Firearm Carry Theory: Is it brandishing?

[Wyldekard]

As I mentioned in another thread, due to recent events (2 bank robberies and 3 rabid animals), I have new found support on the home front for my owning and carrying firearms. In conjunction with this support, fundamental questions are being asked.

I was asked what "brandishing" meant. I gave my best answer. Then I got asked "what if they see your spare ammunition, is that brandishing too?". I carry 50% of the time with a shoulder rig so my spares are under my strong arm, but the question also applied to spare mags on my belt too. I thought the answer was no it involves a weapon, but then I got to wondering. If you're carrying ammunition in magazines, isn't a weapon impliied? The state I live in (Iowa) doesn't seem to address it in a satisfactory manner.

What does your state law say or what are your opinions?

 

[TX_CHL]

I live in Texas and the law only applies to the gun. It does not say anything about your ammunition. It says your firearm must be concealed. To me that means the gun only.

 

[SGB]

There is no such thing as "brandishing" in Florida

 

[kelcarry]

There is no such thing as "brandishing" in Florida

Hey SGB: You wanna bet on your statement? All you are doing is wordsmithing the word "brandishing"; you know darn well what we are talking about. It may not be mentioned in your code of laws but I will bet you that if you have a small fender bender or some kind of neighborhood disagreement and decide to confront someone, as you wave your pistola around, you will be arrested or worse---you will die when that person, now fearing imminent death, decides to actually present and fire his weapon (in a legal and righteous defensive shooting) before you realize what has happened.

 

[Silent Bob]

"I gave my best answer. Then I got asked 'what if they see your spare ammunition, is that brandishing too?'"

Hello everyone, I am new to forums... not quite sure of the protocol, so forgive me if I break it, I will correct any mistakes in future posts.

I may have missed it Wyldekard, but what was the answer you gave?

My understanding of "brandishing" is a purposeful/intentional waving or showing of a firearm with the intent to intimidate. So an accidental showing of the firearm while reaching for something, while tactically unsound, wouldn't - for the most part - qualify as brandishing. So, I would venture to guess, while it would be tactically unsound to accidentally show your spare magazines, this would not be categorized as brandishing.

While I am sure different jurisdictions in each state could split hairs, I would think that this is pretty close to the mark for the most part.

Groups thoughts?

 

[ezkl2230]

Iowa law doesn't appear to say thing about openly carrying ammunition - only the weapon. And merely implying that you might be carrying a weapon is not the same as brandishing a weapon. Here's what USACarry.org says:

What are the laws regarding open carry in Iowa?
Open carry in Iowa is not restricted by state law with the exception of carrying in a vehicle or inside city limits. Carry permit holders may open carry anywhere that it is otherwise legal to have a firearm. This practice is not universally accepted and could attract attention from law enforcement.

SGB - While Florida law may not use the word, "brandishing", it DOES have "Improper exhibition of dangerous weapons or firearms" and "Open carrying of weapons" provisions that amount to what other states term as "brandishing".

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, punishable as provided in s. 775.082 or s. 775.083.

790.053 Open carrying of weapons.—
(1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

Here is the link to the chapter covering these things: - Chapter 790 - 2011 Florida Statutes - The Florida Senate

As to what Michigan (my home state) state law says, open carry is permitted without a permit, state law pre-empts local ordinances, and while the word "brandishing" is used in the law, the term is not actually defined. Because of that, there have been one or two cases (I'm thinking primarily of Grand Haven, MI) in which local LEOs have attempted to make arrests and confiscate the firearms of individuals who were legally carrying openly, based on the argument that open carry might cause discomfort and alarm in some people and therefore constituted brandishing even when not carried or displayed in a threatening manner. The arrests were overturned, but that still doesn't stop the occasional LEO from trying. I am in the process of writing an amendment to the law to define "brandishing" and take the guesswork out of it.

 

[SGB]

Hey SGB: You wanna bet on your statement? All you are doing is wordsmithing the word "brandishing"; you know darn well what we are talking about.

Really? "Brandishing" sure gets thrown around a lot to describe a plethora of different things to different people around the firearms community there kelcarry. Florida has different statutes for different offenses, however none of them include the word "brandishing". Now you can chortle all you want about wordsmithing but words do have meanings.

 

[Phillip Gain]

Brandishing...

Different states have different laws on this. And even when the laws are almost verbatim between states, they can be applied differently. But to boil it down for you using reason, there are two elements to brandishing:

1) Exposing a weapon.

2) Doing so in such a manner as to cause fear in someone else.

In many cases, the law defining brandishing is written vaguely. The idea is to be able to prosecute someone who, during a confrontation, casually sweeps or lifts his shirt to expose the weapon, thus threatening his adversary, just the same as someone who "pulls and points."

(Note: I'm sure this same standard would apply if you swept your shirt to flash your mags to intimidate your adversary during a confrontation.)

The problem is, that zealous anti-gun prosecutors (especially in states where open carry is prohibited) can also apply the interpretation to the poor guy whose gun peeks out when he's reaching for the oat bran on the top shelf at the Stop-n-Shop, scaring the liberal soccer mom with her kid in the same aisle.

(Note: Again, a zealous anti-gun prosecutor could, in theory, apply this interpretation to the poor guy whose mags peeked out while reaching for the oat bran.)

So you want a clear legal definition of brandishing? There isn't one. Again, laws vary from state to state. Interpretations vary from prosecutor to prosecutor.

What can I do to avoid being prosecuted for brandishing?

- Carry concealed, if permitted.

- Conduct yourself as a lady or gentleman.

- Avoid arguments and confrontations where possible.

- If you find yourself in an argument or confrontation, try to stay calm and disengage as quickly as possible.

- Do not show your firearm or threaten force unless your life or safety is clearly in imminent danger. The standard for being justified in displaying deadly force is the same as the standard for being justified in using deadly force. (This means KEEP IT CONCEALED unless there is imminent danger. Or if you are open carrying, KEEP YOUR HAND AWAY FROM IT unless there is imminent danger.)

- Never underestimate the value of RETREAT, even if you have castle doctrine / "stand your ground" laws. Retreating can defuse a situation, or can at least create space and time between you and a potential attacker. (When your day in court comes...you would rather have witnesses saying "I saw him point a gun at that guy." or "It looked like he was trying to get away from the bad guy, but the bad guy ran like hell when this guy drew his gun.")

 

[Treo]

How, exactly does one expose a weapon in a "rude" manner?

 

[NavyLCDR]

I carry 50% of the time with a shoulder rig so my spares are under my strong arm, but the question also applied to spare mags on my belt too. I thought the answer was no it involves a weapon, but then I got to wondering. If you're carrying ammunition in magazines, isn't a weapon impliied?

If you hide your gun, but not spare loaded magazines, aren't you giving up the element of surprise?

 

[BC1]

There is no brandishing in NYS either. Threatening with a gun constitutes menacing.

 

[localgirl]

Different states have different laws on this. And even when the laws are almost verbatim between states, they can be applied differently. But to boil it down for you using reason, there are two elements to brandishing:

1) Exposing a weapon.

2) Doing so in such a manner as to cause fear in someone else.

In many cases, the law defining brandishing is written vaguely. The idea is to be able to prosecute someone who, during a confrontation, casually sweeps or lifts his shirt to expose the weapon, thus threatening his adversary, just the same as someone who "pulls and points."

(Note: I'm sure this same standard would apply if you swept your shirt to flash your mags to intimidate your adversary during a confrontation.)

The problem is, that zealous anti-gun prosecutors (especially in states where open carry is prohibited) can also apply the interpretation to the poor guy whose gun peeks out when he's reaching for the oat bran on the top shelf at the Stop-n-Shop, scaring the liberal soccer mom with her kid in the same aisle.

(Note: Again, a zealous anti-gun prosecutor could, in theory, apply this interpretation to the poor guy whose mags peeked out while reaching for the oat bran.)

So you want a clear legal definition of brandishing? There isn't one. Again, laws vary from state to state. Interpretations vary from prosecutor to prosecutor.

What can I do to avoid being prosecuted for brandishing?

- Carry concealed, if permitted.

- Conduct yourself as a lady or gentleman.

- Avoid arguments and confrontations where possible.

- If you find yourself in an argument or confrontation, try to stay calm and disengage as quickly as possible.

- Do not show your firearm or threaten force unless your life or safety is clearly in imminent danger. The standard for being justified in displaying deadly force is the same as the standard for being justified in using deadly force. (This means KEEP IT CONCEALED unless there is imminent danger. Or if you are open carrying, KEEP YOUR HAND AWAY FROM IT unless there is imminent danger.)

- Never underestimate the value of RETREAT, even if you have castle doctrine / "stand your ground" laws. Retreating can defuse a situation, or can at least create space and time between you and a potential attacker. (When your day in court comes...you would rather have witnesses saying "I saw him point a gun at that guy." or "It looked like he was trying to get away from the bad guy, but the bad guy ran like hell when this guy drew his gun.")

Wait a sec. I have to act like a ******* lady?!

 

[SGB]

Iowa law doesn't appear to say thing about openly carrying ammunition - only the weapon. And merely implying that you might be carrying a weapon is not the same as brandishing a weapon. Here's what USACarry.org says:



SGB - While Florida law may not use the word, "brandishing", it DOES have "Improper exhibition of dangerous weapons or firearms" and "Open carrying of weapons" provisions that amount to what other states term as "brandishing".



Here is the link to the chapter covering these things: - Chapter 790 - 2011 Florida Statutes - The Florida Senate

As to what Michigan (my home state) state law says, open carry is permitted without a permit, state law pre-empts local ordinances, and while the word "brandishing" is used in the law, the term is not actually defined. Because of that, there have been one or two cases (I'm thinking primarily of Grand Haven, MI) in which local LEOs have attempted to make arrests and confiscate the firearms of individuals who were legally carrying openly, based on the argument that open carry might cause discomfort and alarm in some people and therefore constituted brandishing even when not carried or displayed in a threatening manner. The arrests were overturned, but that still doesn't stop the occasional LEO from trying. I am in the process of writing an amendment to the law to define "brandishing" and take the guesswork out of it.

You should change from ezkl2230 to Capt Obvious

 

[kelcarry]

Really? "Brandishing" sure gets thrown around a lot to describe a plethora of different things to different people around the firearms community there kelcarry. Florida has different statutes for different offenses, however none of them include the word "brandishing". Now you can chortle all you want about wordsmithing but words do have meanings.

Hey SGB: Not sure what your argument with me is all about, but if you are going to pick and choose quotes from my reply, it would be nice if you included it in its entirety where I clarify what I consider to be the basis, in simple realistic terms (maybe flowery) of what this magic word is all about. Kindly examine reply #5 by ezkl and specifically his quoting of the Fl Code of Law Section 790 (790.10 and 790.053)---that is what I and probably anyone else on this forum would think is "brandishing" and it is illegal in Fl. I just don't get your argument with me.

 

[BC1]

Hey SGB: Not sure what your argument with me is all about, but if you are going to pick and choose quotes from my reply, it would be nice if you included it in its entirety where I clarify what I consider to be the basis, in simple realistic terms (maybe flowery) of what this magic word is all about. Kindly examine reply #5 by ezkl and specifically his quoting of the Fl Code of Law Section 790 (790.10 and 790.053)---that is what I and probably anyone else on this forum would think is "brandishing" and it is illegal in Fl. I just don't get your argument with me.

I think brandishing is more a term used in conversation than most state laws. Many states would call it menacing or classify it as another crime. Without an actual law on brandishing there may not be any grounds in which to prosecute if the carrier merely displayed a holstered gun accidentally.

 

[walt629]

How, exactly does one expose a weapon in a "rude" manner?

The polite way of exposing ones weapon: Excuse me Mr. Criminal. "I would like to present to you, my favorite companion in situations that may require an intervention in to life threatening situations such as this. I present to you Mr. Springfield"

The Rude method of exposing ones weapon: "DOWN ON THE FLOOR MF'ER BEFORE I CAP YOUR A$$!!!!"

At least I think that's how it goes. :crazy_pilot:

 

[walt629]

As I mentioned in another thread, due to recent events (2 bank robberies and 3 rabid animals), I have new found support on the home front for my owning and carrying firearms. In conjunction with this support, fundamental questions are being asked.

I was asked what "brandishing" meant. I gave my best answer. Then I got asked "what if they see your spare ammunition, is that brandishing too?". I carry 50% of the time with a shoulder rig so my spares are under my strong arm, but the question also applied to spare mags on my belt too. I thought the answer was no it involves a weapon, but then I got to wondering. If you're carrying ammunition in magazines, isn't a weapon impliied? The state I live in (Iowa) doesn't seem to address it in a satisfactory manner.

What does your state law say or what are your opinions?

New to the forum, are we? There is no way you could have know you were going to stir this one up but this discussion on "brandishing" has been going on and off for the better part of 2 years in here.

What you're going to find is that everyone and evey state has a different version / definition of what "brandishing" is. The common vernacular would describe it as 'displaying your firearm or weapon in a menacing manner in situations that are not or would not be considered a self defense situation' IE pulling a gun on some jackass that cuts you off in traffic (bad move).

Others here would have you believe that an 'accidental exposure or you weapon' should or is considered 'brandishing'.

The first scenario is almost always accepted in most every state(don't worry, if I'm wrong on this someone here will correct me) as an illegal move and will get you in deep hot water.


The latter situation in some states can be considered a misdemeanor offense and in other states (Florida) is considered nothing more than "Ooo! I can see your gun!"

But before you accept anything you read on these pages as fact, it is always best to check with a local lawyer that is familiar with gun carry laws of your state. You might also consider contacting a firearms concealed carry instructor in your area for advise. If you already haven't, I would highly suggest you take a CC course. Most of the questions you have would be answered by someone that actually lives in your home town.

Welcome to the club, brother.

 

[redfeather]

Oregon law does not address brandishing, They do address menacing, they also have laws about pointing a firearm
at a person.

 

[Elspeth]

Wait a sec. I have to act like a ******* lady?!

LOL...what's that quote...well-behaved women rarely make history? :girl_wink:

 

[kelcarry]

I think brandishing is more a term used in conversation than most state laws. Many states would call it menacing or classify it as another crime. Without an actual law on brandishing there may not be any grounds in which to prosecute if the carrier merely displayed a holstered gun accidentally.

I can accept your comment on it being a "term used in conversation". My comments, obviously, have nothing to do with "accidental display of a holstered gun". There is no doubt in my mind that if you wave a firearm around for no reason other than being mad or some other stupid, non-imminent threat of death or great bodily injury, you will be arrested or you will die (you are now the guy causing imminent danger to others and they can respond with lethal force). Some of our more illustrious members, for some reason other than utter yada yada, want to argue this point--all I can say is that if we have a fender bender and you actually believe that getting out of your car waving a firearm and threatening me is just the right thing to do I will probably convince you in a most unfavorable manner that you are very incorrect in your assumption.