Depending on which survey you read, there are anywhere between 100,000 and 3.6 million defensive gun uses per year in the United States. One thing that almost everyone who studies such things agrees on is that, in a large number of the defensive gun uses that take place each year, no shot is ever fired. So, what separates displaying a firearm lawfully—or even justifiably pointing a firearm at another person—from a criminal charge of “brandishing,” or the unlawful display of a firearm?
If you are interested in carrying a firearm for self-defense, something you need to make yourself aware of is when it is legally justifiable to display or draw a firearm to defend yourself, and how to avoid potentially negative interactions with police officers or law enforcement that may stem from doing so. To that point, let’s look at a few things you should know.
What Does Brandishing Mean?
Merriam-Webster® defines brandish as “to shake or wave (something, such as a weapon) menacingly.” Federal law defines brandishing as:
The term “brandish” means, with respect to a firearm, to display all or part of the firearm, or otherwise make the presence of the firearm known to another person, in order to intimidate that person, regardless of whether the firearm is directly visible to that person. 18 U.S.C. § 924(c)(4).
Complicating the matter, however, is that only a few states include the actual term “brandishing” or the phrase “brandishing a weapon” in their laws. As a general rule of thumb, what people think of as “brandishing” can be defined as the intentional and unlawful display of a firearm or deadly weapon to threaten, intimidate, or coerce someone, whether or not the firearm or deadly weapon is visible to that person. Often, “brandishing” includes showing a firearm in an aggressive manner, but aggression is not always necessary to be guilty of a crime associated with “brandishing.”
To be very clear, this does not mean that displaying or drawing a firearm is an illegal act in all situations. There are scenarios where it may be prudent and legally justified to draw and display a firearm. However, the difference between unlawfully brandishing a deadly weapon and drawing and displaying a firearm during a justified instance of self-defensive may not be as clear as it appears.
For instance, brandishing a weapon may lead to charges such as the unlawful carrying of a weapon, deadly conduct, terroristic threat, disorderly conduct, menacing, or assault with a deadly weapon. If accused of a crime, you will have to deal with law enforcement, at a minimum. If convicted, these charges could result in a permanent criminal history and you risk punishment that may include months in the county jail or years in prison! On the other hand, the justified display of a firearm is just that, justified. Take a look at our “Self-Defense Frequently Asked Questions” to learn more about when self-defense may be justified.
What Constitutes Brandishing a Firearm?
As noted, “brandishing” a firearm is the unlawful display of a firearm. Generally, the display of the firearm must be intended to intimidate, coerce, or threaten someone to be considered “brandishing.” Remember, “intent” can be established through other factors outside of your own perception. This is one of the reasons you must always be very careful when carrying a firearm. You may not have thought your conduct was overtly threatening in the moment, but a jury may determine your intent differently through the examination of other external factors.
It’s important to note that, in some places, even SAYING you have a gun can result in criminal charges for what people think of as “brandishing.” For instance, if you were to get into a verbal altercation with another person and say: “I’ve got a gun on me, you better stop running your mouth,” even if the person you speak to never sees the gun, you may be ultimately found guilty of a crime relating to “brandishing” a firearm. Ultimately, if you are involved in an incident that goes to court the jury’s perception of your intent and the reasonableness of your actions will be what determines whether or not you’ve committed a crime in the eyes of the law, not your perception of the event.
If you choose to carry a gun as part of your daily routine, there are several things to keep in mind to avoid unintentionally “brandishing” a firearm. The first thing to remember is that using the firearm in any capacity—and yes, displaying your firearm can be considered “use”—during a self-defense incident or social interaction that has the potential to become a self-defense incident, is ALWAYS an option of last resort. Whenever it is possible to resolve a situation without involving the firearm it’s imperative you do so. While training and education are essential, the only time it is acceptable to use a firearm is when you have no other choice.