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Old December 3, 2005, 07:59 PM   #1
SamD
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Brandishing!

Everyone and their brother around here is so all fired concerned with being charged with brandishing, I have to ask the question.

Do any of you have any info on folks arrested/convicted for brandishing?

I wanna know, show me some convictions of righteous folk for brandishing, as opposed to convictions of punks where brandishing was used as an add on or convenience charge.

Show me some cases.

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Old December 3, 2005, 08:08 PM   #2
281 Quad Cam
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Sorry I don't have better information, but the literature which came with my CCW from the state gave this true example.

A woman took her car into the mechanics, she than felt he hadn't repaired the car properly or whatever....... She refused to pay, and he proceded to disconnect the radiator hose and/or damage the car, she pulled her gun and told him to get away from her car. This mother of 2 was convicted and sentenced to 5 years.

This was the example which was chosen by the department of licensing to include with the CCW packet.

I too have a dreaded fear of being charged with brandishing, and worry if it will get me killed. Waiting to draw untill it is too late, etc.
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Old December 3, 2005, 08:10 PM   #3
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Sorry 281 that isn't brandishing that's assault.

Next case please.

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Old December 3, 2005, 08:48 PM   #4
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No, thats brandishing. She pulled her gun, she didn't point it at the guy.

Point = Assault = up to 25 years
Draw = Brandishing = 5 years
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Old December 3, 2005, 09:12 PM   #5
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Rabbit Season!

Duck Season!

.
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Old December 3, 2005, 09:17 PM   #6
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Duck season!

Rabbit season!

those are both tasty critters, animated or not.........
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Old December 3, 2005, 09:20 PM   #7
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Rabbit Season!
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Old December 3, 2005, 10:17 PM   #8
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Check with your state as to what they consider "Brandishing". I believe it varies.. In Minnesota Brandishing deals with haveing the gun in hand. As Minnesota is a carry state, either open or concealed as long as you don't pull it out, or stick your hand on it (grey area there) you have an argument against "Brandishing". Of course if your jacket happens to fall open, and someone sees your piece.. Ooops, sorry as you rebutton your jacket. Best thing is to leave your temper and attitude at home if you carry!
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Old December 3, 2005, 10:23 PM   #9
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Duck season! FIRE!
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Old December 3, 2005, 11:10 PM   #10
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BANG!!
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Old December 4, 2005, 12:10 AM   #11
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Actually BigFun it's assault W/Weapon.
Give me the cite or at least a case name.

Till then it's a SNIPE.

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Old December 4, 2005, 12:56 AM   #12
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In the case mentioned the woman is clearly using a gun in a totally illegal fashion. Her life and limb are not at risk, and she has not reason to believe they are. She is using the gun to force the man to stop what he is doing, though he may believe he has a legal right to do it (and since she owes him money, he may -- I dunno on that) and it is not necessarily a crime.

In any case, no reason/cause to pull firearm.

However ... the LAWYER who lectured at my advanced CCW class talked about brandishing. It involves a threat to the person.

He was the most liberal I've heard talk about brandishing. He even said if you were approaching a person committing a felony -- i.e. carrying your stereo out of your house -- it would not be brandishing to draw the weapon and hold it down. In Colorado you have a right to confront a person taking your property, and while you have absolutely NO right to use deadly force against them just for stealing, it would be considered by the law to be a justifiable precaution to unholster a weapon and hold it down but ready.

I don't plan on testing that one, but I imagine he's right (what jury/DA is going to put someone in jail for confronting a felon with a legally carried weapon held down in their hand? Seems like they'd be kind of stupid for leaving it holstered in that situation.)
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Old December 4, 2005, 12:57 AM   #13
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In the case mentioned the woman is clearly using a gun in a totally illegal fashion. Her life and limb are not at risk, and she has not reason to believe they are. She is using the gun to force the man to stop what he is doing, though he may believe he has a legal right to do it (and since she owes him money, he may -- I dunno on that) and it is not necessarily a crime.

In any case, no reason/cause to pull firearm.

However ... the LAWYER who lectured at my advanced CCW class talked about brandishing. It involves a threat to the person.

He was the most liberal I've heard talk about brandishing. He even said if you were approaching a person committing a felony -- i.e. carrying your stereo out of your house -- it would not be brandishing to draw the weapon and hold it down. In Colorado you have a right to confront a person taking your property, and while you have absolutely NO right to use deadly force against them just for stealing, it would be considered by the law to be a justifiable precaution to unholster a weapon and hold it down but ready.

I don't plan on testing that one, but I imagine he's right (what jury/DA is going to put someone in jail for confronting a felon with a legally carried weapon held down in their hand? Seems like they'd be kind of stupid for leaving it holstered in that situation.)

Anytime someone draws a weapon on another person who has begun and is maintaining a physcially aggressive stance, I don't know that a brandishing charge could be filed/successfully prosecuted.
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Old December 4, 2005, 01:37 AM   #14
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brandishing in most jurisdction is assault. the termonology or degree varies depending on location and circumstances. most of these are plead down. think about this. you will lose your weapon pending on dispisition. many judges will not let you have it back depending on dispisition. you lose your ccw. you lose your right to buy on form depending on dispisition. you could lose your job. the list goes on. while most states allow the threat of deadly force as a response to non deadly physical force you better not present that weapon unless your entitled and ready to kill with it. threatining deadly force is a high risk high gain. you automatically lose any other steps of the continuium of force. it is difficult to present threaten deadly force and find someone who will call your bluff or knows the law or dosent give a [color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color][color=#FF0000]█[/color]. the weapon stays hid till time to use it. of course one can find situations where it is beneficiakl like if ther are others to back you up etc.

so not many convictions of brandishing but many agg assualt attempt agg assualt assault etc
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Old December 4, 2005, 02:49 AM   #15
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SamD - you have the internet, look it up yourself!

I found the following in about 90 seconds of searching using Google. It'll at least show you people are brought up on charges for brandishing.

Found here:
Quote:
Seventeen concealed weapon permit holders were charged with brandishing a gun during the first year of the state's concealed carry law, a new Michigan State Police report says.
While six people who faced a brandishing charge had their permits revoked, no action was taken against seven others, state police spokesman Dave Turner said Friday.
Two had their permits suspended and the state police didn't have information about the other two, Turner said.
County gun boards, which handle concealed weapon permit applications, must revoke a permit if a person is convicted of a crime. Permits are suspended until the end of a trial.
Only one person charged with brandishing a gun was convicted of that crime during the first year of the law covered by the report.
Found here:
Quote:
CHARLOTTESVILLE - Former Virginia basketball player Elton Brown was arrested and charged with brandishing a firearm during a dispute with an acquaintance outside a mall, police said Thursday.
Found here:
Quote:
An area man was jailed Thursday on charges he brandished a firearm and threatened to shoot two deliverymen who had asked him to change parking spaces, police said.
Found here:
Quote:
Rapper Eminem made headlines in June 2002, just two weeks after the release of The Marshall Mathers LP, when he was arrested and charged with brandishing a weapon against members of the rival Insane Clown Posse.
Keep looking until you find something that beats it deep into your skull to keep your weapon hidden until you need to pull the trigger.
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Old December 4, 2005, 04:19 AM   #16
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I don't want to make it sound like I'm in favor of drawing a gun at the slightest sign of disfavor from someone, but each of the incidences above we have details for involved a person being needlessly agressive. For the cases we don't have details for, many were not prosecuted further (only 6 our of 17 -- in the rest of th cases the charges were droped).

For the other instances ...

The ball player brandished his weapon in a dispute with someone he knew. No real details, but there's a difference between drawing a weapon on a complete stranger and someone you have an ongoing relationship with.

Another guy drew his weapon when asked to change parking spots. Again ... no threat there at all. They weren't criminals, they were deliverymen. They weren't committing a felony.

Einemem ... rapper crap. Not really a normal citizen.

I guess the real question is ... is there a case where a civilian displayed a weapon to a felon or aggressive person and is now doing time. i.e. they drew their weapon on a guy stealing a stereo and now both are in prison.

Any links to stories like that?

It's like a LEO once told me (and a LEO not really in favor of civilian CCW at that) it IS illegal to hold someone at gunpoint for trying to steal your car. On the other hand, any cop arriving at the scene would expect an armed person to stop someone from stealing their car, though of course if someone is on the ground bleeding it's going to warrant a full investigation.

Again ... my personal belief (as someone said earlier) that before you limit your options to the use of deadly force by drawing a weapon you should pursue every other avenue and take into account what will cause YOU the least pain (replacing a stereo/dealing with having drawn a weapon on someone for trying to take it) and only use a weapon for an obvious assault against life and limb.

My .02 ...
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Old December 4, 2005, 11:45 AM   #17
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"Rapper Eminem made headlines in June 2002, just two weeks after the release of The Marshall Mathers LP, when he was arrested and charged with brandishing a weapon against members of the rival Insane Clown Posse. "

Insane Clown Posse! What did they do threaten to make him laugh to death?
I know they are probably some no good %#@$& but where do they dig up those names?
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Old December 4, 2005, 12:48 PM   #18
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Snagged from THR (http://www.thehighroad.org/showthread.php?t=169117)
***
"Long story short:
CCW holder accosted by homeless man with knife. Man grips his Sig and tells the homeless man if the man advances he'll shoot. Man leaves, homeless person reports he was threatened by a man with a gun. Police arrest him, seize his firearm and carry permit, charge him for carrying without a permit, making threats etc. To top it off, they get a search warrant at his house and seize all his other guns. Months later, the felony carry without a permit is dropped, but the homeless man is still pressing charges for making "terroristic threats"

the origional story:
http://www.livejournal.com/community/guns/488724.html

the update:
http://www.livejournal.com/users/har...mel/12299.html

atek3"
***

"Terroristic threats" seems to be a brandishing-ish charge. Although, for such a scary sounding name, it's just a misdemeanor.

And yes, we all know that he should have called the police first!

Edit: fixed link

Last edited by Neophyte; December 4, 2005 at 11:24 PM.
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Old December 4, 2005, 04:18 PM   #19
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http://www.freesearch.co.uk/dictionary/brandishing

brandish
verb {T}
to wave something in the air in a threatening or excited way:


about 3/4 way down the page here...

http://www.ag.state.mi.us/opinion/da...0s/op10176.htm

In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

http://www.ci.edmonds.wa.us/Ordinanc...0/Ord3291.html

2. An assault is also an act done with an intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied by the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.



A gun out, not pointed at a person, CANNOT shoot them. That is not assault. The second that gun is aimed, it becomes assault.

I've been gone all day plowing snow, and this took:

Results 1 - 10 of about 119,000 for definition brandishing. (0.24 seconds)

Results 1 - 10 of about 5,130,000 for definition assault. (0.20 seconds)

on Google


SNIPE off
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Old December 4, 2005, 05:05 PM   #20
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Neophyte ...

Now THAT'S a SCARY story. Talk about police abuse. The 2nd link didn't work, but hopefully he got somekind of justice eventually.

I guess one also has to remember where one lives. This horrible story happened in the anti-civlilian carry city of Philadelphia.

In Colorado, I don't THINK this would even happen in Denver or Boulder. Bottom line is he's going to have to defend himself. But that's better than being in the hospital with a knife wound.

I do agree he should have called the police the moment he displayed his gun.

Once the police contacted him after the fact, he should have played stupid and not answered their quesitons until he had counsel.

In Colorado, once the guy displayed the knife he was "brandishing" even if it was still on his belt, and brandishing is sufficient to warrant the use of deadly force.

Of course, I'm sure he would have still had problems with the law.
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Old December 4, 2005, 11:58 PM   #21
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Quote:
Now THAT'S a SCARY story. Talk about police abuse. The 2nd link didn't work, but hopefully he got somekind of justice eventually.
Oops - update link fixed. And no, it doesn't look like he's going to get much justice in Philly, but he may go ahead and plead (he says in the link) so that he can get his record expunged and his RKBA restored later. Maybe.

You know, I don't want to get into a cop-bashing thread, or argue back-and-forth about legal techniques or whatever. What's occupying my mind now after reading this is:

What happened to the police?

I mean, when did the police, or if you like, the DA or courts or whoever, become our adversaries?! Why should we have to treat them like they're "out to get us", just to protect ourselves? What the hell happened to us being on the same side?

Seriously, I understand that I shouldn't tar all police with the same brush, and that most LEOs are not slavering gun-grabbing jackboots. But, still, the advice given in these situations is almost universal, no matter where you live: shut up; lawyer-up; don't help; keep quiet; don't volunteer information; stonewall; make them do all the work; etc, etc, et-freakin'-cetera.

God, doesn't this BOTHER people? In order to C our A's, we've got to essentially become dead weight in the legal system! Don't fight, but merely make them carry all the load. Even though they're probably fine, hardworking public servants, we've got to act as if they aren't, as if they really are our enemies - just in case one of them actually is.

I don't....I'm not blaming cops. Or lawyers. Or, well, anybody. I don't know who is to blame, if anyone even is. I'm just tired and saddened and a little bit pissed that all this legal rigamarole has become so necessary these days.

This isn't how it should be! But it is and I don't know if it ever will, or can, change.


...sigh. Well, sorry for the rant. It just bugged me.
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Old December 5, 2005, 10:02 AM   #22
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Its worse in Massachusetts...

where "brandishing" is interpreted as allowing your gun to be seen, or putting your hand on your gun even if no one actually sees the gun.
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Old December 5, 2005, 03:36 PM   #23
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Quote:
CCW holder accosted by homeless man with knife. Man grips his Sig and tells the homeless man if the man advances he'll shoot. Man leaves, homeless person reports he was threatened by a man with a gun. Police arrest him, seize his firearm and carry permit, charge him for carrying without a permit, making threats etc. To top it off, they get a search warrant at his house and seize all his other guns. Months later, the felony carry without a permit is dropped, but the homeless man is still pressing charges for making "terroristic threats"
CCW Holder does not shoot the homeless man accosting him with a knife??? CCW holder does not report that he was accosted by a man with a knife to the police right away, and just goes home and forgets about it??? Something is Fishy???

Like everyone else is saying you better pull your weapon only when you seriously feel your life is threatened. I think a CYA move is that if your a valid CCW holder and involved in a threatening situation where you needed to put your hands on your weapon, the police should be called right away. Its a CYA move and civic duty, if not the bad guy will never get caught and eventually will find an unarmed victim.
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Old December 5, 2005, 03:48 PM   #24
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Quote:
Originally Posted by Mikeyboy
Like everyone else is saying you better pull your weapon only when you seriously feel your life is threatened. I think a CYA move is that if your a valid CCW holder and involved in a threatening situation where you needed to put your hands on your weapon, the police should be called right away. Its a CYA move and civic duty, if not the bad guy will never get caught and eventually will find an unarmed victim.
He might also report YOU for brandishing if you don't report it! That sort of thing has happened before. You are absolutely correct about pulling one's weapon, Mike. My own rule is simple: I won't draw unless I truly mean to use the weapon. If it doesn't actually come to that, so much the better, but don't draw it if you're not willing to use it if you must.
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Old December 5, 2005, 09:17 PM   #25
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Quote:
I don't....I'm not blaming cops. Or lawyers. Or, well, anybody. I don't know who is to blame, if anyone even is. I'm just tired and saddened and a little bit pissed that all this legal rigamarole has become so necessary these days.

This isn't how it should be! But it is and I don't know if it ever will, or can, change.
I agree -- this is crap. Like judges who base their rulings on their policital leanings this is TOTALLY wrong. Police and Judges enforce the law; they don't write it or choose what to enforce.

That said ... not to offend any of the fine LEO's on this board, but many LEO's I've known over the years tend to think of the world as "cops and everyone else."

Not all cops, not necessarily the ones who were my friends ... but ones I met.

This has always been a problem. Probably less now than it once was. But less hope we can reduce it more.

Not just for RKBA, but for EVERYTHING!
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