Brandishing a gun in CA questions

[DrjonesUSA]

First, YES I did a forum search, I also checked the CalGuns Wiki (the word "brandishing actually doesn't even appear!) and I looked up the PC myself.

I have a CCW and I want to get an OWB holster.

Of course I will make every effort to ensure my 5" 1911 stays perfectly concealed, I do not go bending around at the waist ever, etc. BUT...I just wanted to ask here so I'm crystal clear:

Based on my readings it is my understanding that if someone were to inadvertently actually see the tip of my holster poking out from under my shirt (and actually realize it's a firearm and not an iPhone) I can *not* get in trouble for brandishing - is this correct?

It is my understanding that;

a) CA doesn't have printing laws like some other states.

b) Brandishing requires actual intent of displaying your firearm in a threatening manner.

Clearly if someone happens to catch a glimpse of a holster, that seems to me there's no way it could be brandishing.

Am I right?

Thank you

[BKinzey]

While you are correct about "brandishing" (generally, given nothing is certain) you could still get in trouble for exposing your firearm.

How that would happen depends on how it was exposed, who saw it, and who shows up to resolve the situation.

You'll hear the term "concealed means concealed" and you should make every effort to avoid exposure.

[glockman19]

To brandish any weapon the act must be: Rude, Angry, or Threatening.

[003]

California Penal Code

Section 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.

[RickD427]

First, YES I did a forum search, I also checked the CalGuns Wiki (the word "brandishing actually doesn't even appear!) and I looked up the PC myself.

I have a CCW and I want to get an OWB holster.

Of course I will make every effort to ensure my 5" 1911 stays perfectly concealed, I do not go bending around at the waist ever, etc. BUT...I just wanted to ask here so I'm crystal clear:

Based on my readings it is my understanding that if someone were to inadvertently actually see the tip of my holster poking out from under my shirt (and actually realize it's a firearm and not an iPhone) I can *not* get in trouble for brandishing - is this correct?

It is my understanding that;

a) CA doesn't have printing laws like some other states.

b) Brandishing requires actual intent of displaying your firearm in a threatening manner.

Clearly if someone happens to catch a glimpse of a holster, that seems to me there's no way it could be brandishing.

Am I right?

Thank you

Your understanding is pretty good, but to clarify:

1) The California offense of "Brandishing a Firearm" is not a specific intent crime. The crime is complete when you brandish or exhibit the firearm in a "rude or threatening manner." No showing of intent is necessary.

2) There is no need to actually "brandish" the firearm to be in violation. If you "exhibit" a holstered weapon in a "rude or threatening" manner, the offense is complete.

3) The "rude and threatening manner" is a required element of the offense. The inadvertent display of a weapon is not a violation.

Here's the pertinent text of the law (Penal Code section 417(a)(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..."

However, you may find your CCW permit status adversely affected by the careless display of your weapon.

[rudedude916]

Keep it out of sight. I can see it now, you're at the store and grandma behind you catches a little peek and looks for the first rent-a-cop she can find, "officer, that man has a gun." Then you are gonna have to answer to those idiots.

[Fireguy]

Remember the guy in Vegas with a CCW at Costco who was shot by LVPD.

[Epaphroditus]

Based on my readings it is my understanding that if someone were to inadvertently actually see the tip of my holster poking out from under my shirt (and actually realize it's a firearm and not an iPhone) I can *not* get in trouble for brandishing - is this correct?

I suppose it depends on who is making the claims against you and how credible they appear.

[DrjonesUSA]

Thanks for all the feedback, I'm not at all new to CCW - been around 15 years or so - take it very seriously and conduct myself very professionally in public.

It's just who I am, and I'm not an idiot.

SO, there are a few things here:

1) Chances of anyone noticing the holster are extremely low to begin with. I firmly believe I could walk down the street of most any city with an AR slung across my back and probably 90% of people wouldn't notice. People today are far too focused on their iPhone and nothing else.

2) The chances of anyone noticing the holster and recognizing it for what it is, are extremely low. People are not accustomed to CCW in this state, certainly not where I live.

3) The chances of anyone noticing the holster for what it is, and thinking anything of it, are again, IMO, very low. 99% of the time in public I wear my 5.11 pants (laugh all you want they are very functional for me) and in general, I present a very professional, clean-cut appearance. People would almost certainly just think I was a cop/undercover/professional.

Again I thank you for the feedback.

Of course I do not anticipate any exposure issues and think the chances of it happening in the first place are miniscule as I will be careful, and further the chances of anyone noticing a holster for what it is in CA, is again even smaller.

[Whatisthis?]

It is my understanding that you are correct in your first two statements. You would not be in violation. The problem isn't with being in violation but rather that the sheriff can revoke the license for any reason. They don't want to have to deal with reports of a man with a gun. So I think it would be safe to assume that if the wrong person sees it and reports, you can almost kiss your permit good-bye.

The problem with my side is, I don't have any stories/experiences that back up whether they will just revoke it or chalk it up to a liberal tard who over reacted and you go on your way.

[DrjonesUSA]

It is my understanding that you are correct in your first two statements. You would not be in violation. The problem isn't with being in violation but rather that the sheriff can revoke the license for any reason. They don't want to have to deal with reports of a man with a gun. So I think it would be safe to assume that if the wrong person sees it and reports, you can almost kiss your permit good-bye.

The problem with my side is, I don't have any stories/experiences that back up whether they will just revoke it or chalk it up to a liberal tard who over reacted and you go on your way.

...which again backs up my assertion that if it is some left-wing sheep who happens to take their eyes off their iPhone long enough to even catch a glimpse of the very bottom of my holster, what are the chances they'd even recognize it & wouldn't think it was just a cell phone?

I think I'm being a little paranoid here but can't be too careful with firearms.

[DrjonesUSA]

While you are correct about "brandishing" (generally, given nothing is certain) you could still get in trouble for exposing your firearm.

How that would happen depends on how it was exposed, who saw it, and who shows up to resolve the situation.

You'll hear the term "concealed means concealed" and you should make every effort to avoid exposure.

Isn't brandishing = exposing your firearm in a threatening manner as far as CA is concerned?

So if I'm not doing that, what's the issue?

[mif_slim]

I say keep it concealed.

If someone wants to nail you they can find anything. If the police officer is in a bad mood you can be nailed for anything. You may get your gun back and your ccw but would it be worth the trouble?

Also, getting advice here on such topic isnt the best idea although I do agree with your understanding...but hey, why risk it?

[Quiet]

Remember, "threatening manner" is subjective to the person who feels threaten.

So for an anti-gun progressive, seeing a firearm holstered could be threatened by it and may call the cops on you for "brandishing".

Don't print. Keep it concealed.

[Quiet]

Remember the guy in Vegas with a CCW at Costco who was shot by LVPD.

Keep in mind that it is legal to open carry in NV and printing is generally not an issue in NV.

Guy had a valid conceal carry permit.
His handgun was printing and seen by several Costco employees.
They in turn felt scared and call the cops saying an armed person on drugs was destroying merchandise.
LVMPD responded and confronted the guy. Shots were fired, guy dead on scene.
Video surveillance of the incident was "not working" the entire time the guy was in the store and when LVMPD confronted the victim.
Shooting was ruled justified by an "independent third party", which is run by the Clark County Sheriff, who also runs the LVMPD.

Lessons learn... concealed mean concealed and don't shop at Costco.