OC v Brandishing Question

OC v Brandishing Question

This is a discussion on OC v Brandishing Question within the Open Carry Issues & Discussions forums, part of the Defensive Carry Discussions category; Is walking around with a rifle or shotgun on a sling on your shoulder OC or Brandishing? Neither hand actually on the weapon, just slung ...

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Thread: OC v Brandishing Question

  1. #1
    Member Array FHBrumb's Avatar
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    OC v Brandishing Question

    Is walking around with a rifle or shotgun on a sling on your shoulder OC or Brandishing?

    Neither hand actually on the weapon, just slung over the shoulder, and go for a walk...

    We Wisconsin folks have lots to learn...
    Washington Post 06/28/2010 re: Supreme Court Decision
    "The court's decision means that the enigmatically worded Second Amendment... identifies an individual right to gun ownership, like the freedom of speech, that cannot be unduly restricted by Congress, state laws or city ordinances. "


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    VIP Member Array tns0038's Avatar
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    That would depend on your state statues. You’ll need to list what state your from if you want advise from a local.

    Florida for example does not allow open carry, while you would not be guilty of brandishing you would be open carrying. Exception being hunting in the woods, or at the range.

  3. #3
    Member Array patrol's Avatar
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    I hope not, I'd be in jail during hunting season if that were the case. all kidding aside. You didn't post ur specific "location" so I don't know if your locale has a Commonwealth Attorney or District Attorney, either way call their office for specifics about what constitutes "Brandishing" in your area. For Va, there has to also be some threat perceived with an overt act wheter it be "verbal" or actually "pointing" the weapon at somebody before it crosses the line into the criminal act of Brandish.

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    "Brandishing" is entirely dependent on the are you are in. What flies in one state may not fly in another.

    Some have provisions for hunting, others do not.

    Getting the info from anyone that does not live in your area is pretty much worthless because of the difference in terminology.

    I would check with the state police website or attorney general website of my home state for a start.
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    Senior Member Array highvoltage's Avatar
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    Quote Originally Posted by tns0038 View Post
    ....You’ll need to list what state your from if you want advise from a local.....
    OP wrote:

    .....We Wisconsin folks have lots to learn...

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    I think it purely depends on the context. If I have my shotgun slung walking through a bean field ( I have done so many times in WI) its no problem. But, if I'm at some yuppie hippe fest in Madison, I think I could expect some trouble.
    "Just blame Sixto"

  7. #7
    JD
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    Here's the short answer.

    NO. Wi has no law regarding brandishing (that I could find and I'm a pretty good searcher).

    It IS illegal to point a firearm at someone else if not done in self defense, which is usually what's meant by brandishing.

    What the OP needs to worry about is WHERE he's openly carrying a rifle as there are stipulations regarding being armed in vehicles with loaded firearms and some property restrictions/stipulations etc.

    The OP needs to read over the following PDFs.

    CRIMES — PUBLIC HEALTH AND SAFETY 941.20

    CHAPTER 167
    SAFEGUARDS OF PERSONS AND PROPERTY


    I'll follow up with more later, gotta run.

    For more about brandishing for several other states, check out my blog:
    A few notes on "Brandishing" (Revised 1-19-2009)

    A few notes on "Brandishing" Part 2

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    Senior Member Array rmodel65's Avatar
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    Quote Originally Posted by tns0038 View Post
    That would depend on your state statues. You’ll need to list what state your from if you want advise from a local.

    Florida for example does not allow open carry, while you would not be guilty of brandishing you would be open carrying. Exception being hunting in the woods, or at the range.


    or camping or fishing or on the way to those things
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    It IS illegal to point a firearm at someone else if not done in self defense, which is usually what's meant by brandishing




    To wave around and display a firearm is brandishing, to point it at someone if not done in self defense is aggrivated assault.

  10. #10
    JD
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    Quote Originally Posted by LaCCW View Post
    It IS illegal to point a firearm at someone else if not done in self defense, which is usually what's meant by brandishing




    To wave around and display a firearm is brandishing, to point it at someone if not done in self defense is aggrivated assault.
    That all depends on which exact state statutes we're talking about, in this case we're talking about WI, which has no code for aggravated assault (that I could find and again I'm a pretty good searcher, but I could be wrong), only aggravated battery which does not include pointing a firearm. Regarding pointing of a weapon IN WI, as I stated above...
    941.20 Endangering safety by use of dangerous
    weapon. (1) Whoever does any of the following is guilty of a
    Class A misdemeanor:
    ...
    (c) Except as provided in sub. (1m), intentionally points a firearm
    at or toward another.
    But yes generally speaking, brandishing does refer to waving/threatening with a gun as I clearly state in the other links I listed above.

  11. #11
    Senior Member Array LeCalsey's Avatar
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    Your original post would leave a ton of hunters in WI in hot water. I am not sure you would be able to go out shopping though without a LE encounter depending on the locale. WI has some odd views on gun law and reciprocity.
    2A is not negotiable

  12. #12
    JD
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    Quote Originally Posted by LeCalsey View Post
    Your original post would leave a ton of hunters in WI in hot water. I am not sure you would be able to go out shopping though without a LE encounter depending on the locale. WI has some odd views on gun law and reciprocity.
    Is it a good idea? Probably not, but the question was: Is it brandishing? The answer is no. Are there places/circumstances where it's prohibited? Yes, that's why I gave the links to the actual LAWS that apply in this case.

    Will he get charged for anything? Possibly, but that's NOT what he's asking.



    Also, according to the AG of WI, the mere open carrying of a firearm should not be basis alone for charging one with anything. It does not specify a type of firearm, only firearms and the last time I checked, a long gun is a firearm. Now it clearly states in the PDF that this is not a formal opinion, and that "reasonable restrictions" can be made. But for all intensive purposes and again to answer the OPs question. The open carrying of a firearm is not brandishing.

    The Interplay Between Article I, § 25 Of The Wisconsin Constitution, The Open Carry Of Firearms And Wisconsin’s Disorderly Conduct Statute, Wis. Stat. § 947.01

    Of particular interest is the following:

    For example, a hunter openly carrying a rifle or shotgun on his property during hunting season while quietly tracking game should not face a disorderly conduct charge. But if the same hunter carries the same rifle or shotgun through a crowded street while barking at a passerby, the conduct may lose its constitutional protection. See Werstein, 60 Wis. 2d at 672-73 (collecting cases illustrating disorderly conduct) (“In each of these cases, convictions for being ‘otherwise disorderly’ resulted from the inappropriateness of specific conduct because of the circumstances involved”) (emphasis added).4

    ...

    ¶7. The same concepts should apply to handguns. The state constitutional right to bear arms extends to openly carrying a handgun for lawful purposes. As illustrated by a recent municipal court case in West Allis, a person openly carrying a holstered handgun on his own property while doing lawn work should not face a disorderly conduct charge.5 If, however, a person brandishes a handgun in public, the conduct may lose its constitutional protection. Again, “[i]t is the combination of conduct and circumstances that is crucial in applying the [disorderly conduct] statute to a particular situation.” Maker, 48 Wis. 2d at 616.

    ¶8. Finally, several law enforcement agencies have asked whether, in light of Article I, § 25, they may stop a person openly carrying a firearm in public to investigate possible criminal activity, including disorderly conduct. We say yes. An officer may stop and briefly detain a person for investigative purposes (known as an investigative or Terry stop) if he has “reasonable suspicion,” based on articulable facts, of criminal activity. Illinois v. Wardlow, 528 U.S. 119, 123 (2000); United States v. Sokolow, 490 U.S. 1, 7 (1989); Terry v. Ohio, 392 U.S. 1, 30 (1968). The existence of reasonable suspicion depends on the totality of the circumstances, including the information known to the officer and any reasonable inferences to be drawn at the time of the stop. United States v. Arvizu, 544 U.S. 266 (2002) (reaffirming “totality of the circumstances” test). Even though open carry enjoys constitutional protection, it may still give rise to reasonable suspicion when considered in totality. It is not a shield against police investigation or subsequent prosecution. See State v. Anderson, 155 Wis. 2d 77, 84, 454 N.W.2d 763 (1990) (police officers not required to first eliminate the possibility of innocent behavior before making investigatory stop). ¶9. And “even when officers have no basis for suspecting a particular individual, they may generally ask questions of that individual, [and] ask to examine the individual's identification,” as long as the police do not convey a message that compliance is mandatory. Florida v. Bostick, 501 U.S. 429, 434-35 (1991). The Fourth Amendment does not prevent police from making voluntary or consensual contact with persons engaged in constitutionally protected conduct. See United States v. Mendenhall, 446 U.S. 544, 553-54 (1980). Accordingly, a law enforcement officer does not violate the Fourth Amendment by approaching an individual in public and asking questions. Florida v. Royer, 460 U.S. 491, 497 (1983). An officer may approach and question someone as long as the questions, the circumstances and the officer's behavior do not convey to the subject that he must comply with the requests. Bostick, 501 U.S. at 435-36. The person approached need not answer any questions. As long as he or she remains free to walk away, there has been no intrusion on liberty requiring a particularized and objective Fourth Amendment justification. See Mendenhall, 446 U.S. at 554.



    Last edited by JD; May 13th, 2009 at 11:31 PM.

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