Interesting read (legal)

Forums General Discussion Interesting read (legal)

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    ptthere
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    Might set another precedent for airguns depending which side of the fence this falls on.

    https://www.cnsnews.com/news/article/alex-madajian/veteran-convicted-brandishing-bb-gun-now-challenges-law

    PT

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    edosan
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    You can get arrested for doing that even with a Toy Gun (that might look real) … 

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    hecbom
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    ptthere My wife is an attorney and she read the case you posted. This has nothing to do with an air gun. This has to do with Brandishing. You can not even bluff with a toy gun as edosan pointed out. Toy or real, if you flash it at someone and you get caught, you will  do the time and pay the fine!

     

     

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    elh0102
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    This is one reason why concealed carry license training informs folks not to think of their weapon as a way to "warn" someone away. Never show the weapon unless the situation calls for its use. 

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    davecole
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    The subject of regulating airguns has been thrashed around for a decade at least.

    Won’t ever happen.

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    Elbowgrease
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    davecole

    The subject of regulating airguns has been thrashed around for a decade at least.

    Won’t ever happen.

    Has not happened with black powder. So I see no reason to do so with airguns. 

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    ImpactX
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    It's kinda stupid how he was holding a bb gun by his leg and got arrest. It never said he pointed at anyone and threaten to shoot someone. That would be a different story. Yet you have these hill billies going to McDonald's and Walmart with AR15 and AK47 fully loaded and claiming their right to open carry. Nothing makes sense anymore. I would be more scared of guy carrying a AR15 and AK47 around than some dude with a daisy bb gun lol.

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    Bullfrog
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    I am an assistant district attorney (called a “state” attorney in Florida). 

    It sounds like Virginia’s “brandishing” statute is the equivalent of Florida’s aggravated assault statute. An assault is a threat to do harm with the apparent means to carry it out the threat that creates a well founded fear in the mind of the victim. The assault is “aggravated” if it is made with a weapon. 

    Florida has a long line of cases that examines what sort of conduct does and does constitute an actual threat and cases are highly fact specific. For instance, someone lifting their shirt to show a gun in their waistband could be a threat even if the person doesn’t hold or point the gun at anyone. Yet in another circumstance the action might not be a threat. 

    I don’t see what the problem with the law is. Either the guy was holding the gun in a manner a reasonable person would find threatening, or he wasn’t. Its probably a question of fact for a jury to decide.   

     

    • This reply was modified 9 months ago by Bullfrog.
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    ptthere
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    Bullfrog

    I am an assistant district attorney (called a “state” attorney in Florida). 

    It sounds like Virginia’s “brandishing” statute is the equivalent of Florida’s aggravated assault statute. An assault is a threat to do harm with the apparent means to carry it out the threat that creates a well founded fear in the mind of the victim. The assault is “aggravated” if it is made with a weapon. 

    Florida has a long line of cases that examines what sort of conduct does and does constitute an actual threat and cases are highly fact specific. For instance, someone lifting their shirt to show a gun in their waistband could be a threat even if the person doesn’t hold or point the gun at anyone. Yet in another circumstance the action might not be a threat. 

    I don’t see what the problem with the law is. Either the guy was holding the gun in a manner a reasonable person would find threatening, or he wasn’t. Its probably a question of fact for a jury to decide.   

     

    As others have stated with varying views, there is obviously some different takes on this. If it goes to a jury it may be interesting.

    I also whole-heartedly agree that displaying a gun as a threat is B.S. If in a serious confrontation, my policy has always been that the only reason you ever pull a weapon out is to actually use it. "Threatening" or "brandishing" is not up my alley. That said, I have only pulled a gun once ever in my life (as a civilian), when two guys broke into my home while I was in it.

    The part of the story I found interesting was that he never pointed it, and it was a BB gun. Given the serious charges faced, it will be interesting to see how it pans out.

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    Bullfrog
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    In Florida it makes a different whether a weapon is a “deadly” weapon or not, and whether a weapon is deadly sometimes has to be decided on a case by case basis. 

    Airguns usually are considered deadly weapons. Airsoft guns are not. If a specific BB gun isn’t capable of death or serious bodily injury, it may not meet the definition. 

    Although an airgun may be a deadly weapon, Florida does not consider them firearms. Florida has strict mandatory prison terms for people who use firearms in crimes. Using an airgun gets around those mandatory prison sentences. Criminals know this and therefore often use replica airsoft and airgun handguns to bluff people during holdups. 

    • This reply was modified 9 months ago by Bullfrog.
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    heavy-impact
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    Bullfrog

     If a specific BB gun isn’t capable of death or serious bodily injury, it may not meet the definition.

    I heard you could shoot an eye out with one. 😁

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    Bullfrog
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    Our case law requires it be used to do just that if that’s otherwise all its powerful enough to do. In other words, it may not be deadly unless used in a way that it actually could have shot someone’s eye out.

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    dan_house
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    Id think the courts will side with the "victim". Deadly or not, it scared some one enough to call law enforcement. Brandishing a weapon is an attempt at intimidation. The majority of the public and most cops DO NOT KNOW an airgun is (usually)not lethal. 

    Qouted from the article:

    As explained by defense attorney Rebecca Wade, “Brandishing a firearm is to hold or point a gun in a manner that would reasonably induce fear in another.”  BB gun, AK47 or tomahwk, if the intent is to intimidate, then the defendant is gonna lose.

    Please keep us posted

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