What is “brandishing” a firearm and what are the considerations, laws, definitions, elements, penalties, required proof, etc.? When does brandishing or a careless or inadvertent exhibition of a firearm occur? What should we do to avoid it? Does it require showing that the person committed the act willfully, intentionally and with knowledge or just that the person accused acted “carelessly.” What is a willful, threatening, and/or careless act with a firearm? Almost all states and jurisdictions have laws about improper exhibition of a firearm or brandishing a weapon as some states refer to it. And they vary greatly among the states and jurisdictions in definitions, terminology, interpretations, and penalties… a very gray subjective area. Here are just some of the many complex and variable factors to understand and help guide you. I offer my ideas not as an attorney and not as legal opinion or advice, but generally to help you begin your understanding and encourage you to consult an attorney in your state about specific related laws and considerations for your jurisdiction. So don’t act on my information here, but seek out legal guidance for your specific circumstances before taking action or making decisions. My experiences as a lay person are with “Improper Exhibition” of a firearm in Florida.

So “brandishing” or “improper exhibition” or “defensive display” or “unlawful display” (or whatever your state and jurisdiction calls it) depends specifically on your state and jurisdiction. Very generally, however, for an operating definition “brandishing” means to display, show, wave, or exhibit the firearm in a manner which another person might find threatening. You can see how widely and differently this can be subjectively interpreted by different “reasonable” individuals and entities. The crime can actually be committed in some states by not even pointing a firearm at someone. In some states it’s a Misdemeanor crime and in others a Felony. So, focus, think rationally, know your state’s law, and be careful out there.

Florida’s Improper Exhibition of a Firearm Statute

For example, in my state of Florida, it is an offense under Florida law to display a dangerous weapon in an angry, careless, or threatening manner. Improper Exhibition of a Firearm and/or Improper Display of a Weapon are crimes governed by Florida Statute 790.10. The offense stems from the common law crime of brandishing. So Florida statutes do NOT call it “brandishing”, but “improper exhibition” of dangerous weapons or firearms. In the Florida Criminal Code “improper exhibition” of a firearm is defined as an individual having or carrying the following weapons in an unsafe, rude, careless, angry, or threatening manner, not in necessary self defense:

Dirk (knife or dagger)

Sword

Sword cane

Firearm

Electric weapon

Electric device

Other weapon

An individual is considered to carry the firearm in an “unsafe” manner if they carry it in the following ways (Certainly each of these are open to various definitions and frustrating subjective interpretations):

Rude

Careless

Angry

Threatening manner

3 Main Elements of Improper Exhibition of a Firearm or Weapon in Florida:

The crime of Improper Exhibition of a Firearm or Weapon contains the following three elements.

A person had or carried a dangerous weapon or firearm (as listed above); The person exhibited the dangerous weapon or firearm in a rude, careless, angry, or threatening manner (as listed above); AND The person did so in the presence of one or more persons.

Another subjective factor is also usually involved, based on my limited and lay background. In addition to acting in an unsafe manner, the prosecution usually needs to prove that the people who witnessed the improper exhibition behavior thought it was unsafe at the time (in their terms.) Very subjective!

To me the intent of this statute is to encourage safe handling of guns, avoiding carelessness with guns, and protecting innocent bystanders from the possibility of serious bodily injury or death. We know there are well- documented cases of guns being accidentally discharged when used in a safe manner, so the likelihood of accidental discharge increases if the guns are operated in an unsafe manner. In Florida, the individual must carry the weapon in an unsafe manner in the presence of one or more persons in order to be convicted of improper exhibition of a firearm.

What About Carelessness and Willfulness?

Most criminal offenses in Florida require a showing that the person committed the act willfully, intentionally and with knowledge. But, the improper exhibition statute emphasizes that the person acted “carelessly.” The determination of whether the person was careless or not or committed the act willfully in exhibiting the firearm could be ultimately subjectively decided by the jury at trial.

It is my understanding and hope that charges should be determined on an “objective” rather than a “subjective” basis. The “objective” basis involves the circumstance of your actions with the firearm being done in an irrationally attacking manner, or being done in a way that generates an unreasonable risk of injury to other individuals or property. So unless your circumstances occurred like this, it seems to this non-lawyer that there would not be a basis for this criminal charge. While the prosecution in most jurisdictions has the burden of proving all three of these elements beyond a reasonable doubt, I would expect that a good defense attorney can probably cast doubt on any one element and the prosecution’s case might fail. But, again, I am not an attorney.

But even in questionable cases the individual could be arrested, taken to jail, booked, required to post bond, forced to hire a criminal defense attorney (minimal retainer about $25,000), and then appear in court for pre-trial hearings in order to fight the charge. Much time and many costs involved. Overly-aggressive prosecutions do occur and some prosecutors believe any firearm charge must be prosecuted aggressively. Florida law allows a person who possesses a valid license to carry a “concealed” weapon, but some do not realize that it is a first degree misdemeanor to “carelessly” exhibit the firearm to another, even with the concealed license. This misdemeanor crime is one of the most commonly prosecuted firearm charges in Florida, although it is unclear how many times these prosecutions involve careless acts or intentional acts. So, focus, think rationally, keep it concealed, and be careful out there.

Florida Statute Change: Inadvertent Display of Concealed Weapon by License Holders

Recently, the Florida Legislature amended Florida Statute § 790.053 related to the open carrying of a weapon in favor of FL Concealed Carry Weapons License holders. The law change prevents prosecutions of those with a valid concealed weapons license who briefly, openly, and inadvertently display a concealed weapon, as long as it is done in a non-angry or non-threatening manner. Of course, this is subjective and open to interpretation and the court cases will follow. Here is the law change which is bolded:

Section 1. Subsection (1) of section 790.053, Florida Statuetes, is amended to read:

790.053 Open carrying of weapons.— (1) Except as otherwise provided by law and in subsection (2), it is unlawful for any person to openly carry on or about his or her person any firearm or electric weapon or device. It is not a violation of this section for a person licensed to carry a concealed firearm as provided in s. 790.06(1), and who is lawfully carrying a firearm in a concealed manner, to briefly and openly display the firearm to the ordinary sight of another person, unless the firearm is intentionally displayed in an angry or threatening manner, not in necessary self-defense.

How could an inadvertent display occur? Be careful with these possible common situations:

A person has a firearm in a holster on his belt. The wind blows his jacket away from his body and a bystander sees the firearm on his belt and becomes concerned.

from his body and a bystander sees the firearm on his belt and becomes concerned. A woman has a firearm in her purse. While standing in line in the grocery store the woman reaches into the purse to get a wallet and the person in line behind her sees the firearm in her handbag and becomes concerned.

and becomes concerned. A person with a concealed weapon repositions the weapon in a manner that makes it visible to another person.

in a manner that makes it visible to another person. A person leaves a firearm in a handbag that is within reach of a child or teenager and another person becomes concerned and calls the police.

If an issue of self-defense is raised at trial, it is my layman’s understanding that the judge will usually instruct the jury that if it finds that the defendant committed the offense of improper exhibition of a weapon in necessary self-defense, the juror must find him or her not guilty of the crime charged. If the individual was displaying the weapon in a threatening manner in order to protect his or her personal safety, then I would expect that the display was not careless, rude or angry. Situational!

Penalties for Improper Exhibition of a Firearm

In Florida, it is a first degree misdemeanor offense punishable by a maximum prison term of 1 year and a maximum fine of up to $1000, if you are found guilty of an Improper Exhibition of a firearm.

Although a misdemeanor, it is still a serious offense to have on your criminal record. Some mistakenly plead guilty or no contest to misdemeanors because they believe that a misdemeanor does not have damaging consequences. But it is my lay understanding that a misdemeanor can stay on your criminal record indefinitely. So if you get into trouble with the law again, this misdemeanor can increase the penalties for subsequent criminal charges. Be careful and seek legal counsel.

I read some cases where Improper Exhibition of a Firearm was charged as a reduced offense of aggravated assault, with the aggravated assault being “plea bargained” down to this “lesser” criminal offense. So that is possible from this layman’s understanding. Improper Exhibition of a Firearm can also be charged because a person displayed a firearm so hastily that other persons in the area just believed or emotionally thought they might get accidentally targeted, or because a person displayed a weapon in a manner that was transparently offensive to most reasonable people. Again, subjective, open to interpretation, and what is “reasonable” for one is not for another. Success with your judge and/or jury.

What To Do To Avoid Improper Exhibition of a Firearm or Brandishing

Get Your Valid Concealed Carry License; Keep your firearm concealed and (mostly) do not open carry it (if open carried do not touch the gun or gesture toward it, unless imminent danger); Do not display the firearm or threaten deadly force unless you are ONLY threatened with imminent death or great bodily harm (do not casually sweep or lift your shirt or cover garment exposing firearm); Avoid possible dangerous arguments and confrontations when possible (leaving, disengaging, and retreating are not signs of weakness or lack of power- might defuse the situation & create protection space); Conduct yourself with reserved, rational, reasonable, and disciplined behavior; Do not in any way reveal your gun, point to it, indicate that you have a gun, or say anything that could possibly be interpreted as a threat (You are allowed to breathe); and Take a fundamentals of shooting and safety course that contains information and scenarios about the firearms laws, use of deadly force, and concealed carry guidelines in your state.

Brandishing in A Few Other States

I do not have first-hand experience or information about Brandishing or Improper Exhibition in other states, but here is what I discovered at random to help you begin your understanding. This information is just a partial sampling of portions of some of the state laws and may not be complete nor current. I present this to show the great variability among states; so do your own verification and seek legal counsel in your state for specific guidance.

California Penal Code 417 (a)(2): Defines “brandishing” a firearm as follows:

(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 ….

Virginia Code 18.2-282:

It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another being shot or injured. However, this section shall not apply to any person engaged in excusable of justifiable self-defense.

Utah Section 76-10-506:

Threatening with or using dangerous weapon in fight or quarrel. (1) As used in this section, “threatening manner” does not include: (a) the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or (b) informing another of the actor’s possession of a deadly weapon in order to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402(2)(a). (2) Except as otherwise provided in Section 76-2-402 and for those persons described in Section 76-10-503, a person who, in the presence of two or more persons, draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a flight or quarrel is guilty of a class A misdemeanor. (3) This section does not apply to a person who, reasonably believing the action to be necessary in compliance with Section 76-2-402, with purpose to prevent another’s use of unlawful force: (a) threatens the use of a dangerous weapon; or (b) draws or exhibits a dangerous weapon.

South Carolina Section 16-23-410:

Unlawful to present or point loaded or unloaded firearm at another person; felony; must be fined or imprisoned not more than 5 years.

Nevada Section 202.290:

Aiming firearm, whether loaded or not, or discharging where person might be endangered is a penalty; even if injury does not result; gross misdemeanor

Montana MCA 45-3-111:

(Montana approved legislation says simply that brandishing a firearm in self defense is not a crime.) (1) Any person who is not otherwise prevented from doing so by federal or state law may openly carry a weapon and may communicate to another person the fact that the person has a weapon. (2) If a person reasonably believes that the person or another person is threatened with bodily harm, the person may warn or threaten the use of force, including deadly force, against the aggressor, including drawing or presenting a weapon. (3) This section does not limit the authority of the board of regents or other postsecondary institutions to regulate the carrying of weapons, as defined in 45-8-361(5)(b), on their campuses.

Arizona ARS 13-421: Justification; Defensive Display of a Firearm.

A. The defensive display of a firearm by a person against another is justified when and to the extent that a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force. B. This section does not apply to a person who: 1. Intentionally provokes another person to use or attempt to use unlawful physical force. 2. Uses a firearm during the commission of a serious offense as defined in section 13-706 or violent crime as defined in section 13-901.03. C. This section does not require the Defensive Display of a firearm before the use of physical force or the threat of physical force by a person who is otherwise justified in the use or threatened use of physical force. D. For the purposes of this section, “defensive display of a firearm” includes: 1. Verbally informing another person that the person possesses or has available a firearm. 2. Exposing or displaying a firearm in a manner that a reasonable person would understand was meant to protect a person against another’s use or attempted use of unlawful physical force or deadly physical force. 3. Placing the person’s hand on a firearm while the firearm is contained in a pocket, purse or other means of containment or transport.

Michigan Penal Code 750.234e:

Brandishing firearm in public; applicability; violation as misdemeanor; penalty. (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public. (2) Subsection (1) does not apply to any of the following: (a) A peace officer lawfully performing his or her duties as a peace officer. (b) A person lawfully engaged in hunting. (c) A person lawfully engaged in target practice. (d) A person lawfully engaged in the sale, purchase, repair, or transfer of that firearm. (3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both.

Continued Success!

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry in your state. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.

© 2013 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected]