The Second Amendment grants individuals the right to bear arms, allowing citizens to protect themselves and their loved ones. Exercising this right comes with a great deal of responsibility. It is important gun owners know when and how to lawfully draw their concealed firearms. Drawing a gun for anything other than self-defense could lead to legal consequences for brandishing.
Brandishing refers to the act of displaying a weapon, typically a firearm, in an angry or threatening manner. Its definition may not always be explicit in a state’s law, leaving room for interpretation. However, the key point is that the act involves displaying a weapon with the intent to intimidate or threaten others.
Legal Consequences of Brandishing a Gun
The legal repercussions of brandishing a deadly weapon can be severe. In most states, it’s categorized as a felony, which means substantial fines, potential imprisonment and a permanent mark on your criminal record. Even in states where it’s classified as a misdemeanor, the consequences can be far from trivial. A misdemeanor offense can still tarnish your record, negatively impacting your right to own firearms and causing difficulties in passing employment background checks.
When some see a firearm, they conjure up vivid, albeit unfounded, images of potential violence. These misconceptions are sometimes shared with law enforcement, leading to unnecessary concerns and, in some cases, unjust accusations. When the police respond to “man with a gun” reports and find a man with a gun, they tend to arrest the man and let the judge sort it out.
For example, a Missouri homeowner was arrested after running off a pair of thieves at gunpoint. The thieves went to the sheriff’s office to complain of being threatened at gunpoint, with a spurious story to explain their presence at the house. The sheriff bought their story, sweetened as it was by claims that the homeowner was a drug dealer, and raided the home. No drugs were found, but as a consolation prize, the citizen was arrested for brandishing a firearm at the thieves. The jury found him not guilty, but poorer after lawyer fees.[1]
The presence of firearms at emotionally charged events or demonstrations can further complicate a situation. Such incidents can inadvertently support exaggerated claims of brandishing, leading to unnecessary panic and calls for stricter firearm regulations from the anti-gun crowd.
Reporting Incidents
One of the challenges in dealing with brandishing cases is the prevalence of false reports. These can arise from disappointed criminals, those who are paranoid or overly suspicious, individuals who are angry, or those with an anti-gun agenda.
This is why one of the most significant responsibilities of concealed carriers is knowing the law. Brandishing can be interpreted as showing your gun inadvertently, even if it’s not in your hand. As ridiculous as it may sound, someone spotting the outline of a handgun under a shirt — printing — or when a cover garment rides up to show a part of the firearm can be construed as brandishing. Yes, this is extreme and not at all fair, but it may be the reality in places that are unfriendly to concealed carry.
Know the laws and act accordingly. If penalties for a gun being visible are strict, choose a carry method and covering strategy wisely. Should your gun be spotted inadvertently, the first step is to remain calm. In a low-key encounter, you might be able to diffuse the situation by calmly stating something to the effect of “It’s OK, I have a concealed carry permit” as you re-conceal your firearm. If folks are panicking, others will panic too. If those nearby (and you) are calm, so will they be.
However, if someone spots your gun inside a business and reports it to management, you’ll want to proactively address whoever is in charge. Again, remain calm and professional. In most states, a business can decide whether it will allow weapons on its property. Even if there is no sign posted, the company still may have the right to ask you to leave. If that happens, just go quietly. If there is a sign posted, it’s possible you’ve violated the law. Depending on your state, the consequences may be a simple trespass notification or a felony that can result in revocation of your permit and even jail time.
In cases where there is an overreaction, it’s essential to have witnesses who can corroborate the facts. However, it’s not always easy to find willing witnesses, which underscores the significance of being the first to report an incident to the police. The initial report sets the tone for the case, and while it’s often advised to remain silent, in cases where false allegations are made, your silence might be interpreted as consent.
Even if you act in self-defense, you could find yourself facing legal charges. Take the example of a Louisiana teacher who was charged with brandishing a pistol on school property while defending himself from a student wielding a club.[2] The teacher fled to his car following the student’s initial attack. When the student followed, he found the defender with a pistol at his side and retreated.
Both parties were charged and convicted for aggravated assault. The teacher appealed, and the Supreme Court of Louisiana ruled that the teacher used justified force. The court further ruled that, “We do not find, from the record, that Landry [the teacher] ever ‘brandished’ the gun at Jacob [the juvenile] or threatened him with harm, although plaintiff did, of course, make certain that the pistol was visible to the aggressor, Jacob.”[3]
In this case, the court ruled in favor of the teacher’s right to self-defense, but the school board tried to terminate his employment. The court restored his job, but the school board’s stance highlights the importance of understanding the nuances of self-defense.[4]
Justifying Deadly Force in Self-Defense
Brandishing can be justified in the context of self-defense. While deadly force can only be used to meet the threat of deadly force, the threat implied by brandishing is justified by a low-level threat.
If you have a reasonable cause to believe that another person intends to inflict significant personal injury, and there’s an immediate threat of this happening, you have the right to take measures to avert the potential harm. This concept validates brandishing a weapon as a means of self-preservation in appropriate circumstances.
Many landowners, homeowners and apartment renters take precautions by being armed when investigating potential intruders. It’s a prudent step to ensure their safety. For example, if you hear a suspicious noise at night and want to investigate, carrying a firearm as a precaution is generally considered reasonable by the courts.
However, it’s crucial to understand the boundaries of lawful firearm possession in such situations to avoid any misunderstandings or legal issues.
In the context of brandishing, it’s essential to keep your emotions in check and maintain a polite demeanor. Your behavior can significantly impact how you’re treated and how your actions are portrayed in police reports. While reputation may not always be admissible as evidence, it can influence how your case is handled.
Understanding brandishing a deadly weapon is a fundamental aspect of responsible gun ownership. It’s a complex legal issue that requires careful consideration. Whether you’re new to concealed carry or an experienced firearms enthusiast, staying informed about your state’s specific laws and regulations on brandishing is a crucial step in exercising your Second Amendment rights while staying on the right side of the law.
Endnotes
[1] Author’s case.
[2] Landry v Ascension Parish School Board, 415 S.2d 473 (La. Ct. App. 1st Cir 1982).
[3] State v Landry, 381 S.2d 462 (La. 1980).
[4] Landry v Ascension , supra at 477.
This article is a compilation of previous blog posts authored by K.L. Jamison and Tom McHale.
