Isn't this brandishing?

Isn't this brandishing?

This is a discussion on Isn't this brandishing? within the Carry & Defensive Scenarios forums, part of the Defensive Carry Discussions category; I received the following as an email from USCCA , and there was no particular commentary on it (the sender was quoting a story promoting ...

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Thread: Isn't this brandishing?

  1. #1
    Distinguished Member Array Paymeister's Avatar
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    Isn't this brandishing?

    I received the following as an email from USCCA, and there was no particular commentary on it (the sender was quoting a story promoting concealed carry).

    ...I stopped in the lobby to get a cup of coffee and then headed across the lawn to my room on the inner courtyard. This was long before any teaching on awareness level but I would have classified myself that night as condition 'white'.

    As I walked I was slightly surprised by a man who came up on my right and started up a conversation. We said a few words and then I continued to my room, opened the door and went in to put my coffee down. As I put it down it dawned on me that the door had not shut. I turned to push it closed and found the man I had talked with standing in my room with a look that spoke 'trouble'.

    Instinctively, I reached back, drew my pistol and pointed it right at his chest. The click of the safety coming off sounded loud in the room. Before I could say a word, his demeanor changed and he blurted out, "I think I'm in the wrong room". He turned, grabbed the door handle and was gone.

    I was stunned and it took me several minutes to calm down.
    This sounds like it may have been OK: an intruder in your hotel room with a look that spoke "trouble" could be the author's way of saying "I was in fear for my life!" ...I guess.

    Three weeks later, in a Memphis, Tennessee hotel room, I was awakened around midnight by someone knocking loudly on the door. As I looked through the peephole I saw a woman dressed in an open blouse and skin tight shorts. In very seductive language she implied that I had asked her up for a good time.

    This time my awareness jumped immediately to orange. I retrieved my pistol from the bedside table. On a hunch I went to the other side of the room and peered out of the window from around the curtain. A huge man stood in front of the window with a baseball bat in his hand, waiting for me to open the door.

    I pulled the curtain back enough for the man to see me hold up the pistol and again snap off the safety. His eyes got very big, but he showed no fear. He walked up to the woman grabbed her arm and they simply walked off. In both cases I reported the incident to the hotel management.

    Both apologized and said that sort of thing just never happens in their hotel. I wasn't convinced and went home and asked my boss for a larger daily hotel allowance.

    I'm considerably older now but as I look back on those experiences I can see that was the time that I got serious about protecting myself and my family.

    By the way, my late father-in-law was robbed in that same Memphis hotel a month later.
    This one, however, sure seems to me like plain-and-simple brandishing, and could have landed the fellow in a fair amount of trouble. Am I seeing this correctly?

    And would anyone wish to make any comments about USCCA? (PM me if that's more appropriate.)
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  2. #2
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    I don't believe so. If you are in your home and I would think a rented room would fall under the same, could not imagine it would be brandishing.


    Z
    An ounce of lead is worth 200lbs of cop.

  3. #3
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    If you draw your pistol with the intent to save your life, it is not brandishing.

    Why would you consider it brandishing?
    I would rather stand against the cannons of the wicked than against the prayers of the righteous.


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  4. #4
    Distinguished Member Array Paymeister's Avatar
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    The first scenario I'll accept... but in the second, if he's inside his hotel room and there's a guy with a baseball bat outside, well, he's still outside. Toe inside the door or breaks the glass and it's a different story. But he wasn't in fear for his life (or it didn't sound like it as I was reading it): he was just letting the guy know he wasn't to be trifled with. I can see it being effective (not doubting the story), but I thought the only time one pulls one's weapon out is when one is in fear for one's life. (Or to protect property or to stop a felony in some states, I suppose... which I don't see here.)

    What indeed was the risk in the second scenario?

    And was his action much different than waving a pistol at a roadrager who is honking at you, or waving a rifle at the teenagers next door?

    Not trying to be difficult: I just want to stay out of trouble!
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  5. #5
    VIP Member Array dukalmighty's Avatar
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    Some stranger in your room,he would be lucky he wasn't full of holes,the story about being in the wrong room ain't gonna fly
    "Outside of the killings, Washington has one of the lowest crime rates in the country,"
    --Mayor Marion Barry, Washington , DC .

  6. #6
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    It is different. A lot different.

    Waving a pistol at a roadrager that is honking at you is aggravated assault or assault with a deadly weapon. No danger there, just your emotion getting the best of you.

    Waving a rifle at teenagers next door can also be aggravated assault because you were not in danger.

    Pointing or displaying a gun at a man trying to gain illegal entrance into your room that is displaying a weapon (intent) is not even in the same league as what you propose.

    What is the risk in the second scenario? Do you think that a man with a ball bat by his side that is trying to lure you into opening the door is up to any good? All the gun did was prevent the scene from getting worse, so displaying the gun did its job.
    I would rather stand against the cannons of the wicked than against the prayers of the righteous.


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  7. #7
    VIP Member Array ccw9mm's Avatar
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    I cannot imagine either situation being considered brandishing, which is an illegal attempt to intimidate another.

    Case #1: Someone surreptitiously follows me into my hotel room, and when confronted has a "look" that spells trouble? Darned right I'm going to draw and defend myself in such a situation ... and I hope the intruder gets the immediate impression that his life hangs by a thread. Brandishing? I think not.

    Case #2: Someone I don't know is banging on the door, with a large/armed cohort standing outside my window, when I realize that I'm a moment away from being rolled and robbed? At that moment, leaving my firearm "over there" and taking zero precautions would be stupid beyond belief. Yes, I would draw and be ready for an attack. Uncertain what I would say. I suppose I'd be on the phone to hotel security and sit to await entry, which sounds much safer than being anywhere near the door or window. Either way, would this be brandishing, when an obvious robbery is only two shakes from launching? I think not.

    What my training has taught me is that the law generally does not support my actually using lethal force to stop an intruder until that person has in fact intruded to a degree that A.O.J. justifies the force be applied. That means, actual firing at the suspects should be done only after actual attempt to enter. In Case #2, all we've got is a tart banging on the door and a behemoth at the window with a baseball bat waiting to kill me once the opportunity presents itself. While the law might not support my firing right then, it would absolutely do so the moment that door or window is broken and the intruders now have nothing between me and my death except my willingness to live.

    However, even in Case #2, I cannot fathom how drawing my firearm in a clearly articulable situation of assault with a deadly weapon about to occur can be considered brandishing. Particularly inside my residence (even a temporary one), in which it's assumed that I have nowhere else to "run" if in fact attacked.
    Your best weapon is your brain. Don't leave home without it.
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  8. #8
    VIP Member Array TN_Mike's Avatar
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    Quote Originally Posted by Paymeister View Post
    Isn't this brandishing?
    In the two related stories you got in the email, no it is not brandishing. Not in Tennessee anyway.
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  9. #9
    Member Array M1911A1's Avatar
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    Courts have already ruled that a rented hotel room is your legal residence, albeit a temporary one.
    Is there any state, other than perhaps New York, in which doing anything with your own firearm in your own residence, short of discharging that gun, is illegal?
    If there is, I'd like to know about it.

    No, of course not. The two stories neither imply nor illustrate "brandishing."
    Steve
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  10. #10
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    Nope, it doesn't fit Websters idea of brandishing nor any states definition that I'm aware of.
    "Just blame Sixto"

  11. #11
    Senior Member Array Tyler11B's Avatar
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    no way this is brandishing, I just recieved the same email from USCCA and read it. the man was in legitimate fear of his life, i mean seriously are you going to give the man with the bat an opportunity to come in and whack you with the bat or are you going to let him know that this kinda stuff doesnt fly. the two perps are lucky the guy didnt blow them to kingdom come. he was within his rights. You might want to rethink your decision to carry if you think this is a case of firearm brandishing, because you may be called on to do the same but may freeze if your views are like they are here, no offense intended but stories like these are a very good wakeup call to people
    U/315
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  12. #12
    VIP Member Array David in FL's Avatar
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    Without knowing where it happened, it's not possible to know. Each state's laws are different........but in the state's with whose laws I am familiar, neither instance would constitute brandishing.

    FWIW though, legal or not, he was definitely quicker to draw and display his weapon than I would have been under the circumstances as I understand them. But then, I wasn't there.....
    "Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure than to rank with those poor spirits who neither enjoy much nor suffer much, because they live in a grey twilight that knows not victory nor defeat."

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  13. #13
    VIP Member Array tns0038's Avatar
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    If you travel allot you’re going to have thing happen to you.

    Back in the 80’s I use to travel over 200 nights a year. And while I stayed at the best hotels, I’ve had just about everything you can imagine happen.

    A drunk with his key in my door lock, trying to open my door at around midnight.

    Upon peeking out the peep hole, I called the hotel front desk and reported it. They had someone there asap and escorted the gentleman to his room..

    I had a college age male appearing all of a sudden in my room at 1 AM.
    He came in the balcony door, mind you I was on the 7th floor, and I guess I had forgot to lock the door.

    This guy got to see my Walther PPKs, and he got to meet the local police department, and explain to them, that is was just some spring breakers having fun climbing on the hotels balcony.


    The worse thing is, you have to be real careful not to stay in the “wrong” neighborhood.

    But, even in the right neighborhood, you can run into trouble.

    Staying in an Ocean resort, I had two men try to car jack me, or at least that’s what I think they were up to.

    As pulled in to the underground parking lot, I noticed an older four door car parked with two guys sitting in it. When I parked they both got out and stated walking toward me, as I was gather my stuff.

    One of them spoke to me, “ha buddy” and as I turned around they could see my Walther PPKs in my hand. It was not pointed at them but I held it at my side, and responded with “yes”.

    They then just turned around and walked off, never said a word, got in their car and drove off.

    I reported it to the front desk, but it did not good. Later that night my car was broke into.

  14. #14
    Member Array user's Avatar
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    It's a close call. I fall on the side of thinking, yes, it was a crime; but if it was a crime, it was assault with a deadly weapon. "Brandishing", in Virginia, means doing something to create intimidation or fear, not necessarily pointing it at another person.

    Here's the problem - leaving the door open means the other person was not legally an "intruder" - unless you do something to create at least an imaginary barrier around your living space, anyone who wants to can come in. He isn't "breaking the close" to use the technical phrase.

    Secondly, the person with the gun had absolutely no objective reason to believe that he was subject to an imminent threat of serious bodily injury. Therefore it was not a defensive move, it was offensive.

    Assault is the threat of "the offensive, unprivileged, touching of the person of another without cause, justification or excuse." Battery is when there's actual contact.

    Here's what would likely happen in Virginia, more likely in some counties than others: the occupant would have been charged with attempted murder (on the theory that he tried to shoot the other guest, but the latter got away quickly enough to avoid being shot). They'll do that because they can offer jury instructions on "lesser included offenses" such as assault with a deadly weapon, assault, and brandishing. That gives the jury the power to find him guilty of any of those, they're not limited to the original charge - they can find he's not guilty of attempted murder and find that he is guilty of ADW. The prosecutors do things that way because trying cases costs the taxpayers too much money and they want to give the defendant an incentive to do a bit of horse-trading. And if I were representing that room occupant at trial, I'd strongly urge him to accept the plea, and here's what I think would happen. They'd let him plead to a misdemeanor of simple assault, give him five months in jail, all five suspended, a fine of one thousand dollars, six hundred and fifty of which would be suspended, plus court costs, and inactive probation conditioned on his being of good behavior and that he commit no further crimes in the Commonwealth for a period of one year; AND ALSO that he plead guilty to brandishing, as well, with exactly the same punishment.

    What??? There was only one thing done, how could he be guilty of two crimes, and why would he agree to such a thing? What's really going on here?

    The crimes are different, because each of them requires proof of different elements. And they can do that, because the judge will allow it and the defendant will not object. As long as the charges are all done at the same time, there's no "double jeopardy". What's really going on here is that conviction of two misdemeanors will cause his concealed carry permit to be yanked, and he'll be ineligible to reapply for five years. That's the real reason for the two misdemeanors. The defendant will do it because the jury will fry his arse and the prosecutor will convince them that the guy's a potential killer. So he'd probably be looking at two years of actual time in the state penitentiary upon a conviction.

    In my mind, there's really no question about guilt. This is a case of damage control. The plea deal reduces costs for the state and gets the prosecutor what he really wants (yanking the permit) and the defendant gets to go home after the trial.
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  15. #15
    VIP Member Array David in FL's Avatar
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    Quote Originally Posted by tns0038 View Post

    If you travel allot you’re going to have thing happen to you.

    Boy howdy, are you ever right there!

    I once had someone open the locked door and walk into my room at 2 am while I was sound asleep. I snapped awake and ordered "GET OUT, NOW!".........and he did. Turns out the hotel had made a mistake and had given him my room at check in without knowing that it was already occupied.

    I was traveling out of state and was unarmed at the time. Had I been armed and too quick on the trigger, it could have been bad.......
    "Far better it is to dare mighty things, to win glorious triumphs, even though checkered by failure than to rank with those poor spirits who neither enjoy much nor suffer much, because they live in a grey twilight that knows not victory nor defeat."

    Theodore Roosevelt

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