Unintentional brandishing

[Hoser]

Originally Posted by spc

I was caught exposed one time at a service station. I had just stepped out of the truck ...

[X-ffdo]

Originally Posted by IAmASensFan

I have to agree...Because I spend so much time with people who carry concealed, I can pick it out much better than before.

It really was a lucky assumption, but the look of shock on one LEO's face when I saw the bottom inch of his OWB from under his shirt, and correctly ID'd what kind of pistol he was carrying, was priceless.

A glorious moment!!!!!, no doubt....

[Ouroboros]

I am a little late to this discussion but I thought I'd add what I hope is a helpful two cents.

I too was told that any "display" of my concealed weapon (unless in a self-defense situation) would be illegal. I think the phrase I was told is "display is a misdemeanor, brandishing is a felony."

However, something I was taught (and I hope to always follow on this forum) is "he who asserts must support," meaning that a citation to applicable law, or at least widely followed custom, should follow any statement. I have researched the Penal Code and I cannot find any separate provision governing "display" of a firearm apart from the "brandishing" statute that was quoted earlier:

"Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:

(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months."

Cal. Penal Code sec. 417(a)(2) (underlining is mine).

So we can see two things from the statute. First, there doesn't seem to be any distinction between "display" and "brandishing." The law criminalizes non-self defense display of your handgun in a "rude, threatening or angry manner." No "rude, angry or threatening" manner? No violation. Second, the the determining factor between a misdemeanor and a felony is whether the violation takes place in a public place with a concealable weapon.

From a legal standpoint, then, accidental display of your firearm (without more) would not appear to result in criminal liability.

However, since CCW permits in this State are discretionary, an act that might not necessarily carry criminal liability can still result in the revocation and/or non-renewal of your permit. On the State-drafted application form, the following language appears: "While exercising the privileges granted to the licensee under the terms of this licence, the licensee shall not, while carrying a concealed weapon: [...] Unjustifiably display a concealed weapon." Therefore, unjustified "display" of your weapon could have the practical consequence of revocation or non-renewal of your CCW permit. What is unjustified is open to debate. I would certainly argue that a truly accidental display, with no other aggravating factors, would be involuntary and thus not "unjustified."

In addition, LEOs responding to a call resulting from even accidental display of a weapon may differ on how they approach the matter. LEOs are human beings too and can range from the very understanding to the Pharisaical just like everyone else. It would be interesting to hear from LEOs on this board as to how they would handle a true accidental display (a gust of wind blowing a jacket back, for example), if no other aggravating factors (such as alcohol) were involved.

[BonoVox]

In addition, LEOs responding to a call resulting from even accidental display of a weapon may differ on how they approach the matter. LEOs are human beings too and can range from the very understanding to the Pharisaical just like everyone else. It would be interesting to hear from LEOs on this board as to how they would handle a true accidental display (a gust of wind blowing a jacket back, for example), if no other aggravating factors (such as alcohol) were involved.

I think the attitude test will be huge in this occurence. Say wind blows up your shirts as you go into a grocery store. Some paranoide person calls it in to 911. As you leave you are met by a couple of officers.

Now your test starts.

[CCWInstructor]

"From a legal standpoint, then, accidental display of your firearm (without more) would not appear to result in criminal liability."

You are forgeting one thing. It is the other person perception, not yours. IF they view it as rude or threating, you will have a major problems.

[JD65]

Originally Posted by Ouroboros

I too was told that any "display" of my concealed weapon (unless in a self-defense situation) would be illegal. I think the phrase I was told is "display is a misdemeanor, brandishing is a felony."

However, something I was taught (and I hope to always follow on this forum) is "he who asserts must support," meaning that a citation to applicable law, or at least widely followed custom, should follow any statement. I have researched the Penal Code and I cannot find any separate provision governing "display" of a firearm apart from the "brandishing" statute that was quoted earlier:

Maybe I can offer some help... (I'm a lawyer - I'm here to help )

Everybody is quoting the appropriate Penal Code sections, but since those are written for lawyers, a better definition that may help comes from the instructions given to jurors in a brandishing [PC 417(a)(2)] case. [The instruction for the crime elements is found in CALCRIM 983]:

"To prove that the defendant is guilty of this crime, the People must prove that: 1. The defendant drew or exhibited a firearm in the immediate presence of someone else AND 2. The defendant did so in a rude, angry, or threatening manner AND 3. The defendant did not act in self-defense or in defense of someone else."

The jury would also be instructed as to CALCRIM 250 [the jury instruction that deals with "Union of Act and Intent"]. It reads:

"Every crime ... requires proof of the union, or joint operation, of act and wrongful intent. In order to be guilty of the crime of 417(a)(2), a person must not only commit the prohibited act, but must do so intentionally or on purpose. (emphasis mine)

So... while you (per CalCCW rules and common sense) are on your own to verify the veracity of any posts here... here's some additional information for you. Get what I'm saying? Accidental display is not 417(a)(2).

As someone else pointed out, your actions in dealing with LE, should they be notified, and your issuing department may operate under a different set of rules. Was a crime committed? Doesn't look like it. Might you have some 'splaining to do to somebody. Maybe. That I can't answer.

Keep it covered unless you need it. Be safe.

[Poogsdad]

Thank you JD65 for your insights.

While I believe that your post is not meant to imply that you are advising in an "Official Capacity" (please correct me if I am wrong) as a lawyer, regarding this issue, your "insights" and experience with the legal system are very much appreciated.

Thanks again,

[JD65]

Originally Posted by Poogsdad

While I believe that your post is not meant to imply that you are advising in an "Official Capacity"

Absolutely. I'm just a guy on the internet passing on information. In my posts, I do not represent any official agency, nor do I speak for them. This is not intended to be legal advice and should not be relied upon without confirming with your attorney or after making your own informed decision. Yadda, yadda, yadda.... your mileage may vary, contents may settle during shipping, do not add bleach, warm water wash only [plus any other disclaimers you've ever read in your life].

[Spicy McHaggis]

I would bet that any accidental display of your "concealed" weapon where someone saw it and called the police, would probably mean the issuing agency would pull your license/permit if they found out about it - charges or not.

If you're not conscious enough to keep your concealed weapon "concealed" I wouldn't want you carrying either.

[hbliam]

Originally Posted by Spicy McHaggis

I would bet that any accidental display of your "concealed" weapon where someone saw it and called the police, would probably mean the issuing agency would pull your license/permit if they found out about it - charges or not.

If you're not conscious enough to keep your concealed weapon "concealed" I wouldn't want you carrying either.

I highly doubt it.

[Spicy McHaggis]

Originally Posted by hbliam

I highly doubt it.

Sorry, I must have misread Greg's post then.

http://www.calccw.com/Forums/general...html#post10923

Originally Posted by CCWInstructor

Moving infractions do not factor in. Lack of common sense does. 15 to 20 get pulled a year. Misdemeanor and felony stupid, plus failure to pass the attitude test when dealing with Law Enforcement are the big three. failure to keep the gun concealed is number 4.

I haven't seen one that was pulled that wasn't unwarranted. The restrictions are not bad here. You do need common sense though.

[CCWInstructor]

Originally Posted by hbliam

I highly doubt it.

I don't doubt it, that's because it is fact. I won't list the number this year, it is running about normal though.

Spicy, you don't miss a beat, and you read everything.And no, you did not mis-read it.

[newshooterinca]

Originally Posted by CCWInstructor

You are forgeting one thing. It is the other person perception, not yours. IF they view it as rude or threating, you will have a major problems.

Exactly - this is why, in my former home state of Arizona, nobody open carries even though open carry is legal there. There have been several cases of an anti/liberal seeing an open carry gun and calling the police with a false report of "he threatened me with his gun." In that state, the litmus test is whether or not the complainant can accurately describe the gun, and with open carry they can ... and that results in an arrest and charge of agg assault with a firearm carrying a minimum sentence of 5-1/2 years.

That's an example from another state, but it goes to show why we should never expose, whether here, in a so-called "free state" or anywhere else for that matter.

[hbliam]

Originally Posted by CCWInstructor

I don't doubt it, that's because it is fact. I won't list the number this year, it is running about normal though.

Spicy, you don't miss a beat, and you read everything.And no, you did not mis-read it.

I guess I'm not used to dealing with OC cops. I can't see that I or most guys that I work around would ever make a phone call to the issuing agency if I/we responded to a call and listened to the story and clearly understood that it was unintentional.

I am also shocked that an issuing agency would pull it for that reason. If it was a constant thing happening with the holder I would say pull it. A one time deal? I'd be pretty pissed.

And Spicy. No I didn't see that post by Greg. I haven't read every single post and every single thread here yet. Thanks for pointing it out and throwing the smartass smily in to boot.

[GunSlut]

Originally Posted by JD65

instructions given to jurors in a brandishing [PC 417(a)(2)] case. [

Would this be 12 people that couldn't figure out how to get out of Jury Duty?