One of the most common questions I hear when teaching concealed carry is, “What is brandishing?”, and I think it’s very important for anyone who carries a gun to know what the law says about brandishing. Before we discuss some cases and examples in Virginia, let’s look at how the law defines brandishing. Virginia State Code § 18.2-282 defines it as
Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance.
- It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. 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.
- Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such a firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
- For purposes of this section, the word “firearm” means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word “ammunition” as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
There are a couple of important points to analyze in that code, and we are going to take them in the order they are mentioned. In the first sentence it includes “objects similar in appearance” which means that a person can be charged with brandishing even if they have nothing but a toy gun. In Holland Hills a man called the police to report a man who was driving around pointing a gun at people. Goochland Sheriff’s Department caught up with the vehicle and Lieutenant Pleasants saw what appeared to be a weapon pointing out of the car at another vehicle, at which point she pulled the car over and made the arrest. Even though it turned out to be an air gun, the man is facing charges of brandishing a firearm, facing up to a year in prison as well as a large fine, but the consequences could have been much worse. As Lieutenant Pleasants stated, “if it was somebody who had a weapon in their car, they could very well retaliate and even though these people had an air pistol, the others may have had a real pistol.”
The next important point is where it says “as to reasonably induce fear in the mind of another”, because what is “reasonable”? In 2013 a man was driving to a meeting with advocates of open-carry laws, and while waiting at a stoplight (where he testified thinking no one could see what he was doing), decided to take his gun from the glove box and load it. However, a camera showed this man speed up to pass a Collegiate School bus on the left with its left turn signal blinking, just before coming to a stop at the light. As they sat at the light, the baseball coach said he saw the man look at him through the side view mirror, hold the gun up, insert the magazine, and point the firearm upwards. The coach testified that he considered the man’s actions threatening and felt that the boys on the bus were in danger. The man was convicted of brandishing and has lost his concealed carry permit. We may never know what his intent truly was when retrieving and loading his gun, but that is not really as relevant as one would think because the fact is that his aggressive behavior (in today’s overabundance of road rage) was the most important factor in the equation. I chose this case because it is very controversial and the two sides of the story are very different, but let’s look at a more black and white example.
In 2011 a Chesterfield County mom decided to open carry her handgun while walking one of her daughters to the bus stop because she was concerned about her daughter being bullied. At this point, I don’t think I have to tell you anything else for you to know that she had the intent of inducing fear, but I will anyway. Three students ages 12 and 13 who were at the bus stop that morning testified that when one of them pointed out to the others that she had a gun, the woman began a profanity-laden tirade about her right to carry and the fact that she was not afraid to fight or use her gun. The children say the woman put her hand on the gun, but the woman denied as much. However, as the judge stated, she didn’t have to touch the gun for a brandishing conviction; the threatening behavior combined with the presence of the gun reasonably induced fear which resulted in the finding of guilt.
The third important phrase to look at states, “this section shall not apply to any person engaged in excusable or justifiable self-defense”, which means that if you are within your legal rights to use deadly force then it will not be considered brandishing. I will illustrate this with an example I commonly use when teaching. Imagine you are walking towards your car, down a dimly-lit street and there is not a soul in sight, when suddenly a person appears from behind a dumpster with a knife, and they are standing between you and all means of retreat. Let’s assume for the purposes of this example that you are justified in using deadly force, so you draw your concealed handgun and your attacker runs away. Are you now brandishing because you drew your gun? The short answer to that is no; not even if someone sees you. I would definitely recommend holstering your gun as soon as it is safe to do so, and calling the police to file a report, but as long as you are justified in pulling the trigger, you are not brandishing. However, if someone happened to look out their window and saw you standing there with a gun in your hand, they might call the police who will then do their job and talk to you, but since you were justified and already called 911 to report it, you should have nothing to worry about, right?
Finally, section B says that if a person is brandishing a firearm or anything that is “similar in appearance” a police officer in the performance of their duties is not liable for what may happen to that person, because a police officer will (and should) always assume that the firearm, and therefore the threat, are real. For example, if the man that was driving around pointing an air pistol at people had turned that toy gun towards the officer as she approached his car to arrest him, she would have been justified in using deadly force.
So how do you avoid being charged with brandishing? You have to remember that when you carry a gun you have to have the coolest head in the room. If you know you have road rage or lose control of your temper easily, then you may need to re-think carrying a gun. Like I tell my students, if you are not justified in using deadly force AND willing/ ready to pull the trigger, then for all intents and purposes your gun does not exist.