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Dismissal of Brandishing a Firearm

Defending against a charge of brandishing a firearm requires carefully evaluating the language of the Virginia Code and comparing it to the facts and circumstances of the case. The brandishing code section applies whenever someone points or handles a firearm in a manner that reasonably induces “fear in the mind of another.” There is a exception for self-defense. In our case, my client was charged with brandishing a firearm by the police officer who arrived and saw him pointing a gun at his friend. At the trial, the friend was not called as a witness. After cross-examining the police officer and questioning two neutral witnesses, it became clear that the person who the gun was pointed toward had been asked to leave the property twice and that one of the witnesses had actually escorted him from the property. It was also evident that he supposed victim had continued to advance toward my client despite being told to stop and to leave the property. The officer and the witnesses did not provide any statements that indicated that the gun had actually “induce[d] fear in the mind of another of being shot or injured.” In fact, the continued advancing toward the weapon showed that he was not afraid. Other factors that the judge considered were the intoxication of the supposed victim and that my client was the one who had called the police. Brandishing is not to be taken lightly, but this charge can be successfully defended by analyzing the facts and challenging whether the officer or prosecutor has proven the elements set forth in the Virginia Code.

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.