Let's talk about "brandishing."

This is a discussion on Let's talk about "brandishing." within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I do not subscribe to the "if you have to pull it you have to shoot" theory,, I carry a gun to protect myself,, I ...

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Thread: Let's talk about "brandishing."

  1. #16
    Member Array Southtexas's Avatar
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    I do not subscribe to the "if you have to pull it you have to shoot" theory,,

    I carry a gun to protect myself,, I live in Texas, as mentioned above it is not a crime to deter an assualt or felony by drawing your weapon, If someone is stupid enough to force me to draw my weapon I am doing that while attempting to back up,, if I have to shoot to defend myself I will, BUT I PLACE my safety first, if drawing is enough to deter then thats fine.

    But please understand every leo has differring views on this as well,, you will get the officer who will say "if you were really in fear for your life you would have shot" or you will get the officer who will say "glad your safe and no one had to get hurt"

    either way if you draw I think you should call,, even though my last experience with SAPD did not exactly make me feel appreciated, I feel that if I have to use force or the threat of force I need to report it,,, I include oc in my arsenal now, It is a good option to have in addition to a firearm,, I may not pull my firearm, but you can bet my OC will be in my hand before my gun is even considered. when the spidey senses start telling me there could be trouble I have the oc in hand,, I am not pointing it at anyone, so it is not brandishing,, but if I take my pistol out I have broken the law unless it is to stop an immediate threat......
    IE guys calling me names dont get the hogleg out, but I can and do get the oc out at any point I feel something could escalate, if it does I have another option,, if I can get away without having to spend another $12 on OC great, if not that is the best money I have ever spent,, IN the gravest of extemes I will use deadly force, but again I dont consider pulling my weapon out to stop a threat brandishing,, Even if the police and a jury decide it is, IF I FELT I NEEDED TO DRAW MY WEAPON I will be much better off in a court than had I not had my weapon.. So glad I live in Texas where others feel similar and the law reflects that.

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  3. #17
    VIP Member Array Sticks's Avatar
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    Quote Originally Posted by digitalexplr View Post
    From Merriam-Webster Online:

    brandish[1,transitive verb]


    Main Entry: 1bran·dish
    Pronunciation: \ˈbran-dish\
    Function: transitive verb
    Etymology: Middle English braundisshen, from Anglo-French brandiss-, stem of brandir, from brant, braund sword, of Germanic origin; akin to Old English brand
    Date: 14th century
    1 : to shake or wave (as a weapon) menacingly
    2 : to exhibit in an ostentatious or aggressive manner

    Printing is not brandishing. You must menace (cause another to feel threatened) with the weapon to be guilting of brandishing.
    The highlighted statement...therein lies the crux of the matter.

    Merely open carry, being made, or any other innocent (so to speak) display of ones fire arm could send a sheep into stampede mode (they feel threatened) and depending on the results to follow (911 gets called, attitudinal LEO arrives...), you might very well get charged with brandishing.

    I have had this discussion with many a LEO over the years, and all the responses have basically been the same.

    Kind of like sexual harassment. The wrong person overhears a conversation and is offended, it's SH. It is BS, but this is our lovely PC society, or as I like to call it, the decline of Western Civilization.

    Now I do recall someone posting that in one state, "Printing" is illegal, but for the life of me I can not remember which one.

    Even the "Legal" definition of "Concealed" is vague.
    Sticks

    Grasseater // Grass~eat~er noun, often attributive \ˈgras-ē-tər\
    A person who is incapable of independent thought; a person who is herd animal-like in behavior; one who cannot distinguish between right and wrong; a foolish person.
    See also Sheep

  4. #18
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    In Virginia you are not brandishing if you are printing. If your carried handgun is somehow exposed you have just transitioned to open carry, no problem. Brandishing is pointing or holding your handgun or uttering a threat, intimating a threat while exposing your handgun, whether or not you are touching it.

    Brandishing does not apply to legitimate self defense in VA. The question I always get is, "How do I prove it was legitimate self defense if I don't shoot the BG?" Fortunately in VA it is simple. You have to articulate that you were in fear of your life or serious bodily harm, or that the person you were defending was the same.
    Procrastinators are the leaders of tomorrow.

  5. #19
    VIP Member Array ccw9mm's Avatar
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    Quote Originally Posted by SpringerXD View Post
    My way would be to actually pull the gun and give them one last chance to live, assuming that they were still far away enough to have this option.
    Did this, myself, to a pair of cretins who were seeking to deprive me of my ability to breathe, a few years back. Once it was clear the attack was proceeding, I drew my gun and suggested to the leader that he and his cohort should rethink their options. That's all it took, as they immediately broke off and disappeared. I much prefer not having gone through the blender, on that one. And I'm still standing, all because I had the time to draw and the drawing was sufficient to protect me. I have no problems drawing to fire, if firing is called for. In that specific instance, it was not (yet) called for. YMMV.
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, GOA, OFF, ACLDN.

  6. #20
    Member Array philman's Avatar
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    Quote Originally Posted by Doc Holliday View Post
    Brandishing is illegal in my state. Brandishing is for thugs and want-a-be tough guys.

    I am from the school of thought that if you pull a pistol than you better be firing it to stop a lethal threat.

    *Unless said threat flees then you can't shoot them in the back.

    Being made though in Ga is not brandishing that i am aware of.

    If you do not believe in Brandishing then IMHO you are missing more than half, maybe a lot more of the advantage to carry a gun.

    Now I'm not saying that I go around brandishing a weapon, never have, hope to never have to, but many of the cases you hear about involve successful brandishing to diffuse a possible deadly encounter.

  7. #21
    VIP Member Array MNBurl's Avatar
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    Check your local state laws because in MN, there is no such law as brandishing!!!

    There is laws on terrioristic threats or assault but not brandishing... so in MN you can never brandish a weapon. In MN, you can open carry so no issue with someone "seeing" your gun while in a holster.
    MNBurl

    "If everyone is thinking alike, then somebody isn't thinking" - George S. Patton.

  8. #22
    Member Array CowboyKen's Avatar
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    In Nevada:

    NRS 202.290 Aiming firearm at human being; discharging weapon where person might be endangered; penalty. Unless a greater penalty is provided in NRS 202.287, a person who willfully:
    1. Aims any gun, pistol, revolver or other firearm, whether loaded or not, at or toward any human being; or
    2. Discharges any firearm, air gun or other weapon, or throws any deadly missile in a public place or in any place where any person might be endangered thereby, although an injury does not result,
    Ê is guilty of a gross misdemeanor.
    [1911 C&P § 344; RL § 6609; NCL § 10292]—(NRS A 1989, 820, 1240, 1243)

    NRS: CHAPTER 202 - CRIMES AGAINST PUBLIC HEALTH AND SAFETY

    and:

    NRS 202.320 Drawing deadly weapon in threatening manner.
    1. Unless a greater penalty is provided in NRS 202.287, a person having, carrying or procuring from another person any dirk, dirk-knife, sword, sword cane, pistol, gun or other deadly weapon, who, in the presence of two or more persons, draws or exhibits any of such deadly weapons in a rude, angry or threatening manner not in necessary self-defense, or who in any manner unlawfully uses that weapon in any fight or quarrel, is guilty of a misdemeanor.
    2. A sheriff, deputy sheriff, marshal, constable or other peace officer shall not be held to answer, under the provisions of subsection 1, for drawing or exhibiting any of the weapons mentioned therein while in the lawful discharge of his duties.
    [1911 C&P § 174; RL § 6439; NCL § 10121]—(NRS A 1967, 486; 1989, 1240)

    NRS: CHAPTER 202 - CRIMES AGAINST PUBLIC HEALTH AND SAFETY

    and:

    NRS 200.120 “Justifiable homicide” defined. Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, property or person, against one who manifestly intends, or endeavors, by violence or surprise, to commit a felony, or against any person or persons who manifestly intend and endeavor, in a violent, riotous, tumultuous or surreptitious manner, to enter the habitation of another for the purpose of assaulting or offering personal violence to any person dwelling or being therein.
    [1911 C&P § 129; RL § 6394; NCL § 10076]—(NRS A 1983, 518)

    NRS 200.130 Bare fear insufficient to justify killing; reasonable fear required. A bare fear of any of the offenses mentioned in NRS 200.120, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing. It must appear that the circumstances were sufficient to excite the fears of a reasonable person, and that the party killing really acted under the influence of those fears and not in a spirit of revenge.
    [1911 C&P § 130; RL § 6395; NCL § 10077]

    NRS 200.160 Additional cases of justifiable homicide. Homicide is also justifiable when committed:
    1. In the lawful defense of the slayer, or his or her husband, wife, parent, child, brother or sister, or of any other person in his presence or company, when there is reasonable ground to apprehend a design on the part of the person slain to commit a felony or to do some great personal injury to the slayer or to any such person, and there is imminent danger of such design being accomplished; or
    2. In the actual resistance of an attempt to commit a felony upon the slayer, in his presence, or upon or in a dwelling, or other place of abode in which he is.
    [1911 C&P § 133; A 1931, 160; 1931 NCL § 10080]—(NRS A 1993, 932)

    NRS 200.190 Justifiable or excusable homicide not punishable. The homicide appearing to be justifiable or excusable, the person indicted shall, upon his trial, be fully acquitted and discharged.
    [1911 C&P § 136; RL § 6401; NCL § 10083]

    NRS 200.200 Killing in self-defense. If a person kills another in self-defense, it must appear that:
    1. The danger was so urgent and pressing that, in order to save his own life, or to prevent his receiving great bodily harm, the killing of the other was absolutely necessary; and
    2. The person killed was the assailant, or that the slayer had really, and in good faith, endeavored to decline any further struggle before the mortal blow was given.
    [1911 C&P § 137; RL § 6402; NCL § 10084]

    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON
    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON
    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON
    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON
    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON

    and:

    NRS 200.275 Justifiable infliction or threat of bodily injury not punishable. In addition to any other circumstances recognized as justification at common law, the infliction or threat of bodily injury is justifiable, and does not constitute mayhem, battery or assault, if done under circumstances which would justify homicide.
    (Added to NRS by 1983, 519)

    NRS: CHAPTER 200 - CRIMES AGAINST THE PERSON

    Ken

  9. #23
    Member Array taggart's Avatar
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    Quote Originally Posted by ccw9mm View Post
    Did this, myself, to a pair of cretins who were seeking to deprive me of my ability to breathe, a few years back. Once it was clear the attack was proceeding, I drew my gun and suggested to the leader that he and his cohort should rethink their options. That's all it took, as they immediately broke off and disappeared. I much prefer not having gone through the blender, on that one. And I'm still standing, all because I had the time to draw and the drawing was sufficient to protect me. I have no problems drawing to fire, if firing is called for. In that specific instance, it was not (yet) called for. YMMV.
    Hi, ccw9mm!
    So, did you call the police and explained what happened in case the cretins decided to report a "crazy guy with a gun" pointed at them? Just wondering what one would do in that situation. Glad the cretins were dispersed!
    Taggart Snyder
    Man about town...

  10. #24
    VIP Member Array Supertac45's Avatar
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    Your interputation of branishing falls within the federal guidelines of brandishing. Some states use this and others have a more strict interputation. Without knowing what state your talking about, it's impossible to answer.
    Les Baer 45
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  11. #25
    Member Array gglockster's Avatar
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    The attached link discusses a case where a bank robber left the gun in his car and was still charged with brandishing (I think this was a Federal charge):

    Appellate Law & Practice: "Brandishing" a Firearm Under 18 U.S.C. § 924

    and also:

    Federal code seems even more onerous as this case suggests:
    416 F.3d 965

    The Virginia State code:

    � 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
    A. It shall be 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. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
    B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
    C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
    (Code 1950, � 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)

    Note that brandishing can occur only outside of self-defense

  12. #26
    Member Array dhbry232's Avatar
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    Mississippi Code on brandishing weapons

    § 97-37-19. Deadly weapons; exhibiting in rude, angry, or threatening manner.
    If any person, having or carrying any dirk, dirk-knife, sword, sword-cane, or any deadly weapon, or other weapon the carrying of which concealed is prohibited, shall, in the presence of three or more persons, exhibit the same in a rude, angry, or threatening manner, not in necessary self-defense, or shall in any manner unlawfully use the same in any fight or quarrel, the person so offending, upon conviction thereof, shall be fined in a sum not exceeding five hundred dollars or be imprisoned in the county jail not exceeding three months, or both. In prosecutions under this section it shall not be necessary for the affidavit or indictment to aver, nor for the state to prove on the trial, that any gun, pistol, or other firearm was charged, loaded, or in condition to be discharged.
    Laws that forbid the carrying of arms ... disarm only those who are neither inclined nor determined to commit crimes ... they serve rather to encourage than to prevent homicides, for an unarmed man may be attacked with greater confidence than an armed man. Thomas Jefferson

  13. #27
    VIP Member Array ccw9mm's Avatar
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    If you do not believe in Brandishing then IMHO you are missing more than half, maybe a lot more of the advantage to carry a gun.
    I agree that using a weapon to defend one's self or others may be actually employed or merely shown that its employment will be contingent upon the continued criminal acts being perpetrated by the criminal. I, too, believe that showing (and not firing) a gun has its place in self-defense, if firing is in fact not warranted at that instant.

    I'll grant that many laws are written in a lackadaisical manner, so much so, that in many instances it seems the original intent was to cast the net wider as a means of control over people.

    The purpose of brandishing laws is to hold criminally liable those who use but don't actually engage (fire, swing, slice) a weapon to intimidate or force others against their will. The purpose isn't to apply to legitimate acts of self-defense or defense of others. Brandishing, essentially, involves malintent. Unless a defender, him/herself, perpetrates other illegal acts, then brandishing doesn't apply to defense.

    Given such waffling definitions as exist in the criminal codes, more and more I wish the self-defense and use-of-force laws were written in plain language, simply, so that there was no ambiguity. Perhaps something like this:
    • Defense of one's self or others against criminal activity shall be held as a righteous and justifiable act in the face of unlooked-for and unwanted danger perpetrated by others against innocents.

    • A defender that has every legal right to be in a given place at a given time has no requirement to first withdraw or attempt to mitigate any ill effects that result upon the criminal participants.

    • To defend against an actual or impending criminal act, a defender may use any degree of force the defender reasonably deems necessary to stop the criminal activity, based on what the defender knows or reasonably suspects at the time, up to and including the use of deadly force.

    • Criminal or civil prosecution against someone who engaged in the defense of innocents, shall strictly be limited to overt criminal actions executed with malintent. The intent of this is to specifically exempt persons with good intentions and honorable actions from prosecution or liability over any any reasonable defense against criminal acts perpetrated against innocents.

    • For any defensive action to be held liable, the state must prove malintent, that the defender instigated and precipitated the confrontation, that the defensive actions were utterly unreasonable to stop the criminal activity being perpetrated, and that the action could not have been simple defense against another's criminal activity.

    • A person found guilty of bringing violent criminal acts upon innocents shall be held, on the first offense, for a term of ten (10) years in prison, with no possibility of parole.

    • A person found guilty for a second offense of bringing criminal violence upon innocents shall be afforded, upon conviction, an automatic appeal and, if upheld, shall be executed within 6mos from the time of the original conviction. The only exception is in the case of murder, in which case the first conviction holds as the executable offense.


    Of course, these would need massaging to eliminate the obvious holes and avoid the Constitutional limits on cruel/unusual punishments unwarranted by lesser acts. Though, something along these lines would, by wiping away the morass of existing tangled defense laws, go a long way toward providing a strong deterrent against crime. Anything without effective "teeth" is merely pandering to the concept. And anything less clear simply wouldn't make sense to the millions of people who simply want to go about their lives and stop crime against themselves and others.

    As always, these are opinions and musings only, YMMV, &c.
    Last edited by ccw9mm; April 11th, 2008 at 12:17 AM. Reason: spelling
    Your best weapon is your brain. Don't leave home without it.
    Thoughts: Justifiable self defense (A.O.J.).
    Explain: How does disarming victims reduce the number of victims?
    Reason over Force: The Gun is Civilization (Marko Kloos).
    NRA, GOA, OFF, ACLDN.

  14. #28
    Member Array RochPersDef's Avatar
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    When this comes up in my firearms classes, I explain it this way:

    Brandishing involves INTENT. if you are holding the gun with intent to effect a reaction from another person, that is brandishing UNLESS you are defending yourself in accordance with your local laws and guidelines.

    Your gun, in it's holster, not doing anything but waiting, is not brandishing. Any good cop or lawyer will know that. Unfortunately, there are some of both that have their own interpretations.

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