Virginia law and brandishing

Virginia law and brandishing

This is a discussion on Virginia law and brandishing within the Concealed Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I hope I'm posting in proper section. I realize any info given here isn't legal advice but i would like to hear what people think. ...

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Thread: Virginia law and brandishing

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    New Member Array Hawkeye59's Avatar
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    Virginia law and brandishing

    I hope I'm posting in proper section.

    I realize any info given here isn't legal advice but i would like to hear what people think.

    At what point is it excusable or justifiable self-defense to brandish a gun in Virginia. After watching a DVD called Deadly Force Firearms Self Defense & The Law I'm left to believe that if approached and am engaged in a physical confrontation by an individual at no point do I have the right to brandish a weapon unless he say pulls out a knife or grabs a cinder block and is in the process of dropping it on my head. Of course this video wasn't Virginia specific and the situation may relate to another states laws. I have read the Virginia gun owners guide and it says the same thing Virginia code says.

    Virginia Code
    18.2-282.

    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.


    If I'm approached by an unknown person and have a feeling I need to take a defensive posture isn't brandishing justified if I at some point during his approach after I ask him to keep his distance he keeps coming.


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    Member Array Danger Mouse's Avatar
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    I would think if you were in a bad part of town, and someone who appears to be a threat comes at you, and they refuse to stop then yes, you probably would be OK. BUT what happens if this person is deaf and was simply trying to get directions? This may be a touchy subject. Really depends on the situation. From what the lawyer told us at my training class was that you had better be able to prove to the police, judge, and jury you were in fear for your life at that point in time.
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    Senior Member Array mulle46's Avatar
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    Quote Originally Posted by Hawkeye59 View Post
    I realize any info given here isn't legal advice but i would like to hear what people think.

    At what point is it excusable or justifiable self-defense to brandish a gun in Virginia. After watching a DVD called Deadly Force Firearms Self Defense & The Law I'm left to believe that if approached and am engaged in a physical confrontation by an individual at no point do I have the right to brandish a weapon.

    If I'm approached by an unknown person and have a feeling I need to take a defensive posture isn't brandishing justified if I at some point during his approach after I ask him to keep his distance he keeps coming.
    I don't like the use of the term "brandish" as it implies using your weapon simply to scare people rather than for self-defense, OMO. As far as drawing a weapon on someone who hasn't shown a weapon, there is such a thing as disparity of force. A 5ft2in 100lb woman isn't going to have much of a chance against a 6ft4in 250lb man in a H2H situation without a weapon. If you can rationally explain in a court that you felt your life was in danger, you are justified to present your weapon. Sad part is, lawyers have months and years to analyze a situation that took only seconds to develop and resolve. OMO
    You gain strength, courage, and confidence by every experience in which you really stop to look fear in the face. You are able to say to yourself, "I have lived through this horror. I can take the next thing that comes along." . . . You must do the thing you think you cannot do. Eleanor Roosevelt

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    VIP Member Array Sheldon J's Avatar
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    A legal definition of Brandishing from the MCRGO news.
    Brandishing means to "display in a threatening manner." While it would probably be a defensible charge under the circumstances that you describe, it is not unimaginable that the situation could lead to criminal charges. Some (certainly not all) cops operate on the principle of "when in doubt, make the arrest." And some prosecutors don't support our CPL rights and are predisposed to "get guns off the street." Even if a charge of brandishing is not brought, many localities have ordinances prohibiting any conduct that is a "breach of the public peace and order," (or words to that effect). Perhaps of greater concern is the fact that an inadvertent slip which reveals all or part of a holstered gun could possibly lead to a dangerous "man with a gun" call to police. I have been on police ride-alongs and seen what happens when such a call comes over the radio. Every police officer within range of the radio call speeds to the scene in an effort to join in the fray. Driving at 100+ mph with lights and sirens going gets the adrenaline pumping. Once on the scene, the cops are generally highly agitated and pointing their loaded weapons at the individual who is the subject of the call, all the while shouting commands.
    "The sword dose not cause the murder, and the maker of the sword dose not bear sin" Rabbi Solomon ben Isaac 11th century

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    However, this section shall not apply to any person engaged in excusable or justifiable self-defense.
    There it is. You get to say if you were in fear of serious bodily harm or death. No one can read your mind. If I recall there is a reasonable man defense. That means that if someone just looks at you a reasonable man would not be in fear. However, uttering threats and so on change the scene.

    Example. Man at the ATM at about 2AM. Don't ask. Two young gentlemen make a line to him from somewhere. They are moving with a purpose and their eyes are glued to him. He turns, reaches for his gun and asks them what they want. They look at his posture and whether or not they could see the gun isn't for sure, but had it not been self defense it would be brandishing.

    Another example. Guy driving down I-66. Gets cut off in traffic. Gestures etc and the guy draws his pistol and lays it on the dash. Not good enough pulls up beside the other car and waves the gun at the officer in the unmarked patrol car. Oops. Brandishing. Even if it hadn't been a LEO it would have been brandishing. A friend of mine had a "gun" waved at him on the highway in VA. He got the tag and the police paid the other guy a visit. He showed the police a BB gun. Guess what? Still brandishing because my friend believed it was a real gun and that he was threatened by it.

    This isn't really a scenario so moving to issues and discussions.
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    Senior Member Array rljohns's Avatar
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    Colorado law is very similar. Basically it is illegal to intimidate someone in a situation that has not hit the fear for your life threshold. Most US law (and state law) is based on the reaction by a typical "reasonable" Virginian (since you are in Virginia). That could be very different to a New Yorker. In other words you need to be able to defend your action in front of your peers (both antis and pro-gun crowd). The other part of that law prohibits "horse play" with firearms that demonstrates immaturity and could result in a ND.

    An Aurora off-duty cop had a situation a while back that is a prime example of brandishing. It was a road rage encounter where the cop flashed his badge at another motorist and pulled his weapon and pointed it at the other car. I believe it ended without a mishap and the officer was reprimanded for brandishing and intimidation. He apparently let hi anger get the best of him. I wasn't there so I have no idea which person started the road rage portion.

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    I would apply the following logic:

    When your fear of death or great bodily harm begins to outweigh your fear of criminal prosecution, it's not brandishing.
    BugDude and MleeC like this.
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    Senior Member Array Free American's Avatar
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    Here in VA there is nothing written down that defines justifiable self defense. It all is based on case law and the whim of your local CA. That said, in Hampton you may have a harder time than I would in IOW county.
    They who give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety. Benjamin Franklin


    Previously known as "cjm5874"

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    New Member Array Hawkeye59's Avatar
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    Ok thanks for the input. I just find it hard to believe that I should allow a thug to get close enough to get his hands on me and subject myself to a fist fight or wrestling match that i doubt I would win and in the end the thug goes through my pockets and comes across a gun I happen to have concealed. Or find out as he gets closer he has a gun. And the whole time having done nothing to bring it on myself . I realize brandishing is brandishing regardless of whether i simply expose the gun to where it is seen or point it at the subject. I surely wouldn't point it at them unless I see a weapon but it being seen by them being a deterrent would seem to be enough in most cases.

    Around here like most places when you feel that an approaching person has no good intentions its usually true. A young airman in the Air force here not long ago was at a convenience store and was car jacked taken to an ATM then up in another area and killed. And having been a listener to local police transmissions since the late 70's I hear all to many robberies from persons going on daily. The average person that isn't listening to the daily incidents of robberies is not as sensitive to the fact that it is occurring all too often.

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    Ron
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    The way the laws are written and construed makes the answer to this and similar questions and scenarios fact driven. By that I mean that although the law is usually relatively clear, ie, you must have been in fear for your life or of suffering serious physical harm, or you can only draw your weapon in "self defense," whether that standard has been met is a question of fact, often subjective, and, unless the "Castle Doctrine" applies, the burden of proof is on the person who used deadly force or drew his or her weapon. Thus, if you have a anti-gun prosecutor, or chief of police, etc., you can be in big trouble.

    And, as someone else already wrote, we are faced with having to make a split second decision, which if wrong can mean our life, while the prosecutor, or worse if you are indicted, the jury can sit back and using hindsight judge your actions.

    Not pretty, but that is the way it is.

    Ron
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    Senior Member Array jofrdo's Avatar
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    When I approach a walk-up ATM at night, I open carry. That's fair warning to anyone who might approach me to think again, and without me brandishing. That works in VA where the original poster and I live, and in some other states. Open carry is illegal in other states.
    beararms likes this.

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    New Member Array Hawkeye59's Avatar
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    Yea i suppose i could switch from concealed to open carry if in doubt while being approached. Of course they might find fault in that as well.

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    New Member Array jasco092466's Avatar
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    brandishing a firearm in Va.

    Quote Originally Posted by jofrdo View Post
    When I approach a walk-up ATM at night, I open carry. That's fair warning to anyone who might approach me to think again, and without me brandishing. That works in VA where the original poster and I live, and in some other states. Open carry is illegal in other states.
    Well this isnt a quote, more like situation I have put myself in. Advice ! I have a concealed weapon permit. A family member was being beatened by her boyfriend, (kicked, strangled, punched, hair pulled out, cender block dropped on her foot which caused a fx, and the list goes on) I was called to come and help her (as she sometimes lives with me) this so called boyfriend is a drug user, not knowing of the situation, I took my firearm. When I got to her location, the family member opened the passengers side door of my vehicle then at which time I saw the boyfriend come from behind her and attempt to pput his head into my vehicle. Already knowing he is violent and strung high on drugs, I had a very uneasy feeling about the situation, so I pulled my weapon and now he is in jail but he had papers served on me for brandishing my firearm. He is not aware that I have a permit. Later that even, I found out that he had a butcher knife in his possession. My thoughts are he was (1) not finished beating my family member, (2) knowing that someone called to come help her he was going to use it.
    Any suggestions ?????

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    VIP Member Array mlr1m's Avatar
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    Quote Originally Posted by Hawkeye59 View Post
    :SNIP:
    Virginia Code
    18.2-282.

    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.


    If I'm approached by an unknown person and have a feeling I need to take a defensive posture isn't brandishing justified if I at some point during his approach after I ask him to keep his distance he keeps coming.
    The law in my State,Oklahoma, reads the same way when it comes to brandishing. Brandishing as an act of self-defense is legal. As for your question. Is self defense justified justified when you have a feeling? My opinion you could probably be charged with brandishing in your example. There is a huge difference between a defensive posture and actual self-defense.

    Michael

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    VIP Member Array mlr1m's Avatar
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    Quote Originally Posted by Danger Mouse View Post
    I would think if you were in a bad part of town, and someone who appears to be a threat comes at you, and they refuse to stop then yes, you probably would be OK. BUT what happens if this person is deaf and was simply trying to get directions? This may be a touchy subject. Really depends on the situation. From what the lawyer told us at my training class was that you had better be able to prove to the police, judge, and jury you were in fear for your life at that point in time.
    Would even a pro-gun minded prosecutor accept the idea of folks drawing a weapon on everyone they are afraid of without some sort of actual threat? Is walking towards you on a public thoroughfare grounds for self-defense without some sort of aggressive action taking place?

    Michael

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