You may legally own a firearm but you cannot use it in such a way as to threaten someone with it, to wave it around in an angry or rude fashion or to produce it if you are in a fight or argument. The same prohibition exists for a deadly weapon.
Under California Penal Code Section 417, it is unlawful to brandish a firearm or deadly weapon in this manner since the potential of harm is so great.
What is a Deadly Weapon?
Firearms are obviously deadly weapons but other objects not necessarily associated as a weapon can also become deadly weapons, Any object that can be used or is capable of causing great bodily harm, if not death, can be a deadly weapon. Examples may include:
- Animals, if trained to attack people
- Razor blade
- Any sharpened object
- A pillow
A pen or pencil can be a deadly weapon since it can easily injure your eye or cause a severe puncture wound if strategically placed.
Elements of Brandishing a Weapon
To be convicted of brandishing, the prosecution needs to prove that you did the following:
- Exhibited or drew a firearm or deadly weapon
- In the presence of another person
- That was done so in an angry, rude or threatening manner
- That was done so unlawfully while engaged in an argument or fight
You do not have to point the firearm or weapon at another person and there is no requirement that the other individual ever saw the weapon. All you have to do during a quarrel or fight is produce the weapon and do so in an angry manner, such as by threatening the person with it or merely showing it if you are engaged in an argument or fight.
Defenses to Brandishing a Weapon
- Non-threatening conduct
It is no defense that you did not intend to use the weapon, but it may be a defense that you produced or brandished the weapon in a non-threatening, non-rude or non-angry manner. If you like to “show off” your weapons, it is not considered brandishing.
Another defense is that of self-defense. If you have a reasonable belief that you or another person is about to suffer immediate or imminent bodily harm, you need only fight back with reasonable force to defend yourself. This does not mean producing a dangerous weapon if another person took a swing at you or even struck you.
There are a number of similar criminal offenses or those associated with brandishing a weapon:
- Assault with a deadly weapon
Brandishing seems to be assault, which does not require any physical harm. Assault does require, however, the intent to harm someone while brandishing could be just to scare or to intimate the other person during a fight or quarrel and lacks the element of intent to harm.
You can be guilty of assault with a deadly weapon and brandishing if you aim a loaded weapon at someone. If the weapon was not loaded and you threaten to shoot someone, you may only be guilty of brandishing since you did not have the present ability to use it.
- Unlawful possession of a firearm or deadly weapon (PC 12020)
- Unlawful possession of an assault weapon (PC 12280)
- Felon with a firearm (PC 12021)
- Carrying a concealed firearm (PC 12025)
- Armed robbery (PC 211)
Penalties for Brandishing
Brandishing can be charged as either a misdemeanor or as a felony and depends on the circumstances of the unlawful act, if the weapon was a firearm and whether you have a criminal history.
If you are charged and convicted of the misdemeanor charge of brandishing a deadly weapon other than a gun, you face a minimum 30-day jail sentence. If the weapon was a firearm, the minimum is a 3 to 6-month jail sentence.
If the brandishing of the firearm was a handgun or other firearm capable of being hidden or concealed on your person, and you brandished it in a public place, the sentence is a minimum of 3 months and a maximum of one year in jail and a $1,000 fine.
If you brandished a firearm in a threatening, rude or angry manner at a peace officer, you face a minimum 9-month to one year jail sentence, if a misdemeanor, or 16-months, 2 or 3 years in state prison if a felony.
For non-citizens, brandishing a deadly weapon or firearm could have severe consequences, whether you are convicted of a misdemeanor or felony. It is possible in many cases to have these charges reduced or dismissed. Otherwise, you face potential deportation since most gun offenses are crimes of moral turpitude.
Call the Law Offices of Ramiro J. Lluis
Any gun crime conviction can result in serious prison time and have long range or permanent adverse consequences on your life. If you have been charged with a gun crime, call the Law Offices of Ramiro J. Lluis today for a free, confidential initial consultation at (213) 687-4412.