What does it mean to “brandish” a weapon? The term is often used informally, and sometimes incorrectly, but it has a specific legal definition in California, where it’s considered a criminal offense.
Understanding the legal definition of brandishing a weapon is important, whether you or someone you know is facing a legal charge, or even if you want to ensure you don’t accidentally break the law with a weapon you own legally.
Let’s take a closer look at the concept of weapon brandishment, including its legal definition, how it can influence other legal issues, and everything else you need to know.
Brandishing a Weapon: Definition and Overview
Essentially, brandishing a weapon refers to openly displaying or waving a weapon threateningly. In California, the brandishment of a weapon is considered a criminal offense under the California Penal Code Section 417.
According to the specifics of the code, brandishing a weapon occurs when a deadly weapon or firearm is drawn or exhibited in the presence of someone else in a rude, angry, or threatening manner. Additionally, it must be displayed in the context of a fight or quarrel, instead of self-defense.
The legal definition of a “deadly weapon” extends beyond firearms. It includes any object or weapon that can cause death or great bodily injury. For example, a deadly weapon could be considered a knife, rope, or even a trained attack dog. Brandishing an imitation or unloaded firearm can also lead to charges under Penal Code 417.4.
However, some objects typically aren’t considered deadly weapons under this law. Two notable examples of items a person can’t legally brandish are BB guns and fists.
The weapon doesn’t need to be pointed at someone for it to be considered brandishing. It simply needs to be displayed in a manner the other party finds threatening.
Legal Requirements and Elements of the Crime
Brandishing a weapon is different than displaying one. What elements are required to establish that a crime occurred?
First, for the prosecution to establish a charge of brandishing a weapon, they must prove that the weapon was exhibited or drawn in the presence of another person in a manner inconsistent with the self-defense or defense of another person.
Next, they must establish that a deadly weapon was used. The crime isn’t limited to firearms that can be hidden on the person, nor does it specifically refer to brandishing a firearm with a barrel under 16 inches long. Instead, the law emphasizes the manner and context in which the weapon is exhibited or used.
Examples and Scenarios of Brandishing a Weapon
The legal definition of brandishing a weapon can seem confusing, but it becomes easier to understand after looking at some common scenarios where it occurs.
Road Rage Incident
In a fit of anger during a traffic dispute, an individual pulls out a firearm and waves it at another driver, causing fear and intimidation. They do not need to fire the weapon or even point it directly at the other driver.
During a heated argument, one person grabs a knife and holds it menacingly, causing the other person to feel threatened and afraid for their safety. As with other scenarios, the knife doesn’t actually need to touch the other person.
Confrontation with Law Enforcement
In a situation where an individual mistakenly believes they are asserting their rights, they escalate a routine traffic stop by brandishing a firearm at a peace officer, turning a minor incident into a potentially hazardous scenario.
Punishments and Penalties for Brandishing a Weapon
This offense can be classified as either a misdemeanor or a felony. Various circumstances will influence the classification, such as:
- Specific circumstances
- Weapon type
- Location (near a school, etc.)
When charged as a misdemeanor, penalties can include fines or even a sentence of up to one year in the county jail. Felony charges typically carry harsher penalties, including heavier fines and state prison confinement.
In California, certain minimums apply. A misdemeanor conviction carries a minimum of 30 days in county jail. However, many first-time convictions result in probation instead of jail time. Probation typically involves anger management classes for the perpetrator and a temporary restraining order on behalf of the victim.
A minimum sentence of three months in county jail applies if the weapon brandished was a concealed firearm.
Impact on Gun Rights
A conviction for brandishing a firearm can lead to limitations on an individual’s ability to own or buy firearms. The severity of the offense might result in a felony charge, potentially resulting in a permanent loss of gun ownership rights.
Non-citizens who are convicted of brandishing a weapon may face deportation. Immigration authorities view this offense as a serious crime that can jeopardize an individual’s immigration status.
Defenses Against Brandishing Charges
After understanding the potential consequences of brandishing a weapon, exploring the available defenses against such charges is important. When facing brandishing charges, individuals have several defenses they can employ.
One potential legal defense is the lack of intent to cause fear. If someone didn’t mean to scare or threaten others with their weapon, they could argue they weren’t being aggressive or threatening.
Self-defense is another common defense used against brandishing charges. Brandishing charges could be unfounded if the defendant can prove they displayed the weapon to protect themselves or others.
Other common defenses include not having an illegal purpose, being wrongly identified, or lacking enough evidence. It’s crucial to seek advice from a skilled criminal defense lawyer to understand these defenses and choose the best action.
Expungement of Brandishing Convictions
Expungement is a legal process that allows individuals to clear their criminal record and remove the conviction from public view. Brandishing convictions can potentially be expunged if the convicted individual completes probation or jail time.
Here are three important things to know about expungement of brandishing convictions:
Individuals must complete their probation or jail time in order to become eligible for expungement. Completion means fulfilling all the requirements and conditions set by the court, such as attending counseling programs or paying fines.
Expungement offers several benefits, including improved employment prospects, housing opportunities, and the restoration of certain rights. Once the conviction is expunged, individuals no longer have to disclose it on job applications or other official documents.
The process of expungement involves filing a petition with the court that handled the original conviction. It is advisable to seek the assistance of an experienced attorney who can guide individuals through the necessary paperwork and legal procedures.
Displaying a weapon always has the potential for serious consequences. If an individual displays that weapon in a threatening or hostile manner, they might be legally considered to have brandished the weapon, which can result in fines or imprisonment.
Understanding the legal definition of brandishing a weapon and the potential defense strategies used against the charge can help you avoid unwanted legal problems. If you’ve been charged with brandishing a weapon, or if you’d like more information, contact the law office of Garrett T. Rice for a free consultation.