Unintentional brandishing

[X-ffdo]

No hijacking meant.
After reading all this, I have a headache!!!. Must be the thin mountain air...Ah ain't no flatlander either!

[RomanDad]

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[RomanDad]

Originally Posted by RomanDad

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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.

This post pretty much sums it up, but let me put a finer point on it.... That "someone else" Alfredo mentions here is a Judge or Jury.

JD65 hit the issue on the head when he mentioned INTENT.

Brandishing is a SPECIFIC INTENT CRIME... The INTENT required to violate it is mentioned in the statute. There are three levels of intent in the law- Negligence (the breach of a duty, often considered an "accident"), Recklessness (GROSS Negligence, WILLFUL disregard to avoid a harm) and finally, MALICE (WILLFUL INTENT). The brandishing law does not mention negligence or recklessness.... It addresses RUDE, ANGRY and THREATENING, and those are all forms of SPECIFICALLY FORMED MENTAL INTENT. (rudeness MAY be considered RECKLESS as well, but thats really immaterial as were talking about ACCIDENTS here.... You didnt INTEND your gun to show... You just didnt secure your shirt in a way to be 100% sure it CANT print even though you have a duty to do so...) If somebody else sees your gun through no fault of your own, you acted NEGLIGENTLY and thats not criminally actionable under the brandishing law... The recourse? You can lose your permit.

[El Gato]

Yeah... what he said...mens rea etc...
or is it Rea is Mean... I always forget....

WIKI...
In criminal law, mens rea – the Latin term for "guilty mind"[1] – is usually one of the necessary elements of a crime. The standard common law test of criminal liability is usually expressed in the Latin phrase, actus non facit reum nisi mens sit rea, which means that "the act does not make a person guilty unless the mind is also guilty". Thus, in jurisdictions with due process, there must be an actus reus accompanied by some level of mens rea to constitute the crime with which the defendant is charged (see the technical requirement of concurrence). The exception is strict liability crimes (in the civil law, it is not usually necessary to prove a subjective mental element to establish liability, say for breach of contract or a tort, although if intentionally committed, this may increase the measure of damages payable to compensate the plaintiff).

But... I digress...
We show them the gun when we come to a ready position or an on-target position when we are otherwise justified in SHOOTING THE CRAP OUTA THE GUY.... NOT when we are not justified in shooting the crap outa the guy... otherwise.... revert to never letting the gun be seen...+1 CCWI.....

why can't we all just get along..... OJ is in trial again isn't he and doesn't it involve his brandishing a gun along with other felon type stuff?....Oooooo drama in the court room....

The onliest time I like to be in the Court room is when I am testifying after having arrested some knucklehead.... not because I was chillin' in the OC and the tail on my shirt blew up and showed I was packing my XD....So let us all contempate concealment and the zen of the IWB holster....

[Dex Sinister]

Originally Posted by 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?

Here's an historical review (note that the date advances):

[FiringLion]

With all respect to bar members and SME's, while I'm interested in the law as stated and its meaning, I'm even more interested in what's actually going to happen.
Becoming a test case? Not one of my aspirations.

I like the metaphor of "tree falling in the forest:"

Code citations, defense arguments, impassioned closing, jury instructions, etc. may well preclude conviction, but I'm not too sanguine that most judges will render directed verdict of "not guilty" if I were the defendant in a hypothetical brandishing case with a "guns are bad-" leaning jury.
Here: the trees of law and argument both fall, but neither jury nor judge responds - whether they hear the timber fall or not.

The same is true with a hypothetical claim of brandishing following wardrobe malfunction: if the issuing authority (Not CA in my case :-<) reclaimed my CCW, lack of code violation is beside the point. No permit, no CCW - I don't do the black-hat guy thing.
Here: the same trees of law and argument (aka my frantic attempt to explain to a discretionary authority) may fall, but the only noise is an idiot's tale full of sound and fury.

[CCWInstructor]

There is the letter of the law, the spirit of the law, and then the gray area. The grey area can be defined as somebodies perspective. Their perspective is their reality. They perceive the intent.

I've testified or been deposed in over 40 California Counties in the last 25 plus years. I deal with 6 to 8 PC 417 cases a year.

Lets talk about rural counties, not urban that are PRO2a. Last 5 years or so.

2 cases involving taking shotguns and rifle in gun socks or soft cases to the vehicle. The way they were carried allegedly showed intent. (short version, neighbors did not get along)

1 case cleaning guns in his back yard. Second story window behind residence. Gun got pointed at them.

1 case involved a hunter and somebody walking a dog.

1 case target shooting and campers were in the area.

1 case CCW holder, truck was getting reposed.

Two cases ccw holders and the gun got exposed. May have been intimidation. I will never know.

Judges and Juries are fickle, I'm going to leave it at that.

Perception is the key here. And we have a lot of people in this state that HATE guns.

[FiringLion]

Rats.
Post got jumbled in translation.
Here it is fixed:

Originally Posted by FiringLion

With all respect to bar members and SME's, while I'm interested in the law as stated and its meaning, I'm even more interested in what's actually going to happen.
Becoming a test case? Not one of my aspirations.

I like the metaphor of "tree falling in the forest:"

Two processes to consider: legal, and administrative:

Legal:
Code citations, defense arguments, impassioned closing, jury instructions, etc. may well preclude conviction, but I'm not too sanguine that most judges will render directed verdict of "not guilty" if I were the defendant in a hypothetical brandishing case with a "guns are bad-" leaning jury.
Here: the trees of law and argument both fall, but neither jury nor judge responds - whether they hear the timber fall or not.

Administrative:
The same is true with law enforcement administration: if the issuing authority (Not CA in my case :-<) reclaimed my CCW, lack of code violation is beside the point. No permit, no CCW - and I don't do the black-hat guy thing.
Here: the same trees of law and argument (aka my frantic attempt to explain to a discretionary authority) may fall, but the only noise is an idiot's tale full of sound and fury.

[El Gato]

Originally Posted by CCWInstructor

There is the letter of the law, the spirit of the law, and then the gray area. The grey area can be defined as somebodies perspective. Their perspective is their reality. They perceive the intent.

I've testified or been deposed in over 40 California Counties in the last 25 plus years. I deal with 6 to 8 PC 417 cases a year.

Lets talk about rural counties, not urban that are PRO2a. Last 5 years or so.

2 cases involving taking shotguns and rifle in gun socks or soft cases to the vehicle. The way they were carried allegedly showed intent. (short version, neighbors did not get along)

1 case cleaning guns in his back yard. Second story window behind residence. Gun got pointed at them.

1 case involved a hunter and somebody walking a dog.

1 case target shooting and campers were in the area.

1 case CCW holder, truck was getting reposed.

Two cases ccw holders and the gun got exposed. May have been intimidation. I will never know.

Judges and Juries are fickle, I'm going to leave it at that.

Perception is the key here. And we have a lot of people in this state that HATE guns.

+1
Let us keep the weapons under control and not do things that will get us arrested in any jurisdiction....that's my motto.....attorneys and sme in court and time off work and bail and all of those associated things are very expensive and if they are avoidable......

[PirateQueen]

Originally Posted by 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.

I couldn't of said it any better. Nicely put.
Welcome to the board.

[Don Retired Officer]

Originally Posted by Ouroboros

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.

As a Special Agent for the USAF in D.C. I observed another customer at a steak house and as he was eating his coat opened up and I observed a holstered snub nosed revolver in his waist on his right side. I did not think anything of it or get nervous. At that time I believed in the 2nd Amendment and this was in the early "70's. I still believe in the 2nd Amendment and it is now 2008!!

Just my dime's worth!

[EM2]

A couple of months ago I observed a guy getting gas at a Costco who had a holstered pistol on his right side.
He got out and gased up without a jacket on while his shirt was tucked in fully exposing his firearm. He was neatly dressed and could easily have been law enforement, but I saw no badge.
I think most people will assume someone is law enforement if their firearm is exposed if they are neatly dressed and the firearm is holstered.

[moondog]

First, fight to defeat the DA in the next election.

Second, if this new view of 417 is correct and imprinting considered a violation, could someone's perception of the content of a large black fanny pack get one detained and searched?

Just a sad observation. Many years ago, a jury couldn't agree on the definition of mayhem during trial of kidknapping, rape and removal of forearms by means of a hatchette. The teen was left to die in a desolate part of the county. Mary Vincente survived! Imagine the indignety when the jury said she did not suffer the crime of mayhem.

Now, some 30 years later, just the sight of a firearm can be successfully prosecuted as a 417.

I don't know what is worse, the DA or the jury pool

Peace out.

[OIS]

Dear Colleagues:

It seems to me the concept of "Brandishing" is a bit dated. Furthermore, "Unintentional Brandishing" most likely is a misnomer. From the sources listed below, one may infer that the use of one's hand may be necessary in order to brandish. Or one must "ostentatiously display" the weapon. Ergo, the accidental display of a weapon should not be considered "brandishing."

Brandish:
tr.v. bran•dished, bran•dish•ing, bran•dish•es

To wave or flourish (a weapon, for example) menacingly.
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.]

American Psychological Association (APA):
brandish. (n.d.). The American Heritage® Dictionary of the English Language, Fourth Edition. Retrieved September 25, 2008, from Dictionary.com website: brandish definition |Dictionary.com
Chicago Manual Style (CMS):brandish. Dictionary.com.

The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. brandish definition |Dictionary.com (accessed: September 25, 2008).

Modern Language Association (MLA):
"brandish." The American Heritage® Dictionary of the English Language, Fourth Edition. Houghton Mifflin Company, 2004. 25 Sep. 2008. .

[Dex Sinister]

Originally Posted by OIS

Dear Colleagues:

It seems to me the concept of "Brandishing" is a bit dated. Furthermore, "Unintentional Brandishing" most likely is a misnomer. From the sources listed below, one may infer that the use of one's hand may be necessary in order to brandish. Or one must "ostentatiously display" the weapon. Ergo, the accidental display of a weapon should not be considered "brandishing."

The difficulty arises in that the standard jury instructions simply mention "exhibited," therefore the subjective definition is rather at the mercy of the DA.

What originally interested me in the thread, however, was this question: If CCW instructors teach gun handling to L.E. as well as the CCW public - and if some CCW instructors teach and / or believe that "unintentional brandishing" exists, then do these same CCW instructors reflect the practical idea that some jurisdictions could charge under 417 because of a wardrobe malfunction, or do they (perhaps inadvertantly) create a situation where L.E. believes that it is appropriate to charge under 417 for a wardrobe malfunction?

I know that my local (Butte Co.) CCW instructor also teaches L.E. But I, of course, don't know what he says in those classes, nor how whatever he says is internalized by the L.E. who take the classes.

It has seemed to me in the past that just exactly the opposite advice might be more useful, simply because if everyone repeated their CCW instructor's maxim that brandishing required deliberate action by the brandisher, then L.E. might come to firmly believe it as well. After all, each CCW instructor is the "recognized expert" on that subject for that area.

So I'm with Ouroboros - I'd like to hear from L.E. sorts as to how they came to believe whatever they believe about brandishing.