LEO 229 wrote: Pointing a gun is NOT an assault but instead is a brandishing. It is expected that the police will use their guns and point them as needed during their tour of duty. It would be very hard to have a cop charged with brandishing unless what he was doing was so wrong in every way.
There is no exception in the brandishing code for a police officer to brandish a firearm unless he is responding to another that is brandishing. It would not be hard at all to have a police officer charged. All one would have to do would be to appear before a magistrate and swear to the facts of the incident. Since it is not a felony (unless w/in 1000 ft of a school) the case can proceed without the interference, I mean assistance, of the DA.
§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. 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 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 of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
(Code 1950, § 18.1-69.2; 1968, c. 513; 1975, cc. 14, 15; 1990, cc. 588, 599; 1992, c. 735; 2003, c. 976; 2005, c. 928.)
Thank you again for having the fortitude to stand up for what is right. You have done more for the RKBA in VA, and freedom in general, than we could have hoped for when this started.
Thundar wrote: LEO 229 wrote: Pointing a gun is NOT an assault but instead is a brandishing. It is expected that the police will use their guns and point them as needed during their tour of duty. It would be very hard to have a cop charged with brandishing unless what he was doing was so wrong in every way.
There is no exception in the brandishing code for a police officer to brandish a firearm unless he is responding to another that is brandishing. It would not be hard at all to have a police officer charged. All one would have to do would be to appear before a magistrate and swear to the facts of the incident. Since it is not a felony (unless w/in 1000 ft of a school) the case can proceed without the interference, I mean assistance, of the DA.
So are you saying that an officer is prohibited from drawing his gun unless the subject has a gun?
Ok. So according to paragraph A. I can point a gun at a LEO if I'm engaged in excusable or justifiable self defense. In that case, I have neither brandished, nor committed an assault on the officer.
IAW paragraph B. however, the LEO can be charged with brandishing for pulling a weapon on me unless I was already pointing, holding or brandishing a firearm. And he can be charged with a felony if he does so on or within 1000 ft. of school grounds.
Nelson_Muntz wrote: Ok. So according to paragraph A. I can point a gun at a LEO if I'm engaged in excusable or justifiable self defense. In that case, I have neither brandished, nor committed an assault on the officer.
IAW paragraph B. however, the LEO can be charged with brandishing for pulling a weapon on me unless I was already pointing, holding or brandishing a firearm. And he can be charged with a felony if he does so on or within 1000 ft. of school grounds.
"However, this section shall not apply to any person engaged in excusable or justifiable self-defense"
I am not sure what you guys want to hear. You all know what is allowed.
An officer using his gun lawfully in in the course of his job will be viewed as excusable.
I citizen pointing a gun as you suggest is probably not going to be viewed the same.
The code cited said any person. That should cover citizens as long as they fulfill the stated 'excusable or justifiable defense'. But I was just reading literally.
longwatch wrote: I think this good discussion is getting into issues that justify their own (rather than a year old) thread. Just a suggestion.
Not sure what you are getting at.
The current discussion deals DIRECTLY with things that happened in this event.
Can an officer point his gun at someone and be charged as per state code??!!
There seems be be some thought that an officer... such as in this event... is prohibited from pointing his weapon at anyone unless that person has a weapon.
Would this be better in another thread? Perhaps.. but it is almost played out anyway..
LEO 229 wrote: So are you saying that an officer is prohibited from drawing his gun unless the subject has a gun?
I imagine, IANAL, that he is restricted by the same standards as a citizen is in regards to pulling a gun out. Is he not?
IMO.... This state code does three things...
Expressly prohibits the display of a handgun in a threatening manner (Meant for application on criminals).
Allows a victim to defend themselves if they were engaged in excusable or justifiable self-defense. So the criminal cannot have the victim charged with a crime when he started the event.
If an officer is trying to arrest someone for brandishing he shall not be civilly liable in damages for injuries or death. So the police cannot be sued if there was reason to believe the arrested was brandishing a firearm. Even if he was not.
Nelson_Muntz wrote: The code cited said any person. That should cover citizens as long as they fulfill the stated 'excusable or justifiable defense'. But I was just reading literally.
I agree that the state code lacks a full exclusion written out to specifically cover the police. I submit that it is not there because it is not needed. The police are known to and it is generally accepted that the police can and will deploy their firearms when necessary. I doubt a magistrate would issue a warrant.
If you wanted to apply this law towards police work it... would prevent them from drawing their gun until a threat was blatantly obvious. Otherwise, they could be charged every time they drew their gun out of the holster.
The officer would have to react and draw while the criminal already has his gun out but hidden from view during a high risk stop. This means we are giving a criminal the advantage.
I see it the same as having citizens in DC lock up their guns and keep them unloaded in their house. The criminal breaking in gets a head start to harm them while they get their gun out.
I think we can all agree that the DC law is BS, right?
LEO 229 wrote: Nelson_Muntz wrote: Ok. So according to paragraph A. I can point a gun at a LEO if I'm engaged in excusable or justifiable self defense. In that case, I have neither brandished, nor committed an assault on the officer.
IAW paragraph B. however, the LEO can be charged with brandishing for pulling a weapon on me unless I was already pointing, holding or brandishing a firearm. And he can be charged with a felony if he does so on or within 1000 ft. of school grounds.
"However, this section shall not apply to any person engaged in excusable or justifiable self-defense"
I am not sure what you guys want to hear. You all know what is allowed.
An officer using his gun lawfully in in the course of his job will be viewed as excusable.
I citizen pointing a gun as you suggest is probably not going to be viewed the same.
LEO 229,
Excusable and justifiable are points of common law in Virginia left to the judge or jury depending on whether the defendant asks for a jury trial. The justifiable or excusable defense starts with the confession, I committed the offense, but......
You make the assumption that police "doing their job" would get a pass. I have to say that as a juror I would convict the police officer that points his weapon without fear for his life or to protect innocent human life. Simply being armed, like Danbus was is not sufficient justification for a police officer to place another human being in fear for his or her life.
I would not convict a police officer who drew his weapon and kept it at the ready. That is a reasonable precaution for anybody to take.
Excusable and justifiable are points of common law in Virginia left to the judge or jury depending on whether the defendant asks for a jury trial. The justifiable or excusable defense starts with the confession, I committed the offense, but......
You make the assumption that police "doing their job" would get a pass. I have to say that as a juror I would convict the police officer that points his weapon without fear for his life or to protect innocent human life. Simply being armed, like Danbus was is not sufficient justification for a police officer to place another human being in fear for his or her life.
I would not convict a police officer who drew his weapon and kept it at the ready. That is a reasonable precaution for anybody to take.
Actually... you are incorrect.
Before you can get an arrest warrant.... the magistrate is going to review the code section and hear the details of the crime. If the exclusion applies he will not issue the warrant.
The whole idea behind the magistrate system is to establish probable cause and to ensure the charge against the person is valid. They are the first line to keep invalid charges out of the court system.
How about if the officer charges both you and the assailant after you draw your weapon in what is obvious self defense? Are you required to get a lawyer and appear before a judge and jury so they can agree that what you did was in fact... excusable?
I think not.
How fair would that be to you? Ladies and gentlemen.... the victim IS on trial today.
What a waste of time!!
It is always best practice to keep your firearm at the low ready to reduce the risk but there are times when you see a threat that you want to have the total advantage.
What should the officer do if the subject has a gun in his hand? Does he still keep it at the low ready?
How does the officer know the guy obviously armed is not a quick draw? Some people can draw in shoot in a fraction of a second. The same amount of time it takes for the officer to react to the threat and move from the low ready to on target.
Excusable and justifiable are points of common law in Virginia left to the judge or jury depending on whether the defendant asks for a jury trial. The justifiable or excusable defense starts with the confession, I committed the offense, but......
Actually... you are incorrect.
Before you can get an arrest warrant.... the magistrate is going to review the code section and hear the details of the crime. If the exclusion applies he will not issue the warrant.
Excusable and justifiable are points of common law in Virginia left to the judge or jury depending on whether the defendant asks for a jury trial. The justifiable or excusable defense starts with the confession, I committed the offense, but......
Actually... you are incorrect.
Before you can get an arrest warrant.... the magistrate is going to review the code section and hear the details of the crime. If the exclusion applies he will not issue the warrant.
Exactly what exclusion are you talking about?
"However, this section shall not apply to any person engaged in excusable or justifiable self-defense."
Excusable and justifiable are points of common law in Virginia left to the judge or jury depending on whether the defendant asks for a jury trial. The justifiable or excusable defense starts with the confession, I committed the offense, but......
Actually... you are incorrect.
Before you can get an arrest warrant.... the magistrate is going to review the code section and hear the details of the crime. If the exclusion applies he will not issue the warrant.
Exactly what exclusion are you talking about?
"However, this section shall not apply to any person engaged in excusable or justifiable self-defense."I am sorry that you fail to comprehend the common law principles of excusable and justifiable, neither of which is an exclusion.
Thundar wrote: I am sorry that you fail to comprehend the common law principles of excusable and justifiable, neither of which is an exclusion.
And I am sorry that you often come off with a very negative tone here.
If you would open your mind and not simply shut down and plug your ears (close your eyes) when I post something.... perhaps.... you can see the light Carol-Ann.. Walk into the light!!
To help you one last time as I lead you to the water knowing I cannot force you to actually drink.....
The code is clearly written to indicate that it shall not be apply in a case of.....
"any person engaged in excusable or justifiable self-defense."
That being.. and exclusion in this matter.
Some people here can be so bull headed... and I thought I was bad!!!
