What Is Brandishing a Firearm? Is it Illegal?

Posted in Criminal Defense on April 14, 2019

California has some of the strictest firearm laws in the country, and all gun owners should know the laws against producing a firearm in the presence of others, or brandishing a deadly weapon. Doing so in certain situations could easily lead to severe criminal penalties. Section 417 of the California Penal Code specifically defines the brandishing of a deadly weapon other than a firearm in view of others or in a threatening manner as a misdemeanor, punishable by no less than 30 days in county jail. Brandishing a firearm can have a dramatically higher penalty.

What is Brandishing a Firearm?

California only allows the use of force in self defense, and the defender may only use as much force as is perceived from an attacker. For example, if there is a clear and present danger of fatal injury from an attacker, a defender may use lethal force in self-defense. If the attacker does not pose an immediate deadly threat, reacting with deadly force would be illegal under California law.

Imagine a mugger producing a knife to attempt to rob a licensed concealed carry permit owner. The permit owner produces his or her firearm to discourage the attack, and the mugger drops the knife and flees. This would be an acceptable brandishing of a weapon. Simply shooting the mugger with lethal intent would not be a justifiable use of force since the danger posed by the firearm outweighs the danger posed by the mugger’s knife and simply brandishing the firearm would likely be enough to defuse the attack.

The right to self-defense with force ends as soon as an attacker retreats, withdraws, or surrenders. California also upholds the Castle Doctrine, allowing property owners to protect themselves and their property while on their own property, but this protection ends once an individual is no longer on his or her real property.

Difference Between Brandishing a Weapon & Self Defense

Any firearm owner must recognize the difference between brandishing a weapon in self-defense and illegally brandishing a weapon. For example, attempting to defuse a heated argument by producing a deadly weapon is an illegal brandishing.

• Brandishing a deadly weapon in an illegal manner that is not a firearm is punishable by no less than 30 days in county jail.
• Brandishing an unloaded pistol or revolver to threaten someone else would lead to minimum fine of $1,000 and a minimum jail sentence of 90 days.
• Brandishing a loaded firearm in a threatening manner is a felony offense, punishable by up to three years in jail.
• Unintentionally injuring someone with a weapon after illegally brandishing that weapon could lead to a misdemeanor charge, punishable by up to one year in county jail or a felony punishable by up to three years in prison.
• Brandishing a loaded firearm to threaten a peace officer could lead to a misdemeanor offense with a penalty of a minimum of nine months in jail or a felony offense punishable by up to three years in county jail.
• Attempting to resist arrest by brandishing a loaded firearm is a felony offense, punishable by two to four years in jail.
• Threatening someone with an imitation or toy firearm that appears real could still lead to a misdemeanor charge and 30 days or more in county jail.

Ultimately, the only time it is acceptable to draw a deadly weapon in a threatening manner is in clear situations requiring self-defense. You may be able to argue a wrongful accusation if you simply showed someone else a legally-owned weapon in a non-threatening manner, but it is almost always better to save such interactions for private spaces. California has some of the toughest gun laws in the country, and it is possible for an individual to incur severe legal penalties simply for producing a weapon at the wrong time.