The Second Amendment protects your right to own a gun. However, gun rights are not unlimited. In order to protect public safety, State law can limit how, when, and where you can use certain weapons. As a result, it can be unlawful to brandish – or show – a firearm or weapon in the presence of others. You could face criminal charges if you brandish the weapon in a rude or threatening way. Call our San Diego brandishing a weapon or firearm attorney today to schedule a free consultation and learn more.
Are you facing criminal charges for brandishing a weapon? Contact the Law Office of Vikas Bajaj for immediate legal assistance. Our criminal defense attorneys have more than 19 years of experience handling the most serious criminal matters in San Diego. We know that your future is in jeopardy and will do everything we can to protect it.
Brandishing a Weapon or Firearm – Penal Code 417 PC
Under California Penal Code 417 PC, it is a crime to “draw or exhibit” a deadly weapon or firearm “in the presence of another person” in a “rude, angry, or threatening manner.” It’s also a violation of 417 PC to use the weapon or firearm in a “fight or quarrel.”
If you’ve been charged with brandishing a weapon or firearm in violation of California state law, the state will still have to prove that you are guilty of the crime. This will involve proving each element of the offense. The state must show:
- You drew or exhibited a firearm or deadly weapon
- In the presence of another person
- In a rude, angry, or threatening manner, and
- You did not act in self-defense.
It’s important to note that intent to hurt others is irrelevant. The fact that you display a weapon in a dangerous way is enough to violate 417 PC.
Draw or Exhibit a Weapon
Brandish is defined to mean “wave or flourish” an object “as a threat or in anger or excitement.” In order to brandish a weapon, it must be visible to others. This is typically accomplished by removing the weapon from a secure or concealed location and making it visible to others.
In the Presence of Others
Brandishing a weapon is only a crime if it is done in the presence of other people. So, it can actually be a crime to brandish a weapon in public or private. In fact, others don’t even have to see that you have a weapon or firearm. All that matters is that others are present when you draw or exhibit the weapon in a dangerous or rude manner.
Rude, Angry, or Threatening Manner
It’s not generally a crime to display a weapon in the presence of others. Brandishing a weapon requires that you do so in a “rude, angry, or threatening manner.” This will a subjective question in your case. In other words, whether or not your behavior qualified as rude, angry, or threatening will really depend on the specific circumstances of your case. There is no hard and fast rule for what will qualify as rude, angry, or threatening. Would a reasonable person believe that your actions fell into one or more of those categories? If so, the state will probably have satisfied this element.
You have the right to defend yourself when you are threatened by others. Self-defense can involve using or displaying a weapon or firearm, when necessary. As a result, you cannot be guilty of brandishing a weapon if you are acting in self-defense. However, you’ll have to prove that your actions were necessary to protect yourself or another person.
Defining Deadly Weapon and Firearm
Penal Code 417 PC prohibits the brandishing of dangerous weapons and firearms in the presence of another person. What are dangerous weapons? What types of weapons are classified as firearms?
It’s a violation of 417(a) PC to brandish a deadly weapon. In California, a deadly weapon is defined as “any object, instrument, or weapon that is inherently deadly” or “one that is used in such a way that it is capable of causing and likely to cause death or bodily harm.” So, a deadly weapon is either an object designed to or capable of causing serious injury or death. Many different objects can be categorized as “deadly weapons.” Examples include:
- Hammers and other hand tools
- Power tools
- High heels
- Glass bottles
- Brass knuckles
- Musical instruments, and more.
Basically, anything that is capable of causing serious injury when used in a certain way can be considered a dangerous weapon for the purposes of 417 PC.
It’s a violation of 417(b) PC to brandish a firearm. In California, a firearm is defined to mean “any device designed to be used as a weapon, from which a projectile is discharged or expelled through a barrel by the force of an explosion or other form of combustion.”
Examples of firearms include:
- Revolvers, and
Firearms can be loaded or unloaded. BB guns and pellet guns are not considered to be firearms for the purposes of 417 PC.
Penalties for Brandishing a Deadly Weapon or Firearm
Brandishing a deadly weapon or firearm can be charged as a misdemeanor or a felony. The charge will likely depend on:
- Your criminal record,
- The type of weapon you displayed,
- Where you brandished the weapon, and
- The degree of harm caused to others.
Misdemeanor Brandishing a Weapon or Firearm
Absent any aggravating factors, brandishing a weapon or firearm is a misdemeanor offense. However, the penalties can vary, depending on the type of weapon you displayed.
Brandishing a Deadly Weapon:
- No less than 30 days in a San Diego County jail.
Brandishing a Firearm:
- Three to six months in a San Diego County jail.
Brandishing a Firearm Capable of Being Concealed in Public:
- At least three, but no more than 12 months, in a San Diego County jail.
Misdemeanor or Felony Brandishing a Weapon or Firearm
When aggravating factors are involved, brandishing a weapon or firearm may be charged as a misdemeanor or felony.
Brandishing a Weapon or Firearm at a Day-Care Center:
- Misdemeanor: At least three, but no more than 12 months, in a San Diego County jail.
- Felony: 16 months, two, or three years in a California state prison.
Brandishing a Weapon or Firearm in the Presence of Police:
- Misdemeanor: At least nine, but no more than 12 months, in a San Diego County jail.
- Felony: 16 months, two, or three years in a California state prison.
If you are convicted of brandishing a firearm in California you may lose the right to own or possess a gun. The state has recently cracked down on gun violence and targeted ownership rights of those convicted of gun crimes.
Defenses for Brandishing a Weapon or Firearm
You have the right to defend yourself if you have been accused of violating 417 PC for brandishing a deadly weapon or firearm. Remember, the state has to prove that you are guilty beyond a reasonable doubt. You can make their job more difficult by asserting a strong defense.
Defenses that can be argued when you are accused of brandishing a weapon include:
- The object you had cannot be categorized as a deadly weapon or firearm
- You did not draw or exhibit a weapon or firearm
- The weapon was not shown in a rude, threatening, or angry manner
- You were not in the presence of others
- False accusations, or
- Mistaken identity.
You can also fight to have evidence excluded from your case if you believe that it was gathered in violation of your rights. Stripping the state of its evidence will make it tough for prosecutors to build a case against you.
San Diego Brandishing a Weapon or Firearm Attorney
Have you been arrested for brandishing a weapon in the presence of others? You need to speak with an experienced San Diego brandishing a weapon or firearm attorney. At the Law Office of Vikas Bajaj, our attorneys have been defending clients against criminal charges in San Diego for more than 16 years. Gun crimes are serious and we are prepared to help you secure the best possible outcome in your case. Call us today to schedule your free consultation. We’ll review your case and answer any questions you have.