Legal question: Open carry vs. brandishing

[willywonka]

I was thinking about this the other day, and I wanted the board's input on this. What is the legal difference between open carry and brandishing?

I've heard that brandishing a weapon can be applied even if it's concealed and someone can make the outline of a firearm through clothing.

But suppose you're carrying concealed, say in a shoulder holster under your coat. Then you take your coat off and never touch your firearm. Is that brandishing?

[dons2346]

To me, no it wouldn't. If you whipped the pistol out of the holster, then yes. But then it isn't me that counts.

bran·dish (brndsh)
tr.v. bran·dished, bran·dish·ing, bran·dish·es
1. To wave or flourish (a weapon, for example) menacingly.
2. To display ostentatiously. See Synonyms at flourish.
n.
A menacing or defiant wave or flourish.

[armedandsafe]

It depends on your particular state laws and the attitude of the cop who responds.

Pops

[Bobitis]

Originally Posted by armedandsafe

It depends on your particular state laws and the attitude of the cop who responds.

Pops

Exactly.

Pops and I are in Washington. We have open carry here, but the law is so ambiguious that I don't. Some little old lady could be freaked out at the sight of my firearm, and I'd likely get harassed by the LEO.

To me, brandishing is waving/pointing. Out of holster. But the law isn't written that way. It's written to the affect that if 'someone' is afraid, my right is void.

Spot on as usual Pops.

[armedandsafe]

I carry a copy of the opinion the State AG issued on the subject of OC. Of course, I'm over here in "guns are tools" land and Bobitis is in the land of "tools cause stripped threads," which makes a great deal of difference.

Over here, the JW lady on my doorstep asks what I'm carrying and discusses the practicality of 9mm over .45ACP for little old ladies.

Pops

[Bobitis]

"tools cause stripped threads"

I like that!

Never the mechanics fault.

Get rid of either one, and the other is useless. King County and Seattle at its finest. Supurb at stripping threads and blaming something else.

But I digress...

As Pops stated, it's not so much a legal issue as it's cut and dried in my opinion. It's legal here. That should be the end of it. But the government has added a bunch of crap to it. Look carefully at your local laws. VERY carefully.

[carver]

LA has an open carry law, it's legal to open cary. But if you do, and some calls the cops because they are afraid of the gun they see, then you can be arrested for disturbing the peace! And no matter what the law says, there will always be a stupid cop that interprets the law the way they think it should be. Not always the same as the law was intended to read either.

[Nighthawk]

In Texas it is concealed only and if people can see outline of pistol, it's
not concealed. We mustn't have panic among sheep.
We're trying to get open carry, but doubt if in my lifetime.
They just changed law saying if you're in your car you're traveling and legal
to have pistol in car. (If it's legal for you to possess a firearm)
Took several years before wording was clear enough for some lib DAs.

[johnlives4christ]

as stated it depends on the specific state/city youre in. im in kentucky and here you can open carry. i open carry all the time when my coat doesnt cover it. but i wouldnt do it in louisville or lexington because i'd have trouble. not so much from people as i would from cops. in kentucky there isnt anything legally the cops can arrest you on for open carrying.

[hogger129]

i would think once it's removed from the holster, that's considered brandishing.

[CampingJosh]

Indiana doesn't have any "brandishing" laws. Unless you're doing something with the gun that is "reckless endangerment" or worse, you're fine.

Indiana also accepts any carry permit/license from any state. Ours is called a "License to Carry Handgun," and we don't have any restrictions as to open or concealed carry.

[johnlives4christ]

brandishing to me could be unholstering and waving around. but it could also be showing the in a threatening manner. such as a thug raising up his hoody to show his piece

[willywonka]

I'm in Virginia. I don't know what the laws are on this in my state, but I do know we have shall issue CCWs and open carry I believe is legal.

[wookie810]

Open carry is legal in Michigan. I actually didn't know this until there was an article in the local paper about how the Flint city council made a law that you couldn't open carry, but state law supercedes the city law. So long story short the city attorney informed the council that they couldn't pass a law that was against state law and you can legally open carry in Michigan.

[tim.sr]

once it's removed from the holster, that's considered brandishing in Michigan. shoot it or don't pull it.

[madmantrapper]

Originally Posted by wookie810

Open carry is legal in Michigan. I actually didn't know this until there was an article in the local paper about how the Flint city council made a law that you couldn't open carry, but state law supercedes the city law. So long story short the city attorney informed the council that they couldn't pass a law that was against state law and you can legally open carry in Michigan.

How long has it been that way? About 40 years ago it was a 1 year manditory jail term for carying in Michigan. A semi driver opened a side panel in his rig to get a fire estingisher(sp) and the cop saw his pistol in there, 1 year gone.

[tim.sr]

if you have it in your door then it is not a open carry. now you need a ccw. open carry is only out of the vehicle. if you don't have a ccw you must unload and put it away be for you get in your vehicle.

[tim.sr]

open carry is not a law in Michigan but a lack of it there is not a law to stop open carry that is why we can do it.

[Jay]

Originally Posted by CampingJosh

Indiana doesn't have any "brandishing" laws. Unless you're doing something with the gun that is "reckless endangerment" or worse, you're fine.

Indiana also accepts any carry permit/license from any state. Ours is called a "License to Carry Handgun," and we don't have any restrictions as to open or concealed carry.

...just an addendum.... Indiana Code

The reason we do not have any restrictions on open or concealed carry is because Indiana law is silent on the issue. The license makes no mention of the method of carry.

IC 35-47-4-3
Pointing firearm at another person
Sec. 3. (a) This section does not apply to a law enforcement
officer who is acting within the scope of the law enforcement
officer's official duties or to a person who is justified in using
reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm at
another person commits a Class D felony. However, the offense is a
Class A misdemeanor if the firearm was not loaded.
As added by P.L.296-1995, SEC.2.

[RunningOnMT]

My CCW instructor, a police officer, stressed common sense. I asked if one were in a situation where they felt threatened and drew their weapon and the perp retreated without requiring the person to shoot, could they then be charged with brandishing. His response was no, as long as the threat was sufficient to draw in the first place. Of course then it becomes a he said, you said situation.

Simple open carry is not brandishing. Here's the problem, here where I live open carry has always been legal. The problem is that especially since concealed carry became legal, many police officers don't understand that cc didn't do away with open carry. Awhile back i called the police dept. and talked to a public affairs officer and asked about open carry. He said "No you can't carry in the open. If you want to carry get a CCW permit". But he was wrong. I found an article written by the police dept.'s training officer that discussed the fact that seeing someone with a holstered sidearm did not even justify a terry stop, unless they were engaged in some other suspicious activity, like loitering outside a jewelry store at night. But police officers aren't perfect and in unusual situations they sometimes don't know or understand the applicable law. Open carry has in fact become an unusual activity simply because people haven't been doing it. To keep a right, people have to exercise it. Or should I say "to maintain the government (police) awareness of your rights, you need to keep them constantly reminded by exercising that right".

In some municipalities yes you could be charged with brandishing if your piece imprinted on your clothing. But again it comes down to common sense. An accidental display of your gun is not likely to get you charged and certainly not convicted. If say you are out in public and happen to have an altercation where you say pull your jacket back to display your weapon as a threat, then you could be charged. Now what if you face a threat which would justify drawing your weapon, and displaying your holstered gun was enough to make them back off. Applying the common sense rule I would think that would be legal. It all comes down to intent and the nature of a threat. You have discretion to as little or as much use of a firearm as you deem sufficient to thwart the threat.

[tim.sr]

AMEN you got it.

[noslolo]

Here is a great site for you Willywonka, it's the
Virginia Citizens Defense League, Inc.
http://www.vcdl.org/

[redwing carson]

Jay your Indiana law is Ok for visitors. It has been some time since I visited your state. I did think it strange that an Indiana Resident must register their hand guns. My Wyoming permit is legal in Indiana and we do not register any firearm. As a visitor to Indiana I had more rights than a resident.

RC