Brandishing

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CRIMINAL BRANDISHING IN CALIFORNIA

California gun laws are so strict that even brandishing a firearm can land you in serious trouble if you do so in improper circumstances. This page will break down various brandishing crimes you may be charged with and potential defenses you might pursue with your legal counsel.

WHAT IS BRANDISHING?

In short, brandishing is distinct from discharging a firearm in that brandishing involves drawing, exhibiting, or otherwise showing off the firearm improperly. If you draw your weapon in self-defense, that is not brandishing under the technical letter of the law. If you draw your six-shooter in public to show someone that you can spin it around on your pinkie finger like a big time cowboy - well, that's a crime.

The California Penal Code has different statutes for different versions of the broader brandishing crime.

Brandishing in the Presence of Someone in a Motor Vehicle

According to Penal Code 417.3 PC, this is a crime when the defendant:

  • Draws or exhibits their firearm in the presence of a person who is in a motor vehicle that was being driven on a public highway or street AND
  • The defendant drew or exhibited a firearm in a threatening manner that can cause reasonable fear of bodily harm or death AND
  • The defendant didn't act in self-defense

Brandishing a Firearm in the Presence of a Peace Officer

You can also get in trouble for brandishing your firearm in the presence of a peace or police officer. Penal Code 417 (c) and (e) state that, for the defendant to be found guilty:

  • The defendant must draw or exhibit the firearm in the immediate presence of a peace officer AND
  • Drew the firearm rudely, angrily, or otherwise in a threatening manner AND
  • The defendant acted when the police officer was acting lawfully or performing their duties properly AND
  • The defendant reasonably knew that the person was a police officer AND
  • The defendant didn't act in self-defense

Thus, a person cannot be charged with this crime if the police officer was undercover and reasonable identification was not possible.

Brandishing a Firearm or Deadly Weapon to Resist Arrest

The California Penal Code makes brandishing a firearm or any other deadly weapon in the course of resisting arrest a separate crime. Penal Code 417.8 states that such a convicted defendant must:

  • Draw or exhibit a firearm or deadly weapon AND
  • Do so with the explicit intention to prevent a peace officer from resting or detaining them or another person or otherwise resist arrest

To the court, a deadly weapon is any object, instrument, or weapon that can be used to cause either death or great bodily injury. Generally, the law is referring to weapons like knives and firearms. But that is not all. Everyday objects like a pipe, rope or candlestick could qualify as a deadly weapon in certain circumstances. 

Brandishing a Firearm or Deadly Weapon

This crime is a misdemeanor under California Penal Code 417 (a)(1) and (2). It states that a defendant guilty of this crime must have:

  • Drawn or exhibited a firearm or deadly weapon in the presence of another person AND
  • Done so rudely, angrily, or in a threatening manner OR
  • Used the firearm or deadly weapon in a fight or quarrel AND
  • Not used the weapon in self-defense

Brandishing a Firearm in a Public Place

This crime is also a misdemeanor under Penal Code 417 PC (a)(2)(A). For this crime, the defendant drew or exhibited a firearm that they could otherwise conceal and did so in a public place. They do not have to do so threateningly – merely carrying a weapon inappropriately in a public place without a license is enough to be charged.

Furthermore, a firearm that can be concealed as any firearm with a barrel length of fewer than 16 inches.

Penalties for Brandishing

If convicted, a brandishing or related charge can carry serious penalties depending on the circumstances of the charge and the seriousness of the violation.

A misdemeanor charge (like nearly brandishing a weapon in a public place) will likely carry punishments such as:

  • High fines
  • Imprisonment in county jail for up to a year

More violent firearm offenses, such as resisting arrest, may incur penalties like:

  • Loss of gun rights
  • Imprisonment in state prison
  • Higher fines

Defenses

Legal counsel can provide several effective defenses against brandishing charges.

Self-Defense

Of course, if the defendant acted in self-defense, brandishing charges are often dropped since the defendant has a reasonable expectation to defend themselves against bodily harm or death.

No Threatening Manner

To be charged with brandishing, one must have been behaving threateningly or carelessly with the gun or lethal weapon. This defense protects the defendant in cases where drawing or brandishing the weapon can reasonably be proven to have not been threatening given the circumstances or environment. For example, a gun dealer would not be guilty of "brandishing" for putting a pistol on the sales counter for inspection, even if the dealer and customer later quarrel about the price. 

If you need assistance fighting back against brandishing charges, the Law Office of Peter James Chambers should be your first call. With years of legal experience and the know-how to help you form an effective defense against brandishing charges, Peter James Chambers is your best bet at getting the charges dropped or mitigating your consequences. Contact us today for a free consultation.

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— THE TALMUD —

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