A question regarding "brandishing"

[ProShooter]

Consider this scenario where transition from CC to OC could be considered brandishing...

You walk into a restaurant and sit down for a meal. After finishing your meal, you pay your check and head for the rest room. When you get in there, you notice a couple of "undesirable" types who seem to be loitering. You feel a little uncomfortable, so you untuck your shirt to reveal your sidearm, in hopes that the thugs will take the hint and leave you alone.

So, is what you did here illegal? All you did was transition from CC to OC in the men's room. Could it have been taken as an offensive action by the loiterers?

That would be enough PC for me to make an arrest for brandishing, imho.

[gunderwood]

Consider this scenario where transition from CC to OC could be considered brandishing...

You walk into a restaurant and sit down for a meal. After finishing your meal, you pay your check and head for the rest room. When you get in there, you notice a couple of "undesirable" types who seem to be loitering. You feel a little uncomfortable, so you untuck your shirt to reveal your sidearm, in hopes that the thugs will take the hint and leave you alone.

So, is what you did here illegal? All you did was transition from CC to OC in the men's room. Could it have been taken as an offensive action by the loiterers?

That would be enough PC for me to make an arrest for brandishing, imho.

I agree that it would meet the requirements for brandishing, but unless you admit that is why you did it I don't see how they could arrest you. I.e. The others claim you did it to intimidate them, but you never said anything to them? If you claim (regardless of your actual intentions) that you were just adjusting yourself before leaving the bathroom, it would be a weak case at best.

To convict you of branishing, the state would have to show you intended to intimidate the other party with your firearm. While I agree that was the intention of the post, proving it in court would be difficult. Either way it isn't advised because it will probably cause you trouble and cost you money.

Bottom line IMHO, is if you feel like you need to display your firearm as a warning your on shaky legal ground and are violating the spirit of the brandishing law. If you are in such a place, it probably is best to go elsewhere. If you aren't going to shoot, don't do it.

[ProShooter]

Consider this scenario where transition from CC to OC could be considered brandishing...

You walk into a restaurant and sit down for a meal. After finishing your meal, you pay your check and head for the rest room. When you get in there, you notice a couple of "undesirable" types who seem to be loitering. You feel a little uncomfortable, so you untuck your shirt to reveal your sidearm, in hopes that the thugs will take the hint and leave you alone.

So, is what you did here illegal? All you did was transition from CC to OC in the men's room. Could it have been taken as an offensive action by the loiterers?

That would be enough PC for me to make an arrest for brandishing, imho.

I agree that it would meet the requirements for brandishing, but unless you admit that is why you did it I don't see how they could arrest you. I.e. The others claim you did it to intimidate them, but you never said anything to them? If you claim (regardless of your actual intentions) that you were just adjusting yourself before leaving the bathroom, it would be a weak case at best.

First, consider this - you can be arrested, for anything. Proving PC to a Magistrate and getting him to issue a warrant is another matter.

You are not required to say anything to someone for it to be brandishing. Its the totality of your actions and what was going through the victim's mind due to your actions - its the display of the firearm "in such a manner as to reasonably induce fear in the mind of another of being shot or injured".

So, let's say that I'm guy #1 standing in the men's room. I'm hanging in the men's room because I'm (waiting for a friend, making a phone call and its quiet in there, not feeling well and need a moment, feel sick from my meal, whatever). A guy walks in, looks at me and moves his shirt to expose a handgun. I haven't said or done anything to you to cause you to do that. Why did you do that very specific action at that moment? I'm afraid that you did that because you either want to intimidate me, or shoot me. I call the police and tell them what just happened.

The gun carrier can either:

Admit it was done to intimidate the "undesireables" = Brandishing, going to jail.

Claim that he was merely adjusting himself from CC to OC = again, if the victim felt that he may have been shot, then you may get hooked up for brandishing.

Say nothing at all to the officer, who then only has the victim's side of the story that he was in fear of being shot = Brandishing, going to jail.

Just my opinions, but I've seen people convicted for less and seen people walk away free for more.

[CCFan]

First, consider this - you can be arrested, for anything. Proving PC to a Magistrate and getting him to issue a warrant is another matter.

You are not required to say anything to someone for it to be brandishing. Its the totality of your actions and what was going through the victim's mind due to your actions - its the display of the firearm "in such a manner as to reasonably induce fear in the mind of another of being shot or injured".

So, let's say that I'm guy #1 standing in the men's room. I'm hanging in the men's room because I'm (waiting for a friend, making a phone call and its quiet in there, not feeling well and need a moment, feel sick from my meal, whatever). A guy walks in, looks at me and moves his shirt to expose a handgun. I haven't said or done anything to you to cause you to do that. Why did you do that very specific action at that moment? I'm afraid that you did that because you either want to intimidate me, or shoot me. I call the police and tell them what just happened.

The gun carrier can either:

Admit it was done to intimidate the "undesireables" = Brandishing, going to jail.

Claim that he was merely adjusting himself from CC to OC = again, if the victim felt that he may have been shot, then you may get hooked up for brandishing.

Say nothing at all to the officer, who then only has the victim's side of the story that he was in fear of being shot = Brandishing, going to jail.

The above post just reiterates the need to know how to handle these situation.

If I were in the above situation (I'm not saying I agree with those specific actions, but that's the hand that's been dealt) and I get arrested, I'm not saying a word. I already know my lawyer's phone number, and no matter what they accuse me of, arrest me for, or threaten me with - I don't say a word.

Just my opinions, but I've seen people convicted for less and seen people walk away free for more.

Bingo. Ergo, the reason I already know who's going to be speaking on my behalf.

The problem I see with questions such as this - each situation is unique... we can only control our actions, and we can Monday morning QB the play all day long - but if we strive to always stay on the right side of the law, we will have to face fewer of those questions in real life. At least, I hope so...

[zephyp]

IMHO, the only way a "tuck" could be considered brandishing is if you do it during an argument/fight. If you are in the middle of a disagreement and things are pretty hot and you decide that is the time to go from CC to OC, I would consider that brandishing. You are not pointing it at anyone, but you clearly implied a threat to use it.

Things could get sticky though if there is just one of you and multiple (think gang) of them. Regardless of the truth, they could claim you did X with it and threatened them. Remember, be aware of your surroundings and avoid a fight when ever possible.

+1, yup if you go in slippery places then you might fall down.

[allingeneral]

An interesting discourse here - now back to the OP for a moment...

After hearing the testimony of gunderwood, ProShooter, CCFan, zephyp, chfaunce, KaosDad, gregj, 9mmderringer, LFS and WRW, the VGOF court finds the defendant Not Guilty of the crime of brandishing a firearm, as long as the action to untuck or unconceal takes place with your strong side turned away from anyone who may be watching (and you don't make eye contact and growl at someone while you're doing it), or takes place in your vehicle or other place where you are the lone attendee to the spectacle. The firearm must remain holstered at all times in public. If you intend to switch from one holster to another (IWB to OWB), then don't do it in public - do it in your vehicle.

*pounds the gavel*

[Taggure]

So it is Spoken (Written) So it shall Be!

[SgtBill]

Ok, I have a problem with a lot that has been said here. If I go into Food Lion with my pistol in a holster and not covered and a person that is a Gun Hater call's the local Sheriff's Dept. and tell's them that I have a gun and that she or he is scared that I will use it on him or her and therfore they want me removed from Food Lion and arrested someone had better have some synaps click in or I am going to own that Deputy and or the anti gunner that called them. Just because the person is a anti gun person this will not relieve me of my right to carry open or concealed nor will it stop me from changing from one mode to the other if I keep my mouth shut and don't try and intimidate anyone with the change or of informing the two Buttholes that it is ment for them.
Bill

[chfaunce]

Ok, I have a problem with a lot that has been said here. If I go into Food Lion with my pistol in a holster and not covered and a person that is a Gun Hater call's the local Sheriff's Dept. and tell's them that I have a gun and that she or he is scared that I will use it on him or her and therfore they want me removed from Food Lion and arrested...

Yep, this is the problem I have with the law as written, as well - it leaves (IMO) too much open to interpretation. In a state which permits legal OC, I would have a very, very hard time seeing how any prudent person could claim 'brandishing' as long as the firearm is and remains holstered, and I have an equally hard time believing any jury could find you guilty of brandishing. Again, this assumes that you're just tucking, and not removing your gun from its holster during transition. If you're simply open carrying (that is, you walked into the store with it plainly visible), I would find the brandishing claim absurd and absolutely baseless. I would demand the accuser be arrested for blatant stupidity.

Now, whether or not Food Lion chooses to allow OCers or possession of a firearm on their property is something else altogether - if it's their private property, they're welcome to do what they please in that regard. I'd be very surprised if they would ever prohibit carry of any sort in VA - I think Starbucks did a fine job setting an example. I've also carried in Wegman's without hassle.

[WRW]

Well, I found more in searching. This has more on brandishing and is an interesting read:
http://www.courts.state.va.us/opinions/ ... 032714.pdf

[chfaunce]

Well, I found more in searching. This has more on brandishing and is an interesting read:
http://www.courts.state.va.us/opinions/ ... 032714.pdf

Well, I see a couple of major differences in context between SgtBills scenario (in Food Lion, open carrying, minding his own) and this case, where the perp was in an obviously 'altered' mental state, and making threatening statements toward the defendant(s) while going from CC to OC. This case supports the accusation that the intent of the perp was to induce fear, and I would think that a reasonable, prudent person would agree. Therefore, I think the brandishing charge is supported. Context is key.

[SgtBill]

Sorry but this is not anything like the first case where NOTHING was said by anyone.
Bill

[chfaunce]

Also, if you have teh crazy eyes syndrome, or a scary mustache....

[tursiops]

Well, I found more in searching. This has more on brandishing and is an interesting read:
http://www.courts.state.va.us/opinions/ ... 032714.pdf

No big issue on the brandishing in this case. But it does bother me that the flare gun is considered a firearm. Since I can go to West Marine and buy one with no ID, and buy as many as I want, and carry it concealed, and no FFL involved, neither the state nor the feds seem to think it is a firearm. Why does the judge get to make his own decision? (That was a rhetorical question...) Because, I think, if it was not a firearm, then it can't be brandished. So there is no way to get the turd unless you redefine firearm.

But what if Molina *thought* it was a firearm, even if it wasn't? What, for example, if it were a toy gun? This could be brandished, and scare him and make him fear for his safety....but is it brandishing a firearm?

[ProShooter]

Well, I found more in searching. This has more on brandishing and is an interesting read:
http://www.courts.state.va.us/opinions/ ... 032714.pdf

No big issue on the brandishing in this case. But it does bother me that the flare gun is considered a firearm. Since I can go to West Marine and buy one with no ID, and buy as many as I want, and carry it concealed, and no FFL involved, neither the state nor the feds seem to think it is a firearm. Why does the judge get to make his own decision? (That was a rhetorical question...) Because, I think, if it was not a firearm, then it can't be brandished. So there is no way to get the turd unless you redefine firearm.

But what if Molina *thought* it was a firearm, even if it wasn't? What, for example, if it were a toy gun? This could be brandished, and scare him and make him fear for his safety....but is it brandishing a firearm?

The judge doesnt get to make his own decision as to whether the flare gun is a firearm. The law and the common definition cited define it as a firearm. I once served a protective order on a fellow who was a boater. I explained the PO rules to him and he replied was that he didnt own any firearms, and that his only passion was boating. I asked if he carried a flare gun and he replied "yes". I told him that he couldnt possess the flare gun since it was considered a firearm - he was pissed!

[GS78]

I would simply state that while I was in the mens room, I felt something similar to an insect "sting" under my shirt and needed to investigate for my personal well being, I would "if" necessary, apoligize to the "offended" parties but would definitely beat the wrap. In this scenario, the gun owner did not make any threats, and was in the mens room which denotes a certain amount of privacy. No jury, and probably no prosecutor would touch this case.