Did I brandish? - Thread from officer.com

[Punisher84]

To me this is like saying... "If you kill someone... we dont want to know about it."

"That a dead body?" "No sir." "He ain't movin'." "He's taken a powernap."

"Carry on boy."

[Guest sling]

"That a dead body?" "No sir." "He ain't movin'." "He's taken a powernap."

"Carry on boy."

[Guest tadams]

...If it's a CC state, like Texas, I've been told merely the sight of a holstered gun or excessive printing could be considered brandishing. Doubt it'd stick, but you know what I'm getting at.

Question:

Is that really true? How, pray tell, would that ever hold up in court? People who are scared of any human carrying a gun (bad eyewitness) would be allowed to basically end a person's life/ career based on opinion? Proof beyond doubt would be impossible.

I mean, to me, brandishing would have to mean physically reaching for the weapon and purposefully exposing it to the extent that another would have reasonable understanding that the weapon could be used to harm them. OR brandishing could mean opening a jacket, etc, in such a way to show it to an individual in a means to threaten harm to another. ("I'll use this if I need to, buddy")

In the specific circumstance in question, however, I don't see any way that what was done by the author could have been considered "brandishing," by any means. The LEO had every right to ask about a permit... but was a complete prick for doing so in such a way that further called public attention to the author. That's not very smart; in many, many ways.

[DaveTN]

Question:

Is that really true? How, pray tell, would that ever hold up in court? People who are scared of any human carrying a gun (bad eyewitness) would be allowed to basically end a person's life/ career based on opinion? Proof beyond doubt would be impossible.

I have no idea about Texas law, but that’s true with most any charge. A person can say anything. It’s one of the many reasons I don’t open carry or get in an argument or confrontation when I am carrying. If someone accuses you of threatening them, or pointing a gun at them (Whether you did or not) and you have a gun on you; chances are pretty good you are going to be arrested.

It isn’t “proof beyond doubt†its proof beyond a reasonable doubt; that’s a big difference.

REASONABLE DOUBT - The level of certainty a juror must have to find a defendant guilty of a crime. A real doubt, based upon reason and common sense after careful and impartial consideration of all the evidence, or lack of evidence, in a case.

Proof beyond a reasonable doubt, therefore, is proof of such a convincing character that you would be willing to rely and act upon it without hesitation in the most important of your own affairs. However, it does not mean an absolute certainty.

Keep in mind… we don’t have a justice system; we have a legal system.

[Guest tadams]

I don't want to steer this thread astray, and I may have said too much to begin with, but I thought I would question it while we were on the subject...

anywho.....

I would agree that the wording does say "REASONABLE doubt" and that I wrote that incorrectly, but the question still stands. The fact that I have reason to ask this question, from the initial amount of vagueness we're discussing in this very thread, is almost enough to take the word "reasonable" out of the equation entirely and get any such case dismissed, in my mind.

I also understand your reasoning for not openly carrying, frame of mind while carrying, and realization of the possible consequences in some sort of altercation did take place while wearing your weapon. You should also keep in mind that in some states (SC comes to mind) simply being physically larger or taller than another individual is justification enough for a "reasonable" defense for any aggressive action toward you. This is a fact I constantly have to keep in mind, especially now that I'm letting my beard grow back out again.

I have to disagree with you, though, when you say that we have a legal system and not a justice system. We have all the technical parts in place mandatory for a justice system: law, police to enforce law, courts, as well as a system of corrections on just about every level. Our justice system is confined within the context of our law and it's most basic premises come from the law, but it is very much alive and well. Did I misinterpret what you meant or is my argument justified?

[Guest tadams]

I guess what I'm fundamentally saying here, is that I would expect the possibility that I may be the one arrested if involved in an altercation or that there is a chance that some complete goober may say that I pulled a gun on them, even though I didn't. But in any such case, I would also expect that there would, OBVIOUSLY, be enough of a reason for a jury to doubt the reasoning for arrest and that there were an illegal act, at all.

Just being arrested does not make me guilty and would not ruin my life, per say. What was brought up earlier in this thread was regarding the interpretation of TX law or any CC only state and how the law reads regarding the definition of brandishing. If the state's law is written in such a way to include "merely the sight of a holstered gun or excessive printing" is to be interpreted as "brandishing", then the jury would not have any other choice but to declare an individual guilty. Surely that is not the case??!!??!!

Edited January 9, 2009 by tadams
added "and that there were an illegal act, at all"

[Guest 2HOW]

bran·dish (brān'dĭsh) Pronunciation Key

tr.v. bran·dished, bran·dish·ing, bran·dish·es

1. To wave or flourish (a weapon, for example) menacingly.
   
2. To display ostentatiously. See Synonyms at flourish.
   

n. A menacing or defiant wave or flourish.

[Middle English brandissen, from Old French brandir, brandiss-, from brand, sword, of Germanic origin; see gwher- in Indo-European roots.]

bran'dish·er

I dont believe you can brandish without the weapon in your hand

[DaveTN]

Did I misinterpret what you meant or is my argument justified?

I don’t think you misunderstood me, and any argument you feel like making is justified. That’s what forums are all about.

We just don’t agree, and I don’t know if you have experience with our system or not; but I could fill pages with the injustices I have seen as a cop. It’s not a bad system; it’s just not a just system.

It is possible that your justice will be limited by the amount of money you have. Would you agree with that statement?

I hope you are never wrongly accused of a crime because you may find that even if you are not convicted; it is certainly not a process you would want to go through again.

[Guest tadams]

ah... I see what you're saying. I didn't understand it that way the first time.

I do agree with your last post, 100%. Just because we have a justice system certainly does not mean it is always just. That is very unfortunate and true. I have seen various sides of the very thing in which you speak of. I have never had to be personally involved in a case in which I was guilty of anything, but I have been, personally, made very aware of the injustice which can occur within our "justice" system. It infuriated me greatly and, actually, as I write this gets my blood a little stirred all over again. That was 11 years ago.

[Fallguy]

...If it's a CC state, like Texas, I've been told merely the sight of a holstered gun or excessive printing could be considered brandishing. Doubt it'd stick, but you know what I'm getting at.

Question:

Is that really true?

From all I've heard on other internet forums in from those TX, Yes...they will charge you even for printing. It's not brandishing, TX law simply says it is against the law if you intentionally fail to conceal the handgun.

TX Penal Code 46.035 UNLAWFUL CARRYING OF HANDGUN BY LICENSE HOLDER.

(a) A license holder commits an offense if the license holder carries a handgun on or about the license holder's person under the authority of Subchapter H, Chapter 411, Government Code, and intentionally fails to conceal the handgun.

Also from opencarry.org's TX page

"Texas is not a traditional open carry state. They also do not allow open carry, or even printing, by those who have a concealed carry permit."

[Guest tadams]

Fallguy, that remarkably sucks a Texas size Haas scrotum.

New Texas tourism ad:

Texas... where everything's bigger; including the injustices we create by establishing astonishingly moronic law.

.

.

.

However, it does say "INTENTIONALLY". I mean, in the instance in this thread, if it was in Texas instead... would he be "intentionally failing to conceal?"

Edited January 9, 2009 by tadams

[Fallguy]

Fallguy, that remarkably sucks a Texas size Haas scrotum.

New Texas tourism ad:

Texas... where everything's bigger; including the injustices we create by establishing astonishingly moronic law.

.

.

.

However, it does say "INTENTIONALLY". I mean, in the instance in this thread, if it was in Texas instead... would he be "intentionally failing to conceal?"

I admit it is hard to believe in a state that allows for the use of deadly force to protect property (yours or a 3rd persons) that OC is illegal.

There is an ongoing campaign by Opencarry.org to try and get OC legal in TX.

It would be questionable if this situation in the OP would be "intentional" or not. No IMO, but I'm not the one with a badge.

[Guest tadams]

I gotcha.

[Guest TnDeerHunter]

I think the leo's from other states were for the most part responding from their own states point of view. Although the one did kinda sound like a ars. Bottom line they are doing a job and I guess we all have good days and bad.

[Guest Ggun]

I think the leo's from other states were for the most part responding from their own states point of view. Although the one did kinda sound like a ars. Bottom line they are doing a job and I guess we all have good days and bad.

Plus, if you read the OP's description of waving his coat back over his hangun with his drawing hand, he was certainly seconds away of drawing his handgun. I don't think you have to go waiving the handgun in the air like an idiot to be tagged with brandishing.

[strickj]

Plus, if you read the OP's description of waving his coat back over his hangun with his drawing hand, he was certainly seconds away of drawing his handgun. I don't think you have to go waiving the handgun in the air like an idiot to be tagged with brandishing.

Yeah,and I'm only seconds away from drawing my gun every time I scratch my ass,or tie my shoe:rolleyes:

[Guest bkelm18]

Yeah,and I'm only seconds away from drawing my gun every time I scratch my ass,or tie my shoe:rolleyes:

Screw that, I use my gun to scratch myself. Its very empowering. Try it.

[Guest Ggun]

Yeah,and I'm only seconds away from drawing my gun every time I scratch my ass,or tie my shoe:rolleyes:

The point is that you are not displaying your weapon in a convenience store, and if you if you do, then this applies. Sweeping one's coat back to display a handgun in presence of a clerk and customers can be sublject to prosecution, even though the guy was apparently as clueless as others that it's not his intent, but other factors which establish branding.

Edited January 10, 2009 by Ggun
spelling

[strickj]

The point is that you are not displaying your weapon in a convenience store, and if you if you do, then this applies. Sweeping one's coat back to display a handgun in presence of a clerk and customers can be sublject to prosecution

um,no! This is an open carry state.

And Ill add that as long as I'm living in this great state I will continue to display my weapon,without prosecution,whenever I so choose

[Fallguy]

I'm really not sure if the word "brandishing" is even used in TN law.

In the OP I don't think in an OC state what happened is even close to brandishing. Now in some states, it could be illegal, regardless of whether it is called brandishing.

However I do agree that even in TN, you might violate the law, without even touching your weapon. Let's say you and someone get into a heated discussion. Then you intentionally pull back your coat to expose your weapon to him, with the purpose to intimidate to him. Now I'm not sure what it is right off, but I figure you could be charged with something there, even though you didn't pull it out and wave it around.

[Guest GUTTERbOY]

um,no! This is an open carry state.

And Ill add that as long as I'm living in this great state I will continue to display my weapon,without prosecution,whenever I so choose

Open carry five!

[DaveTN]

However I do agree that even in TN, you might violate the law, without even touching your weapon. Let's say you and someone get into a heated discussion. Then you intentionally pull back your coat to expose your weapon to him, with the purpose to intimidate to him. Now I'm not sure what it is right off, but I figure you could be charged with something there, even though you didn't pull it out and wave it around.

Just a WAG…

If there was no contact…Aggravated assault 39-13-102 (a) (1b); a class C felony.

Which your lawyer would probably get reduced to assault 39-13-101 (a) (2); a class A misdemeanor on a plea agreement.

[Fallguy]

Just a WAG…

If there was no contact…Aggravated assault 39-13-102 (a) (1b); a class C felony.

Which your lawyer would probably get reduced to assault 39-13-101 (a) (2); a class A misdemeanor on a plea agreement.

Pretty good WAG.....

[Guest tadams]

I'm really not sure if the word "brandishing" is even used in TN law.

...

However I do agree that even in TN, you might violate the law, without even touching your weapon. Let's say you and someone get into a heated discussion. Then you intentionally pull back your coat to expose your weapon to him, with the purpose to intimidate to him. Now I'm not sure what it is right off, but I figure you could be charged with something there, even though you didn't pull it out and wave it around.

That's the idea behind what I was saying, too....

...OR brandishing could mean opening a jacket, etc, in such a way to show it to an individual in a means to threaten harm to another. ("I'll use this if I need to, buddy")...

That kind of intimidation poses an immediate threat. (therefore, "brandishing") I would go so far as to say that, in some instances, it might provide reasonable justification for a legal use of a firearm in self defense, as well.

I would be certain that "brandishing" is often used in a court of TN law. Prosecutors will use that word to the worst possible extent fathomable to twist the jury their way.