Virginia code § 18.2-282 prohibits any person from pointing, holding or brandishing any firearm or any air or gas operated weapon or any object similar in appearance.1 This offense is generally known as brandishing a firearm.
If you “brandish” a firearm in "such a manner as to reasonably induce fear in the mind of another of being shot or injured" you could be charged with this offense.2
A violation of this code section is a class 1 misdemeanor, which carries a maximum punishment of up to 1 year in jail and a $2500 fine.
This article provides an overview of the laws concerning brandishing a firearm in Virginia:
The Commonwealth must prove the following elements in order for a person to be convicted of brandishing a weapon:
- The defendant pointed, held or brandished any firearm or any air or gas operated weapon or any object similar in appearance,
- whether capable of being fired or not
- in such a manner as to reasonably induce fear in the mind of another
- held a firearm or any air or gas operated weapon
- in a public place
- in such a manner as to reasonably induce fear in the mind of another of being shot or injured.3
In other words, the basic elements of the crime are:
- Pointing or brandishing a firearm, and
- Doing so in such a manner as to reasonably induce fear in the mind of a victim4
The term to "Brandish" means "to exhibit or expose in an ostentatious, shameless, or aggressive manner."5
Example: After a man states "he'd like that" towards a woman he pulls up his shirt, revealing a flare gun underneath.6
The term "Firearm" in the context of this statute means "any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material."
It does not matter whether the firearm is capable of being fired or not.7
In such a manner as to reasonably induce fear in the mind of another
Fear does not mean fear in the traditional sense. Rather, fear means "apprehension". Therefore, if the victim reasonably apprehended that he may be injured, even if he was not actually afraid, this element of the offense is met.8
If the weapon is pointed or brandished at more than one person, and each person is placed in apprehension of injury, the defendant may be charged with separate counts for each person.9
There are numerous defenses to § 18.2-282 Brandishing a Weapon that may be presented in cases for persons charged with this crime.
Defense of property
Not allowed in the defense of personal property:
The general rule in Virginia is that using deadly force is not lawful when used solely in the defense of personal property.10 This general rule also applies in the context of a brandishing case, where although the actual use of deadly force has not been committed, the threat of deadly force has. Threatening the use of a firearm, as in the context of a brandishing case, is not lawful when done solely in the defense of personal property.11
This is true in part because when brandishing a firearm in response to a perceived threat, the brandishing must be reasonable in relation to that perceived threat.12
For instance, a property owner displaying a shotgun to unarmed cable installers in an effort to expel them from his property is likely not proportional to any perceived harm, even where the installers were on the property illegally.13
Virginia's brandishing code section specifically states that "this section shall not apply to any person engaged in excusable or justifiable self-defense." Therefore, if you were defending yourself or a third party in a lawful manner, Virginia's self defense laws will provide a defense to your actions.
Virginia law allows the use of self defense where a person:
- Reasonably believes
- He is in imminent danger of an overt act
- Threatening unlawful force, serious bodily harm, or death; and
- Uses the amount of force reasonable in relation to the harm threatened.14
Defense of others
In Virginia you are allowed to defend not only yourself from harm, but also other persons in certain circumstances. Virginia's rule is that you step into the shoes of the person he/she defends. Therefore, if the person being defended would have been justified in using self defense, the third party defending that person is as well.15
However, a third party may not defend another unless he reasonably believes that the other person was without fault in provoking the attack.16
Class 1 Misdemeanor
- Maximum punishment of 1 year in jail and $2500 fine
- The actual punishment in any given case will vary depending on the defendant's criminal history and the severity of the facts in the case
Class 6 Felony
- If the violation occurred on any public, private or religious school, or within 1000 feet of public property such school property, this is a class 6 felony17
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A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.
C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
6See Morris v. Com., 607 S.E.2d 110, 115, 269 Va. 127 (Va., 2005). (stating "When Morris looked at Ms. Molina, said "[he'd] like that," and then pulled up his shirt to uncover the flare gun, he exhibited or exposed the weapon in a shameless or aggressive manner.)
8See Huffman v. Com., 658 S.E.2d 713, 51 Va. App. 469 (Va. App., 2008) (stating "This Court has held, in connection with robbery, that "`the word "fear" ... does not so much mean "fright" as it means "apprehension"; one too brave to be frightened may yet be apprehensive of bodily harm.'")
"In other words, `[w]hen the pertinent test is cast in terms of a victim being put in "fear" of injury, it is not necessary that the victim be frightened; it is necessary merely that he be reasonably apprehensive of injury.'" Id. (Quoting Seaton, 42 Va.App. at 749, 595 S.E.2d at 14).
9 See Kelsoe v. Com., 308 S.E.2d 104, 226 Va. 197 (Va., 1983) (stating "In Code § 18.2-282, the General Assembly clearly proscribed an offense against the person. The gravamen of the offense is the inducement of fear in another. We conclude, therefore, that when the defendant frightened the three men by pointing his weapon, he committed three separate crimes.")
10See Fortune v. Commonwealth, 133 Va. 669, 112 S.E. 861 (Va., 1922) (stating "The general rule is that, while a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot innocently carry this defense to the extent of killing the aggressor.
12 See Diffendal v. Com., 382 S.E.2d 24,25-26 (Va. App., 1989). (stating "The common law in this state has long recognized that a person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault. Jackson v. Commonwealth, 96 Va. 107, 113, 30 S.E. 452, 454 (1898); see also Montgomery v. Commonwealth, 99 Va. 833, 835, 37 S.E. 841, 842 (1901) (recognizing the right of a landowner "to order [a trespasser] away, and if he refuse[s] to go, to use proper force to expel him" so long as no breach of the peace is committed in the outset). The privilege to use such force is limited by the equally well recognized rule that a person "shall not, except in extreme cases, endanger human life or do great bodily harm." Montgomery v. Commonwealth, 98 Va. 840, 843, 36 S.E. 371, 372 (1900). Moreover, the amount of force used must be reasonable in relation to the harm threatened. See id. at 844, 36 S.E. at 373 ("it is not reasonable to use deadly force to prevent threatened harm to property, such as a mere trespass or theft")
In view of this testimony, we conclude that a factual issue was raised whether Diffendal's pointing of the shotgun was reasonably proportioned to the perceived threat posed by Wachter's presence on the property while armed with a handgun. The resolution of that issue was a question appropriately within the province of the jury.")
13See Pike v. Com., 482 S.E.2d 839, 24 Va.App. 373 (Va. App., 1997) (stating "Credible evidence proved that Pike brandished the shotgun in a manner that reasonably caused fear in the minds of the Cablevision workers. The trial court examined the underlying circumstances and concluded that the production of the shotgun, under circumstances of angry confrontation, was unreasonable in terms of any privilege that Pike may have had to defend his property. The evidence supports this conclusion. The brandishing of the shotgun was disproportionate to any threat posed by the unarmed cable workers, irrespective of the legality of Cablevision's conduct.")
15 See Foster v. Com., 412 S.E.2d 198, 201, 202, 13 Va.App. 380 (Va. App., 1991) (stating "Like self-defense, the circumstances in which the protection of others may be raised as a defense are carefully circumscribed so as to preclude such a claim in situations where one has instigated the fray in order to provide an excuse for assaulting or murdering his enemy. In a majority of jurisdictions, a person asserting a claim of defense of others may do so only where the person to whose aid he or she went would have been legally entitled to defend himself or herself. 40 Am.Jur.2d Homicide § 171 (1968). Thus, the right to defend another "is commensurate with self-defense." Id. Consequently, in those jurisdictions which recognize the defense, the limitations on the right to defend one's self are equally applicable, with slight modifications, to one's right to defend another. One must reasonably apprehend death or serious bodily harm to another before he or [13 Va.App. 386] she is privileged to use force in defense of the other person. The amount of force which may be used must be reasonable in relation to the harm threatened. See Diffendal, 8 Va.App. at 421, 382 S.E.2d at 25-26 (delineating limitations in self-defense context).")
16 See Id at 202. "Accordingly, we hold that the law pertaining to defense of others is that one may avail himself or herself of the defense only where he or she reasonably believes, based on the attendant circumstances, that the person defended is without fault in provoking the fray."