Unintentional brandishing

[Dex Sinister]

Originally Posted by CCWInstructor

http://www.calccw.com/Forums/general...c-417-2-a.html

1. The defendant drew or exhibited a firearm in the immediate presence of someone else;
2. The defendant did so in a rude, angry, or threatening manner;

Remember it's not the gun owners perception, it's the someone else perception. I'm a expert on a case right now where the someone perception is a very big deal.

Wandering into this discussion rather late - I'd have to point out that you are incorrect, CCWInstructor. While the yardstick is indeed "someone else's perception" it is not the frightened reporting-fruitbat's perception: Ultimately, it would be the hypothetical "reasonable person's," perception, of someone in the fruitbat's position, based on the judgment of either a judge or 12 jury members. IOW, the question is ultimately not "did this particular person actually experience or perceive this," but "did this particular person experience, or stray away from, the perceptions of a hypothetical person of a reasonable nature in that person's position."

I'm specifically interested in addressing NSP's original statement, though,

Originally Posted by NSP

It was illuminated to me this weekend at my CCW class that not only if someone can see your gun itself, or can tell you're carrying that it's a misdemeanor and all legal actions can befall you.

IMO, such statements by CCW instructors are: Harmful to the cause of legal concealled carry; needlessly put law-abiding CCW holders in a timid and fearful mindset, possibly resulting in the CCW holder reacting in a way that would fail to defuse such a situation; and are a mis-statement of relevant CA law.

What interests me is how this particular bit of urban mythology occured, such that CCW instructors seem to teach it so reliably to their classes in various locations /counties. My CCW instructor in Butte County teaches it every several years when I recertify, and I always fail to challenge it in class because the debate in that situation doesn't seem worth adding to the 4 hour class.

It reminds me strongly of the "The Daddy Longlegs is actually the most poisonous American spider, but because it only preys on other bugs, its fangs are not long enough to pierce human skin" urban myth - which was actually taught to my wife by a Red Cross safety instructor. Entomologically, this is just silly - but that doesn't stop it from being taught.

Mind you, I haven't gotten my Bar Exam results back from the July 2008 exam - but I'm pretty sure that I won't magically be any smarter when I do - so here's how I'd break the question down as a lawyer (all usual disclaimers regarding legal advice apply here [and I think JD65 missed, "past performance is no guarantee of future results" - always true in regard to legal matters]):

First of all, within the context of NSP's original statement, the advice given by the CCW instructor is simply false: There is no relevant CA penal statute that criminalizes such behavior by a CA CCW holder, nor any relevant restrictions regarding CA CCW holder behavior contained in the law. Therefore, such behavior in and of itself cannot constitute a misdemeanor.

If the State of CA had wished to include such statements withing CA law, they were (or are) perfectly capable of doing so - as an example, one might consider Texas CCW permitting law, which invalidates the permit in a number of situations, such as inside a retail store that has properly displayed the state-mandated "CCW Forbidden" signs in the proper manner. IIRC, TX CCW permitting law also does explicitly state that the weapon may not be visable at any time (haven't looked it up in years.)

In contrast, CA CCW law exempts CCW holders from prohibitions against carry in State buildings - (and in courthouses, the Sheriffim will deny armed entry by CCW holders by citing that exact same statute, with no explanation of how its provisions were allegedly magically invalidated).

Perhaps, however, what CCW instructors really mean is that there exists the possibility that an over-zealous citizen who made some sort of hysterical report, combined with an over-zealous officer, then combined with combined with an overzealous DA, could result in a charge of brandishing against the CCW holder. That's fine (in the sense of being arguable) but if that is what they actually mean, then that is what they should actually say - as what seems to be repeatedly reported that they say misstates the law in CA.

The concept of "Brandishing," indeed an area where one's legal results might vary from county to county. It is in the nature of law enforcement that they are not content with enforcing merely what might be called the "clear middle path" of the law, but whenever they are given limits will eventually attempt to test them (by mistake or over-enthusiasm, if not intent) - and if not then restrained by the courts, will then come to regard this new area as the "middle" and eventually attempt to push their limits farther. This is how (to give a related example) the definition of "loaded handgun" was pushed from the common-sensical "a handgun with bullets present inside it in the chamber, or cylinder or magazine" to "a handgun with no bullets in it, accompanied on the same person by a magazine with bullets in it." Thus, until the "loaded gun" definition was fairly recently pushed back into sanity by the court, (Citation available) different counties prosecuted different situations regarding "loaded" weapons.

So, let's start from the ground up:
First, in a free society, everything not specifically forbidden is allowed - meaning simply that the default is that no action (other than historic common law torts and crimes, such as assault, battery, murder, mayhem, etc., etc.,) is illegal, unless there is a specific law prohibiting that behavior. Let us assume arguendo (for the purposes of argument) that this is still true, as it is at least the foundation of American law.

Several different things are criminalized in CA: 1. Carrying a firearm capable of being concealed, concealed; 2. Carrying a firearm openly, including in a holster, if it is loaded (bullets physically within the firearm); 3. Taking out a firearm and waiving it around, or deliberately displaying it to others, if done in a rude, angry, or threatening manner.

We're dealing with various different possible situations here:

1. Carry that is concealed, and was never actually unconcealed, but is devined by guessing, imprint, etc.
2. Carry that was concealed, but was accidentally revealed by circumstance independant of CCW holder's will
3. Carry that was concealed, but CCW holder brushes back shirt, or opens vest or coat to reveal butt of holstered firearm, but makes no other effort to touch or unholster it
4. Carry that was concealed, but CCW holder does above and lays hand on butt of weapon, but makes no attempt to draw it
5. CCW holder draws weapon, displays it, reholsters weapon while making verbal comment indicating non-interest in shooting [think NY "Oh, Please!" tow-truck driver in Men In Black, said to Bug w/shotgun.
6. CCW holder draws weapon, displays it, reholsters weapon while making verbal comment indicating "Make my Day!"
7. CCW holder draws weapon, holds it at side, and never points it
8. CCW holder draws weapon, holds it at at chest level, not pointed at anything
9. CCW holder waves or flourishes pistol about
10. CCW holder add to or subtracts from any of the above behaviors by verbal comment or other physical action while performing them or them happening - from "You #$%^#@& SOB, I'm going to shoot you [but never aims gun]" to "I have no interest in shooting you, and you have no interest in being dead, so let's be peaceable here"

[Under law, verbal statements accompanying physical actions can modify the actions either positively or negatively - for instance, present actions that would normally constitute an assault can be negated by a promise to carry it out in the future, not the present.]

I did a quick case search on Westlaw, looking for instances where the definition of brandishing was actually applied to actions in the real world, and the least aggressive action that I could find that it was applied to was "Carrillo saw defendant reach into his right front pants pocket. Defendant withdrew a silver-colored [Jennings 9mm] handgun and held it at chest level. When defendant brought out the gun, the two young men backed off and ran away." He did this while calling the two "F$H%^ng Ni@#$%s" People v. Singh Non-published-2008 WL 544231 (non-citable for precident)

To state what JD65 stated in another way: Brandishing is a verb. In order for one to brandish, the State must prove that you performed an action with the weapon: Drawing the firearm, or exhibiting it, which in common langage is defined (when referencing a noun, as in brandishing the pistol) as: 1. to offer or expose to view; present for inspection; to exhibit the latest models of cars. 2. to manifest or display; to exhibit anger, to exhibit interest. 3. To present for others to see: he rolled up his sleeve to exhibit the scar. 4. to place on show; to exhibit paintings.
The common thread of all of these definition is that the action is not performed by chance, but deliberately.

The State must prove that action of drawing or displaying the firearm was performed in an rude, or angry, or threatening manner. The State must prove that the action was not in self-defense, or defense of others. "Statute making it a crime to draw or exhibit a firearm in a threatening manner does not forbid a person from drawing a weapon in a threatening manner in order to defend others." People v. Kirk, 238 Cal.Rptr. 42

The state must prove that that defendant did all of these things intentionally or on purpose (including being rude, angry or threatening). The state must prove all these things beyond all reasonable doubt, and the burden of proof is on the state to affirmatively prove them, not the CCW holder to prove that they are not true.

So looking at the numbered list, IMO:

• #'s 1-2 don't fit any elements of the crime
• #'s 3-4 fits streached definitions of intentional display, but not rude, angry, or threatening
• #5 fits common definitions of exhibiting, but not rude, angry, or threatening
• #'s 6 & 8 almost certainly fall within brandishing as defined.
• and #7 is ambiguous.

IOW, as JD65 said, unintentional display of a firearm is not brandishing. It seems to me (if one became aware that someone was aware of one's gun) that a simple completely unruffled comment of, "It's okay folks, the state of California licenses me to carry this," would be a world better than believing that California had criminalized the accidental viewing or perception of a firearm, and subsequently adopting a guilty attitude.

A "Permit to Carry Concealed Pistol, Revolver, or other Firearm within the State of California" does not mean (or say) a "Permit to Carry only Concealed a Pistol, Revolver, or other Firearm within the State of California." It's purpose is to negate the prohibition against the evil of carrying a weapon concealed in the first place. California says, "Nobody can hide their (concealable) guns - we don't like surprises." Then California says "Except you people here, with this piece of paper - it is okay for you to hide your guns."

There is nothing in that scenario - the prohibition of hiding something, and the revocation of the prohibition for some people - that implies that not hiding for the people to whom the law fails to apply is a bad or prohibited thing.

Dex

[CCWInstructor]

Originally Posted by Dex Sinister

Wandering into this discussion rather late - I'd have to point out that you are incorrect, CCWInstructor. While the yardstick is indeed "someone else's perception" it is not the frightened reporting-fruitbat's perception: Ultimately, it would be the hypothetical "reasonable person's," perception, of someone in the fruitbat's position, based on the judgment of either a judge or 12 jury members. IOW, the question is ultimately not "did this particular person actually experience or perceive this," but "did this particular person experience, or stray away from, the perceptions of a hypothetical person of a reasonable nature in that person's position."

No, I am correct. The jury found him guilty. Talk to me about this AFTER you have handled cases in the real world and not in class. I try to error on the side of caution, it keeps all but the worst cases out of court and jail.

[gravedigger]

Originally Posted by NSP

"I've read news articles of people getting shot up at bus stops, work, home, restraunts, and 5 year old's birthday parties. All places people would tell me I'd be crazy to bring a gun. And they were right, a crazy guy brought a gun."

I absolutely LOVE that! I hope you don't mind if I quote you here and there!

[Poogsdad]

Welcome to the Forum Dex Sinister.

A new member with a CCW willing to share his knowledge and experiences is always welcome here.

It looks like you have been looking through the FAQs and previous posts, which is a great way to start here.

You sound like a well educated, literate person and I have no doubt you will do well on the Bar Exam.

A friendly recommendation, however. There are a large number of legitimate, well proven Subject Matter Experts (SMEs) on this forum who have testified in court as expert witnesses or have been involved in the investigative process as consulting experts.

CCWInstructor is one of those SMEs with a well documented track record as an expert witness. Like any human being he can be wrong, however, this is one area where he has been consistently right.

Please take my comments as the constructive criticism they are mean't to be and avoid direct challanges to proven SMEs on this forum until you have been here long enough to have demonstrated the same level of competence they have already shown.

Thanks again for joining and welcome to CalCCW.com.

[Dex Sinister]

Originally Posted by CCWInstructor

No, I am correct. The jury found him guilty.

I'd have to point out that the mere fact that they found him guilty does not necessitate your statement of the law as being correct, nor that the law was properly applied.

Obviously, given the result, it appears that according to the jury's (if there was one) understanding and interpretation of the judge's statement of the law, they found it reasonable for the witnessing person to have felt that the action (of which I have no information) fell within whatever definition was provided for "exhibiting," and was performed in however they interpreted "a rude, angry, or threatening manner."

Many, if not most juries have difficulty with the concepts of "presumption of innocence," "state's burden of proof," and "proof beyond all reasonable doubt," too. Juries are unpredictable - that is why most people attempt to avoid being placed in front of them. This is doubly so when judges instruct them (as most do) that "if you find that the defendant has done this, and this, and this, you must convict," - which, of course, is not correct.

Originally Posted by CCWInstructor

Talk to me about this AFTER you have handled cases in the real world and not in class.

You seem to have internalized the idea that only Lawyers who have been admitted to the Bar ever work in law offices, participate in lawsuits, or observe court proceedings - and possibly that all people who take the bar exam are 20-something.

If I may ask, how often are you generally called upon testify as an expert for the defense in cases like this, and over what geographic area? Have you observed a spread of results in cases like these?

Originally Posted by CCWInstructor

I try to error on the side of caution, it keeps all but the worst cases out of court and jail.

Erring on the side of caution is an admirable trait. If I might ask, how do you generally phrase your cautionary statement regarding this topic?

You mention, "keeping all but the worst cases out of court and out of jail": In your experience, where does this dividing line fall - what distinguishes "the worst cases" from others that do not find their way to court?

[AMS MIKE]

[Mad Geek]

Originally Posted by AMS MIKE

Exactly!

[Dex Sinister]

Originally Posted by Poogsdad

Welcome to the Forum Dex Sinister.
A friendly recommendation, however. There are a large number of legitimate, well proven Subject Matter Experts (SMEs) on this forum who have testified in court as expert witnesses or have been involved in the investigative process as consulting experts.

CCWInstructor is one of those SMEs with a well documented track record as an expert witness. Like any human being he can be wrong, however, this is one area where he has been consistently right.

In point of fact, I was not attempting to disagree with his general level of expert knowledge, but with the specific legal implication of his specific statement of a point of law. No disrespect of his experience was intended.

As a general statement he was perfectly correct: There are elements of the crime of brandishing that are judged by other's perceptions. I should have been more precise in specifying what I was attempting to clarify - which was exactly which other's perceptions were involved.

Originally Posted by Poogsdad

Please take my comments as the constructive criticism they are meant to be and avoid direct challanges to proven SMEs on this forum until you have been here long enough to have demonstrated the same level of competence they have already shown.

Given that I am one of two of the lawyerly profession who have disagreed with a SME on a given topic, I would imagine that there is a possibility that the difficulty may lie in subtle differences of interpretation of the legal process by SME's and Doctors of Jurisprudence. One of the attributes of any learned person is, indeed, the knowing of the limits of one's expertise.

In any case, your comments received in the spirit intended.

Oh, and thanks for the welcome!

[AMS MIKE]

Dex, do you still carry with the Pagerpal?

[Dex Sinister]

Originally Posted by AMS MIKE

LOL!

[Dex Sinister]

Originally Posted by AMS MIKE

Dex, do you still carry with the Pagerpal?

Yes.

P.S. No danger of unintentional brandishing there!

[Dex Sinister]

Originally Posted by AMS MIKE

Dex, do you still carry with the Pagerpal?

P.P.S. to previous message:

My wife carries in a concealment purse (having never found an on-body carry system that truly seemed to work for her.) In keeping with the discussion, that's one feature of a carrying in concealment purse that she likes better than on-body carry - in a threatening situation, she can put her hand fully into the concealment compartment, grasp the butt of her gun firmly, and never be accused of brandishing, because her hand is totally concealed within the purse.

[OIS]

In these times, it would seem of benifit to have qualified
(with the proviso that they shall not comsume spirits while doing so)
citizens to carry what ever they want when ever they want.

Does anyone have a list of "shall issue" states?

Thanks,

OIS

[libertarian]

Originally Posted by Dex Sinister

As a general statement he was perfectly correct: There are elements of the crime of brandishing that are judged by other's perceptions. I should have been more precise in specifying what I was attempting to clarify - which was exactly which other's perceptions were involved.

I think the difference here is in the precise interpretation of the law versus the practical application of it.

I've taken CCWI's classes, and I can tell you he emphasizes trying to steer clear enough of the issues that while yes, you're in technical compliance with the law, your average field officer is not going to hook and book you, either.

True or false: "Even accidentally flashing your gun in front of the wrong person could result in you being arrested and charged on brandishing charges, even if you did NOTHING threatening."

Clearly, that's true. It happens. Sure, the courts *should* acquit you, there may not be enough evidence to get you charged, and there's no guarantee the officer would even arrest you. But it could cost you thousands of dollars to find out.

As CCWI's case proves, a lot of these cases come down to he said/she said and as we all know, juries are unpredictable, regardless of the letter of the law.

Personally, I try to follow CCWI's advice on this topic because I have no desire to have to tour the inside of the legal system even if there is a presumption of innocence.

[Mtn. Medic]

I can't help but think how the application of the law regarding unintentional brandishing varies by location.

Obviously, these issues would be handled differently here in Plumas county than they would is say San Francisco county.

The difference between a simple 'Oops.. I'm sorry' to being arrested, posting bail and then finding a lawyer to defend you during trial.