It's happened again - brandishing charge

[vaskidmark]

Thank goodness it's not me.

http://tinyurl.com/c2lghzp

Guy got busted because a school bus driver behind him in a left-turn lane supposedly saw him put his handgun into a secured container in his dashboard.

Even though he has a CHP it does not matter since Va law says concealed carry in a secured container in the car (glovebox, closed center console, etc.) is legal without a CHP.

Va law defines the crime of brandishing as

Virginia Code § 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.)

There's a lot more story to this than just some bus driver wetting his panties at the mere sight of the gun.  Unfortunately the guy's attorney will not authorize release of all the details just yet.

If any of you remember my incident at the ferry landing a few years ago - this is turning out, just in the first week, to be an even bigger circus.

I'm not asking anybody to make a donation.  I am asking that if you feel so inclined you post a note of support to the guy. 

I hope you will check on the progress of this case every few weeks just to see how much chest-high BS must be waded through just to get to the point where his attorney can discuss how puting a handgun in a daskboard glovebox can "reasonably induce fear in the mind of another" or how doing so is the sdame as  "hold[ing] 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" - especially when the one who supposedly had fear induced into his mind was at all times behind the guy's vehicle and the gun never pointed rearwards.

I swear it's deja vu all over again.

stay safe.

[geronimotwo]

as long as they don't consider him being within 1000 ft of school property because of the schoolbus.............

in cases like this it sometimes seems like the attorneys want it to go as far as it can just to make their hourly wage.  in cases like this, how hard is it to read the law to the DA and everyone go home?

[SteveS]

That is a terribly written statute.  It would seem to allow prosecutions for people that do things like you describe in that case.  They need to dump "point" and "hold".  Point could be adequately covered by an assault statute and hold would seem to include a lot of lawful activities. 

As bad as some of the laws in my state are, the vast majority of brandishing charges are for things that were obviously brandishing.

[geronimotwo]

in such manner as to reasonably induce fear in the mind of another

the key being the interpretation of the word "reasonably". 

[Hawkmoon]

Is the inside of my privately owned vehicle a "public" space?

[Tallpine]

Is the inside of my privately owned vehicle a "public" space?

It is now, comrade.

You didn't buy that yourself.

 

[grampster]

According to A. in the law posted above, one could be charged with a misdemeanor for taking a bite out of a donut, thereby making it look like a gun and holding it in your hand so it could be seen. (..."or any object similar in appearance.")  You get a felony if you were driving by a school with said gun looking donut if on a city street that comes closer to the school than 1000 feet.

[TommyGunn]

According to A. in the law posted above, one could be charged with a misdemeanor for taking a bite out of a donut, thereby making it look like a gun and holding it in your hand so it could be seen. (..."or any object similar in appearance.")  You get a felony if you were driving by a school with said gun looking donut if on a city street that comes closer to the school than 1000 feet.

That only works with Pop Tarts.......

[cambeul41]

That only works with Pop Tarts......

I thought it was  — "That also works with Pop Tarts......" 

[HankB]

According to A. in the law posted above, one could be charged with a misdemeanor for taking a bite out of a donut, thereby making it look like a gun and holding it in your hand so it could be seen. (..."or any object similar in appearance.")  You get a felony if you were driving by a school with said gun looking donut if on a city street that comes closer to the school than 1000 feet.

And I suppose if you finish eating the donut before police arrive, you'll be charged with evidence tampering too . . .

[Devonai]

Only cops are allowed to destroy doughnut-related evidence, Hank.

[vaskidmark]

as long as they don't consider him being within 1000 ft of school property because of the schoolbus.............

in cases like this it sometimes seems like the attorneys want it to go as far as it can just to make their hourly wage.  in cases like this, how hard is it to read the law to the DA and everyone go home?

The same attorney who represented me is representing this guy.  Fixed price for the duration.  He does not run up costs even though he may file motion after motioon after motion to make the Commonwealth Attorney wish the charge had never been brought - all while being quite proper to have filed each one.

stay safe.

[vaskidmark]

Tidbit I wanted to post separately -

So far the judge has denied a motion for discovery and the Commonwealth Attorney has stated in court, in response to a motion for one, that he will not ever-ever-ever file a Bill of Particulars.

I'll let the legal scholars explain what that means - I'm too torn up between cussing a blue streak and laughing my head off.

stay safe.

[AmbulanceDriver]

Now, I'm neither a legal scholar nor did I stay in a Holiday Inn Express last night....

But I'm guessing it means the case is bullscat, the Commonwealth Attorney knows it's full of bullscat, and he's reallyreallyreally wishing that the cops that arrested this guy had just decided to have one more donut instead....

[vaskidmark]

No, the CA actually expected the guy's attorney to pull him aside just before the case was called, work out a plea agreement to some other less threatening-sounding misdemeanor, and suggest something like 10 days -to be served on weekends - and the max. fine.  At this point "they" are going full bore.

!No parasan!

stay safe.

[AmbulanceDriver]

No, the CA actually expected the guy's attorney to pull him aside just before the case was called, work out a plea agreement to some other less threatening-sounding misdemeanor, and suggest something like 10 days -to be served on weekends - and the max. fine.  At this point "they" are going full bore.

!No parasan!

stay safe.

You know, I was thinking about this after posting it earlier, and that's also what I came up with - We're not gonna tell you exactly what we've got (because we've got jack and squat) in the hopes that you'll just plead out to something lesser instead of actually fighting.

[Perd Hapley]

What's in it for police and prosecutors to start Barbara Streisand cases like this? 

[Tallpine]

What's in it for police and prosecutors to start Barbara Streisand cases like this? 

What good are laws if people don't break them.

[SteveS]

What's in it for police and prosecutors to start Barbara Streisand cases like this? 

I can't speak for them, but they may be doing it to harass people into stopping the behavior they were charged for.  They may know they will lose, but they know that it isn't cheap for people to defend themselves in court.  They may also take the chance that people will just plead to lesser charge.  Either way, it will discourage "brandishing".

I am just guessing here.  Most of the prosecutors I have known were decent people and were focused on getting criminals off the streets, rather than people that weren't hurting anyone.  Most also don't like to lose and will avoid cases where there is a poor chance of winning.

[Tallpine]

they may be doing it to harass people into stopping the behavior they were charged for

You mean like not breaking the law 


Well, it just might work   

[vaskidmark]

... they may be doing it to harass people into stopping the behavior they were charged for.  ....

You mean like not breaking the law 

Well, it just might work   

Sure, that might fly as long as the behavior was already codified as being illegal.

But what about charging people for stuff that is not illegal?  Or charging them when they did not do something that is codified as being illegal?

stay safe.

[zxcvbob]

But what about charging people for stuff that is not illegal?  Or charging them when they did not do something that is codified as being illegal?

Doesn't there have to be some kind of preliminary hearing before a judge?  A lot of this foolishness would stop if the judge threw out the charges AND jailed the prosecutor for a week for "contempt" for wasting the court's time.

[Stand_watie]

I got out my checkbook to chip in a little for the defense, and how cool is this? I was halfway through writing the check when I noticed it

[Tallpine]

Sure, that might fly as long as the behavior was already codified as being illegal.

But what about charging people for stuff that is not illegal?  Or charging them when they did not do something that is codified as being illegal?

stay safe.

My point was that if they prosecute/persecute folks for not breaking the law, then folks just might not respect the law much anymore   

[zxcvbob]

My point was that if they prosecute/persecute folks for not breaking the law, then folks just might not respect the law much anymore   

Nobody respects the law anymore. 
Everybody fears the law to some degree or another, except for congressmen because they've exempted themselves from most of it >:(