Criminal Defense Lawyers

Brandishing Definition

What is Brandishing? A Breakdown of This Serious Offense

So what exactly is brandishing? And why is it such a big deal legally? Brandishing refers to threateningly displaying or waving a weapon in a public place in a rude, angry, or threatening manner. It’s considered a serious offense that can lead to felony charges and jail time in most states.

The Legal Definition

Legally, brandishing is defined as showing a weapon in an aggressive or threatening way with the intent to intimidate another person. Simply having a weapon visible does not necessarily count as brandishing from a legal perspective. The weapon has to be displayed in a threatening manner for it to cross the line into illegal brandishing territory.

According to criminal defense attorney Mark Wilson over at Avvo, “Brandishing laws prohibit people from waving around or displaying weapons in a threatening manner. It does not matter if the weapon is loaded or unloaded.

“The key issues are:

• The weapon was displayed in a rude, angry or threatening way
• It was done in public view
• It was intended to cause fear or alarm

So for example, simply having a holstered weapon visible while walking down the street would not be considered brandishing. But pulling out a weapon during a bar fight in a threatening way would likely constitute brandishing.

What Kind of Weapons Apply?

Brandishing laws apply to any kind of weapon including:

• Guns
• Knives
• Clubs
• Brass knuckles
• Bombs
• Any object that could be perceived as a weapon

Really anything that could be used to threaten or intimidate people would apply when it comes to brandishing.

Brandishing vs Open Carry and Self-Defense

Now it’s important to understand that simply openly carrying a weapon in public (where legal) does not qualify as brandishing. For example, in states with open carry laws, just wearing a holstered weapon out in public would not be considered brandishing by itself.

However, if someone were to start waving that weapon around in a crazy way, then it could cross the line into illegal brandishing conduct.

Additionally, drawing a weapon in an act of legitimate self-defense would not be considered brandishing either. Self-defense is legally justified in the face of imminent bodily harm or death.

But drawing a weapon just to intimidate someone without cause would likely be seen as criminal brandishing.

Brandishing Penalties and Sentencing

Brandishing is almost always charged as a felony offense. And it is taken very seriously by courts due to the public safety issues it presents.

According to FindLaw, the potential legal penalties typically include:

• Felony charges
• Multi-year prison sentences
• Major fines (often $1,000+)
• Probation

Sentencing really comes down the specific circumstances and jurisdiction. But brandishing a weapon in a threatening way almost always leads to felony charges.

Federal Brandishing Laws

At the federal level, brandishing laws are contained in a couple different statutes including:18 U.S.C. § 924(c) – Prohibits using or carrying a firearm while committing a federal crime of violence. Brandishing a firearm during one of these crimes leads to a mandatory minimum 7-year prison sentence.18 U.S.C. § 113(a)(3) – Prohibits assault with a dangerous weapon and has up to 10 years imprisonment. Brandishing would fall under this statute.18 U.S.C. § 115(a)(1)(B) – Prohibits threatening federal officials while using a deadly or dangerous weapon. Brandishing during one of these threats can lead to up to 10 years in prison.

State Brandishing Laws

Most states have their own brandishing laws on the books as well. While the details vary some, the basics of the offense remain the same across states:

• Aggressively displaying a weapon in public
• In a threatening manner
• To cause fear

State brandishing laws also tend to categorize the offense as a felony.

For example in California, brandishing falls under California Penal Code 417 PC. It prohibits drawing or exhibiting a deadly weapon in a “rude, angry or threatening manner” in public. This is charged as a misdemeanor normally but can also be bumped up to a felony offense.

When is Brandishing Justified?

There are some limited exceptions where brandishing would be legally justified. The main situations are self-defense and defense of others against imminent bodily harm.

So if someone broke into your home and threatened you with a weapon, brandishing your own weapon to defend yourself would be legally justified.

Police officers may also brandish weapons as part of their legal duties without violating the law in most cases.

But absent those kind of scenarios, aggressively displaying weapons without cause is going to lead to brandishing charges.

Consequences Beyond Criminal Penalties

Beyond potential jail time, a brandishing conviction also leads to other legal penalties including:

• Loss of gun rights – Most states prohibit firearms possession by felons. A brandishing felony conviction means losing your legal ability to own guns.
• Employment issues – Finding a job with a felony conviction can be challenging. Many employers won’t hire felons.
• Eviction – Public housing often prohibits housing felons. Private landlords also commonly conduct background checks.

So brandishing has many serious legal penalties beyond just the criminal justice system that can negatively impact someone’s life.

When to Hire an Attorney

If you have been accused of brandishing a weapon, it is critical to engage an experienced criminal defense attorney right away. An aggressive lawyer may be able to get charges reduced or even dismissed based on the specific circumstances.

They can also develop an effective legal strategy for achieving the best possible outcome. Given the severe potential penalties, anyone facing brandishing charges needs legal representation.

The Bottom Line on Brandishing

Essentially brandishing boils down to aggressively and publicly displaying a weapon to intimidate or cause fear in others. It is always treated as a serious felony offense. Despite some limited legal exceptions, brandishing is never acceptable or tolerated under the law except for clear cases of self-defense. Anyone charged with brandishing needs to immediately contact a criminal defense lawyer to try and mitigate the devastating consequences.

References

Avvo – Brandishing Laws & Penalties

FindLaw – Brandishing a Weapon Overview

Wikipedia – Open Carry

Department of Justice – Federal Brandishing Laws

California Legislative Information – Penal Code 417

NOLO – Consequences of a Felony Conviction