Quoted: It is a shame VIrginia, and other states do not have Floridas "Castle Doctrine law" Do not say anything until you have spoken with your lawyer. Virginia magistrates can be surprisingly harsh when deal with any gun law violations or similar matters. Best of luck.

VCDL will be working on this I'm sure.....

"It is a shame VIrginia, and other states do not have Floridas "Castle Doctrine law""

We actually do in case law.  There is no duty to retreat in your residence and you may use lethal force of you believe you or others are in mortal danger or grave bodily harm.

The bill that was defeated would have simply changed the case law into statute (written) law.
Virginia has a history of not passing statutes that are well documented in the case/common law.

Quoted: "It is a shame VIrginia, and other states do not have Floridas "Castle Doctrine law"" We actually do in case law.  There is no duty to retreat in your residence and you may use lethal force of you believe you or others are in mortal danger or grave bodily harm. The bill that was defeated would have simply changed the case law into statute (written) law. Virginia has a history of not passing statutes that are well documented in the case/common law.

And under the facts as presented, there was no objective reason to be afraid of mortal danger or grave bodily harm.  It was stupid to walk outside with a gun in his hand.  It should have been concealed or openly carried in a holster.  Whether his actions are found illegal, we shall see, but doing what he did was unwise.

Having just had my CHP class, protection of private property cannot be met with deadly force in VA. The instructor actually said if someone is stealing my car let them do it, that's what I pay insurance for. But if they steal it when I'm in the car then that's a different story.

+1, brother.

Sorry to hear about your troubles, tspike.  In spite of everyone saying "don't worry about it" - pony up for a lawyer and cover your bases.  I hear a lot of stories about people in the right assuming their innocence would be obvious the day of court that learned otherwise.  I know of at least one who's lost his right to bear arms for the rest of his life (domestic).  I met tspike a year or so ago, and I can tell those of you that haven't that he's far from a hothead based upon my impression.  

Quoted: 5.  Unless you live in Texas, you may not use deadly force to protect property.  Your life was not in danger while you were in your house, no matter how shadyh the character was.

Two thoughts -

(1) I wish everyone would READ his post where he clearly stated he was not carrying a firearm to protect his property, he carried it to protect himself - and stated it when noticed.  He went outside to investigate why someone was looking in his car well after dark, and didn't know if it would put HIM in danger.  I agree - a holster is always better than in your hand, but it's real easy to second-guess him now isn't it?  

(2) I consistently hear the suggestion that if we see someone on our property doing something suspicious or we don't approve of, we should hide inside, shiver like little children and call a policeman to come do our dirty work.  Sometimes this has merit (i.e. someone outside yelling at you to come outside so they can kill you), sometimes this does not (a first-time trespasser, someone sitting in their car in your driveway, etc.).  Maybe this has a lot to do with where each of us live in Virginia - I live in middle of the woods on my own, and will definitely approach someone on my property and will be armed while doing so.  I think there's a huge difference between walking outside to ask "can I help you?" or "are you lost?" and "freeze mf'er!!"  

I hesitate to call someone's actions stupid because they didn't have a holster in their sweatpants, although I may use that term about someone who goes out unarmed after dark to investigate something suspicous in their front yard.  

Lastly, I can't believe dermofo and El-Abogado wasted posts #69 and 1911 on that

I don't know about a countersuing anybody, but I'd definitely try to get the security guard shitcanned.  

Unarmed security guards must be trained and licensed in Virginia-is his DCJS certification up to date?  

Unarmed security guards working night shifts in high-risk environments such as your housing development are often so exhausted by their duties that they have trouble staying awake.  They often experience such difficulties in an out of the way place where potential threats might have difficulty finding them.  I'd go hunting for the guy on foot with a video camera to see if you could get some footage of him napping and then show it to his boss.

How do you think the other folks in your community would feel about the HOA Nazi?  Maybe you should share your experience on a bulletin board or via flyers.

Good luck tomorrow tspike, we're all behind you!

Anyone saying that what he did was foolish and obviusly never put in a situation where they might have to defend their life. He is on his property, if he doesnt want a holster oh well. It was pretty clear he wasnt defending property with his firearm. Also as far as "it is true because I heard it in a class" that is great but he has years of practical experience and you have a class. He can articulate his actions better in court. Give him a break and if you are ever in a situation where you actually have to draw your firearm, in the time you think about all this stuff you will have a sucking chest wound.

This has become counterproductive. Wish the guy goodluck, hope everything turns out ok, and there is no reason he should get convicted. No reason for anyone here to by an armchair quarterback. Any other comments is adding to his stress at this point in time.

I really hope everything turns out the way it should tomorrow and reguardless of the countersue issue. Also is tomorrow your actual case or your araignment?

NM I looked it up, looks like there is only one brandishing on the docket, GL tomorrow. Hope it all gets cleared up.

Quoted: <snip> He can articulate his actions better in court. Give him a break and if you are ever in a situation where you actually have to draw your firearm, in the time you think about all this stuff you will have a sucking chest wound. This has become counterproductive. Wish the guy goodluck, hope everything turns out ok, and there is no reason he should get convicted.  <snip>

I appreciate your sentiment, but don't believe anything said so far is counterproductive.

I strongly believe most, if not all, of the hard commentary needed to be said now ... so that tspike has time to get his 'head right' -- ideally in consultation with his counsel -- about comments/questions he could very well face in court.  Rather than as an indictment, I view the contrarian comments, at worst, as a sort of devil advocacy.  Better to face the the whole gamut of potential commentary here, and thereby be prepared for all eventualities in the courtroom, than to hear only commiseration and wishes of good luck here.

Without regard to our belief as to the legitimacy of tspike's actions, the courtroom will be solely concerned with matters of law, extenuation, and mitigation.  Righteousness is not in the equation.  Pulling one's concealment garment aside so that another sees a weapon (in the same way that pointing to a holstered weapon on one's hip), as a matter of law, can in some cases result in one's arrest and conviction of a misdemeanor, or even a felony:

§ 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.

That's the law.  And this is the code section that I presume you've been charged under, tspike.  Thanks for letting us in on what can only be a stressful point in your life.  I suspect that like me, others have learned something from your predicament, and the discussion in this thread.  We will learn even more from your report of what happens at court.  

Some random thoughts I thought I'd add to the fray follow, even though it's probably too late to have any real meaning to you, tspike:

• I presume that you were watching TV in your nightclothes and this fact might be a significant factor relevant to many aspects of this incident.  One's nightclothes are rarely equipped with provisions for a belt.  Further, if your firearms training was like mine, situational awareness was stressed, as was the fact that bad things can happen to good people, and this takes place more often at night than during daylight hours.  Who but someone of ill-intent should you believe would be skulking around your car after dark?


• I do not know your recent background or employment history, but I can tell you that when I was in the Army, a previous Battery Commander of mine was nearly killed by a car bomb placed under his automobile under cover of darkness while the automobile was parked in front of his residence in 1982.  This was 'just' a random act of terror at a publically accessible housing area in Darmstadt, West Germany, which strongly resembles many of the townhome/garden apartment communities I see around here.  If incidents such as this one (summarized here, although I'm pleased, and a little proud, to report that he's now a Major General, and still on active duty) contributed to your state of mind -- or whether something else was at play, such as a fear of vehicular tampering because you had words with some knucklehead on New Year's Eve who threatened you and yours. and saw your car's license number -- your counsel can advise you if this would be meaningful to your state of mind, with respect to whether you were "engaged in excusable or justifiable self-defense."
  
  If you received annual counter-terrorism training, and especially if your active service was recent enough for this training to be a guidepost or constraint for some of your activities, your counsel might do well to highlight this on your behalf.  I've had people look at me like a lunatic when I've yelled at them to pick up their bag when they've left in on the ground and walked away.  (She thought she was going to 'save her place in line.'  As far as I was concerned, she was leaving a bomb.  I'm sure both of were wrong a little.)


• Since you are not charged with having violated the covenants of your homeowners' association, I presume that this contextual information was provided only for our benefit ... and will not be a subject of your testimony in court.  I'm sure your counsel has reviewed with you what to expect to be confronted with during direct examination (by the Commonwealth Attorney) as well as during cross examination.  Without regard to what the security guard and the tow-truck driver might testify (under direct and cross), I suspect that your counsel will advise that none of this had any bearing on your state of mind, as you investigated what you percieved to be a threat, the locus of which was your truck.

tspike, GOOD LUCK.  

I just thought it was important to point out that it was a little quick to say "you were dead wrong" like a couple people did in the thread.

The nice thing about general district courts is that they generally are able to determine weather you violated a law and they apply it to the spirit of the law. Even though his situation wasnt completely defined in the code, the self defence part as well as a more strengent test for being on ones own property will help make a difference.

I checked the cases last night for newport news and there was only one brandishing on there and it was under that code. Really hope it works out.

Good luck. tspike.

(tag)

I too hope it turned out ok. The docket hasnt been update yet to show if the cases were finalized.

I've decided against publicly posting the outcome of the hearing. My lawyer and I did come to an agreement with the Commonwealth Attorney after much deliberation. It's not exactly what I was hoping for but the deal will remove any record of the charges after certain conditions are met. I did learn that the Law is not always as it seems to the layman and the truth can be overshadowed but a barrage of "Misinformation".
I want to thank everyone for their support, opinions/views and advice. This was truly an experience I will never forget and have learned a great deal from.
Thanks all.

Quoted: I've decided against publicly posting the outcome of the hearing. My lawyer and I did come to an agreement with the Commonwealth Attorney after much deliberation. It's not exactly what I was hoping for but the deal will remove any record of the charges after certain conditions are met. I did learn that the Law is not always as it seems to the layman and the truth can be overshadowed but a barrage of "Misinformation". I want to thank everyone for their support, opinions/views and advice. This was truly an experience I will never forget and have learned a great deal from. Thanks all.

Sounds like you got hosed.  That sucks man.

I am guessing you got a deferred finding...  just keep your nose clean and all will be well.  Sucks that it even when that far..  but it really could be a whole lot worse.

One more reason why I don't live in a HOA or subdivision....

Dealing is a big part about this kind of thing. It is good that they dealed with you. A lot of times also if they want to deal, it means the case isnt that good on you. Yes there is a lot more there than statue.

If it is going to be off your record it sounds like a good deal.

Glad it's over for you, tspike.  Things never seem to turn out as hoped in these situations, but the important thing is that you have no record and this will go away soon.

Thank you for sharing your experience with us.  I wish there were more we could have done to help....

TSpike, if I may ask (and you find it within bounds), are you still in posession of or your CWP?  Please ignore if you'd rather not answer.  Thanks, and glad this is over for you.

I was cited for "brandishing" back in 1991. That was in Fairfax County, VA. (.45acp Springfield 1911A)

The circumstances were different, it was broad daylight, and the "victim" an off duty Alexandria police officer. he

After hearing the case, the judge dismissed the charges, with an admonition to hold my temper better next time. Still it was not a serious charge, even if convicted, for someone with a clean record, I was facing a fine, and maybe a suspended sentence. I did not want to risk it though, but the DA decided it for me.

I know how you feel, having been there. You may have been better off with a trial, but then again they may have thrown the book at you, depending on the judge. I am not a lawyer, but I think since the charge was a misdemeanor, it will not go on your record after the defferment is over. (different rules apply for felonies I think)


Did I learn anything?
I am still very careful about holding an unholstered weapon outside of a firing lane at a range.

It is stupid to walk outside with a gun in your hand when objective grounds do not exist for the use of deadly force. There was absolutely NO reason to go outside, armed or not.

If you disagree, it's your prerogative.  Let me know when you've graduated from law school and spent some time arguing criminal cases involving death or physical injury with weapons. Until then, it's just an opinion, and everyone has one. . . .

tspike, I hope you don't lose your CWP, I truly do.  If you are going to exercise your right to bear arms, you have to know what the boundaries of the right are, brother.

Quoted: I was cited for "brandishing" back in 1991. That was in Fairfax County, VA. (.45acp Springfield 1911A) The circumstances were different, it was broad daylight, and the "victim" an off duty Alexandria police officer. In any case, my lawyer and I agreed I would be better off getting a deffered judgement, but the DA did not go for it. Lucky for me. -snip- Did I learn anything? I am still very careful about holding an unholstered weapon outside of a firing lane at a range.

Let me get this straight.....You were at a range and an off duty Alexandria cop filed a complaint that you were 'brandishing' a firearm?

Quoted: Quoted: -snip- Did I learn anything? I am still very careful about holding an unholstered weapon outside of a firing lane at a range. hr Let me get this straight.....You were at a range and an off duty Alexandria cop filed a complaint that you were 'brandishing' a firearm?hr

No, I mean that a firing lane at a range is the only place I unholster a gun nowadays. That time I was definetely not in a range. Unless you call the streets in front of Ft. Belvoir a range. I was wrong, and guilty as hell, but the judge gave me a break. I was much much younger 15 years ago.

Quoted: It is stupid to walk outside with a gun in your hand when objective grounds do not exist for the use of deadly force. There was absolutely NO reason to go outside, armed or not. If you disagree, it's your prerogative.  Let me know when you've graduated from law school and spent some time arguing criminal cases involving death or physical injury with weapons. Until then, it's just an opinion, and everyone has one. . . . tspike, I hope you don't lose your CWP, I truly do.  If you are going to exercise your right to bear arms, you have to know what the boundaries of the right are, brother.

I'm no lawyer, but I would CERTAINLY think that someone's rights to keep and bear arms apply on their own property.

I don't think it's stupid to walk out in your own driveway and see what's going on at all. I agree, a holster would have been the prudent choice, or, as I sometimes do, carry the weapon (in a holster) in the weak hand, grasping by the barrel. This way, the weapon cannot be fired as held, but you still can access it quickly.

Sorry to hear things didn't turn out. If I lived under the rules of your HOA, I would definitely want to be made aware of the shady things your security company is doing.

Quoted: I'm no lawyer, but I would CERTAINLY think that someone's rights to keep and bear arms apply on their own property. I don't think it's stupid to walk out in your own driveway and see what's going on at all. I agree, a holster would have been the prudent choice, or, as I sometimes do, carry the weapon (in a holster) in the weak hand, grasping by the barrel. This way, the weapon cannot be fired as held, but you still can access it quickly.

I am a lawyer, and it's stupid to walk outside with a gun in your hand to see what's going on outside, without justification for using deadly force.  A gun is a per se dangerous or deadly weapon.  It may be used only to prevent the loss of life or serious bodily injury.  Holding the firearm constitutes brandishing by the plain language of the statute.  tspike was charged with brandishing.  Had he left the gun inside, had it concealed, or had it in a holster, he likely would not have been charged or if he had, he would have likely won his case.  He didn't and he had an unspecified unfavorable outcome in court.

It also is stupid to post what you are alleged to have done, along with your version of events, online before your trial.  You'll note that tspike wisely removed his posts in which he discusses the events of that night.

Know your rights.  Exercise them responsibly.  They are not unlimited rights, as tspike unfortunately learned this week.

El_Abogado, you are 100% correct.

Quoted: Quoted: I'm no lawyer, but I would CERTAINLY think that someone's rights to keep and bear arms apply on their own property. I don't think it's stupid to walk out in your own driveway and see what's going on at all. I agree, a holster would have been the prudent choice, or, as I sometimes do, carry the weapon (in a holster) in the weak hand, grasping by the barrel. This way, the weapon cannot be fired as held, but you still can access it quickly. I am a lawyer, and it's stupid to walk outside with a gun in your hand to see what's going on outside, without justification for using deadly force.  A gun is a per se dangerous or deadly weapon.  It may be used only to prevent the loss of life or serious bodily injury.  Holding the firearm constitutes brandishing by the plain language of the statute.  tspike was charged with brandishing.  Had he left the gun inside, had it concealed, or had it in a holster, he likely would not have been charged or if he had, he would have likely won his case.  He didn't and he had an unspecified unfavorable outcome in court. It also is stupid to post what you are alleged to have done, along with your version of events, online before your trial.  You'll note that tspike wisely removed his posts in which he discusses the events of that night. Know your rights.  Exercise them responsibly.  They are not unlimited rights, as tspike unfortunately learned this week.

Great post.  I have a question.  The other night a dog was barking in our back yard for 3 hours from 3 to 6am.  I called animal control and got a message.    I went out to see what was up,and took my weapon, unholstered 9mm with a flashlight .   If a neighbor sees me, is it brandishing?   I found the dog had tracked and killed a rabbit.

I'm not a lawyer but I do have a legal background. As long as you're on your own private property and don't discharge your firearm or threaten anyone other than an intruder whom you are genuinely in fear from you life from with it I think you're alright. The main things to watch out for are "recklessly handling a firearm" class 1 misdemeanor which is recklessly handling a gun in a way that endangers any person or property. Brandishing is "hold point or brandish a firearm, or anything that looks like a firearm, or a BB gun. if it is intentionally if it is intentionally done in a way that causes someone fear that they may be shot or injured". Done within 1000 ft of a school this become a class 6 felony, unless used for legitimate self defense.

Quoted: El_Abogado, you are 100% correct.

tspike, brother, I hope you come out OK and my comments are not intended as personal attacks.  I know you meant well and God willing you'll make it out of this OK.  Good luck!

bchgunner, your question is difficult to answer.  If a neighbor sees you and complains, you may face a brandishing charge.  Your difficulty is in establishing that you had a legitimate reason for going outside with a deadly weapon in your hand.  If you did have a reason, you should have called the police as well as, or in place of, animal control.  My advice is to have motion-sensitive lights around your house, clear any brush that might obscure your view, and get a powerful flashlight.

dermofo:  Dude, you apparently missed the facts here.  You can't walk around on your property with a gun in your hand under any circumstance, as your post suggests.  Trust me and tspike on this one. . . .

So not to drag this out any more than it already is, but I do have a serious question - what about a rifle?  I walk around my property all the time with a rifle - usually on a single of some sort, but sometimes just under my arm.  It's hard to buy a "holster" for a rifle.  Do the same rules apply?  

Note: I'm not stressed - I've been doing this for many years, and my neighbors and local PD have grown to expect it.  Just wondered what the potential legal implications are....  

The answer is it depends.  If you are in an urban or suburban area, the answer is that you probably shouldn't carry a rifle openly outside of your home or firing range.  If you are in a rural area it would likely be different.  How big is your property?  Quarter acre?  Half acre?  Ten, twenty or a hundred acres?  What indicators are there that you are not seeking to threaten others, but are engaged in lawful activity?  

I don't know the full situation for you, and I'm not providing you legal advice, but you likely would be the best position if your long gun is slung.  Hope that helps.

I'm rural on over 10 acres.  I wasn't looking for legal advice for me, though, as much as clarification about brandishing when it came to long guns (since there is no such thing as a "holster" for one, seems like there would be different rules).  Probably should have clarified why I was asking, but it sounds like the answer is "it depends."  I'm just thinking of hunters and others who may carry a rifle around.  I guess (reading a bit between the lines) that a sling gets you almost to the point of a holster with a handgun.

I guess I still fall in the "I'll do what I want to on my own property" category, which I know is not legally fool-proof..... (but usually works when nobody's around to see I guess!)

The line between walking around on your property or hunting with a gun in your hand and brandishing depends upon the jurisdiction's rules and your intent.  Intent is a mater of fact and so it's hard to describe it in the abstract.  I'm sure that you are fine, but it's worth your considering what you do when you run into people.  Keeping the carbine slung unless you are actually using it to hunt varmints, etc., is probably a good start.

Wow!  I DID NOT KNOW!  I need to find some sort of holster arrangement for those times when i've gotten out of bed and gone out in my yard to investigate something or other.

Thanks TSpike for putting this info out there, hope all turns out well for you.

Wow!  I DID NOT KNOW!  I need to find some sort of holster arrangement for those times when i've gotten out of bed and gone out in my yard to investigate something or other.

Thanks TSpike for putting this info out there, hope all turns out well for you

Quoted:  What indicators are there that you are not seeking to threaten others, but are engaged in lawful activity?

Genuinely curious about this statement... in the case of carrying guns on your property in general, why would there need to be any indicator that one was not seeking to threaten others?   Shouldn't the presumption be that the intent is indeed not to threaten others unless there are indicators to the contrary?

Maybe I'm naive for believing in the words "presumed innocent"?

Could any court find that the mere act of holding a gun in your hand unholstered or unslung, especially on your own property, in the absence of any other indicators of ill intent or other threatening actions  be considered brandishing?  I mean... if that were the case, would I not be guilty of brandishing a firearm every time I carry a new milsurp outside to clean off the cosmoline?



(edited for clarity)

Quoted: Could any court find that the mere act of holding a gun in your hand unholstered or unslung, especially on your own property, in the absence of any other indicators of ill intent or other threatening actions  be considered brandishing?  I mean... if that were the case, would I not be guilty of brandishing a firearm every time I carry a new milsurp outside to clean off the cosmoline?

Could any court find the mere act brandishing?  Yes.  Use some common sense.  The law defines brandishing as: 1) holding a weapon in 2) a public place in 3) such a manner as to reasonably induce fear in the mind of another of being shot or injured.  What tspike did was not using common sense and he got bit.  Doing the same thing in a rural part of VA might have been treated differently.   Cleaning your "milsurp" isn't going to get you arrested unless you do it in a public place in a way that makes the reasonable person afraid of being shot or injured by you.

Quoted: Quoted: Could any court find that the mere act of holding a gun in your hand unholstered or unslung, especially on your own property, in the absence of any other indicators of ill intent or other threatening actions  be considered brandishing?  I mean... if that were the case, would I not be guilty of brandishing a firearm every time I carry a new milsurp outside to clean off the cosmoline? Could any court find the mere act brandishing?  Yes.  Use some common sense.  The law defines brandishing as: 1) holding a weapon in 2) a public place in 3) such a manner as to reasonably induce fear in the mind of another of being shot or injured.  What tspike did was not using common sense and he got bit.  Doing the same thing in a rural part of VA might have been treated differently.   Cleaning your "milsurp" isn't going to get you arrested unless you do it in a public place in a way that makes the reasonable person afraid of being shot or injured by you.

Unfortunately, you must have read my question quickly or only partially as your rather terse answer actually supports my reasoning.  What it did NOT do is attempt to answer the question as it was written.  Reread my question (especially the part in italics) and see the red text above.  

It's important to understand that I was in no way addressing tspike's scenario, I was addressing your blanket "advice" to BlackFox that suggested that one should not go outside onto their property with an unholstered/unslung firearm - whatever the situation or circumstance - without there being additional "indicators" that such action was for lawful purposes.  I find that "advice" to describe a requirement that is contrary to my rights.  Would not the assumption of the court be that one had acted within the law unless there was some reasonable action or indicator tto the contrary?  Surely merely being outside with a firearm does not constitute a "reasonable" threat of being shot or injured  

I'm genuinely curious what your opinion as a lawyer is.
 

Quoted: Unfortunately, you must have read my question quickly or only partially as your rather terse answer actually supports my reasoning.  What it did NOT do is attempt to answer the question as it was written. <snip> I was addressing your blanket "advice" to BlackFox that suggested that one should not go outside onto their property with an unholstered/unslung firearm - whatever the situation or circumstance - without there being additional "indicators" that such action was for lawful purposes.  I find that "advice" to describe a requirement that is contrary to my rights.  Would not the assumption of the court be that one had acted within the law unless there was some reasonable action or indicator tto the contrary?  Surely merely being outside with a firearm does not constitute a "reasonable" threat of being shot or injured   I'm genuinely curious what your opinion as a lawyer is.

It seems that no good deed shall go unpunished.

Please reconsider the words used by El_Abogado ... and only interpret the words that you read.  Your question, "Could a court ..." can only be answered with a "No" if it was absolutely impossible.  I suspect that El_Abogado's actual experience mirrors our (for the most part) vicarious experiences, namely that it is impossible to predict with 100% certainty the outcome of a trial prior to the verdict being announced.

How's this for a scenario.  

You're walking within your own fenced and posted property, located in a rural area, carrying a long gun in your hands.  You're approximately fifty yards inside your property line, and see something interesting in a wooded area adjacent to your property.  You elevate your weapon, and use its optics to view the interesting item for 15 or 20 seconds, and then having satisfied your curiosity, you turn and continue your walk.  Two weeks later you get a notice of violation of § 18.2-282, with instructions to appear in court to answer the charges.

Unbeknownst to you, a family was doing some bird-watching outside of your field of view (let's say 5 or 10 MOA from the object you were looking at with your scope) fifty or so yards outside of your property, in a publicly accessible area.  Furthermore, you did not see their tripod mounted video camera ... which happened to record you appearing in the frame (in the distance) as the camera was focused on a woodpecker.  As your blurry image meanders across the stable screen-image recorded by the camera, you're observed to stop, raise something to your shoulder, and face the family.  After several seconds, the videotape reveals a sharp intake of breath from what turns out to have been the wife/mother of this group of nature lovers, and the words, "Honey, is that man trying to shoot us?."  

The picture blurs.  And stabilizes on a zoomed image of you, holding your weapon at the shoulder, apparently aiming at the family.  

On the tape hubby/father is heard to hiss, "Get down!  On the ground now!"  You hear rustling, and the quavering voice of a young girl saying "Daddy, I'm scared ..." as she starts to sniffle.  After recording another 10 seconds of you "aiming at them," you're seen to turn, and walk away.  The video excerpt ends with the sounds of the parents calming the two kids, telling them the bad man has gone away ... and the family standing up, brushing off, and then the video camera is turned. off.

Could you be charged with brandishing?

Look at the statute, and answer your own question:

§ 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 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.

Note that your intent has no bearing on the matters of fact, nor on the matter of law.  What's your call?  Could you be charged?  

If charged, could you be found guilty?

Would your opinion change if you found out that mom was high-ranking county bureacrat, dad was a military member (and pissed off because you scared their children), and mom's brother was a lawyer?  Do you believe you then might be charged?

If charged, could you be found guilty?

However, this section shall not apply to any person engaged in excusable or justifiable self-defense.

The only defense for brandishing (as a matter of law) is excusable or justifiable self-defense.  Knowing the "Jury Instructions" related to self defense (such as in this excellent summary), or gleaned from the following hit list are crucial to CHP holders, because we've made a commitment to exercise self defense.

This element of the statute might have been useful to tspike's defense, especially if previous public admissions (including his discussions with the security guard/tow truck driver) reflected elements of justifiable self-defense, or could be construed as supporting such a claim.  Regretably none were visible.  Sitting here as a Monday morning quarterback -- having learned a lot more about brandishing now, than I knew before I initially read tspike's thread -- I can certainly express my regret that tspike didn't exclaim, "Shit, I thought you were terrorists planting a car bomb to murder my family and I!" when he found out who the interlopers were, and certainly prior to revealing the handgun concealed behind his leg.  (For the sake of discussion, I'll choose to ignore the fact that the weapon shouldn't have been in has hand at all.)

Several months after unlurking here, I solicited commentary about Haskman's summary (the summary cited above), inviting comments from those knowing the law.   I earned a knuckle-rapping for my efforts, in no small part because my request demonstrated newbie zeal, while attempting to shield expert commentators from troublesome follow-up queries, or an inference by readers that they were getting legal advice.  The key premise of the follow-on questions that appear late in this thread, in which the carriers of weapons ask 'what if,' has already been belied.  If someone articulates reasonable fear incidental to a firearm carried by another (and now, also a machete in the Commonwealth), then there is a problem.  If the Commonwealth Attorney (or responding LEO) believes the fear was reasonable, charges shall be forthcoming.  It's required by the statute.  

(A holstered firearm is generally regarded as being non-threatening.  Pointing to it can be a different story.  One could argue that a long-gun slung at the shoulder is similarly non-threatening.  The use of a one-point or three-point sling might be more challenging to escape a charge of brandishing the weapon.)

Why penalize El_Abogado further who has IMO tried to provide the fundamentals is his answers?  Questioners who seems to not comprehend previous contributions to this thread, might make less likely contributions in subsequent threads ... and I will then not benefit from his counsel.  Construct your scenario in any manner that you believe to be germane to your life, write it out as succinctly as possible (leveraging your current understanding of the law, without trying to sound like a 'barracks lawyer'), and send it to the Commonwealth Attorney responsible for your district.  Please let all of us know the response ... I suspect we'd all benefit from it.

The text of the code makes clear that brandishing is a crime only if a victim articulates it.
After the crime has been ariticulated, ("Officer, I was afraid he was going to shoot me," the train has left the station.  And like trains, the route of travel is fairly predictable.  Matters of fact can be argued (it wasn't me, the weapon wasn't in my hand), justifiable/excusable self defense can be asserted (I was afraid for my life), or one can plead extenuation/mitigation (to reduce the penalty resulting from the conviction).  The concept of the carrier's intent, the carrier's property, and any number of other 'what if' elements are not present in the statute.

For those whose google-fu is strong, here's another link that has some interesting information, including a document that references a Supreme Court case related to brandishing under Federal law, which can be read here.

I'll end by summarizing a tenet of concealed carry that 1911SFOREVER stresses in his classes, namely that the most important item of equipment for a CHP holder can be a cell phone.  If ever one clears leather, for any reason, the first step after the incident has played out should be to call the police, and report as the victimwhatever just happened.  You must know the laws (and the Jury Instructions) that could bear on the incident to ensure that you don't screw yourself over ... as nearly happened to tspike.

Quoted: I am a lawyer, and it's stupid to walk outside with a gun in your hand to see what's going on outside, without justification for using deadly force.  A gun is a per se dangerous or deadly weapon.  It may be used only to prevent the loss of life or serious bodily injury.  Holding the firearm constitutes brandishing by the plain language of the statute.  tspike was charged with brandishing.  Had he left the gun inside, had it concealed, or had it in a holster, he likely would not have been charged or if he had, he would have likely won his case.  He didn't and he had an unspecified unfavorable outcome in court.

I can’t disagree more!  You have to do more than just hold the firearm.  For it to be brandishing you need to induce fear of being shot.  I’d say something else needs to be involved… clearly pointing, but maybe just shaking the gun around.  Maybe holding the gun along with threatening language.  If tspike described the situation correctly I don’t see it as brandishing.  He thought a crime was being committed, brought a gun along for protection. Kept it held to his side and pointed at the ground.  I bet the complaint did not agree with tspike’s version of the story.  

A friend had a situation where he noticed a strange car parked on his property, late at night, on a seldom used trail.  He approach the occupants with gun drawn, and held them at gunpoint until the police arrived.  Smart? No.  Brandishing?

A hunter came across my property, without permission, tracking a deer.  Rifle held pointing at the ground as we had a little chat.  Trespassing? Yes.  Brandishing?

Without the air gun stuff it reads a bit better:

It shall be unlawful for any person to point, hold or brandish any firearm in such manner as to reasonably induce fear in the mind of another or hold a firearm 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

If you belive tspike's story I can't see how it was brandishing.

Quoted: If you belive tspike's story I can't see how it was brandishing.

And deciding this in a court of law is both expensive and risky.  

'Perception of fear by person A' and 'fear induced in Person A based on his observations of Person B' are the same thing.  Whether or not Person A's fear was or was not reasonable is hardly a strong defense, given the text of the statute.  

I believe you can hazard a guess as to how the Commonwealth Attorney would've been forced to respond to a complaint from any of the Person-A-characters in your example, and how hard-pressed the Person-B-characters might be to mount a defense.

If you're comfortable with your actions after reading the entirety of this thread, including a little bit of 'between the lines' from what tspike has said since his hearing, then this thread will have served its purpose, and tspike's contribution to all of our well-being will have been demonstrated.

You gotta love the internet.  Idiots and college students with little if any practical experience can expound on all manner of things without regard to the facts or the law. . . .

"slanted", you're an idiot.  Are you in college too?  Let me know when you get the law degree, make it through a law enforcement academy, and/or argue some criminal cases involving deadly weapons and death or serious bodily injury.  I'm not going spend time arguing the point with you because you bring nothing to the table in terms of an intelligent discussion.  BTW, unfortunately tspike didn't fare well.  You would do well to learn from his experience.  It's obvious that you won't.

MGinVA, it is difficult to give you an opinon on when holding a firearm by itself is or isn't brandishing.  If you walk out to your car on your way to the range and you are carrying a rifle, it probably isn't brandishing.  If you hold a gun in your hand while you confront someone on your property, it probably is brandishing.  The issue is the perception of other persons you come in contact with.  Oh, and I don't give advice on the internet.  I give advice to clients and no one here is a client of mine, so anything you read here is my opinion, but not my advice.  I'll say one more thing.  The only way I'm showing my pistol, carbine, shotgun, etc., is if we're in my gun room and I'm showing them to you or I have legal grounds to shoot you.  Anything other than those two situations and it probably isn't worth having my firearm out in the open.

Larrycwdc, you are a good man, brother.  Have we trained together at Quantico or down at 10-8's range?

Quoted: And deciding this in a court of law is both expensive and risky.

I see the point.  I'm sure that even if decided successfully in court it still would have been costly in many ways.

If you're comfortable with your actions after reading the entirety of this thread, including a little bit of 'between the lines' from what tspike has said since his hearing, then this thread will have served its purpose, and tspike's contribution to all of our well-being will have been demonstrated.

+1 and I wish tspike well.

Quoted: MGinVA, it is difficult to give you an opinon on when holding a firearm by itself is or isn't brandishing.  If you walk out to your car on your way to the range and you are carrying a rifle, it probably isn't brandishing.  If you hold a gun in your hand while you confront someone on your property, it probably is brandishing.  The issue is the perception of other persons you come in contact with.  Oh, and I don't give advice on the internet.  I give advice to clients and no one here is a client of mine, so anything you read here is my opinion, but not my advice.  I'll say one more thing.  The only way I'm showing my pistol, carbine, shotgun, etc., is if we're in my gun room and I'm showing them to you or I have legal grounds to shoot you.  Anything other than those two situations and it probably isn't worth having my firearm out in the open.

I’ll drop on the sword and call this one done.

FWIW, I in no way set out to "punish" anyone; instead I merely attempted to ask a question of someone who had offered their educated opinion.   Unfortunately, I obviously failed to get my question across clearly.  If, in the process, my question(s) came across as trying to punish the good deed of offering insight or otherwise attempting to corner you on our statement, El_Abogado, I do apologize.

I agree that anyone who actually regards anything that they read on an Internet forum as valid legal advice should have their head examined.  

In hindsight, perhaps I should have left out the entire second half of my original question, as it was unnecessary to the point.  I was not seeking a definition of what did or did not constitute brandishing a firearm, because as has been pointed out time and again the concept is wholly subjective.  I can (and have) read the statute, I've read a bit of the case law and the citations (for example, Kelsoe v Commonwealth), I'm familiar with Haskman... and the fact of the matter is that none of it holds "the" answer, because there simply isn't a single answer.   That much I understood going in and if nothing else, this thread has certainly reinforced that.

As for the remainder of my question, it's not that big a deal, honestly, as it was more about the apparent shift in where our justice system places the burden of proof and society's changing values than anything else.  It's certainly not something that I feel needs to continue to be hashed out here to the detriment of potential friendships not yet established.  I was merely challenging what I believed to be a statement supporting the prevailing attitude that the burden of proof now largely rests upon the accused and not the accuser… and perhaps in these types of cases that is indeed the reality.  

No need to apologize.  No offense was taken.  Like a lot of criminal offenses, the specific facts will dictate whether your actions are legal or not.  Don't stress too hard about it, just remember that if you are engaging others with a firearm in your possession there better be justificiation for deadly force or your firearm should be concealed, holstered, slung or cased.  Oh, and I don't think the burden has shifted so much as people's impressions of firearms has changed.  From tspike's story, I get the impression that the security guard is a sniveling pussy who didn't like getting shown up by a resident with a firearm after the sniveling pussy (guard) decided to have the resident's vehicle towed.  Why?  Because said sniveling pussy makes minimum wage and the only way he can feel like a man is by exercising his authority over others.  Unfortunately, in my opinion, tspike had to pay for the guard's lack of manhood.  It doesn't mean that tspike didn't violate the law. . . .

Thoughts are with you T-Spike.

Sounds like a crappy deal all the way around, but if the DA gave you some way to wiggle out and keep your rights (what we have left of them anyway), then you were very smart for taking him up on it.  Ego be damned and all.  This fight needs to fought by way of improved (read redacted) legislation, not by one of us standing alone, dieing on our sword before a judge with the books titlted against us.

Thanks for sharing your experience.

Should be a good reminder that anyone who cares should find an organization they believe in and get involved (VCDL, NRA, etc).

Good luck!

Quoted: No need to apologize.  No offense was taken.  Like a lot of criminal offenses, the specific facts will dictate whether your actions are legal or not.  Don't stress too hard about it, just remember that if you are engaging others with a firearm in your possession there better be justificiation for deadly force or your firearm should be concealed, holstered, slung or cased.  Oh, and I don't think the burden has shifted so much as people's impressions of firearms has changed.

Thanks for understanding.  Frankly, I'm not at all stressed about this for my own sake - I've been handling firearms of all sorts for a very long time and have been continuously seeking out training opportunities for nearly as long (as an example, my VA Hunter Education certificate number is a single digit).  That having been said, I should be clear that I do not in any way feel that I have been immunized from a potential lapse in judgement by my training and experience.  OTOH, I am quite confident that I have done everything that I can realistically do to minimize (if not eliminate) that potential in my life.   Having that confidence does not, however, take away my desire to discuss the hypothetical.  In truth, it probably adds to it.

Certainly I have not taught my son to shoot with an airgun in the backyard as I was taught as a kid, and it's not because the airgun in question is any more or less dangerous or that the neighborhood in which I live now is any more or less populated than where I lived then.  It's simply because of my desire to avoid an unecessary (however ridiculous) problem.  If there is a key, it is simply to be low key.

Again, an unfortunate but valuable leson for all, especially tspike.  

Quoted: Quoted: I'm no lawyer, but I would CERTAINLY think that someone's rights to keep and bear arms apply on their own property. I don't think it's stupid to walk out in your own driveway and see what's going on at all. I agree, a holster would have been the prudent choice, or, as I sometimes do, carry the weapon (in a holster) in the weak hand, grasping by the barrel. This way, the weapon cannot be fired as held, but you still can access it quickly. I am a lawyer, and it's stupid to walk outside with a gun in your hand to see what's going on outside, without justification for using deadly force.  A gun is a per se dangerous or deadly weapon.  It may be used only to prevent the loss of life or serious bodily injury.  Holding the firearm constitutes brandishing by the plain language of the statute.  tspike was charged with brandishing.  Had he left the gun inside, had it concealed, or had it in a holster, he likely would not have been charged or if he had, he would have likely won his case.  He didn't and he had an unspecified unfavorable outcome in court. It also is stupid to post what you are alleged to have done, along with your version of events, online before your trial.  You'll note that tspike wisely removed his posts in which he discusses the events of that night. Know your rights.  Exercise them responsibly.  They are not unlimited rights, as tspike unfortunately learned this week.

I hate our legal system.