Law question on brandishing

[divemedic]

On another board (unrelated to firearms) on of the posters said this:

you should feel lucky that you are in Virginia. Many other states say that it is unlawful to brandish a weapon and that non law enforcement need to fire if they draw.

If that is true, then if I draw on a person who is about to shoot another unlawfully, and he drops his weapon, the law would require that I shoot him, even though he has stopped being a deadly threat. I am not aware of any state that has such a law. Is anyone here aware of one?

 

[PoorSoulInJersey]

Never even heard of such a thing.

"Brandishing" a gun is a crime. So is shooting someone. In proven self defense situations, the DA is compelled to either not charge you or acquit you.

If you shoot someone who's defenseless, say hi to your cell mate!

 

[Dewhitewolf]

My understanding of the general rule of law, regardless of the state, is that if you shoot someone, you must defend your actions in court (both criminal and civil). A license to carry is just that--a license to carry. It is NOT a license to use.

Claiming self defense is classified as an affirmative defense. When you assert an affirmative defense, the burden is on you to prove that your actions fall within the state's legal boundaries of a justifiable shooting. You are basically acknowledging your actions (therefore the prosecution no longer needs to prove it), but your actions were justified under the circumstances.

Self defense can only be asserted if your life, (or in some circumstances, the life of another), was in danger at the moment. Shooting someone who is no longer a threat turns you into the aggressor in the eyes of the law (i.e., shooting someone who has discarded his weapon, or turned and retreated, etc.). The same applies if your state allows you to use a weapon to stop a crime that you are witnessing--you do not have the right to chase, or shoot someone who runs away, because you are no longer preventing the crime.

Whoever said that you must shoot if you brandish is not a reliable source. In most states, brandishing is considered using in the eyes of the law (same consequences as firing). NJ is a notable exception, in that the courts do recognize, for the few people who have carry permits, "constructive authority." This allows a person to brandish a firearm to escape a situation or prevent being killed, but the burden is still on him to prove that his life was in danger. In order to preserve the right to assert that defense, he must immediately report the incident to the nearest law enforcement facility. If law enforcement finds out before he reports it (or doesn't report it), he may face criminal charges.

 

[OldMarksman]

you should feel lucky that you are in Virginia. Many other states say that it is unlawful to brandish a weapon.... and that non law enforcement need to fire if they draw.

Four things:

First, many people who live in Virginia feel lucky to live there, but it shouldn't be because of anything to do with "brandishing."

In VA it is "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." Doesn't apply if the weapon is drawn for purposes of self defense.

http://law.justia.com/virginia/codes/toc1802000/18.2-282.html

Second, while many states do have similar laws, the term "brandishing" may not be used. Where I live, the operative phrase is "exhibit...in an angry or threatening manner." The self defense exclusion is also in the law.

Third, for heaven's sake, the idea that the law would require ,hat one shoot a person, even though he has stopped being a deadly threat' if one has drawn on a person is preposterous at best.

OK. Do not draw unless you are in imminent danger of death or great bodily harm. But if the danger then dissipates, do not shoot.

Lay opinion.

I hate to put it quite this way, but if you have to ask, I think you need some training before you carry a gun.

Fourth, in your example, you mentioned drawing on someone who is about to shoot someone else. Again, get some expert training in the law. Using deadly force to protect a third person may well be legal depending on the circumstances but it is fraught with risk.

See this:

http://www.thefiringline.com/forums/showpost.php?p=3471396&postcount=94

For all of you pontificating on this subject [defense of a third party], answer this question please.

Are you in a jurisdiction where you "stand in the shoes" of the 3rd party you are purportingly defending, or are you in a jurisdiction where you must simply "act like a reasonable person" when coming to the defense of another?

If you cannot answer this question, then I submit you had better spend some time researching this topic, because to get the answer wrong, means perhaps a long time in prison

Marty Hayes' Armed Citizen's Legal Defense Network has been recommended, and I intend to join. Cost is the same as about twenty minutes of consultation with a criminal trial lawyer. Value of potential benefit is millions of times the cost.

http://www.armedcitizensnetwork.org/faqs.html

I hope this proves helpful.

 

[rwilson452]

In PA there are no "brandishing" laws.

 

[Hkmp5sd]

In PA there are no "brandishing" laws.

True. They just arrest you for assault with a deadly weapon and as some publications state, even terrorist threats.

 

[Brian Pfleuger]

Producing a weapon with the intent to use it in SD is NOT brandishing.

For instance, you're mugged at knife point, as you draw your gun the BG realizes that your armed and backpedals away and yells "Hey, hey man, it's cool, we're cool. I didn't mean nothin"
What now? Are you supposed to say "Well, I'd rather let you go but, you know, the law says that since I pulled out my gun I have to shoot you.... hold still now, I'll try to make it not hurt too bad."

Think about it. There is no such law. "Brandishing" is when you show or draw your weapon when there is no justification for doing so.

Another example... you pull into a gas station and are beginning to pump your gas. Some dude comes over and starts yelling that you cut him off as he was pulling into the pump. You turn toward him and lift your shirt, exposing your gun, and say "Get over it." THAT is brandishing.

 

[divemedic]

I hate to put it quite this way, but if you have to ask, I think you need some training before you carry a gun.

Actually, my answer was:

That is nonsense.

I am not asking for myself, but to ensure that I am not mistaken about the laws of another state. I am quite sure of the law here in Florida (as well as the majority of the case law that defines those laws), but states have crazy laws, and if you do not live there, you may not know of them all.

I once lived in Virginia, Louisiana, and also in Arkansas. That was years ago. Laws change. I didn't want to spout off unless I had the facts.

The thread in this case involved a person who got in a verbal altercation that turned physical. He wound up drawing a pistol and, while pointing it at the ground, told the guy to back off. He is now worried he will face charges.

One poster replied, saying that you are not allowed to pull out your gun unless you actually need to discharge it, and that the poster broke the law by doing what he did. Others echoed that opinion. I was trying to set the record straight, ad was asked for facts. I thought this was a good place to get some.

Edited to add:

For example: In Florida the display of a weapon is not considered to be deadly force. Only the discharge of a weapon always constitutes "deadly force." In the state of Florida, merely pointing a gun at someone is, as a matter of law, non-deadly force. (see Riviero v. State, 871 So.2d 953 (Fla. 3DCA, 2004)).

Since, as a matter of state law, one can use non-deadly force to protect property (ss 776.031), a person would be justified in drawing a weapon to prevent a person from say, vandalizing his automobile, but would not be authorized to use deadly force (meaning discharging the weapon) unless the situation escalated, like if the vandal drew a weapon. (or otherwise made the incident a forcible felony- say by setting the vehicle on fire)

This is what I mean about the laws being different from state to state.

 

[Hkmp5sd]

The thread in this case involved a person who got in a verbal altercation that turned physical. He wound up drawing a pistol and, while pointing it at the ground, told the guy to back off. He is now worried he will face charges.

Not to hijack the thread, but escalating an altercation while armed is a good way to end up with a manslaughter charge. If you carry a CCW, don't even get into verbal altercations. Walk away.

 

[Mr. James]

Actually, not a hijack at all

In the context of Virginia law, there is a distinction made between justifiable homicide and excusable homicide, the latter involving cases where the defendant provoked or initiated the conflict, but then retreated when things turned ugly.

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. . . .

Excusable homicide in self-defense occurs where the accused,
although in some fault in the first instance in provoking or
bringing on the difficulty, when attacked retreats as far as
possible, announces his desire for peace, and kills his
adversary from a reasonably apparent necessity to preserve his
own life or save himself from great bodily harm.

Bailey v. Commonwealth, 200 Va. 92, 96, 104 S.E.2d 28, ___ (1958).

Your point is, however, unassailable. Walk away, stifle your sharp retorts, offer it up . . .

 

[maestro pistolero]

Warning, temporary thread hi jack, sort of:

If you carry a CCW, don't even get into verbal altercations. Walk away.

Agreed. I would only add, 'whenever humanly possible'. SD situations are rarely cut and dry. I am a firm believer that if you carry a gun, you ought to also have some means of non-lethal defense with you. For me that is pepper spray. Some might prefer a taser but a gun AND a taser is traveling a little heavy, even for me.

The benefits of doing this are many. Number one is that you can usually diffuse a situation without an ambulance, or a defense attorney becoming part of the story. You may be less likely to brandish (legally speaking), when your intent was self defense.

If there is one person that is about your same stature and physical abilities, who is threatening to kick your @$$, then a court is probably going to frown on your drawing a gun for defense.

If you are challenged about the use of pepper spray, but you are legally CCW, you all of a sudden seem like the most reasonable person in the world: "Your honor, my attacker was angry and threatening, I didn't want the situation to escalate into one involving my firearm, so, for the defendants sake, and mine I employed a non-lethal defense."

And by all means, report it. If he makes the call first you are screwed.

If there are multiple assailants, or if there is otherwise a disparity of force, (because you are handicapped, or elderly, or a 90 pound women, etc) and you are threatened, you may be justified in drawing. If you have pepper spray in your possession, it's easier to argue that you are not out to shoot someone, it's just that this particular situation called for a greater level of resistance.

Either way, you have just exponentially increased the chances that you get to go home that day, and your assailant to jail, instead of the morgue or hospital. And that's a good thing.

THREAD HI-JACK OVER

 

[hogdogs]

IMHO, Brandishing is a threatening move. Not just a step in a clean use of a firearm for SD. If a gun needs pulled and it ends the confrontation without a round fired, it isn't brandishing to me and I hope the DA and/or judge see it the same...
Brent

 

[Al Norris]

I agree completely, Brent.

Originally, to brandish meant to flourish a sword (1340 - archaic French). Then it came to mean to wave that sword around. Then it came to include guns.

The modern and common usage is to aggressively wave a weapon.

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.

 

[brickeyee]

This is what I mean about the laws being different from state to state.

Not only are the statute laws different, but case (common) law is different.

Simply reading the statute law is NOT adequate to understand what is (and is not) acting within the law.

Virginia has NO statute law on lethal force.
Not a single law.

It is ALL case law.
There is a lot of it and most clearly defines the conditions that have been found to be within the law.

 

[TEDDY]

printing

I believe SC has it as printing if some one sees an out they can claim they were terrified and call the police.you then have to defend yourself in court.
thats why I dont want a permit.

 

[BillCA]

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.