Brandishing and Improper Exhibition of a Firearm

Brandishing and Improper Exhibition of a Firearm

Brandishing and Improper Exhibition of a Firearm

What is “brandishing” a firearm and what are the considerations, laws, definitions, elements, penalties, required proof, etc.?  When does brandishing or a careless or inadvertent exhibition of a firearm occur? What should we do to avoid it? Does it require showing that the person committed the act willfully, intentionally and with knowledge or just that the person accused acted “carelessly.” What is a willful, threatening, and/or careless act with a firearm? Almost all states and jurisdictions have laws about improper exhibition of a firearm or brandishing a weapon as some states refer to it. And they vary greatly among the states and jurisdictions in definitions, terminology, interpretations, and penalties… a very gray subjective area. Here are just some of the many complex and variable factors to understand and help guide you. I offer my ideas not as an attorney and not as legal opinion or advice, but generally to help you begin your understanding and encourage you to consult an attorney in your state about specific related laws and considerations for your jurisdiction. So don’t act on my information here, but seek out legal guidance for your specific circumstances before taking action or making decisions. My experiences as a lay person are with “Improper Exhibition” of a firearm in Florida.

So “brandishing” or “improper exhibition” or “defensive display” or “unlawful display” (or whatever your state and jurisdiction calls it) depends specifically on your state and jurisdiction. Very generally, however, for an operating definition “brandishing” means to display, show, wave, or exhibit the firearm in a manner which another person might find threatening. You can see how widely and differently this can be subjectively interpreted by different “reasonable” individuals and entities. The crime can actually be committed in some states by not even pointing a firearm at someone. In some states it’s a Misdemeanor crime and in others a Felony. So, focus, think rationally, know your state’s law, and be careful out there.

Florida’s Improper Exhibition of a Firearm Statute

brandishing knifeFor example, in my state of Florida, it is an offense under Florida law to display a dangerous weapon in an angry, careless, or threatening manner. Improper Exhibition of a Firearm and/or Improper Display of a Weapon are crimes governed by Florida Statute 790.10. The offense stems from the common law crime of brandishing. So Florida statutes do NOT call it “brandishing”, but “improper exhibition” of dangerous weapons or firearms. In the Florida Criminal Code “improper exhibition” of a firearm is defined as an individual having or carrying the following weapons in an unsafe, rude, careless, angry, or threatening manner, not in necessary self defense:

  • Dirk (knife or dagger)
  • Sword
  • Sword cane
  • Firearm
  • Electric weapon
  • Electric device
  • Other weapon

An individual is considered to carry the firearm in an “unsafe” manner if they carry it in the following ways (Certainly each of these are open to various definitions and frustrating subjective interpretations):

  • Rude
  • Careless
  • Angry
  • Threatening manner 

3 Main Elements of Improper Exhibition of a Firearm or Weapon in Florida:

The crime of Improper Exhibition of a Firearm or Weapon contains the following three elements.

  1. A person had or carried a dangerous weapon or firearm (as listed above);
  2. The person exhibited the dangerous weapon or firearm in a rude, careless, angry, or threatening manner (as listed above); AND
  3. The person did so in the presence of one or more persons.

Another subjective factor is also usually involved, based on my limited and lay background. In addition to acting in an unsafe manner, the prosecution usually needs to prove that the people who witnessed the improper exhibition behavior thought it was unsafe at the time (in their terms.) Very subjective!

To me the intent of this statute is to encourage safe handling of guns, avoiding carelessness with guns, and protecting innocent bystanders from the possibility of serious bodily injury or death. We know there are well- documented cases of guns being accidentally discharged when used in a safe manner, so the likelihood of accidental discharge increases if the guns are operated in an unsafe manner. In Florida, the individual must carry the weapon in an unsafe manner in the presence of one or more persons in order to be convicted of improper exhibition of a firearm.

What About Carelessness and Willfulness?

Most criminal offenses in Florida require a showing that the person committed the act willfully, intentionally and with knowledge.  But, the improper exhibition statute emphasizes that the person acted “carelessly.” The determination of whether the person was careless or not or committed the act willfully in exhibiting the firearm could be ultimately subjectively decided by the jury at trial.

It is my understanding and hope that charges should be determined on an “objective” rather than a “subjective” basis. The “objective” basis involves the circumstance of your actions with the firearm being done in an irrationally attacking manner, or being done in a way that generates an unreasonable risk of injury to other individuals or property. So unless your circumstances occurred like this, it seems to this non-lawyer that there would not be a basis for this criminal charge. While the prosecution in most jurisdictions has the burden of proving all three of these elements beyond a reasonable doubt, I would expect that a good defense attorney can probably cast doubt on any one element and the prosecution’s case might fail. But, again, I am not an attorney.

But even in questionable cases the individual could be arrested, taken to jail, booked, required to post bond, forced to hire a criminal defense attorney (minimal retainer about $25,000), and then appear in court for pre-trial hearings in order to fight the charge. Much time and many costs involved. Overly-aggressive prosecutions do occur and some prosecutors believe any firearm charge must be prosecuted aggressively. Florida law allows a person who possesses a valid license to carry a “concealed” weapon, but some do not realize that it is a first degree misdemeanor to “carelessly” exhibit the firearm to another, even with the concealed license. This misdemeanor crime is one of the most commonly prosecuted firearm charges in Florida, although it is unclear how many times these prosecutions involve careless acts or intentional acts. So, focus, think rationally, keep it concealed, and be careful out there.

Click next for page 2 of this article.

* This personal opinion article is meant for general information & educational purposes only and the author strongly recommends that you seek counsel from an attorney for legal advice and your own personal certified weapons trainer for proper guidance about shooting & using YOUR firearms, self-defense and concealed carry in your state. It should not be relied upon as accurate for all shooters & the author assumes no responsibility for anyone’s use of the information and shall not be liable for any improper or incorrect use of the information or any damages or injuries incurred whatsoever.
© 2013 Col Benjamin Findley. All Rights Reserved. This article may not be reprinted or reproduced in whole or in part by mechanical means, photocopying, electronic reproduction, scanning, or any other means without prior written permission. For copyright information, contact Col Ben Findley at [email protected]

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  • james lagnese

    Some days I am glad to live in AZ.

  • Jim

    In Texas the law has just been changed to make it no linger a crime to accidentally expose a concealed weapon. Such things as wind blowing your coat are presumably covered by this exemption.

    Dang, I dont have any idea how to use this, when it asks for my name and password I give it and then it tells me the email name is already in use and asks if I have an account. Your damned right I have an account, that is why I presented the address when asked!!!! This needs to be reprogrammed!

    So now I am posting as a guest to make it happy.

    • Rufus Dufus

      Texas Jim,
      I concur with you regarding Disqus access. Every attempt to reply to any site via Disqus results in rejection. I feel like Rodney Dangerfield: no respect.

  • blogengeezer

    Albuquerque New Mexico. News reported a US Air Force officer off base, shopping with his family in nearby Costco, reached upward, briefly exposing his certified concealed carry weapon. Costco security was alerted about his weapon. He argued (2nd big mistake) at the security authority’s request to leave the store. Local law officers were then called in. Of course he could not keep his mouth from running (major error number three) and situation further escalated (to say the least), causing undue stress to all concerned.

    Definitely the wrong way for the Air Force officer to handle the situation. I expected more logic from a ranking defender of the nation. Where did he attain his CCW? Who did he Not listen too, during the thorough explanations of the certification course?

    • Torontogunguy

      Thinking of another situation, very similar, in AZ/NV. The guy reached for his permit and the whole team opened up on him. Good shooting. No press.

      • Steve A Little

        I carry my handgun license in a wristband, so if I do have my hands in the air all I have to do is touch my other wrist.

      • AH White

        My Firearms license is in my left back pocket and my pistol is on my right. Make no quick movements, Explain what you are reaching for or just dont move your hands. Any quick movements can bring problems.

        • Grits.N.Jowls

          No the question is “Am I being detained?” If not, keep walking.

    • Jim_Macklin

      The rest of the story, if I recall correctly, he was shot and killed. NEVER argue, if asked to leave and you don’t go, you are trespassing. Expect police to called about a man with a gun, no mention of whether you are licensed. Police will be on edge and primed to shoot.

    • Aulton H White II

      When asked to leave he should have left. They have the right to tell anyone not to bring a weapon into a business. I check the doors of any business before entering. When I went to the Atlanta airport I walked to the police stand with my carry permit in hand. No problem. I was not going into a secure area so it was not an issue. The officer said thank you. Easy to be smart.

      • Gunluvr

        Why? Our law states that the cops shouldn’t approach or ask you about an openly carried weapon unless there’s reasonable suspicion or probable cause that a crime’s about to be committed.

        • AH White

          On private property the owner or company can decide what they want in and on their property. A business is private property

          • Gunluvr

            Yes but the Atlanta airport is public property.

          • AH White

            But Costco’s is not. My point was being smart insted of stupid and unsing your head.

          • Gunluvr

            I carry my guns openly as a matter of routine and will respect private property rules but I don’t lay down for any harassment of my Constitutionally protected civil rights. If you want to carry concealed that is your legal right as it is mine to carry openly.

          • AH White

            I also carry openly. I dont mind in the least if a LEO asks to see my carry permit. I gladly show them. It does not violate my rights to show my Georgia Firearms licence to any LEO when requested. It is being smart not creating problems or any reason for them to escalate any issue.

          • Gunluvr

            If you want to show them your license then fine, do it. Nobody in our state(GA) is legally obligated to show them anything and they know it. We live in the south and fortunately don’t have to justify why we carry our guns. All the anti-gunners and anybody else needs to know is that it’s a God given, absolute civil right that will not be infringed or limited in any way.

          • A White

            I have to pretence this by saying I am not giving any legal advice. I am just
            posting the Georgia Code. I am not an lawyer or claim to be giving advice to any law.

            In my personal opinion, you are mistaken, check Ga Code 16-11-126 (h) (1) No person shall carry a weapon without a valid weapons carry license unless he or she meets one of the exceptions to having such license as provided in subsections (a) through (g) of this Code section. (2) A person commits the offense of carrying a weapon without a license when he or she violates the provisions of paragraph (1) of this subsection.

            A LEO having probable cause of a person carrying a firearm
            to ask for their License

            Under 16-11-36. Loitering or prowling

            (a) A person commits the offense of loitering or prowling when he is in
            a place at a time or in a manner not usual for law-abiding individuals under
            circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity..

            (b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to
            conceal himself or any object. . Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

          • Grits.N.Jowls

            Okay but since 1 July 2014 a new law went into effect. It states that a person may carry his guns openly or concealed with a GA firearms license. A police officer cannot detain a person to determine whether or not he has a license, so by default everyone gets an open carry pass if they choose to use it, which is as it should be.

          • Grits.N.Jowls

            That is the law as it’s objectively written. There’s a contradiction that hasn’t been reconciled. Refusing to ID is not a crime unless a person is suspected of or caught in the act of committing a crime. Now if the LEO detains or arrests a person without RS or PC a lawsuit is authorized in state court.

          • You stated “it’s a God given, absolute civil right” There are no “God given rights” regarding civil laws. Civil Rights are: the rights that every person should have regardless of his or her sex, race, or religion. Also Civil Rights can be defined by personal liberties that belong to an individual, owing to his or her status as a citizen or resident of a particular country or community.

            What some people do not understand there should be some measure of reasonable and common sense which is the ability to think and behave in a reasonable way and to make good decisions. In reality, it is better not to escalate issues and cause any LEO trepidation and elevate anxiety levels just to prove a point.

            If a person is carrying a CCP would it not be easier to show and calmly explain
            that even thought not required it is better to be cautious and error on the side of safety. Heck carry a copy of the code showing that it is not required and give it to them so they can learn as well.

          • Grits.N.Jowls

            It would also be easier to explain your voting choices at the polls. You’re not required to but according to your compulsory model of rolling over to show your papers that’s how you roll. So be it but don’t expect everyone else to lay down like you choose to do. As I’ve said this right is unconditional for me, it’s not a conditional privilege premised on showing papers to exercise it.

          • pbasch

            My understanding is that if you go onto private property your rights are conditional – for instance, start shouting angrily (i.e., exercise free-speech rights) about how everyone there is going straight to hell (i.e., expressing religious beliefs), you might be escorted out, and rightly so. It is often forgotten that Constitutional rights are limits on Congress, not permission to do what you want, when you want.

          • Grits.N.Jowls

            Yes, that’s true but if a citizen is just going about his business in a place like Walmart there is a big catch-22 for both Walmart and the cops in my state(Georgia). I can and have shopped in Walmart with my AK-47 strapped to my back; As you can imagine my action caused a stir and the cops were waiting on me outside but they couldn’t do a thing because our law states specifically that people carrying guns openly or concealed can’t be stopped, questioned or ID’d. Walmart could have trespassed me off of the property but to do so would have a opened a big can of political worms with gun owners and our representative organizations. So that was that. Gun rights for me are unconditional, un-limited and not up for discussion.

  • canus lupis

    this along with other articles about the problems w/concealed carry, leaves one to believe you are in a lose-lose situation if you do carry and really a loser if you have to use the weapon. you might be alive, but our fabulous legal system is gonna bury you with legal crap.

  • torontogunguy

    When I took concealed carry training for several state permits I was simply told (as I am a traveler) “CONCEALED MEANS CONCEALED!” And further that it matters NOT what the state laws are in your particular location…. CONCEALED MEANS CONCEALED! Asides from the threat of being charged with an offence, you risk your very life by revealing, flashing, printing, whatever. YOU RISK YOUR LIFE. A hopped up store security guard or a wired clerk makes a call to “911” and announces there is someone in the store with a gun. How do you know this person has a gun? “I saw it”. Your goose is semi-cooked. Now the clerk meets responding law enforcement or armed security at the exit while the store is cleared out or while you check out through the cashier. You make your way to the exit whereupon the clerk (minimum wage, elderly, low IQ, whatever) hollers “there he is and he has a gun”! You are hollering I have a permit but cannot be heard above the ‘din’ of noise. You reach for your wallet. One cop opens up on you and all of a sudden ALL are shooting at you. You are dead and unable to show your permit and most likely your handgun is now exposed as you squirmed and fell to the ground. Case closed. You had a gun and the clerk saw it and was afraid for his/her life (imbecile). Good shooting. End of story. You make the bottom of page 6 once and it’s all over.
    So, I say, screw the law…. “CONCEALED IS CONCEALED”!….. PERIOD.
    This is especially true if you screw up and have not kept up to date or happen to find yourself driving through a state where your permit is not recognized. CONCEALED IS CONCEALED.

    • tenn1600

      As a female with gun permit, your only asking for trouble when you advertise you have a handgun. If you have the permit and the handgun its for your and your families protection, not to brag about.
      It all boils down to having common sense.

      • Also Okie

        Yes, as criminals always pick someone with a gun on their hip to try to rob.

    • Steve A Little

      This is why I am glad Oklahoma took the word concealed out of our handgun license law. We are now all treated like adults in the 21st century.

    • FreakshowSMVM

      you throw out more “maybe’s” and “its gonna get you killed, your a bigger threat than the real criminals” than michael bloomberg himself!

      where lawful, open carry is rarely an issue and no security guards or cops or anything have shot an open carrier for open carrying anywhere in the country, probably not in the last 80 years, i cant find a single case since the 1930’s. only one case of an open carrier being targeted by a criminal for open carrying. but there are dozens of cases of crimes being averted by open carriers(see georgia waffle house robbery prevented by group of open carriers) just a month ago i was walking home just after dark and a local alcoholic with random mental issues decided to suddenly turn around once i walked past him and follow me, when i turned to look at him(exposing my strong side in the process) he said shit and turned around and left me alone, cops picked him up two days later for mugging somebody on the same street with a screwdriver ice pick thingy.(this is in Michigan)

      if you truly have that view about open carry, and you carry concealed…do society a favor and get rid of all your guns, certainly do not carry in public. fear mongering like that leads me to believe you yourself are afraid of seeing a displayed, holstered gun on anything but a uniform and that you may draw and shoot at one of us even.

    • WateryWilly

      Well, first of all, if when confronted by police, your first reaction is to reach for something on your body, you are an idiot. You freeze in place, extend your arms slowly as far away from your body as possible – let them see you are NOT a threat. THEN you tell them you have a permit. The FIRST thing you do is let them know you are complying with their commands.

    • LancasterPA

      Your an idiot.

    • You literally have no idea what you are talking about, and you are a threat to yourself. You are ignorant and you have no clue how to interact with the police if something like this (highly unlikely) were to happen. Cops come in? What about, instead of reaching to the wallet like an idiot, you raise your hands and wait for the cops to come to you and talk to you?

      Dumbass.

  • FALYAL

    Love Oklahoma and our recent Open Carry laws……I no longer have to worry that picking up my grandchild will inadvertently display my weapon, or feel the need to act like a fugitive in order to discretely secure my weapon in the trunk of my car when going into a “no weapons” zone like the courthouse or post office

    • Steve A Little

      Love it, It is securing to know that Law abiding citizens can be armed without fear of being ostracized.

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  • Steve A Little

    I live in the great state of Oklahoma. Our governor last year November 2012 passed a law of open carry of handguns. Since I am a licensed handgun carrier I no longer have to conceal my weapon. I am most generally caring my weapon on my hip or in my shoulder harness out and exposed. But in the winter of you carry it under a jacket. It is much easier not to have to worry about breaking the law or accidentally showing my weapon. Thank God for America.

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  • cjleete

    Good info. Since common sense is an oxymoron, we have to codify as law.

    • blogengeezer

      Fun to use the phrase “Back in the day’. As young kids, we roamed the county roads looking for targets, vermin, pests, .22s and .410s ‘at the ready’. Sheriff usually stopped the cruiser near us and asked what we were huntin’? “Nothing in particular” was our reply, “Just shootin”.

      The seasoned officers (WWII vets) always warned “Do NOT shoot the insulators off those power lines”. “Yes Sir” was our fast reply. The officers always drove away slowly, to seek other more important ‘crimes’ against the public.

      Ahh… the days of ‘Common Sense’ when the voters had to show documents, taxation receipts to ‘Prove’ they had vested interest in the elections and the ‘qualified’ leaders. Property ‘Owners’ only, allowed to Vote …”Back in the day”..

      • bobfairlane

        Hhahah, yes, for some reason kids want to shoot the insulators.

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  • Paul

    Here in Virginia open carry is legal, although these days not a lot of folks do it. Yesterday I was driving down a main country road and noticed a man walking with a “rifle that looked like an AR” hanging from his shoulder, clearly pointed downward, clearly harmless, He probably had been plinking or shooting crows in one of the many fields nearby. My wife grew up out here, and back in the day her relatives carried all sorts of guns both openly and concealed, and it was no big deal. Of course this was the same day that the boy was shot by the police in California for “threatening” them with a toy AK. Indeed, where you are may determine whether you live or die.

  • Aulton H White II

    Georgia is also an open carry state with a carry permit and without. No permit is needed in a vehicle since it is considered an extension of the home. There are of course limitations on where prohibited such as government buildings and bars (unless the owner permits).

    16-11-102. Pointing or aiming gun or pistol at another

    A person is guilty of a misdemeanor when he intentionally and without legal justification points or aims a gun or pistol at another, whether the gun or pistol is loaded or unloaded.

    16-11-126. Having or carrying handguns, long guns, or other weapons; license requirement; exceptions for homes, motor vehicles, and other locations and conditions; penalties for violations

    (a) Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a weapon or long gun on his or her property or inside his or her home, motor vehicle, or place of business without a valid weapons carry license.

    (b) Any person who is not prohibited by law from possessing a handgun or long gun may have or carry on his or her person a long gun without a valid weapons carry license, provided that if the long gun is loaded, it shall only be carried in an open and fully exposed manner.

    (c) Any person who is not prohibited by law from possessing a handgun or long gun may have or carry any handgun provided that it is enclosed in a case and unloaded.

    (d) Any person who is not prohibited by law from possessing a handgun or long gun who is eligible for a weapons carry license may transport a handgun or long gun in any private passenger motor vehicle; provided, however, that private property owners or persons in legal control of property through a lease,
    rental agreement, licensing agreement, contract, or any other agreement to control access to such property shall have the right to forbid possession of a weapon or long gun on their property, except as provided in Code Section 16-11-135.

    (e) Any person licensed to carry a handgun or weapon in any other state whose laws recognize and give effect to a license issued pursuant to this part shall be authorized to carry a weapon in this state, but only while the licensee is not a resident of this state; provided, however, that such licensee shall carry the weapon in compliance with the laws of this state.

    (f) Any person with a valid hunting or fishing license on his or her person, or any person not required by law to have a hunting or fishing license, who is engaged in legal hunting, fishing, or sport shooting when the person has the permission of the owner of the land on which the activities are being conducted may have or carry on his or her person a handgun or long gun without a valid weapons carry license while hunting, fishing, or engaging in sport shooting.

    (g) Notwithstanding Code Sections 12-3-10, 27-3-1.1, 27-3-6, and 16-12-122 through 16-12-127, any person with a valid weapons carry license may carry a weapon in all parks, historic sites, or recreational areas, as such term is defined in Code Section 12-3-10, including all publicly owned buildings
    located in such parks, historic sites, and recreational areas, in wildlife management areas, and on public transportation; provided, however, that a person shall not carry a handgun into a place where it is prohibited by federal law.

  • carynflo

    Weapon electronic is low coast product. if you want to create any weapon using of electronic their will be more then other. Now a days in every part of weapon using electronic.

  • David Windsor

    Bottom Line….Its not your EGO or your preverbal club and there is no room for primal politics, (ie. beating your chest in a display to run someone off your turf), it is a weapon and only to be taking out in defense of YOU, or someone in the scope of YOUR protection.
    Dave~
    S.O.S.

  • Phil Evans

    For the last 4 years or so I’ve openly carried my pistol at convenience stores, grocery stores, restaurants, gas stations, parks, and playgrounds – almost daily. I’ve never had a single person call 911 on me to my knowledge. I’ve carried around police officers in various public places.

    Only once was I detained, and that was at Stone Mountain Park. I did not give my name or show ID of any kind, and I was not disarmed. I knew my rights, and the encounter lasted only eight minutes. It was a good teaching moment for the officers. That was before HB 60. Now, they would not even consider it.

    I guess it’s just nice being in Georgia. 🙂

    If you’d like to OC but are too skeered to do so in your state, then move on down here. 😉

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