Brandishing a weapon is the crime of exhibiting something that could be used as a weapon in a threatening manner. How exactly the offense is defined, and the penalties for a conviction, vary by state. However, brandishing a weapon in an act of lawful self-defense is generally a legal defense to the charge.
What does it mean to “brandish” a weapon?
Different state laws define what it means to “brandish” a weapon differently. While they generally agree that the definition of brandishing involves exhibiting the weapon in a threatening manner, they disagree on some of the details.
For example, in California, the elements of the offense of brandishing a firearm or deadly weapon are:
- you drew or exhibited a firearm or deadly weapon in someone else’s presence,
- you did so in a threatening, angry, or rude manner, or used it in a fight or quarrel, and
- you were not acting in self-defense or in the defense of someone else.[1]
Some states, like California, focus on how the weapon was exhibited. Other states focus on whether other people became afraid by it.[2] In states that focus on the victim’s fear, you can be charged with multiple counts of brandishing a weapon if you point it at multiple people.[3]
In California and other states that criminalize the offense, “brandishing a weapon” has included:
- the use of a firearm or weapon in a fight,
- pointing a firearm at someone,[4] even if it was then put back in its holster,[5]
- pointing a firearm, but not directly at someone,[6]
- wielding a screwdriver in a standoff with police,[7]
- standing on a public sidewalk with a pistol in your hand,[8]
- making slashing motions at someone while holding a knife,[9]
- waving a loaded pistol around and refusing to stop when asked to put the gun away,[10] and
- looking at someone and lifting your shirt to uncover a gun.[11]
However, it has not included:
- lawfully carrying a concealed weapon, and
- being in a motor vehicle with a firearm inside it.[12]
It also does not cover law enforcement, peace officers, or police officers who point their handgun at someone while on the job.
Does it have to be a deadly weapon?
It depends on the state.
In California, for example, it can be a firearm or any deadly weapon.[13] A “deadly weapon” is any object that, based on all of the surrounding circumstances, is used in a way that is capable of causing, and likely to cause, death or great bodily harm.[14] California courts have created three categories:
- inherently deadly weapons, which are always illegal to brandish,
- weapons that are not inherently deadly, but which can be based on the circumstances in which they are used and the intention of the person using them, and
- objects that are not deadly weapons.[15]
A weapon is inherently deadly if it was designed for use in a way that is deadly or dangerous.[16] Courts in California have decided that the following weapons are inherently deadly and therefore are always illegal to brandish:
- firearms, even if unloaded,[17] and
- dirks or daggers.[18]
However, courts have also concluded that the following weapons are not inherently deadly, though they still may be deemed deadly by a jury based on the circumstances in which they are used and the intent of the person using them:
- box cutters,[19]
- a knife,[20]
- a pocket knife,[21]
- a cane,[22]
- hammers,[23]
- hatchets,[24]
- razors,[25]
- a motor vehicle,[26] and
- a screwdriver.[27]
Finally, some objects that are not deadly weapons, such as:
In other states, it must be a firearm to be illegal. In Virginia, for example, it must be a firearm or a weapon operated by air or gas for brandishing it to be a crime.[30] In Michigan, it must be a firearm, and it must be brandished in public for it to be a crime.[31]
What if the other person does not see the weapon?
Generally, the other person does not need to be aware of the weapon being brandished for it to be a crime.
In states that focus on the intent of the person brandishing the weapon, it does not matter that other people did not see the weapon. For example, in West Virginia, the law forbids brandishing a weapon to cause or threaten a breach of the peace.[32] Because this focuses on the intent of the person with the weapon, it does not matter that the weapon was not seen by others.[33]
In California, the language of the statute forbids brandishing a weapon in someone’s “presence.” Courts have determined that this does not necessarily require that person’s awareness of the weapon.[34]
What are the penalties for a conviction?
Brandishing a weapon is generally a misdemeanor offense. The table below lists the penalties for a conviction in several different states:
| State | County jail sentence | Fines |
| California[35] | Between 3 months and 1 year | None |
| Michigan[36] | Up to 90 days | Up to $100 |
| Mississippi[37] | Up to 3 months | Up to $500 |
| Nevada[38] | Up to 6 months | Up to $1,000 |
| Virginia[39] | Up to 1 year | Up to $2,500 |
| West Virginia[40] | Between 90 days and 1 year | $50 – $1,000 |
Some states, like California, increase the penalties in some situations.
In California, there is also a maximum $1,000 fine if a firearm is brandished in a public place.[41] The offense also becomes a wobbler if a firearm is brandished on the grounds of an open daycare center. If prosecuted as a felony, a conviction for this offense would carry up to 3 years in state prison.[42]
Other states may also increase the penalties for brandishing a weapon in an aggressive manner while on school property.
Can I also be convicted for similar offenses?
States that have a law against brandishing a weapon may also have other criminal laws against things like:
- unlawfully carrying a concealed firearm,
- assault with a deadly weapon,
- wanton endangerment,
- carrying a weapon without a license, and
- felon in possession of a firearm.
In some states, like West Virginia, you can be convicted for brandishing a weapon and these other offenses from the same incident.[43] In others, like California, you can only be punished under the conviction that carries the most prison time.[44]
In some states, brandishing a weapon is a lesser-included offense in more serious crimes. Even if you face criminal charges only for a related offense, you can still be convicted for brandishing a weapon.[45]
Is self-defense a legal defense to the charge?
Yes, legal self-defense can be used to defend against a charge of brandishing a weapon.
You act in justifiable self-defense if you:
- reasonably believe that you are about to suffer imminent harm, and
- you use no more force than is reasonably necessary to defend against that danger.[46]
For example: A homeowner finds a car on his property that he does not recognize. He takes the shotgun that he has for home defense and investigates. He finds a trespasser and sees that she is wearing a gun holster. He points the shotgun at her and demands to know who she is.[47]
The criminal defense attorneys at our law firm have found that, because brandishing a weapon is the threat, rather than the use of deadly force, self-defense or the defense of others is often a strong defense to these charges.
However, self-defense is just one of the legal defenses available to these charges. Just a few others are:
- the weapon was actually hidden and you have a concealed carry permit,
- you brandished it in the defense of someone else, and
- the weapon was not a deadly one.
By establishing an attorney-client relationship with a defense lawyer and getting their legal advice, you can decide how to best proceed.
Legal References:
[1] California Criminal Jury Instructions (CALCRIM) No. 983.
[2] See, e.g., Virginia Code 18.2-282 (“It shall be unlawful for any person to point, hold or brandish any firearm… in such manner as to reasonably induce fear in the mind of another”).
[3] Kelsoe v. Commonwealth, 308 S.E. 2d 104 (Va. 1983).
[4] Huffman v. Commonwealth, 658 S.E. 2d 713 (Va. Ct. App. 2008).
[5] Kelsoe v. Commonwealth, supra note 3.
[6] People v. Mercer, 113 Cal.App.3d 803 (1980).
[7] People v. Simons, 42 Cal.App.4th 1100 (1996).
[8] Kellett v. Superior Court, 63 Cal.2d 822 (1966).
[9] People v. Pruett, 57 Cal.App.4th 77 (1997).
[10] Huffman v. Commonwealth, supra note 4.
[11] Morris v. Commonwealth, 607 S.E. 2d 110 (Va. 2005).
[12] State v. Allen, 539 S.E. 2d 87 (W.Va. 2000).
[13] California Penal Code 417 PC.
[14] CALCRIM No. 983.
[15] People v. Raleigh, 128 Cal.App. 105 (1932).
[16] CALCRIM No. 983.
[17] California Penal Code 417(a)(2) PC.
[18] People v. Raleigh, supra note 15.
[19] People v. Aledamat, 8 Cal.5th 1 (2019).
[20] People v. McCoy, 25 Cal.2d 177, 188 (1944).
[21] People v. Pruett, 57 Cal.App.4th 77 (1997).
[22] People v. Raleigh, supra note 15.
[23] Same.
[24] Same.
[25] Same.
[26] People v. Perez, 4 Cal.5th 1055 (2018).
[27] People v. Simons, supra note 7.
[28] People v. Graham, 71 Cal.2d 303 (1969).
[29] People v. Aguilar, 16 Cal.4th 1023 (1997).
[30] Virginia Code 18.2-282.
[31] Michigan Penal Code section 750.234e.
[32] West Virginia Code 61-7-11.
[33] State v. Bell, 565 S.E. 2d 430 (W.Va. 2002).
[34] People v. McKinzie, 179 Cal.App.3d 789 (1986).
[35] California Penal Code 417 PC.
[36] Michigan Penal Code 750.234e.
[37] Mississippi Code 97-37-19.
[38] NRS 202.320.
[39] Virginia Code 18.2-282.
[40] West Virginia Code 61-7-11.
[41] California Penal Code 417(a)(2)(A) PC.
[42] California Penal Code 417(b) PC.
[43] Cline v. Murensky, 322 S.E. 2d 702 (W.Va. 1984).
[44] California Penal Code 654 and Kellett v. Superior Court, supra note 8.
[45] State v. Bell, supra note 33.
[46] See, e.g., CALCRIM No. 3470.
[47] Facts from Diffendal v. Commonwealth, 382 S.E. 2d 24 (Va. Ct. App. 1989).
