What is considered brandishing?

[Bulletski]

Hi All:

Got a question regarding what "brandishing" really means.
When I think of what "brandishing" would be, it would involve taking the pistol out of the holster and either waving it around OR sticking it in the face of the other party. Obviously that's a blatant example.

But my question is, if one is confronted with someone that's threatening in some way and you just show him you have a gun that's still in the holster and hasn't been withdrawn, is this still considered "brandishing"

The point being, if the "other party" decides to call the cops on you and you end up in court, does your having shown him ONLY that you had a gun on you considered brandishing?

OR is this something that a judge decides on?

 

[bearcreek]

To start, the legal definition varies from state to state and there's quite a few that don't use that word at all. Enforcement varies even more from region to region.

 

[hso]

the term “brandish” means, with respect to a firearm, to display all
or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person

https://www.handgunlaw.us/documents/Brandishing_Display_of_Firearm.pdf

 

[Coyote3855]

hso, thanks for a great reference. Certainly documents that state laws are a hodgepodge of definitions of conduct that could be considered brandishing.

 

[JJFitch]

As mentioned, your demographic will determine to what extent prosecution will occur!

The difference in most jurisdictions is the intent and where the gun is pointed.

Yelling profanities and pointing a gun at a presumed threat can raise to the level of assault!

Brushing your cover garment aside to expose your gun can meet the definition of brandishing when the totality of the incident is brought before the DA/Judicial system!

 

[CapnMac]

One of the factors here is that "brandishing" is a question of intent.

Intent is extremely difficult to codify as law.

It becomes a "thing" which requires a specific judgement of fact. Judgements of fact, under the law, are the sole purview of juries and/or judges.

So it's not something that can be defines in black and white, as a handy binary go/no go.

This has not stopped some polities from trying to define the subjective objectively.

if one is confronted with someone that's threatening in some way and you just show him you have a gun that's still in the holster and hasn't been withdrawn, is this still considered "brandishing"

The answer to that, is "Probably."
If the situation is not sufficient to draw a bead on the opponent, than it likely fails the "in fear of life or limb" test.

 

[Speedo66]

When a situation gets to the point of you having to show your gun, if the police arrive good luck at the other party actually telling the truth.

"He pulled his gun out and pointed it at me." At that point definitions mean nothing, same as what you actually did. Good chance you may be charged on someone's lies.

My theory would be don't let the other party know you have it until you get to the point you actually have to use it.

 

[TarDevil]

Showing a gun, even holstered, is a threat to me. Maybe to the point where I may put a hand on my gun. Maybe it stops there, maybe the first person decides more action is required.

State laws be damned. It escalates the encounter.

 

[Kleanbore]

But my question is, if one is confronted with someone that's threatening in some way and you just show him you have a gun that's still in the holster and hasn't been withdrawn, is this still considered "brandishing"

"In some way"?

If you have a basis for a reasonable belief that you face an imminent threat of death or serious bodily harm, you may use deadly force, if necessary, to prevent it.

If showing your gun suffIces, STOP THERE.

Others will decide what was reasonable.

 

[Frank Ettin]

....The point being, if the "other party" decides to call the cops on you and you end up in court, does your having shown him ONLY that you had a gun on you considered brandishing?....

Let's try looking at this issue from a slightly different perspective.

The usual definition of assault, based on the Common Law is:

an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive contact.

In the laws of some States this crime might be given another name. For example, in Alabama it's called "menacing." But by whatever name it is called, it is a crime in every State.

So a display of a firearm, when done for the purposes of intimidation, or to secure compliance, or to convince someone to keep his distance, or in response to a perceived threat is, in all States, an assault of some type (whether called brandishing or assault or menacing or anything else). You are effectively putting someone in fear of an imminent harmful or offensive contact, i. e., getting shot.

Now in all States it will be a defense against a charge of assault (or any similar crime) if you establish that your assault satisfied the applicable legal standard for justification.

In most States the standard for justifying a threat of lethal force is the same as for justifying the use of lethal force in self defense. In a few, it's a somewhat lesser standard. So in all States if you threaten lethal force you will need to be able to at least show prima facie such threat was legally justified, that is if you want to avoid a conviction for assault.

See the thread: "Brandishing", and "When Can I Draw"?

 

[F-111 John]

For Michigan the definition of "brandish" is provided as:

MCL §750.222(c)

(c) "Brandish" means to point, wave about, or display in a threatening manner with the intent to induce fear in another person.
​

The penalty for "brandishing" is stipulated as:

MCL §750.234e ​

750.234e Brandishing firearm in public; applicability; violation as misdemeanor; penalty.
Sec. 234e.

(1) Except as provided in subsection (2), a person shall not willfully and knowingly brandish a firearm in public.
(2) Subsection (1) does not apply to either of the following:

(a) A peace officer lawfully performing his or her duties as a peace officer.
(b) A person lawfully acting in self-defense or defense of another under the self-defense act, 2006 PA 309, MCL 780.971 to 780.974.​

(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.​

Brandishing will mean exactly what a prosecutor and a judge or jury thinks it means. It could be as overt as taking out your gun and waiving it about, or as little as simply lifting up your shirt to display a holstered concealed weapon on your waistband and smiling.

 

[Kleanbore]

For Michigan the definition of "brandish" is provided as:

MCL §750.222(c)

Do not forget felony assault (750.82), threatening someone with a firearm.

Brandishing will mean exactly what a prosecutor and a judge or jury thinks it means

The jury will decide what happened; the judge will define the law. The judge will be bound by any relevant appellate court rulings.

 

[lemaymiami]

Here in Florida we call it "Reckless Display" and note that it's not being done in necessary self-defense... so it's a judgment call for the responding officer(s) and a misdemeanor... Being only a misdemeanor it's not something an officer can arrest for - unless it occurs in his presence (any charging would have to occur after the fact by sworn statements, etc.). The next step up from that is a felony - Aggravated Assault... An agg. assault is occurs when you actually point the weapon at a victim in a threatening manner, not in necessary self defense. Once again, it will depend on the available evidence on scene for the officer(s) handling the call - but being a felony charge - this one is an arrest-able offense, whether the officers observed it occurring or not, if credible witnesses or victim(s) are on scene and willing to provide evidence that it occurred...

I should note that in my experience (22 years as an officer, then a sergeant, and finally lieutenant) I never saw or heard of anyone being charged with a firearms offense if the weapon never left the holster (unless the holder was a convicted felon - and that's an entirely different charge... ) or if possession of the firearm itself, (illegal weapon, stolen weapon, weapon with serial number removed, etc.. ) was a crime. Once again separate offenses..

As noted by Frank Ettin, though, every state has slightly different laws on this topic - some are felonies for what my state would consider a misdemeanor, etc. Anyone concerned that they even might run afoul of a weapons charge -or be in a situation where questions might be raised is well advised to learn everything possible about their state's firearms laws... I'll resist the temptation to note that firearms legislation is frequently more about politics than necessity. That, we all have to learn for ourselves...

 

[Rule3]

Here in Florida we call it "Reckless Display" and note that it's not being done in necessary self-defense... so it's a judgment call for the responding officer(s) and a misdemeanor... Being only a misdemeanor it's not something an officer can arrest for - unless it occurs in his presence (any charging would have to occur after the fact by sworn statements, etc.). The next step up from that is a felony - Aggravated Assault... An agg. assault is occurs when you actually point the weapon at a victim in a threatening manner, not in necessary self defense. Once again, it will depend on the available evidence on scene for the officer(s) handling the call - but being a felony charge - this one is an arrest-able offense, whether the officers observed it occurring or not, if credible witnesses or victim(s) are on scene and willing to provide evidence that it occurred...

I should note that in my experience (22 years as an officer, then a sergeant, and finally lieutenant) I never saw or heard of anyone being charged with a firearms offense if the weapon never left the holster (unless the holder was a convicted felon - and that's an entirely different charge... ) or if possession of the firearm itself, (illegal weapon, stolen weapon, weapon with serial number removed, etc.. ) was a crime. Once again separate offenses..

As noted by Frank Ettin, though, every state has slightly different laws on this topic - some are felonies for what my state would consider a misdemeanor, etc. Anyone concerned that they even might run afoul of a weapons charge -or be in a situation where questions might be raised is well advised to learn everything possible about their state's firearms laws... I'll resist the temptation to note that firearms legislation is frequently more about politics than necessity. That, we all have to learn for ourselves...

Where do you find the term "Reckless Display"??

Sounds even worse

The statute states Improper exhibition of dangerous weapons or firearms.
http://www.leg.state.fl.us/Statutes...ing=&URL=0700-0799/0790/Sections/0790.10.html

 

[Artg56]

In my home state it’s called “ Going armed to the terror of the people”. It is a misdemeanor and having read through my state laws several times I find this one perhaps the most ambiguous.

There was a recent topic here “open carry >911 call” which illustrates that some people feel terrorized at the sight of a gun legally carried.

 

[Kleanbore]

Where do you find the term "Reckless Display"??

Sounds even worse

The statute states Improper exhibition of dangerous weapons or firearms.
http://www.leg.state.fl.us/Statutes...ing=&URL=0700-0799/0790/Sections/0790.10.html

"Reckless display" is used in describing the charges under the terms of the statures cited.statute cited.

It is sometimes put forth as a lesser inlcuded charge whan people are charged with the much more serious charged of aggravated assault--assault with a deadly weapon.

 

[lemaymiami]

For Rule 3... thanks for the heads up... I need to resist the impulse to speak up about criminal law here in Florida since I haven't really kept up with it since I retired out in 1995 - and things do change... I can remember though, signing off on reports and "A-forms" (if they're still called that) for many years as a supervisor then watch commander for these kinds of incidents... I'm not from the stone age, although sometimes it feels like it, but I'm definitely up in geezer territory now... but still working full time as a fishing guide whenever I'm booked...

 

[Rule3]

For Rule 3... thanks for the heads up... I need to resist the impulse to speak up about criminal law here in Florida since I haven't really kept up with it since I retired out in 1995 - and things do change... I can remember though, signing off on reports and "A-forms" (if they're still called that) for many years as a supervisor then watch commander for these kinds of incidents... I'm not from the stone age, although sometimes it feels like it, but I'm definitely up in geezer territory now... but still working full time as a fishing guide whenever I'm booked...

I was not questioning your statement just could not find those terms, so wondered if it was written someplace else.

 

[uuolf]

Here in Florida we call it "Reckless Display" and note that it's not being done in necessary self-defense... so it's a judgment call for the responding officer(s) and a misdemeanor... Being only a misdemeanor it's not something an officer can arrest for - unless it occurs in his presence (any charging would have to occur after the fact by sworn statements, etc.). The next step up from that is a felony - Aggravated Assault... An agg. assault is occurs when you actually point the weapon at a victim in a threatening manner, not in necessary self defense. Once again, it will depend on the available evidence on scene for the officer(s) handling the call - but being a felony charge - this one is an arrest-able offense, whether the officers observed it occurring or not, if credible witnesses or victim(s) are on scene and willing to provide evidence that it occurred...

I should note that in my experience (22 years as an officer, then a sergeant, and finally lieutenant) I never saw or heard of anyone being charged with a firearms offense if the weapon never left the holster (unless the holder was a convicted felon - and that's an entirely different charge... ) or if possession of the firearm itself, (illegal weapon, stolen weapon, weapon with serial number removed, etc.. ) was a crime. Once again separate offenses..

As noted by Frank Ettin, though, every state has slightly different laws on this topic - some are felonies for what my state would consider a misdemeanor, etc. Anyone concerned that they even might run afoul of a weapons charge -or be in a situation where questions might be raised is well advised to learn everything possible about their state's firearms laws... I'll resist the temptation to note that firearms legislation is frequently more about politics than necessity. That, we all have to learn for ourselves...

Thanks for your service and the great info.

 

[TarDevil]

In my home state it’s called “ Going armed to the terror of the people”.... I find this one perhaps the most ambiguous.

I called an assistant DA to see what criteria they looked for in prosecuting this law, and he explained what he considered grounds for prosecution. But ambiguity remains, as he explained that other DA's may interpret the law differently.
It's why I always conceal until a clear threat forces a draw.

 

[Rule3]

In my home state it’s called “ Going armed to the terror of the people”. It is a misdemeanor and having read through my state laws several times I find this one perhaps the most ambiguous.

There was a recent topic here “open carry >911 call” which illustrates that some people feel terrorized at the sight of a gun legally carried.

Damn that sounds very serious!
What is it called when a gun is actually pulled out and pointed at someone!

 

[Kleanbore]

What is it called when a gun is actually pulled out and pointed at someone!

Depends upon the circumstances, the reason, the jurisdiction, and what witnesses say.

Could be lawful self defense. Could be aggravated assault. Could carry a mandatory firearms enhancement in the penalty phase.