What is considered brandishing?

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that's threatening in some way and you just show him you have a gun that's still in the holster and hasn't been withdrawn, is this still considered "brandishing"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

 

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

 

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!

 

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.

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.

 

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.

 

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.

 

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.

 

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

 

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.

 

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.

 

Thanks for your service and the great info.

 

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.

 

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