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
For 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 cane
- 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):
- 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.
- A person had or carried a dangerous weapon or firearm (as listed above);
- The person exhibited the dangerous weapon or firearm in a rude, careless, angry, or threatening manner (as listed above); AND
- 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.