is open carry brandishing?

This is a discussion on is open carry brandishing? within the Open Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; I suppose some anti-gun nut would see it that way. There's also the possibility of being accused of brandishing a gun if you were hand ...

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Thread: is open carry brandishing?

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    Senior Member Array NECCdude's Avatar
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    is open carry brandishing?

    I suppose some anti-gun nut would see it that way. There's also the possibility of being accused of brandishing a gun if you were hand carrying the gun even if you're carrying it by the barrel and even if the gun IS unloaded and the action is locked open. It seems like this is a grey area of the law. I guess you would need a friend/witness to defend yourself in such a senario. Of course, you wouldn't need a loaded gun to use it as a weapon. I just hope someone at a restaurant doesn't accuse me of brandishing a steak knife at the dinner table. Paranoid people tend to make me paranoid.

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    Senior Member Array GeorgiaDawg's Avatar
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    I believe brandishing has traditionally been seen as a threatening display of a firearm.

    OCing a firearm is not, by itself, a threatening display. Perhaps if you're in an altercation and you point to your OC'd gun, that can be considering brandishing, since you are now using it in a threatening manner.
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    Brandishing would indicate an actual threat to someone such as pointing the weapon at them. Just having it holstered and open carrying there is no threat. What I have never understood is some anti-gunner types will go into screaming fits and lose bowel and bladder control when a normal armed citizen is within eyesight yet will have no reaction when an armed LEO is right next to them.
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    Distinguished Member Array Arborigine's Avatar
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    Here in CA, in order to prove that you brandished a weapon under Penal Code 417 PC, the prosecutor must prove the following facts :

    1.that you drew or exhibited a deadly weapon or firearm in the presence of another person,

    2.that either
    a.you did so in a rude, angry, or threatening manner, or
    b.you did so unlawfully in a fight or quarrel, and

    3.that you were not acting in self-defense or in the defense of another person at the time.

    Your mileage may vary depending on your state laws. Just to help out on point 2a, be sure to smile.
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    Member Array KSDeputy's Avatar
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    Not as long as it is in a holster. I do not support open carry except by peace officers. The only exception would be where there is no concealed carry law, and the only means of protecting yourself and your family is open carry.

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    VIP Member Array 1MoreGoodGuy's Avatar
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    Quote Originally Posted by NECCdude View Post
    I suppose some anti-gun nut would see it that way. There's also the possibility of being accused of brandishing a gun if you were hand carrying the gun even if you're carrying it by the barrel and even if the gun IS unloaded and the action is locked open. It seems like this is a grey area of the law. I guess you would need a friend/witness to defend yourself in such a senario. Of course, you wouldn't need a loaded gun to use it as a weapon. I just hope someone at a restaurant doesn't accuse me of brandishing a steak knife at the dinner table. Paranoid people tend to make me paranoid.
    Doesn't seem "grey" to me and to answer your question, open carry is not brandishing.
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    Member Array Figbassist75's Avatar
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    In NC, open carry is legal until you actually threaten someone with the firearm. And threatening is not merely having it holstered either. MWAG calls are getting on the nerves of local LE these days as more and more gun ignorant liberals move into the area. I've actually heard of a case in my local area where a woman called the police at a local Walmart claiming an OC'er was holding her at gunpoint as she screamed for local police to arrive to, get this, eliminate the OC'er. Turns out, the idiot caller forgot one simple thing about modern Wally World's. Their interiors are covered with surveillance cameras, which to her undoing, proved her report false.

    End result, she was charged with false report to the police and misuse of 911. And this case is now resulting in some overly anxious MWAG callers getting a much needed education on OC legality by LEOs who are increasingly getting frustrated with anti-gunnies pushing their gun control agenda by abusing the GATTTOTP statute. I actually look for a some kind of a change in this statute sometime in the future if this abuse keeps up. And to be honest, it deserves much needed clarification and it wouldn't hurt to increase the penalties for false report and misusing 911 either.
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    "is open carry brandishing?"

    Not if I'm on the jury. Brandishing is an intentional action, not a passive state.
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    Ex Member Array Manderinobyebye's Avatar
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    I don't see how it would be a grey area.We don't have OCing here, but the brandishing law we do.If it's in the holster it's not brandishing.If you pull your gun and point it at someone,like one moron here did,(road rage),that's brandishing.

    I can't see how a gun holstered would be brandishing.
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    "Brandishing" can be summed up as "illegal display of a firearm" and it is one of the most misunderstood, misused firearms terms that there are.

    If open carry is legal then brandishing does not apply.
    If you open carry and pull your weapon without having met certain criteria as outlined by the state, then most likely it can be applied.


    The key here is common sense, something that is becoming very valuable these days as it becomes scarce.
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    Ditto on the above. Mere visibility of an armed citizen doesn't constitute that citizen brandishing, which is an active/overt menacing or intimidating act of specific threat against another. Merely carrying isn't any more threatening than wearing anything else, for all its potential if action were required.

    Of course, there are still a few states around with muddy menacing statutes, including some with the ludicrous GATTTOTP laws. IIRC, though, there are a couple of states where the statutes specifically declare that merely carrying isn't itself a criminal or threatening act. IMO, as prevalent as stupidity seems to be, I hope all states eventually put such statements into their statutes; better yet, clear constitutional carry clauses, recognizing it for exactly what it is, disallowing what it absolutely isn't.
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    Distinguished Member Array BadgerJ's Avatar
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    In some places it's a good idea to OC with a partner. You can provide credible testimony to counter wild claims. It's also a good idea to have at least an audio recorder going from the time you leave the house.

    If you look on open carry forums, you can read reports of lots and lots of people reporting they've carried in various locations around the US without incident.
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    Distinguished Member Array oldman45's Avatar
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    A holster is the same as having the gun in a display case. As long as the gun is holstered, it is not brandishing "in a state with legal open carry."

    I have ran across instances in states that does not allow OC where either intentional or not had their gun in a holster but got charged with brandishing. One must remember that is not what you do but what those that charge you think about what you did.

    Example: In an OC state, a person walks around with a holstered side arm. Nothing is said, nobody is alarmed. In a CC only state, a person bends over to examine something in a WalMart and his holstered gun is exposed. A person sees it and is not accustomed to seeing people with guns and calls police about a MWAG. Police come. The man is pointed out to police. Remember this is in a state where guns are not normally seen. The police officer feels the man brandished his gun by allowing it to be seen. The man is so charged. His carry permit is suspended and he gets a large attorney bill while waiting to see if he is going to visit the Grey Bar Inn.
    It happens but not in OC states.

    Read this about a brandishing charge:

    http://beforeitsnews.com/alternative...y-2702804.html
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    Senior Member Array acepilot's Avatar
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    Quote Originally Posted by KSDeputy View Post
    Not as long as it is in a holster. I do not support open carry except by peace officers. The only exception would be where there is no concealed carry law, and the only means of protecting yourself and your family is open carry.
    Just curious why you don't support OC? It looks like you are possibly a deputy? Wouldn't you feel better KNOWING someone is carrying rather than WONDERING if they are? No surprises then. My thought is that either way, if someone is OC'ing or CC'ing, they are carrying. Either way, they could shoot you.
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    Senior Member Array NECCdude's Avatar
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    Quote Originally Posted by oldman45 View Post
    A holster is the same as having the gun in a display case. As long as the gun is holstered, it is not brandishing "in a state with legal open carry."

    I have ran across instances in states that does not allow OC where either intentional or not had their gun in a holster but got charged with brandishing. One must remember that is not what you do but what those that charge you think about what you did.

    Example: In an OC state, a person walks around with a holstered side arm. Nothing is said, nobody is alarmed. In a CC only state, a person bends over to examine something in a WalMart and his holstered gun is exposed. A person sees it and is not accustomed to seeing people with guns and calls police about a MWAG. Police come. The man is pointed out to police. Remember this is in a state where guns are not normally seen. The police officer feels the man brandished his gun by allowing it to be seen. The man is so charged. His carry permit is suspended and he gets a large attorney bill while waiting to see if he is going to visit the Grey Bar Inn.
    It happens but not in OC states.

    Read this about a brandishing charge:

    VA:Man charged with Brandishing for putting gun away | Alternative
    Oh, the insanity! Now I'm worried that someone will see me put my gun into the glovebox to comply with state law or when I reholster it later. I think the gun laws need some revamping. Not only that, I was reading about CCing a knife in Nebraska - I'm not sure if I'll get arrested or not if I CC a knife with a 3-1/2 inch blade (or shorter). Once again - oh, the insanity!

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