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Am I Brandishing?

13K views 47 replies 29 participants last post by  Patriot Prepper 
#1 ·
I've seen some different versions of this scenario - but specifically, here is my question. It's two a.m. and you are woken by a disturbance in your yard by your garage. You live in a questionable neighborhood so you want to go check it out (could be anything so I'm not ready to call the cops). My only flashlight is a TLR-1 on my Glock 23. I exit the back door and begin to "clear" my property sweeping the lighted Glock. Am I brandishing?

Thanks in advance!

Bob
 
#2 ·
Just some suggestions (IMO)

- Have you been trained to "Clear" anything? Inside or out?
- Your best position (from a safety perspective) is to remain inside
- Get yourself a hand held light
- Install motion lights in the yard
 
#5 ·
How so? Open carry is legal on one's own property used as primary residence. Please cite statute that addresses "brandishing".
 
#6 ·
Actually, there is no "brandishing" law. It's been discussed here quite a bit.

What we do have is 790.10

Improper exhibition of dangerous weapons or firearms.

If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

Bolded - As long as you deploy your firearm in necessary self defense, you are justified under the law

Much better legal experts here than me...so I'll shut-up and listen
 
#7 ·
776.012 Use of force in defense of person.

—A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force. However, a person is justified in the use of deadly force and does not have a duty to retreat if:

(1)He or she reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or herself or another or to prevent the imminent commission of a forcible felony; or

(2)Under those circumstances permitted pursuant to s. 776.013.

776.08 Forcible felony.

—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.

Looks ok to me, but what is legal is not always the smartest thing. :thumsup
 
#8 ·
i dont see it as brandishing but i do question the wisdom of possibly sweeping the neighbor with your firearm while youre looking for a bad guy...the hand held light is a good idea and is also useful for other situations that might not require your gun...
 
#10 ·
As has already been pointed out, there is no such crime as 'Brandishing' in Florida.

Having a pistol/rifle at low ready while you investigate suspicious activity would not be considered
rude, careless, angry, or threatening manner
You may not use deadly force to end someone's trespass on your property. Pointing a firearm at a trespasser, may be considered deadly force by a jury.

Personally, my two pit bulls are the first responders for noises outside. I follow with handgun/long gun depending on the nature and volume of the screams that result.:grin
 
#12 ·
as has already been pointed out, there is no such crime as 'brandishing' in florida.

Having a pistol/rifle at low ready while you investigate suspicious activity would not be considered


you may not use deadly force to end someone's trespass on your property. Pointing a firearm at a trespasser, may be considered deadly force by a jury.

personally, my two pit bulls are the first responders for noises outside. I follow with handgun/long gun depending on the nature and volume of the screams that result.:grin
Release the hounds.
 
#15 ·
I think that you are brandishing in your scenario. And to me open carry still has the firearm in a holster not in your hand and pointing it.
You would be mistaken.

Also, as already posted, no such thing as 'Brandishing' in Florida.
 
#16 ·
I don't think its considered brandishing; you are allowed to openly carry in your own property correct?

Inside or outside your house and within the yard is still your property. you can walk around inside your house while having your firearm out, why not outside in your own yard also. If you feel that you are in danger in your own property, having your firearm at the ready is not out of line IMO.
 
#17 ·
I don't think its considered brandishing; you are allowed to openly carry in your own property correct?

Inside or outside your house and within the yard is still your property. you can walk around inside your house while having your firearm out, why not outside in your own yard also. If you feel that you are in danger in your own property, having your firearm at the ready is not out of line IMO.
Correct. No requirement for a holster.
Just be careful not to point it at someone, unless they are committing a felony. That would be a crime.
 
#18 ·
Where did we get the idea that there is no crime for this? Be safe out there.....

In the State of Florida, Improper Exhibition of a Firearm, also commonly referred to as Brandishing a Firearm, is a criminal offense under Florida Statute 790.10. This statue states: "If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense, the person so offending shall be guilty of a misdemeanor of the first degree".

http://www.ajayfirearmslaw.com/improper-exhibition-firearm.htm

And from our friend, Jon H. Gutmacher, Esq. Author of the book titled: "Florida Firearms -- Law, Use & Ownership" (I would suggest if you have a CWP, to buy the book)

Located at: http://www.floridafirearmslaw.com/Improper-Exhibition-Firearm-Weapon.html
Improper Exhibition Of A Firearm Or Oher Weapon

Improper exhibition of a firearm and or improper display of a weapon are crimes governed by Florida Statute 790.10. This statute is officially titled as "improper exhibition of dangerous weapons or firearms", and the statute states that "if any person having or carrying any . . . weapon shall, in the presence of one or more (other) persons, exhibit the same in a rude, careless, angry or threatening manner, not in necessary self defense, the person so offending shall be guilty of a misdemeanor of the first degree".

The offense owes its roots to the common law crime of "brandishing".

Remember it says: exhibit the same in a rude, careless, angry, or threatening manner. Just having it in your hand, finger off the trigger held at you side is okay. Waving it around saying things like "I am going to blow you away" would not be good. In either case I would strongly suggest when confronted by a LEO and told to "Drop it" you drop it quick and do not move! LOL
 
#19 ·
I have a question about 776.013 Home protection – it is kind of related to the OP. The definition of “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

My question, the front yard in my house is not fenced, that part is ok. The backyard is fenced and then we have a large screened patio attached to the dwelling. The deck is made of cement foundation, same as the house; the ceiling is the same as the addition of the house as well. It was originally built in a way that with the addition of 2 walls (currently L shaped) it could become another room of the house. This area is currently screened in, it has two doors. It has furniture, but it’s patio furniture. People could spend the night out there but it is not currently designed (or set up) for that purpose. It has ceiling fans and even a fridge.

I can’t consider this part of the dwelling, now can I?
 
#20 ·
I have a question about 776.013 Home protection – it is kind of related to the OP. The definition of “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

My question, the front yard in my house is not fenced, that part is ok. The backyard is fenced and then we have a large screened patio attached to the dwelling. The deck is made of cement foundation, same as the house; the ceiling is the same as the addition of the house as well. It was originally built in a way that with the addition of 2 walls (currently L shaped) it could become another room of the house. This area is currently screened in, it has two doors. It has furniture, but it’s patio furniture. People could spend the night out there but it is not currently designed (or set up) for that purpose. It has ceiling fans and even a fridge.

I can’t consider this part of the dwelling, now can I?
Sure:
including any attached porch
Don't get too hung up on
and is designed to be occupied by people lodging therein at night.
 
#25 · (Edited)
From my copy (I think the latest version) page 199 of Gutmacher "FLORIDA FIREARMS Law, Use & Ownership" ...

"From a legal standpoint only the discharge of a firearm always constitutes the use of "deadly force". Whereas pointing a gun to ward off an attack is, as a matter of law, not greater than the use of "non-deadly force". ... On the other hand, it's still usually a jury issue on wheter it constitutes aggravated assault, and there is also an open question wheter it is the "use" of any "force", at all."

As I see it the OP is legal ... however I would not want to stand in front of a jury/judge to prove it ...

The only real question I see is the phrase "ward off an attack" ... If you are pointing at someone who is commiting a burglary are you being attacked?

From page 195 ...

"... they only time you can use a firearm, or any other deadly weapon in self-defense is when it it used to stop or prevent a "forcible felony""

SOOOOO ... it appears to me, just pointing your Weapon is NOT Deadly Force ... and would be OK to stop ANY of the "Forcible Feonly's" defined in the statue ... Do I have it wrong?
 
#29 · (Edited)
From my copy (I think the latest version) page 199 of Gutmacher "FLORIDA FIREARMS Law, Use & Ownership" ...

"From a legal standpoint only the discharge of a firearm always constitutes the use of "deadly force". Whereas pointing a gun to ward off an attack is, as a matter of law, not greater than the use of "non-deadly force". ... On the other hand, it's still usually a jury issue on wheter it constitutes aggravated assault, and there is also an open question wheter it is the "use" of any "force", at all."

As I see it the OP is legal ... however I would not want to stand in front of a jury/judge to prove it ...

The only real question I see is the phrase "ward off an attack" ... If you are pointing at someone who is commiting a burglary are you being attacked?

From page 195 ...

"... they only time you can use a firearm, or any other deadly weapon in self-defense is when it it used to stop or prevent a "forcible felony""

SOOOOO ... it appears to me, just pointing your Weapon is NOT Deadly Force ... and would be OK to stop ANY of the "Forcible Feonly's" defined in the statue ... Do I have it wrong?
What he is saying is that shooting a firearm is, as a matter of law, always deadly force. But pointing one may or may not be depending on the decision of a jury (or judge at a bench trial) based of all of the facts.

So pulling the trigger when it is not a self defense situation or to stop a forcible felony, you have used deadly force, period. If you only point it at someone, it would have to be decided at trial id you used deadly force.

So unless it's a clear self defense situation (or preventing a forcible felony) fire not fire the gun. Pointing it at someone may also get you in trouble. But having it holstered or at low ready should be fine on your own property.
 
#28 ·
well from what I see and read in the previously discussed statute (790.10) it states in the presence of one or more persons displays a firearm in a rude etc. manner and IS NOT in necessary self defense, then that person is guilty of a misdeamor. Now back to the OP, it is dark 0230 and you hear a noise and the only thing you have available is a weapon with a mounted light. So you begin to use said weapon with mounted light to make sure that your home is secure. Fine is this necessary for self defense, of course. Is there anybody that is with you? Were you with a group of people? If not then how is this considered to be a unlawful exhibition of a firearm. He was not in the presence of one or more persons and it was defintely in self defense and so he says he was not rude or threating, just trying to protect his house and home in self defense. This is just my two cents and YMMV
 
#30 ·
That's not the only thing you need to consider.

You have to be very careful when holding a firearm in a "bump in the night situation" if it is just a trespasser, pointing the gun at them could end up with you in jail or worse dead.

Think of it this way, someone is going to a friends house that they have never been to before. They get the address wrong and show up at your house and trip over the trash can in your dark driveway. You run out with gun drawn and point it at the guy.

Now he thinks he is at the right address and not doing anything wrong. He see;s you pointing a gun at him and you are not the friends he was going to visit. To him this is Assault with a deadly weapon - a forcible felony. Pulls his own firearm and shoots you (he practices a lot and is much much faster than you!). This would be consider a good shoot.

Or it's a BG making noise to entice to you come out and play. He is ready waiting with his own gun...:rifle:angel
 
#31 ·
Brian, I for one, am damn glad you're back!
 
#32 ·
Personally, I would stay in side with my family, the house is the safest place where you have every tactical and legal advantage. Have the wife call 911 tell them about the questionable situation going on in your yard, and sit back, guard your loved ones and wait for the police who are trained for situations like these. With criminals these days you never know what is going on outside. They could have set a trap, that since you cannot see, they could be waiting for you to come out, you could get jumped or overtaken in some sort, and if that happens they now have you, your gun, and a open access route to your house. Simple techniques like the ones mentioned such as motion sensor flood lights (not the little whimpy ones, the ones that can light up the blaock) and maybe a surveillance system so you can actually see whats going on outside with out leaving your home are simple deterrents that really will make BG's from even thinking twice about entering your property.
 
#33 ·
I think I understand your question. In practice there isn't really pubic display on private property, but you are displaying a firearm, so you are brandishing. Brandishing is an industry term we use to get to a point quickly. Can you get in trouble going outside with a gun? You bet.

It may have been the police trying to locate a suspect. You meet up with someone looking for an armed suspect, you could find yourself in trouble.

Going outside with a gun to check the yard or garage may not be ideal unless your kids or wife is out there as well. If you are really concerned someone is breakign into your garage, and only property is at risk, call the police. They are trained on how to do this stuff, and may be better at it. Heck, maybe the badguy will leave his crowbar behind for you.

There is a major difference between having a firearm and wearing a vest. A firearm does little if your target bad guy has an advantage shooting at a light from coverage - unless you move like Wonder Woman.
 
#34 ·
I think I understand your question. In practice there isn't really pubic display on private property, but you are displaying a firearm, so you are brandishing. Brandishing is an industry term we use to get to a point quickly. Can you get in trouble going outside with a gun? You bet.

It may have been the police trying to locate a suspect. You meet up with someone looking for an armed suspect, you could find yourself in trouble.

Going outside with a gun to check the yard or garage may not be ideal unless your kids or wife is out there as well. If you are really concerned someone is breakign into your garage, and only property is at risk, call the police. They are trained on how to do this stuff, and may be better at it. Heck, maybe the badguy will leave his crowbar behind for you.

There is a major difference between having a firearm and wearing a vest. A firearm does little if your target bad guy has an advantage shooting at a light from coverage - unless you move like Wonder Woman.
probably the best example of what could go wrong ive ever seen.....never mind the bad guys..you walk into the good guys armed you might be in for a world of hurt...or worse...
 
#36 ·
The short answer: Get a real flashlight.

That said, I live where a 911 response is most often going to be in excess of 15 minutes in my experience. There's no knowing if it's an armadillo that needs to be removed or a person committing a crime.

Despite what any textbooks say, it's simply not realistic to call 911 (and wait) - and it'd be an equally poor decision to go look without being armed. Now, I do have good lights on the home, and most often if I'm investigating at night the pistol is in my holster, but the rifle is in my hands. After having break-ins and vehicle thefts even in my nice neighborhood this is the appropriate response where I live.

Any scenario can be easily answered-

The "lost neighbor's friend" a) should realize they're lost b) should answer the "what are you doing on my property" c) has no reason to shoot at me as I've nothing aimed at them. d) if they did, well there's an important part of the "stand your ground" law that says you must be legal where you are. A drunk staggering into my home at night because they came to the wrong door does not excuse them shooting at me because they thought I was in their (or their friend's) home. This would be unfortunate for the friend, but the law does not excuse for the "oh, well I *thought* I was legal here..."

If LEOs are wandering around my property looking for someone - they'd be fools to not recognize that making noise/etc like that at night would not alert a home-owner. Equally, they a) have no reason to shoot at me as I've nothing aimed at them b) proper response should be an apology - but to play it fair, would probably be them telling me to put the weapon down - identify, have a nice night...

I have never (and at no point in time) would be in violation of 790.10 as at no point would I be "rude, careless, angry, or threatening". I'd be completely happy to defend this situation in any court - but there's me pinning hope that judges are familiar with law, as well as decent at proper interpretations thereof.
 
#37 ·
well then there you have it....its cut and dry....
 
#38 ·
300 Watt motion lights and a simple four camera video system all for under $500.00. I did my house this way, if I hear a bump in the night I simply turn TV to "input2" and my whole yard is on TV. If the motion lights have not been set off the cameras have infrared to eighty feet. I would never leave my fortress, I would choose my weapon(I personally carry at home, others might not) and gather my family and call 911. Imagine if I went outside, got taken out, and then my family was at the mercy of the BG?
I know the question itself is about the legality/possibility of brandishing, but in reality the situation should never take place as there is nothing outside worth your or your family's lives.
 
#39 · (Edited)
After all this discussion, I still like XDMan's first advice the best.

A nice Maglight with a xenon bulb for $25 or less would be a good thing. If you can afford a pistol mounted light, you can afford a good flashlight. A 3 to 5 cell Maglight makes a great club too.

In the OP, he mentioned using the gun mounted light to look around, that means he was pointing the pistol all over the place, and not just open carrying, or keeping at low ready. What the law says we may, or may not, be able to get away with is one thing, doing what's prudent is another. If it is a thief or burglary outside, he knows exactly where you are (especially if you have a light on your pistol pointing it all over the place), but you don't know where he is. That is not good. He (they?) has the advantage This is why I think it best to stay inside until he tries to break into the house, then you know exactly where he is and can take the appropriate action to eliminate the threat.

If the same thing happens here, I'll arm myself with my .45 and a good flashlight (turned off), keep all the inside lights off, and turn on all my outside lights, while the wife calls 911. If the creep is still here when the police arrives, fine. If not, that's fine too.

It's never fun looking for bad guys when they are in a position to already have the drop on you. When I was a deputy sheriff, I've had to check buildings with alarms ringing at 0300, search peoples property for prowlers, go inside buildings with open doors, etc, and it's never comfortable - and it's always dangerous.
 
#40 ·
Without addressing the wisdom of leaving one's house to investigate a noise outside, you should never use a weapon-mounted light for searching; only for target identification. A handheld light should be used for searching.

If I went outside and somehow got taken out by a BG, that would pretty much ensure that more armed people would be coming outside to counter-attack. :laughing
 
#41 ·
I am a lawyer, but not a Florida lawyer so take this as friendly advice and not legal advice. 790.10 is the kind of statute that keeps defense lawyers up at night because it's so nebulous. In a jurisdiction like Florida that approves of self-defense, "brandishing" is not as easily ruled as in jurisdictions that view armed self-defense as a bad thing. In the scenario presented, if there's nobody in the yard then you could not have brandished your gun at anyone. If you find someone in your yard who has no right to be there, I do not believe that the State of Florida will expect you to have mind-reading abilities so that you can tell Ted Bundy from the local schoolboys looking for a quiet place to have a beer. You can certainly make the appropriate inquiries and you can be armed while so doing. Of course, you cannot shoot unless life and limb is in immediate danger. This is why I prefer a separate flashlight. I can shine it in someone's eyes and keep the gun in holster or at low ready, not to defeat any charge of brandishing, but to avoid a fatal AD.
 
#42 ·
I would not be pointing a flashlight at anyone. If they are not in the light's beam, you will not see them. But they will see you. When you have a flashlight in your hand you are a highly visible target. Isn't brandishing when you display a gun in public?
 
#43 ·
Isn't brandishing when you display a gun in public?
No.
Improper exhibition of dangerous weapons or firearms

If any person having or carrying any dirk, sword, sword cane, firearm, electric weapon or device, or other weapon shall, in the presence of one or more persons, exhibit the same in a rude, careless, angry, or threatening manner, not in necessary self-defense...
 
#46 · (Edited)
Just read a nice article by Mas Ayoob about just this thing in discussing gun mounted lights. Seems that if you point you gun at a neighbor who may have tripped over your garbage cans because your only flashlight is on your gun, he could have you arrested for aggravated assault. As others have said, always have a handheld flashlight. If you want to suppliment that with a gun mounted light go ahead but only used it if you hear your front door being bashed in and BGs entering your house.
 
#47 ·
Searching your yard, while not the brightest idea, is perfectly legal.

Carrying a firearm while you do so is also perfectly legal.

Using a flashlight to conduct the search, legal.

Attaching the light to a firearm, and using that light to search, and upon finding something POINTING the firearm at them (after all it's attached to the gun), problematical. Until the point the situation escalates beyond simple trespass, there is no justification for the use of ANY force, let alone deadly force (or implied use of deadly force in the form of a pointed handgun).

Leave the handgun light for home intruders. Use a flashlight, or turn on the outside lights if you feel you MUST check out the yard. Carry the gun....don't use it as a search tool.
 
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