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View Full Version : Open Carry vs. Brandishing a weapon?


Kauf
10-12-2011, 7:07 PM
Where are the lines drawn between open carrying of a (now after the passage of our most recent communist legislation) rifle/shotgun to the brandishing of a weapon in public? I feel like the cops would just say you are brandishing a weapon even if i was "legally open carrying." Can someone just define what legal open carry is and the best way to avoid getting in trouble while doing it? Thanks!

Purple K
10-12-2011, 7:18 PM
Just don't due it!

cmaynes
10-12-2011, 8:07 PM
Where are the lines drawn between open carrying of a (now after the passage of our most recent communist legislation) rifle/shotgun to the brandishing of a weapon in public? I feel like the cops would just say you are brandishing a weapon even if i was "legally open carrying." Can someone just define what legal open carry is and the best way to avoid getting in trouble while doing it? Thanks!

not a legal definition- but if its in the holster- thats carrying- If its in the hand- in most cases that might be seen as brandishing... Of course context is everything...

Meety Peety
10-12-2011, 8:34 PM
If you're planning to carry a long arm (To each his own) I believe the best thing to do is put it on a sling and throw it on your back. As far as handguns go, you cannot just pull it out of the holster any old time you please and consider it OC, that would be brandishing. It must remain in the holster unless a dire need to use it arises. I would assume the same would count for a rifle on a sling. IANAL, but I'd say as long as it wasn't in your hands, you're safe.

Edit: I will say this.. the "best" way to not get into trouble while doing this is to 100% know ALL laws and regulations on the matter. Do you research and do it well before hand. With the news blasting "Open carry now banned!" every hour, OC'ers are going to face even more scrutiny than ever because now every soccer mom that drives by is going to recognize what you are doing, assume it is currently illegal and dial 911. Not only that, but law enforcement is going to try to trap you (Sorry folks, they do) and make you make a mistake. It's not worth the millions of headaches you will face if you make one wrong move.. please keep that in mind.

Librarian
10-12-2011, 8:37 PM
Where are the lines drawn between open carrying of a (now after the passage of our most recent communist legislation) rifle/shotgun to the brandishing of a weapon in public? I feel like the cops would just say you are brandishing a weapon even if i was "legally open carrying." Can someone just define what legal open carry is and the best way to avoid getting in trouble while doing it? Thanks!

Easier to define brandishing from the Penal Code: 417. (a) (1) Every person who, except in self-defense, in the
presence of any other person, draws or exhibits any deadly weapon
whatsoever, other than a firearm, in a rude, angry, or threatening
manner, or who in any manner, unlawfully uses a deadly weapon other
than a firearm in any fight or quarrel is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than 30
days.
(2) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any firearm, whether loaded or
unloaded, in a rude, angry, or threatening manner, or who in any
manner, unlawfully uses a firearm in any fight or quarrel is
punishable as follows:
(A) If the violation occurs in a public place and the firearm is a
pistol, revolver, or other firearm capable of being concealed upon
the person, by imprisonment in a county jail for not less than three
months and not more than one year, by a fine not to exceed one
thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a
misdemeanor, punishable by imprisonment in a county jail for not less
than three months.
(b) Every person who, except in self-defense, in the presence of
any other person, draws or exhibits any loaded firearm in a rude,
angry, or threatening manner, or who, in any manner, unlawfully uses
any loaded firearm in any fight or quarrel upon the grounds of any
day care center, as defined in Section 1596.76 of the Health and
Safety Code, or any facility where programs, including day care
programs or recreational programs, are being conducted for persons
under 18 years of age, including programs conducted by a nonprofit
organization, during the hours in which the center or facility is
open for use, shall be punished by imprisonment in the state prison
for 16 months, or two or three years, or by imprisonment in a county
jail for not less than three months, nor more than one year.
(c) Every person who, in the immediate presence of a peace
officer, draws or exhibits any firearm, whether loaded or unloaded,
in a rude, angry, or threatening manner, and who knows, or reasonably
should know, by the officer's uniformed appearance or other action
of identification by the officer, that he or she is a peace officer
engaged in the performance of his or her duties, and that peace
officer is engaged in the performance of his or her duties, shall be
punished by imprisonment in a county jail for not less than nine
months and not to exceed one year, or in the state prison for 16
months, or two or three years.
(d) Except where a different penalty applies, every person who
violates this section when the other person is in the process of
cleaning up graffiti or vandalism is guilty of a misdemeanor,
punishable by imprisonment in a county jail for not less than three
months nor more than one year.
(e) As used in this section, "peace officer" means any person
designated as a peace officer pursuant to Chapter 4.5 (commencing
with Section 830) of Title 3 of Part 2.
(f) As used in this section, "public place" means any of the
following:
(1) A public place in an incorporated city.
(2) A public street in an incorporated city.
(3) A public street in an unincorporated area.

Don't be rude, angry or threatening.

If a gun is holstered, it is not 'drawn'. Perhaps I lack the prosecutorial imagination, but I don't know how to carry a holstered handgun in a way to 'exhibit' it in a "rude, angry or threatening manner". Similarly, a carried long gun does not inspire in me any suggestion of brandishing.

But remember, the hoplophobes and GFWs may have different opinions, so be nice to the officers when they come to investigate the 'man with a gun' report.

Anchors
10-12-2011, 8:42 PM
Easier to define brandishing from the Penal Code: Don't be rude, angry or threatening.

If a gun is holstered, it is not 'drawn'. Perhaps I lack the prosecutorial imagination, but I don't know how to carry a holstered handgun in a way to 'exhibit' it in a "rude, angry or threatening manner".

What if you point to your gun and say "hey, you better watch your mouth, buddy"?
I think that would still be brandishing (exhibiting in a threatening way) without touching the firearm/removing from holster.

Not that any law abiding gun owner is that foolish.

aermotor
10-12-2011, 8:48 PM
You hand touching the gun in the holster can be considering brandishing. Don't be dumb.

marcusrn
10-12-2011, 9:01 PM
Stick with the rock climbing and don't open carry.

It has'nt gone over too well in the last few years for the UOC movement. People will probably even like you less and be more fearful of a young man with long guns.

Donate $ to NRA, CGF, SAF, and CRPA if you want to make a public statement or want laws changed.

Kauf
10-12-2011, 11:15 PM
Stick with the rock climbing and don't open carry.

It has'nt gone over too well in the last few years for the UOC movement. People will probably even like you less and be more fearful of a young man with long guns.

Donate $ to NRA, CGF, SAF, and CRPA if you want to make a public statement or want laws changed.

I like your idea haha I was just curious after reading about the new law just passed. I'm new to all this stuff and i'm definitely not looking to get myself into trouble this early on in life

savtru
10-13-2011, 2:10 AM
"417(A)(2)..... EXHIBITS....THREATENING MANNER..."

There you have it. If JANE DOE PUBLIC knows you have a gun(EXHIBITING) and feels ANY threat(THREATENING), then you are guilty. There is NO CASE law for CCW and imprinting, therefore, you might have a lengthy and costly battle ahead.

GOOD luck though getting the cops to do anything...

I was battered, assaulted, deprived of my freedom of movement and had a gun brandished at me by a uniformed security guard and SAC COUNTY did nothing! YES that is correct, NADA.

To add insult to injury, the deputy told me I need to learn the law and DREW and POINTED her LOADED firearm at my head and asked if that was brandishing? I was scared crap-less. I told her that was 245pc and she laughed at me.

CitaDeL
10-13-2011, 8:16 AM
"417(A)(2)..... EXHIBITS....THREATENING MANNER..."

There you have it. If JANE DOE PUBLIC knows you have a gun(EXHIBITING) and feels ANY threat(THREATENING), then you are guilty. There is NO CASE law for CCW and imprinting, therefore, you might have a lengthy and costly battle ahead.

GOOD luck though getting the cops to do anything...

I was battered, assaulted, deprived of my freedom of movement and had a gun brandished at me by a uniformed security guard and SAC COUNTY did nothing! YES that is correct, NADA.

To add insult to injury, the deputy told me I need to learn the law and DREW and POINTED her LOADED firearm at my head and asked if that was brandishing? I was scared crap-less. I told her that was 245pc and she laughed at me.

FUD.

The elements of the crime are exhibiting a firearm in a way that is;

1) Rude
2) Angry
or
3) Threatening

Any one of these would need to be proven as to intent of the accused... not based on someone's unsubstantiated fear of an object.

Liberty1
10-13-2011, 11:55 AM
http://www.shouselaw.com/brandishing-weapon-pc417.html

Read to your hearts content!!!

savtru
10-13-2011, 3:40 PM
Like I said.... if the OTHER person FEELS threatened then your going to jail! Per-say...

If I noticed you are carrying a gun under your shirt and call the cops, I must be threatened, therefore your committing a crime, according to the law!

I hate the wording. Because EXHIBITING means a lot! And is open to debate!

PS.... Who is to say I was not threatened? If I say I am, then you have to prove I wasn't! AND I am not arguing, just pointing out a wording flaw in the law!

Wolverine
10-13-2011, 4:44 PM
Like I said.... if the OTHER person FEELS threatened then your going to jail! Per-say...

If I noticed you are carrying a gun under your shirt and call the cops, I must be threatened, therefore your committing a crime, according to the law!

I hate the wording. Because EXHIBITING means a lot! And is open to debate!

PS.... Who is to say I was not threatened? If I say I am, then you have to prove I wasn't! AND I am not arguing, just pointing out a wording flaw in the law!

I think the courts view this as from the perspective of a reasonable person. That is, would a reasonable person feel threatened, not whether the actual person calling 911 felt threatened. That being said, if it goes to a jury, do you trust a jury of San Francisco libs to not feel threatened by the mere sight of a firearm?

Wherryj
10-13-2011, 4:53 PM
Easier to define brandishing from the Penal Code: Don't be rude, angry or threatening.

If a gun is holstered, it is not 'drawn'. Perhaps I lack the prosecutorial imagination, but I don't know how to carry a holstered handgun in a way to 'exhibit' it in a "rude, angry or threatening manner". Similarly, a carried long gun does not inspire in me any suggestion of brandishing.

But remember, the hoplophobes and GFWs may have different opinions, so be nice to the officers when they come to investigate the 'man with a gun' report.

Don't rely upon the "Rude, angry or threatening" part to keep you safe. Anyone can claim that you were either rude, angry or threatening. You would have to somehow prove that you were NOT. After all, when it comes to firearms isn't it guilty until proven innocent?

Wherryj
10-13-2011, 4:55 PM
I think the courts view this as from the perspective of a reasonable person. That is, would a reasonable person feel threatened, not whether the actual person calling 911 felt threatened. That being said, if it goes to a jury, do you trust a jury of San Francisco libs to not feel threatened by the mere sight of a firearm?

How many "reasonable" people are there in CA? I think that it might end up as "the average Californian".

Tim Chang
10-13-2011, 5:08 PM
You hand touching the gun in the holster can be considering brandishing. Don't be dumb.

I have open carried before. This is the best advice.

savtru
10-13-2011, 10:20 PM
I think the courts view this as from the perspective of a reasonable person. That is, would a reasonable person feel threatened, not whether the actual person calling 911 felt threatened. That being said, if it goes to a jury, do you trust a jury of San Francisco libs to not feel threatened by the mere sight of a firearm?

LOL... YES SIR! I couldn't agree anymore with you. In CA we are GUILTY until proven innocent! I hate to say it, but I do not like UOC or LOC for anybody but LEO's. I understand it's my right and I want that right, but I would never do that. When I carried I was loaded and holstered OR CCW'd and nobody knew! I CCW everyday and everywhere and love it! Although I would rather be judged by 12, then carried by 6!

savtru
10-13-2011, 10:21 PM
Don't rely upon the "Rude, angry or threatening" part to keep you safe. Anyone can claim that you were either rude, angry or threatening. You would have to somehow prove that you were NOT. After all, when it comes to firearms isn't it guilty until proven innocent?

+1 to you sir!

InGrAM
10-13-2011, 11:09 PM
Don't do it.

MrExel17
10-14-2011, 12:54 AM
Dont do it.

Agreed