Every now and then someone brings this up, I'm going back on my soap box kind of like the potty blog...
Ok, the definition of "brandishing" is as follows according to the Free Dictionary:
tr.v. bran·dished, bran·dish·ing, bran·dish·es
1. To wave or flourish (a weapon, for example) menacingly.
2. To display ostentatiously. See Synonyms at flourish.
A menacing or defiant wave or flourish.
Websters defines it as:
1bran·dish Listen to the pronunciation of 1brandish
Middle English braundisshen, from Anglo-French brandiss-, stem of brandir, from brant, braund sword, of Germanic origin; akin to Old English brand
1 : to shake or wave (as a weapon) menacingly 2 : to exhibit in an ostentatious or aggressive manner
synonyms see swing
So what is brandishing? It's the unlawful act of menacing (intimidating) one with an act, object, or threat of force, generally with a weapon in hand, and that you are implying to injure.
What is not brandishing? Your gun printing, your gun being carried openly, you walking to your car with a gun, having a gun on your person while in an average discussion, drawing your gun in legal self defense (provided you did not escalate the situation to the point where drawing was needed, the law gets funny when you act like an ass and then have to draw), it's not having a gun in your truck.
Now that's not to say that you CAN'T
brandish while doing things, if you're in an argument, and you pull your cover shirt back and just show the gun, or pull it tight enough to make the gun print in order to make the guns presance known to an individual, THAT'S brandishing.
If you pull the gun out and start threatening someone outside of normal escalation of force, THAT'S BRANDISHING.
Lets look at some state laws re: brandishing
, I'm not going to go into all 50 states, I'm just going to cover some "gun friendly" states and then go over some states that don't allow CCW or even have a handgun ban (if I can find the info, I guess we'll have to see)
§ 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.
Did you see the high lighted text? I hope so, lets take another look at that piece again.
However, this section shall not apply to any person engaged in excusable or justifiable self-defense.
So, lets see, if you have legal justification to draw in self defense, that's not brandishing.
I think where this one gets sticky when reference to Open
Carry is the part that reads as such.
...in such a manner as to reasonably induce fear in the mind of another of being shot or injured
If you ever get charged for his, I want to hear about it, as you probably scared some poor sheep that's never even seen a real live gun before and the commie swine thinks your gun is going to jump out of your holster and kill her little fiddle-fart poodle
Seriously, it's about intent, unless you're stoopid
enough to be playing with your gun in public and it stayed holstered, and you acted accordingly and not like an aggressive ass and didn't menace someone with body language alone, let along the gun on your hip, I can't see anyone that's minding their own business on their daily duties being charged for brandishing.
The above link is a published opinion from the current Gov. of Mi, Jennifer Granholm from back in her Attorney General days, it's mainly a reply back to someone asking if a holstered gun on a reserve police officer is brandishing...
You gotta be kidding right? Even worse is if I'm reading the letter right it was a Senator that wrote in asking about it...what? Did this guy loose a bet with a Police Chief? Or did this Senator try to tell an R.O. that he was brandishing and the R.O. told him to stick it? I gotta' try and find some back story on this.
Any way, the relevant part is this.
Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public
. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term "brandishing" appears in reported Michigan cases,2 none of the cases define the term.
In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions
People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish."
This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."
Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.
Lets look at this further with a keen eye, now remember, I'm not a lawyer, nor do I even pretend to be an authority on things, I just read the text and make sens of things the best I can.
Here we go...
Applying these definitions to your question
=Looking at what the word means and looking at the situation...
it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer,
=this person acting as a R.O., qualified as an P.O. or not.
when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner
=the gun is in view, holstered, and left the heck alone.
is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.
=it's not being waved or pointed, so it's all good.
So is it not safe to say that the same logic here can be applied to anyone with a gun in a holster, not being waved or pointed?
The text of 234E
does not mention legal self defense, and states the following:
750.234e Brandishing firearm in public; applicability; violation as misdemeanor; penalty.
Sec. 234e. (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in
(2) Subsection (1) does not apply to any of the following:
(a) A peace officer lawfully performing his or her duties as a peace officer.
(b) A person lawfully engaged in hunting.
(c) A person lawfully engaged in target practice.
(d) A person lawfully engaged in the sale, purchase, repair, or transfer of that firearm.
(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more
than 90 days, or a fine of not more than $100.00, or both.
History: Add. 1990, Act 321, Eff. Mar. 28, 1991.
That's just weird...
Either way, just carrying your gun should be covered by the before mentioned AGs opinion and it does give a clear definition as to what brandishing is.
There's more I want to post on this, so there's probably going to be a part 2 as I've got text on OH and WV.