What is brandishing
Consider the situation where an individual/customer is having an argument with the clerk at the local quickie-mart over the price of a medium coffee after receiving a coffee cup which was only half full.
During this argument the customer pulls out his wallet and the credit card falls to the floor. He bends over to pick up the credit card and his concealed weapon is no longer concealed/secret/hidden
The clerk yells at the customer to leave, and the next customer waiting in line shouts he has a gun and the next thing you know the police are called
Oxford’s dictionary defines brandishing as a verb meaning to wave or flourish (something, especially a weapon) as a threat or in anger or excitement.
(c) “Brandished” with reference to a dangerous weapon (including a firearm) means that the weapon was pointed or waved about, or displayed in a threatening manner.
” U.S. v. Gonzales, 40 F.3d 735, 739 (5th Cir. 1994)
Although Massachusetts does not have a specific statue on “brandishing” an individual who waives or displays a weapon including a firearm as a threat or in anger can be charged with assault. Assault with a dangerous weapon or assault with the intent to kill.
In summary if you use a gun or other weapon in such a way that places a person in fear you can be charged with either simple assault or assault with a dangerous weapon or assault with the intent to kill
To provide some guidance in this area I am including a possible/standard jury instruction which can be given when the case is in a Massachusetts District Court
The defendant/accused is charged with having committed an assault upon [alleged victim] . Section 13A of chapter 265 of our General Laws provides that “Whoever commits an assault or an assault and battery upon another shall be punished by imprisonment for not more than 21/2 years in a house of correction or by a fine of not more than $1,000.
An assault may be committed in either of two ways. It is either an attempted battery or an immediately threatened battery.
A battery is a harmful or an unpermitted touching of another person.
So an assault can be either an attempt to use some degree of physical force on another
person — for example, by throwing a punch at someone — or it can be a demonstration of an apparent intent to use immediate force on another
person — for example, by coming at someone with fists flying.
The defendant/accused may be convicted of assault if the Commonwealth proves either
form of assault.
1. In order to establish the first form of assault — an attempted battery
— the Commonwealth must prove beyond a reasonable doubt that the defendant intended to commit a battery — that is, a harmful or an unpermitted touching — upon [alleged victim] , took some overt step toward accomplishing that intent, and came reasonably close to doing so.
With this form of assault, it is not necessary for the Commonwealth to show that [alleged victim] was put in fear or was even aware of the attempted battery.
2. In order to prove the second form of assault — an imminently threatened battery — the Commonwealth must prove beyond a reasonable doubt that the defendant/accused intended to put [alleged victim] in fear of an imminent battery, and engaged in some conduct toward [alleged victim] which [alleged victim] reasonably perceived as imminently threatening a battery.
The second form of assault is readily satisfied where an individual is brandishing a weapon, and may be satisfied depending upon the circumstances with the actual weapon is not actually displayed but the outline of the weapon is visible by inadequate concealment commonly called “printing”
If you have not reviewed our segment on concealed carry I suggest that you may wish to do so in connection with the segment
All the although the purpose of this blog is to avoid political discussions, you should note that a judge or juror is not necessarily entering the court room without a certain biased and prejudice when it comes to the issue of gun ownership with a pre-conceived notion of those who carry a weapon.
One of the best protections of your second amendment rights is to be an educated, knowledgeable and responsible gun owner
DISCLAIMER: This and other segments posted on this website are offered for educational, informational and discussion purposes only and is not offered as legal advice.