"You can't be arrested for brandishing..."

[LiquidTension]

Tuesday in my Criminal Law class, the teacher brings up the subject of concealed weapons permits. The whole discussion was about intent, and how intent makes a difference in pressing charges and such. He said that if you had a concealed weapon and you pulled your shirt up to threaten someone, you could be charged with assault. OK, I follow that. Then he said that if you raise your arms up and you accidentally flash your weapon, you can't be charged because you were not trying to threaten anyone and in fact were not doing anything wrong. At this point I spoke up.

"Actually, in many places you could be charged with brandishing for that."
"No you couldn't. If you pulled it to threaten someone you could be charged with brandishing, but not if you reach up to get something off of a high shelf."

I didn't get into the whole "the point of a CONCEALED weapons permit is that it remains CONCEALED" argument. I didn't have any specific cases to cite, so I backed off until I could get some more info. Comments and cases welcome.

 

[erikm]

Actually, one of the US courts of appeals (the one handling CA) handled a case centering on this point of law earlier this year. It agreed that accidentally printing or exposing a weapon does not constitute brandishing it (or so I remember reading it). There's no active act.

The case concerned a bandit who had robbed a bank while he had a handgun tucked in his belt concealed under a shirt or jacket. As he was reaching for the bag-o-cash his clothing rode up exposing the gun. The bandit was subsequently caught and convicted of armed bank robbery. He appealed on the grounds that he had not actually handled or actively displayed the weapon during the crime, as per the definition of armed bank robbery, and wanted it reduced to plain bank robbery. The Court agreed in this. It didn't actually matter in terms of his time in jail though. He's serving a concurrent sentence for felon-in-possession.

Look through my postings for a fuller account of the case. My posting is a rebuttal of the SAF's firebreathing criticism of the verdict and has a link to the full opinion.

Cheers,
ErikM

 

[hd1.]

"You can't be arrested for brandishing..."

It seems to me that you can be arrested for anything. Whether you are then prosecuted, and whether you are then convicted is another matter.

(I understand your intent, but the title of this thread caught my eye.)

 

[Double Naught Spy]

Here in Texas, printing is not brandishing, but it isn't legal either. Concealed means the gun can't be observed in any fashion through normal observation.

Who was the rocket scientist who made this statement above? "No you couldn't. If you pulled it to threaten someone you could be charged with brandishing, but not if you reach up to get something off of a high shelf."

Pulling a gun to display it, even in a potentially dangerous situation, may be a form of brandishing and may be legal in a given circumstance. If you are producing the gun as a threat, then it is no longer just brandishing, but assault, is it not? This may be done legally or illegally depending on the situation such as if you are the aggressor or the intended victim. The simple difference between brandishing and assualt would be one of intent.

Maybe somebody could clarify this better, especially if I am in error.

 

[WYO]

I would say that the instructor is theoretically correct in the sense that the “intent†aspect of brandishing is missing when a firearm is accidentally displayed. However, intent is going to be inferred from the facts, and the facts are going to be compiled from witness statements. So the result could be an arrest in good faith even where the requisite intent is not present. Theory and reality don’t always coincide.

Depending upon applicable state law, this could be a completely different issue than displaying a concealed firearm in violation of a permit regulation.

 

[bogie]

Tell the fellow "Technically, you may be right, but in practice, in many areas around the country, you're quite likely to get a glock screwed into your ear while the local cop decides what he's gonna do."

In St. Louis, open carry is treated as brandishing.

 

[TallPine]

In St. Louis, open carry is treated as brandishing.

And THAT is definitely an infiringement of the right to bear (carry) arms.

If you can't carry open and can't carry concealed then your right to carry has been totally infringed!

Sorry ... now back to your regular scheduled program ....