Brandishing, Gun Safety, Concealed Carry, Self Defense, Imenent Danger, Gun Violence, Second Amendment.
What To Do When… You’re Charged with Brandishing.
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The objective of the What To Do When… podcast is to discuss common legal scenarios faced by everyday citizens in Virginia. Critzer and Cardani practice law throughout Virginia and focus their practice around the state’s capital of Richmond, in the Piedmont region. Tune in and subscribe to learn about legal topics such as reckless driving by speeding, bad lawyers, Will Knows Weed, juvenile defense, juvenile sex crimes, reckless driving, the legalization of marijuana in Virginia, divorce 101, Child Support, and others.
WTDW Podcast | Episode 81: What To Do When… You’re Charged with Brandishing.
On this legal video podcast chat in Critzer Cardani’s What To Do When… podcast series, join our hosts Scott Cardani and Will Smith as they chat about What To Do When… You’re Charged with Brandishing. This video and audio podcast episode focuses on the nuances of the right to bear arms, concealed carry, self defense and brandishing a gun here in Virginia.
Tune in today for not only our top take-aways, but also legal insight about the following subject matters and other helpful action items from a ‘legal chat slant’ from Critzer Cardani’s legal partners.
* Scott Cardani introduces the topic of brandishing, emphasizing its complexity in Virginia.
* Will Smith defines brandishing as displaying a firearm or something resembling one in a threatening manner.
* Scott Cardani discusses the discrepancy between brandishing charges and concealed carry laws in other states.
* Scott Cardani and Will Smith discuss the concept of self-defense as an absolute defense to brandishing.
* Scott Cardani and Will Smith discuss the importance of having a lawyer who understands the nuances of brandishing laws.
The objective of the What To Do When… podcast is to discuss common legal scenarios faced by everyday citizens in Virginia. Critzer and Cardani practice law throughout Virginia and focus their practice around the state’s capital of Richmond, in the Piedmont region. Tune in and subscribe to learn about legal topics such as reckless driving by speeding, bad lawyers, Will Knows Weed, juvenile defense, juvenile sex crimes, reckless driving, the legalization of marijuana in Virginia, divorce 101, Child Support, There is Still Hope and others.
Thank you for sending us your feedback, questions, or topic suggestions for future #WTDW | What To Do When… episodes by emailing [email protected].
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Transcript:
What To Do When… Intro 00:01
Welcome to What To Do When… A podcast from real lawyers with real perspective, where we explore a variety of legal issues and scenarios. Each week we focus on a new topic and discuss what to do when and if any of these legal scenarios ever happened to you or a loved one. With over 40 years of combined legal experience, our hosts offer their unique perspectives and insights on a range of real life legal situations.
Scott Cardani 0:29
Hey guys, welcome back to another episode here at Critzer Cardani in Goochland, Virginia. We’re with Will today. And how are you Will?
Will Smith III 0:34
Doing alright Scott. What do we have on the docket for today?
Scott Cardani 0:39
We’re gonna do What To Do When… You’re Charged with Brandishing.
Will Smith 0:42
Okay.
Scott Cardani 0:43
So brandishing… What is brandishing Will?
Will Smith 0:45
Brandishing is when you are holding a firearm or something that at least resembles a firearm. You point it, or at least display it in a way that is threatening to the person that sees it and they are fearful that you’re going to hurt themsomehow.
Scott Cardani 1:00
This is really intense for me, folks, because I think brandishing is a weird charge in Virginia. A lot of states don’t have brandishing charges, especially when they have concealed carry laws. Because they realize that the purpose of a concealed carry, at least one of the purpose was a skilled concealed carry is self defense.
Will Smith 1:18
Sure.
Scott Cardani 1:19
So in self defense is a absolute defense to brandishing.
Will Smith 1:24
Absolutely.
Scott Cardani 1:25
So therefore you get into all these things. And I just think the law needs to be updated when you allow concealed carry in a state that you can’t have these really…. different views of the way it is.
Will Smith 1:25
Well, to that point, right? I mean, the idea is to not have to use the firearm. So the hope is that if it’s displayed, then that you know, whoever you’re you’re displaying it towards, is under understanding like, Okay, well, there’s no need to escalate whatever is happening here to some type of physical violence.
Scott Cardani 1:53
Okay, folks, we’ve had a rash of these two, these, these brandishing charges. People don’t understand the law. They don’t understand what their rights are, and you know you got to be really careful. And I agree that if I’m holding a gun against you, you’ve done nothing. We’re just in a conversation and all the sudden – I’m going to kill you.
Will Smith 2:12
Sure.
Scott Cardani 2:13
I mean, I get it. I’m not naive to that, and I know that happens, but we’re talking really the cases we get are really not that cut and dry. There’s some kind of issue that’s happened. There’s a reason that somebody might be in fear, or at least feel like they need to defend themselves, right? And so that’s really what we’re talking about here, folks.
Will Smith 2:31
Well, in what situations, Scott, are those that which you’re going to be justified in brandishing a firearm?
Scott Cardani 2:36
Really, it comes down to self defense or defense of others. If you believe that person to be in such danger that they would need to defend themselves. You got to have that, that link, that being able to step into their shoes.
Will Smith 2:49
Imminent danger.
Scott Cardani 2:49
Imminent danger. And you know the person that is self defense is, it’s reasonable believes he is imminent danger and a threatening unlawful force, or you go, what I’m trying to say is the other the other person is threatening unlawful force, or their serious bottle injury, or there’s death. That’s what they believe. Because your self defense has to kind of mirror what’s coming at you.
Will Smith 3:18
Right.
Scott Cardani 3:18
So for instance, if you know somebody says they’re gonna…
Will Smith 3:24
Punch in the face.
Scott Cardani 3:25
Punch in the face and you pull out a gun, you pull out a gun. Now, again, those are things I think are questionable, because we know for a fact, you and I both know people died with a punch to the face. Yes, you know, or been really permanently wounded, their eye socket, broken, things like that. So people go, Well, that’s not a proper depends on which side of the fence you’re standing in, absolutely. But if somebody has a water hose and they spray you with water, I don’t think you can pull out your gun and say, I’m gonna kill you.
Will Smith 3:50
Probably escalating things at that point.
Scott Cardani 3:51
So, but you know, there’s, there’s a lot of nuance to this law, and we’re seeing it in a way that that we’re actually not liking it, and I think the judges are misapplying the law. And I’m telling you what, folks, I’ll just say it this way, and I’m probably on a soapbox, and I’ll probably get somebody say something to me. At my age I don’t know that I care that much. I believe in the right to protect yourself. I believe in the right to self defense and and I believe that that has been whittled away in Virginia law and case law over the years since I’ve been in things, been been in a lawyer, and I think, I don’t think it’s okay. I think you should always have the right predominantly to defend yourself, you know, and defend your home, even that’s, that’s your place. You know, somebody’s on your property and they come up and, you know, you don’t know who they are, it’s dark, or whatever. And you, you, you have a right to believe that you’re you’re being threatened, or your home is, you don’t know what they’re going to be. And, you know, I’ve seen some, lot of cases over the years, but we see the law kind of drifting a way that we don’t like. But we really feel like people need to understand that brandishing in Virginia is a complex thing.
Will Smith 5:01
Absolutely is Scott.
Scott Cardani 5:02
It’s no longer cut and dry. You don’t just to get to say, hey, you know, I pulled my gun on him because he sprayed me with water. Whatever it may be like Will was saying, that’s the silly ones. But where it gets complex is that you feel like you were in danger. And a court says, Well, I don’t think you were in danger. You should have never done that, right? And we both know that it doesn’t matter what the court thinks. It’s your reasonable belief at the time.
Will Smith 5:26
Yeah.
Scott Cardani 5:27
And people have a varied sensitive sensitivity to different things. You know, somebody who is a vet, you know, may have actually more sensitivity to being threatened or less. It depends. Maybe he’s kind of fearless. He’s seen so much stuff that. But it also can be the opposite situation where he feels like he’s been under so many circumstances that that guy’s really trying to hurt me. I’ve seen this before.
Will Smith 5:49
Right.
Scott Cardani 5:49
And respond like that. So…
Will Smith 5:51
Trying to get ahead of it.
Scott Cardani 5:51
Trying to get ahead of it. And, you know, I see police, police officers are in this spot a lot, where they have to decide what the circumstances are in the moment, and it’s a very, very hard decision for the ordinary person. And of course,
Will Smith 6:03
When I think I want to stop you for one second and say that, I think that the way that they are handling I think the reason that we’re seeing this uptick in brandishing charges is because of the way that the state is viewing just gun violence in general. And gun violence has increased significantly since 2020 and most of those guns are in the hands of guns are in the hands of teenagers or people that are in their early 20s. And because the courts have seen more and more of these cases, I know that certain local police officers are encouraged to charge people with any type of firearm offense that they can whether it be concealed weapons offense, whether it be a bradishing charge or some type of unlawful discharge of a firearm, they are looking to have these people charged and then convicted of these charges because they’re trying to take gun violence so seriously.
Scott Cardani 6:50
Yeah, and you know that had your Second Amendment right to, you know, possess a gun and all those things, really, that’s why this is so important. There’s so many rights and regulations here at play. And, you know, so often we give up a right so freely when we don’t really understand the right and we don’t understand what it’s for. And you know, and so, you know, you’re you got to be careful with all these things. These are very tough decisions. I’m always of the mind that you never brandish a firearm unless you intend to use it and you feel like you need to use it right to save yourself. And I’m okay with that. I mean, that’s my belief, and I see that, but I also believe that, you know, Mary down the street, who lives in a bad neighborhood, has somebody walking up on her back porch, may feel like she’s threatened at that moment because she’s had her house broken into and you don’t know what somebody’s going to do. So these things are very, very tricky. You need a very good lawyer to handle brandishing charges. Don’t take them lightly, because the statute’s a misdemeanor, doesn’t seem like it’s going to be that big a deal, up to one year in jail, $2,500 fine. But man, when you’re charged, you need somebody who can explain your situation in a way that’s effective.
Will Smith 7:05
Right.
Scott Cardani 7:38
Because the, remember, the Commonwealth has to prove every element of the charge beyond a reasonable doubt before they can find you guilty. And I just feel like sometimes that’s fast forward and and, you know, it has to say, is he pulled a gun?
Will Smith 8:14
Yeah.
Scott Cardani 8:14
You know, and that’s, that’s not brandishing.
Will Smith 8:16
No. I mean, they have to be able to put on evidence that the person was fearful of, that they were in imminent danger of being, you know, harmed in some way. But, yeah, every single one of those elements of the offense needs to be proven by the Commonwealth’s attorney. And these cases are so nuanced, right? I mean, they’re taking place on your own personal property. They’re taking place like in, you know, in your backyard, in your front yard, on the street, you know, you don’t really know, you know, what situation you’re going to be thrown into, where you’re going to have to, you know, bring out a firearm and potentially protect yourself or protect somebody else. So I think that you know you need to have a lawyer who is focused on the facts and able to explain the situation, provide some context so that you know you can explain to the judge you know what exactly happened.
Scott Cardani 8:57
Yeah, absolutely. All right. Folks like and subscribe. We appreciate you tuning in today from Powhatan, Virginia or wherever you’re from. Have a good day. Thank you.
Will Smith 9:06
Take care.
What To Do When… Outro 9:07
We hope you’ve enjoyed this episode of What To Do When… For more episodes, be sure to subscribe to our podcast and we encourage you to check archives to listen to previous topics. Tune in next week for a new episode and some fresh perspective from Critzer Cardani.
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