"Brandishing", and "When Can I Draw"?

[Frank Ettin]

....Then please review this cite: https://nccriminallaw.sog.unc.edu/going-armed-to-the-terror-of-the-people/...

Thank you for the citation. You should have done some research before you posted incorrect information in post 71:

in some states the legalese instead of the term 'brandishing' is 'going to the terror' ..

As you have cited, "going armed to the terror of the people" under North Carolina law means:

A person guilty of this offense

(1) arms himself or herself with an unusual and dangerous weapon

(2) for the purpose of terrifying others and

(3) goes about on public highways

(4) in a manner to cause terror to the people.

On the other hand, "brandishing" generally involves, under the laws of most States, a threat understood to be direct toward a particular person. See this article for a discussion of the legal meaning and consequences of brandishing a weapon.

So "going armed to the terror of the people" and "brandishing" are not synonymous. The former is a minor offense against the public peace, and the latter will often count as an assault against a particular person.

In discussing legal matters precision is important.

 

[coswabbit]

Thank you for the citation. You should have done some research before you posted incorrect information in post 71:
As you have cited, "going armed to the terror of the people" under North Carolina law means:

​

On the other hand, "brandishing" generally involves, under the laws of most States, a threat understood to be direct toward a particular person. See this article for a discussion of the legal meaning and consequences of brandishing a weapon.

So "going armed to the terror of the people" and "brandishing" are not synonymous. The former is a minor offense against the public peace, and the latter will often count as an assault against a particular person.

In discussing legal matters precision is important.

Ah the peculiarities of that precision...

Code of Virginia
Table of Contents » Title 18.2. Crimes and Offenses Generally » Chapter 7. Crimes Involving Health and Safety » § 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty
A. It shall be unlawful for any person to point, hold or brandish any firearm....

Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

Seems in VA classified a minor offense, unless as under NC case law, circumstances dictate otherwise!

Oh and thanks for the cite to the US Carry article on Florida's improper exhibiting a firearm in which the author does a great leap of faith by incorrectly labeling exhibiting a firearm and other devices as "brandishing", then states he is using the wrong word, quote: So Florida statutes do NOT call it “brandishing”, but “improper exhibition” of dangerous weapons or firearms. unquote, as in fact FL's statutory code does not use the term "Brandishing" whatsoever:

The 2017 Florida Statutes
Title XLVI
CRIMES
Chapter 790
WEAPONS AND FIREARMS
790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree....

yes sir, i wholehearted agree with you - whenever discussing legal matters, precision is of the utmost importance as is relevance, isn't it?

 

[Frank Ettin]

Ah the peculiarities of that precision......

Phooey! Like many lay persons you make the mistake of not looking at all the relevant law and also ignoring context. So we'll take a step back.

The focus of this thread is:

....Few subjects are more widely misunderstood than that of the proper and improper presentation of a firearm or other weapon in a confrontation or self-defense situation.

We have penned the following to address this important issue....

The term “brandishing” is widely used, but it is not used in law in all jurisdictions.

Intentionally pointing a gun at someone without lawful justification constitutes a serious crime. Some states may use the term “brandishing”, which may be a misdemeanor; others may refer to “exhibiting a firearm in a dangerous manner”. The most common classification of the most serious offense, however, is assault of some manner, such as aggravated assault.

In the discussion posts below, Frank Ettin responded to a question with this excellent answer, in which he touches upon the traditional definition of assault at common law. ....

So in that context, let's look at Florida 790.10 (emphasis added):

790.10 Improper exhibition of dangerous weapons or firearms.—If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree,...

But let's also look at 784.11:

784.011 Assault.—

(1) An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

(2) Whoever commits an assault shall be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083.

and 784.021:

784.021 Aggravated assault.—

(1) An “aggravated assault” is an assault:

(a) With a deadly weapon without intent to kill; or

(b) With an intent to commit a felony.​

(2) Whoever commits an aggravated assault shall be guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

So we see here a fairly common "stacking" of crimes -- much like nesting dolls. The most serious of the series is aggravated assault, the elements of which are:

1. An assault:

   ...an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

   
   
2. With a deadly weapon but without an intent to kill.
   
   
3. Or an intent to commit a felony.

We then have what might sometimes be referred to as a lesser, included offence, an assualt, the elements of which are:

1. An intentional, unlawful, threat to do violence to the person of another.
   
   
2. An apparent ability to do violence.
   
   
3. Some act causing that person to have a well founded fear that violence is imminent.

An aggravated assault includes the elements of an assault plus some other elements making the crime more serious.

And then we have the next step down, improper display of a deadly weapon, the elements of which are:

1. Having a dangerous weapon.
   
   
2. Being in the presence of one or more persons.
   
   
3. Exhibiting the weapon in a rude, careless, angry, or threatening manner.
   
   
4. The display of the weapon is not in necessary self defense.

So while an improper display of a deadly weapon is related to assault, it can lack the element of a reasonable fear of imminent violence. Which crime gets charged and how it gets charged will depend on exactly what happened and what the evidence is. Often the charge will be the most serious crime with the jury being instructed that they could convict of a lesser included offense if they find an element of the more serious crime lacking.

But the lessons in the context of this thread are (1) displaying a gun in a threatening manner will be a crime of some sort; and (2) justification would be a defense.

 

[paulsj]

I assume same as when gun is needed? You know, as last resort to prevent grave bodily injuries death to self or member of family.

 

[coswabbit]

Phooey! Like many lay persons you make the mistake of not looking at all the relevant law and also ignoring context. So we'll take a step back.

The focus of this thread is:

Again, Frank, an elegantly stated insult which is duly noted.

oh, in FL 790.10 that you cited as well as bolded the specific segment you wish to address, might this alledged layperson inquire and get a learned opinion about the consequences if a Floridian exhibits the weapons listed in this particular statute in front of one or more individuals in a rude comma careless comma angry manner?

and this statute expressly states this is the same term as the subject of this tread, ‘brandishing’?

please have a nice day!

 

[Kleanbore]

Coswabbit, what are you trying to say?

 

[coswabbit]

Coswabbit, what are you trying to say?

think you, by behavioural standards, grasped my communicative message!

 

[Kleanbore]

think you, by behavioural standards, grasped my communicative message!

No. All I get from it is an argumentative, defensive whine.

 

[coswabbit]

No. All I get from it is an argumentative, defensive whine.

i wish to thank another august moderator for the elegantly expressed insult, it is duly noted.

please have a nice day!

 

[Kleanbore]

i wish to thank another august moderator for the elegantly expressed insult, it is duly noted.

I can see your point. Let me rephrase.

No. All I get from it is an argumentative, defensive statement that I cannot understand.

By the way, stating that someone is a lay person, and/or that he re she has posted incorrect information, does not constitute an insult.

 

[TarDevil]

i wish to thank another august moderator for the elegantly expressed insult, it is duly noted.

please have a nice day!

I completely agree with Kleanbore. For the life of me I don't understand your point.

 

[Trunk Monkey]

i wish to thank another august moderator for the elegantly expressed insult, it is duly noted.

please have a nice day!

Return of somebody's sock puppet

 

[Water Garden]

There is no "brandishing" statute in my neck of the woods.

That said, if circumstances arise which cause me to feel that my gun is needed ( right now) or that it may be needed in the next few breaths to preserve innocent life, I will pull it. If those circumstances and applicable conditions suddenly evaporate, so will my need to have my weapon in hand. I don't much worry about all the potential hubbub over such an action. I do not involve myself in the troubles of other people and I do not play public sentinel. If I pull a weapon from its holster, it will be something that I feel that I MUST do. No need to become conflicted as a result of too much overthinking.

 

[Kleanbore]

There is no "brandishing" statute in my neck of the woods.

That is true in many, if not most, jurisdictions.

That said, if circumstances arise which cause me to feel that my gun is needed ( right now) or that it may be needed in the next few breaths to preserve innocent life, I will pull it.

If you "feel" it is needed" right now", the issue will be one of whether you feeling will later be judged--by others--to have been reasonable, and whether a reasonable person in those circumstances, knowing what you knew at the time.

If it is a matter of "may be needed in the next few breaths", the issue of imminence will also be judged.

Note that the burden of producing evidence of justification will fall on you. The burden of proving guilt beyond a reasonable doubt resides with the state.

I don't much worry about all the potential hubbub over such an action.

That "potential hubbub" would be the possibility of serious criminal charges.

Attorney Andrew Branca of Law of Self Defense tells us that the majority of his cases involves defending people against charges that involve only the presentation of a weapon. He only accepts the ones that he believes to have been justified.

If the case is dismissed without going to trial, the legal expenses will likely amount to tens of thousands of dollars. A case that is taken to trial will cost much more.

Consequences of conviction are very serious. Even if the act was fully justified, there is a chance of 5% or more that the defendant will be convicted.

 

[Water Garden]

That is true in many, if not most, jurisdictions.

If you "feel" it is needed" right now", the issue will be one of whether you feeling will later be judged--by others--to have been reasonable, and whether a reasonable person in those circumstances, knowing what you knew at the time.

What I am trying to express is that I would only commit to such an action under the most dire and exigent of circumstances. Sure, I fully expect my actions to be under a microscope.

If it is a matter of "may be needed in the next few breaths", the issue of imminence will also be judged.

of course..

Note that the burden of producing evidence of justification will fall on you. The burden of proving guilt beyond a reasonable doubt resides with the state.

I am not sure what I may have said in my previous narrative that may have suggested that I am foreign to the workings of our justice systems but thank you for the reminder.

That "potential hubbub" would be the possibility of serious criminal charges.

Perhaps.. and that is why we train, scenario develop and seek knowledge. We do it so that we have a frame of reference to draw from while making hard decisions. We also do it so that when we ultimately decide what needs to be done, we might actually have a good idea how to accomplish it. It doesn't mean that we will choose correctly or respond correctly but there is no sense in worrying about it. I am not suggesting that a person consider these things causally. I accept that what we typically discuss in this forum is serious and I take the subject seriously. That said, worry is not a very productive platform from which to make hard decisions.

 

[Kenneth]

At the risk of getting jumped on for being overly simplistic, imho you may draw your firearm anytime you are allowed to use deadly force in accordance with your states laws. I understand that some states laws are complicated and difficult to make sense of. Here in NY State, the law regarding the use of force is better than most, even more "gun friendly" states. Also, as a side note, if the Kleck study is to be believed, in the vast majority of defensive gun uses, no shots are fired anyway

 

[boom boom]

At the risk of getting jumped on for being overly simplistic, imho you may draw your firearm anytime you are allowed to use deadly force in accordance with your states laws. I understand that some states laws are complicated and difficult to make sense of. Here in NY State, the law regarding the use of force is better than most, even more "gun friendly" states. Also, as a side note, if the Kleck study is to be believed, in the vast majority of defensive gun uses, no shots are fired anyway

The key word as Kleanbore points is whether your perceptions and subsequent actions are judged reasonable (states vary on the subjective versus the objective reasonable person approach.)