OUTRAGE in Virginia!

[McKnife]

My first post of this incident was deleted due to the new copyright policy. I am posting again with less article and more of my personal summary.

OUTRAGE IN VIRGINIA!!!

This incident did not take place in Texas. This incident involves openly carrying a firearm in Virgina.

A member of Open Carry forum named 'Skidmark' was arrested and charged with obstruction of justice and brandishing a firearm in Chesterfield County, however, the alleged crime occurred when he attempted to cross the James River via the Surry ferry and refused the demands of a private contractor working security for the Virgina Dept. of Transportation. 'Security' called police on Skidmark after he questioned the authority of the security supervisor. Skidmark was openly carrying his Rohrbaugh 9mm handgun and at no time made any reference or gesture towards it. It seems to me he was arrested because the Deputy didn't like being challenged by an armed citizen.

This shall be very interesting. His court date in January 2011.

I am in no way affiliated in this incident except for the fact that I understand this to be a petty and oppressing attack on those exercising their rights. What do y'all think of this?

Read the story here: http://forum.opencarry.org/forums/showt ... kidmark-**

[gigag04]

Not familiar with VA law, but if it is similar to TX, I am guessing that he was not arrested on the spot because they were misdemeanor offenses. With few exceptions, one needs a warrant.

If the story went down as narrated in the linked post, should be no problem in court. I'd be curious to see the officer's PC, case report, and witness statements from the guards to get both sides. That said, the OP, is sadly believable.

[Keith B]

Well, IMO he is probably gonna get convicted on both. States that have a brandishing law, as Virginia does, can pretty well state if you can see the firearm and you are in an argument, then you were brandishing. Here is the law on brandishing:

18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

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.

As for the Obstruction of Justice charge, that law is pretty broad and can be widely interpreted:

18.2-460. Obstructing justice.

A. If any person without just cause knowingly obstructs a judge, magistrate, justice, juror, attorney for the Commonwealth, witness or any law-enforcement officer in the performance of his duties as such or fails or refuses without just cause to cease such obstruction when requested to do so by such judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or law-enforcement officer, he shall be guilty of a Class 1 misdemeanor.

B. If any person, by threats or force, knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, attorney for the Commonwealth, witness, or any law-enforcement officer, lawfully engaged in his duties as such, or to obstruct or impede the administration of justice in any court, he shall be deemed to be guilty of a Class 1 misdemeanor.

C. If any person by threats of bodily harm or force knowingly attempts to intimidate or impede a judge, magistrate, justice, juror, witness, or any law-enforcement officer, lawfully engaged in the discharge of his duty, or to obstruct or impede the administration of justice in any court relating to a violation of or conspiracy to violate � 18.2-248 or subdivision (a) (3), (b) or (c) of � 18.2-248.1, or � 18.2-46.2 or � 18.2-46.3, or relating to the violation of or conspiracy to violate any violent felony offense listed in subsection C of � 17.1-805, he shall be guilty of a Class 5 felony.

D. Any person who knowingly and willfully makes any materially false statement or representation to a law-enforcement officer who is in the course of conducting an investigation of a crime by another is guilty of a Class 1 misdemeanor.

So, bottom line, when the guy decided to take a stand and was arguing with the supervisor (right or wrong), he opened himself up to being charged with the brandishing. And, then arguing with the Sheriff's Deputy got him the OoJ charge. If you notice, no charges were filed for illegally carrying a firearm, as he was totally within the law on that one.

This is another reason I think OC is a issue. I came from an Open Carry state. Prior to CHL and motor vehicle carry, if you had a loaded handgun in your car it had to be in plain sight. We also had a brandishing law, and were trained as I mentioned above. I do know of a case where a guy and his ex-girlfriend's new boyfriend were in a verbal altercation. The former boyfriend had a handgun laying on the dash of his car in plain view. He never threatened the new boyfriend, but police were called and the old boyfriend was charged with peace disturbance and brandishing, and he was subsequently convicted of both.

[Keith B]

I wanted to add, that brandish has a definition of flourishing, and flourishing has the definition of ostentatious display. The word ostentatious is characterized by or given to a pretentious or conspicuous show in an attempt to impress others or intended to attract notice. So just the visibility of the firearm could be construed as an attempt to show the supervisor he was out-gunned (even if that wasn't the actual intent of the person.)

[Purplehood]

I take it that a holstered firearm fulfills the legal requirement of holding the weapon?
If so, it appears to me that any individual that is legally practicing OC and gets into any form of verbal altercation with an authority figure could be successfully charged and prosecuted for brandishing. This implies that prior to getting into an argument you are literally compelled to divest yourself in some manner, of the weapon.

[Oldgringo]

When I came across this story several days ago on another forum, I could not help but be reminded of the long running fairly recent thread on this forum of the hand on the shopping cart issue in Wal-Mart.

IOW, as the Bard wrote, both incidents became unneccesary, "tempests in teapots".

[Keith B]

I take it that a holstered firearm fulfills the legal requirement of holding the weapon?
If so, it appears to me that any individual that is legally practicing OC and gets into any form of verbal altercation with an authority figure could be successfully charged and prosecuted for brandishing. This implies that prior to getting into an argument you are literally compelled to divest yourself in some manner, of the weapon.

I am not sure the 'holding' verbiage was intended as the holster, but more in hand. The brandishing term covers it just being visible during the altercation. Below is an excerpt from a U.S. District Court case where a bank robber had been convicted of brandishing a weapon because the robber wrote that they had a gun in the note. The court disagrees that a gun was brandished since it wasn't even in the bank, but only in the car. The court defines in the case, that a weapon is brandished if physically present, you can see it, and has the potential of being used during an altercation.

As a side note, I may have to read this further pertaining to intentional unconcealment of a handgun in Texas in relation to the question many have had about if you tell someone you have a gun on, did you 'unconceal it'.

Here is the excerpt from http://pacer.ca4.uscourts.gov/opinion.pdf/044112.P.pdf" onclick="window.open(this.href);return false;

"Brandish" is defined as follows:
[T]he term "brandish" means, with respect to a firearm,
to display all or part of the firearm, or otherwise make the
presence of the firearm known to another person, in order
to intimidate that person, regardless of whether the firearm
is directly visible to that person.

18 U.S.C. § 924(c)(4) (emphasis added). Groce agrees that,
if the gun had been present in the bank, the presentation of
the note referencing the gun would constitute the "otherwise
mak[ing] [of] the presence of the firearm known to another person"
within the meaning of subsection
(c)(4). She contends, however, that she did not carry the gun into
the bank and therefore her note could not make the presence of the
gun (as opposed, presumably, to its existence) known to those persons
inside the bank. Groce further argues that neither the district court nor
the jury ever concluded that the gun was present in the bank.
The government first contends that even if Groce is correct that the
gun remained at all times in the car, the gun was nonetheless "brandished"
within the meaning of the statute. We do not agree. Because
the word "presence" is not defined by the statute, the plain meaning
and the context in which the word appears provide our best guide to
its meaning. See King v. St. Vincent’s Hospital, 502 U.S. 215, 221
(1991)("[T]he meaning of statutory language, plain or not, depends on
context."). The statute defines a brandish as occurring when an individual
takes one of two courses of action: either the individual "display[
s] all or part of the firearm," or the individual "otherwise
make[s] the presence of the firearm known." Because "otherwise"
means "in a different way or manner," Webster’s Third New Int’l Dictionary
1598 (1986), the most straightforward reading of the full statute
is that the display of all or part of a firearm is one way, of which
there are others, by which one may "make the presence of the firearm
known." 18 U.S.C. § 924(c)(4). In such a context, the best reading of
the word "presence" is the fact or condition of being "in view or at
hand," because the fact that a gun is in view or at hand is exactly what
the display of a gun makes known. Webster’s Third New Int’l Dictionary
1793 (1986).
4 UNITED STATES v. GROCE
Our interpretation is further supported by the requirement that the
presence of the firearm be made known "in order to intimidate
[another] person." 18 U.S.C. § 924(c)(4). The obvious way of intimidating
a person during the commission of a crime is not to make it
known that a gun exists somewhere, but, rather, that the gun is present
"at hand" such that it could be used

[Purplehood]

I take it that a holstered firearm fulfills the legal requirement of holding the weapon?
If so, it appears to me that any individual that is legally practicing OC and gets into any form of verbal altercation with an authority figure could be successfully charged and prosecuted for brandishing. This implies that prior to getting into an argument you are literally compelled to divest yourself in some manner, of the weapon.

I am not sure the 'holding' verbiage was intended as the holster, but more in hand. The brandishing term covers it just being visible during the altercation. Below is an excerpt from a U.S. District Court case where a bank robber had been convicted of brandishing a weapon because the robber wrote that they had a gun in the note. The court disagrees that a gun was brandished since it wasn't even in the bank, but only in the car. The court defines in the case, that a weapon is brandished if physically present, you can see it, and has the potential of being used during an altercation.

As a side note, I may have to read this further pertaining to intentional unconcealment of a handgun in Texas in relation to the question many have had about if you tell someone you have a gun on, did you 'unconceal it'.

Here is the excerpt from http://pacer.ca4.uscourts.gov/opinion.pdf/044112.P.pdf" onclick="window.open(this.href);return false;

"Brandish" is defined as follows:
[T]he term "brandish" means, with respect to a firearm,
to display all or part of the firearm, or otherwise make the
presence of the firearm known to another person, in order
to intimidate that person, regardless of whether the firearm
is directly visible to that person.

18 U.S.C. § 924(c)(4) (emphasis added). Groce agrees that,
if the gun had been present in the bank, the presentation of
the note referencing the gun would constitute the "otherwise
mak[ing] [of] the presence of the firearm known to another person"
within the meaning of subsection
(c)(4). She contends, however, that she did not carry the gun into
the bank and therefore her note could not make the presence of the
gun (as opposed, presumably, to its existence) known to those persons
inside the bank. Groce further argues that neither the district court nor
the jury ever concluded that the gun was present in the bank.
The government first contends that even if Groce is correct that the
gun remained at all times in the car, the gun was nonetheless "brandished"
within the meaning of the statute. We do not agree. Because
the word "presence" is not defined by the statute, the plain meaning
and the context in which the word appears provide our best guide to
its meaning. See King v. St. Vincent’s Hospital, 502 U.S. 215, 221
(1991)("[T]he meaning of statutory language, plain or not, depends on
context."). The statute defines a brandish as occurring when an individual
takes one of two courses of action: either the individual "display[
s] all or part of the firearm," or the individual "otherwise
make[s] the presence of the firearm known." Because "otherwise"
means "in a different way or manner," Webster’s Third New Int’l Dictionary
1598 (1986), the most straightforward reading of the full statute
is that the display of all or part of a firearm is one way, of which
there are others, by which one may "make the presence of the firearm
known." 18 U.S.C. § 924(c)(4). In such a context, the best reading of
the word "presence" is the fact or condition of being "in view or at
hand," because the fact that a gun is in view or at hand is exactly what
the display of a gun makes known. Webster’s Third New Int’l Dictionary
1793 (1986).
4 UNITED STATES v. GROCE
Our interpretation is further supported by the requirement that the
presence of the firearm be made known "in order to intimidate
[another] person." 18 U.S.C. § 924(c)(4). The obvious way of intimidating
a person during the commission of a crime is not to make it
known that a gun exists somewhere, but, rather, that the gun is present
"at hand" such that it could be used

Keith,

How do you feel about my conclusion?

This implies that prior to getting into an argument you are literally compelled to divest yourself in some manner, of the weapon.

[Keith B]

Keith,

How do you feel about my conclusion?

This implies that prior to getting into an argument you are literally compelled to divest yourself in some manner, of the weapon.

I disagree. First off, let me channel the voice of TXInvestigator: "There is no brandishing law in Texas" LOL

Now, seriously, to be charged with brandishing (where the law exists) the other has to know of the presence of gun, either by seeing it or you telling them you have one on you. If you are carrying concealed, and the presence of the gun is not known, then you are not brandishing. So, in an argument where the gun is in the open and visible, then yes, I can see very well how it could be brandishing, even if you don't refer to the gun. And as I mentioned in a previous post, it has held up in court. If you are arguing with someone and they have no idea you have a gun on, then I don't see how you could be convicted of brandishing.

One thing note: Something that plays into this very heavily is who is the instigator. In the case skidmark above, HE is the instigator in the argument. In the case I mentioned about the ex-boyfriend being charged, he started the argument. If you were carrying openly where legal and you were not the instigator of the altercation and did not try to escalate the argument, but tried to back away or defuse the situation, then I don't think you would be guilty of brandishing.

Hope that makes sense.

[Middle Age Russ]

Keith,

If I follow your logic properly, then OC seems to present a bit of a slippery slope here that tripped up the accused. The premise is that the visibility of a firearm on a person during an argument is, in essence, brandishing. Therefore, if you open carry in Virginia don't argue with anyone. If someone complains you may take a ride you had not planned on.

For my money, concealed carry seems less potentially troublesome.

[Oldgringo]

Keith,

If I follow your logic properly, then OC seems to present a bit of a slippery slope here that tripped up the accused. The premise is that the visibility of a firearm on a person during an argument is, in essence, brandishing. Therefore, if you open carry in Virginia don't argue with anyone. If someone complains you may take a ride you had not planned on.

For my money, concealed carry seems less potentially troublesome.

Yep, as long as one remembers that concealed is concealed and that a CHL is not a Batman license.

[Keith B]

Wouldn't you be a lot more concerned if someone you didn't know started an argument with you and had a gun strapped to their hip vs. no visible gun? You don't know this guy from Adam, and have no idea what his temperament is. Who's to say the guy is not mentally unstable. While I would be concerned no matter what if he starts and unruly argument with me, I for sure am gonna feel more threatened if all he has to do is reach down and draw his gun.

[Purplehood]

I was thinking of the situation as if I were in VA. I was OCing and got into a verbal-altercation with a toll-road attendant or some flunky. Would I merely have to prove that I didn't start it? I am not sure what the intent of your theory is.

[Keith B]

I was thinking of the situation as if I were in VA. I was OCing and got into a verbal-altercation with a toll-road attendant or some flunky. Would I merely have to prove that I didn't start it? I am not sure what the intent of your theory is.

All I can tell you is the the one case I am personally familiar with in Missouri where the individual was the instigator in a verbal argument, and when the police arrived, he was arrested for peace disturbance for the argument and brandishing due to having as pistol on the dashboard of his car during the argument, even though he was outside of the car. He had pulled up to the others in his vehicle, with the gun in a holster, but plainly in view, got out and started the argument with the ex-girlfriend and her new boyfriend. The ex and her BF stated that they felt threatened by him and were concerned that he might grab the gun from his dash and use it, even though he never mentioned the gun or made any threats of retrieving it. Had he been the one just sitting there with the gun on his dash, and the others approached him and started the argument, then he would more than likely not been charged with peace disturbance and brandishing unless he did something to escalate the situation.

As for applying this to any argument, it is going to depend on the perception of the other party and f they felt the presence of a gun was a contributor to their fear of the aggressor. It is then up to the police and the prosecutor if they feel the level of threat to that individual justifies brandishing charges because the aggressor had a gun that was known to be present by the alleged victim during the altercation and it contributed to the fear of the victim. IMO, you could be charged with brandishing, whether open carrying or concealed, if the state has the law and the 'victim' knows you have a gun on you.

[Purplehood]

Yikes, sounds like a good argument against OC.

I hope I didn't say that out loud.