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What counts as brandishing
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Legal defenses and penalties for brandishing a weapon

Although state law prohibits brandishing a weapon or firearm, there are still a number of legal defenses one may use to defend such a charge. It is important to understand that the lack of a formal legal definition of brandishing does not mean that brandishing a firearm, whether accidentally or with the intention of intimidating, will not result in criminal charges. Brandishing a firearm may fall under other state laws, such as aggravated assault, assault with a deadly weapon, improper use of a firearm, menacing, intimidating or disorderly conduct. Criminal legal consequences may vary from misdemeanor citations to felony charges based on the state or jurisdiction that you are in and the specifics of your particular incident. Depending on your state, additional penalties may incur if your brandishing incident occurs in the presence of a law enforcement officer, public official or emergency medical responder.

Possible Defenses

  1. Self-defense: Under PC 417, self-defense is the most widely used defense tactic for a charge of brandishing a weapon. In other words, if a person was acting in justifiable self-defense or they were defending another person, they may be found innocent. What is self-defense? A person has reasonable belief that they or another person are in imminent danger. A person may also fight back with no more force than is necessary to defend against imminent danger.
  2. No threatening behavior: If a person did not brandish a weapon or firearm in a rude or threatening manner, and there was no act of such, then one may not be found guilty of this charge.
  3. No weapon or firearm: Under PC 417, the charge of brandishing a weapon or firearm may only be used if there was, in fact, a person armed with such.

Potential Penalties

In a previous article, brandishing a weapon or firearm is considered to be a wobbler offense in the State of California and the penalties are based upon whether one is convicted of a misdemeanor or a felony. If found guilty of a misdemeanor, the following sentence may be imposed:

  • 30 days to six months in jail
  • If brandished in a public place - three months to one year in jail
  • If brandished at or around a daycare center that is occupied, it may be charged as a felony or misdemeanor with three months to one year in jail
  • Fine of up to $1000

Regardless of the classification of the offense, it is important that you seek the assistance of competent legal counsel to help you best understand your legal defense while identifying an outcome that best minimizes your risk. We here at the H Law Group patiently await your call.

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