think that it would be very difficult to make a charge out of this. And I'm not advocating breaking the law, but still the OP wouldn't be compelled to incriminate himself. FWIW the reason that someone tails a bike in this way is to make the rider go down. They want to make you crash. So it is a mortal threat, though that would be difficult to prove as well. I think that's part of the attraction for some drivers.

May 4, 2012, 09:42 PM	#35
Casimer Senior Member Join Date: April 23, 2007 Location: Pennsylvania, USA Posts: 1,918	According to the OP's account, this wasn't innocent tailgating. They were deliberately pursuing him. But otherwise, you're right Brian, most incidents of drivers getting too close to bikes are just negligence. I'm not claiming that every such situation is malicious.

May 5, 2012, 03:00 PM	#41
reloader32 Junior Member Join Date: May 5, 2012 Posts: 1	i would say not to worry about it... Its not like you were driving down the road waving it at anyone.

May 8, 2012, 09:44 AM	#42
BoogieMan Senior Member Join Date: April 4, 2012 Location: South Jersey Posts: 2,217	If you brandish or the driver of the car thought you did than wouldnt he be in his/her right to defend themselves? You could have ended up as pizza on the road. 150gr bullet isnt much defense against a 2 ton car. Just a thought. Sucks that someone would tailgate a bike.

May 8, 2012, 06:37 PM	#43
MLeake Senior Member Join Date: November 15, 2007 Location: Outside KC, MO Posts: 10,128	Try getting tailgated by a semi on a wet day on I-5 sometime. On a dry day, I could have lost him easily. On a day with wet roads, I really didn't want to sustain outrun speed for long. Never knew what set the guy off, or if nothing set him off and he just thought it was funny to get right up on bikes. Either way, when a driver appears to go out of his way to tailgate a bike, it's very threatening to the biker. And no, I would not want to try to shoot from a bike against a paper target (balance could get interesting, as I have never practiced that), let alone at a multi-ton vehicle that might decide to become a battering ram. But evasion isn't always a ready option. Depends on location and conditions.

May 8, 2012, 07:16 PM	#44
ClayInTx Senior Member Join Date: November 17, 2009 Location: Texas Posts: 1,066	Rose, you made a mistake. In the OP you should have said, “My shirt accidentally blew up and exposed the gun.” . __________________ . No people should have to fear the will of their government; all governments should have to fear the will of their people.