Thursday, February 14, 2013

More on brandishing

I got a lot of criticism for my comments on the dad charged for pointing a gun.

One reader points out that you could get kicked off a gun range for pointing an unloaded rifle at someone. I have no quarrel with that. As I said, "I agree that pointing guns is bad practice".

Another reader points to California Penal Code 417, against "brandishing":
(2) Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel is punishable as follows:
(A) If the violation occurs in a public place and the firearm is a pistol, revolver, or other firearm capable of being concealed upon the person, by imprisonment in a county jail for not less than three months and not more than one year, by a fine not to exceed one thousand dollars ($1,000), or by both that fine and imprisonment.
(B) In all cases other than that set forth in subparagraph (A), a misdemeanor, punishable by imprisonment in a county jail for not less than three months.
Brandishing in public does not seem to be punished much differently from private. I don't know what that is all about.

So I guess that the dad could be charged if he did it in California, and if the daughter or some other witness filed a complaint that he pointed the gun "in a rude, angry, or threatening manner". According to the story, no witness made a police complaint, and the daughter denied that she was threatened. Perhaps she could be coaxed into saying that her dad was rude.

A lot of people don't approve of civilians owning guns, or having guns in the home, or having AK-47 style rifles, or dads pressuring kids to get straight As. But even if he is guilty of brandishing, our lawmakers have decided that it is just a misdemeanor, and not a felony.

My quarrel is with (1) making an arrest when no witness made a complaint and no one was harmed; (2) charging the dad with two terrorist felonies; (3) putting the daughter in a shelter; (4) using spies to intercept personal messages; and (5) forbidding family communication.

I am a believer in freedom and family autonomy. 100 years ago, or even 20 years ago, the govt authorities did not actively try to bust up families as they do today. Maybe if a cop heard some hearsay about some unsafe gun handling, he might knock on the door and suggest that the dad take a gun safety class. And that would be all, because the cops and prosecutors would realize that they don't have any admissable evidence and they would not have a policy directive to bust up families.

Yes, I know that gun accidents occur, and a common cause is a mistake about the gun being loaded. But swimming pool accidents occur at a much higher rate. Suppose a dad permitted an unsafe swimming pool practice like letting a child swim alone? Would you charge him with a felony and bust up the family?

If the authorities have the power to bust up this family, then they have the power to bust up every family in the USA. There is no bigger threat to freedom today.

12 comments:

Anonymous said...

You're unsure if what he did was "rude" ? It wasn't just some unsafe gun handling.

Anonymous said...

Can you further explain why it was not illegal because he had done it in privte vs. in pubdelic ?

George said...

Yes, private brandishing can be prosecuted if a victim files a complaint. But I do not believe that a dad should be jailed for being rude to his daughter about her school report card.

Anonymous said...

I don't think the dad should be jailed for being rude, but he pointed a gun at her. He was a lot more than rude.

The daughter was probably afraid to go and file a complaint against the father.

lisa said...

Two important points
1. california law has no bearing on this case. MN law is binding and its illegal under MN law.

2. the state doesnt need a victim to testify in order to indict or convict. the state merely has to prove that the crime occurred and was committed by the individual. That said, idictment is easier than conviction if a witness will not testify.

local news article is more informative. http://www.startribune.com/local/east/188377421.html?refer=y

George said...

http://www.startribune.com/local/east/188377421.html

That's right, but the prosecution has to present proof at trial, and that means someone has to testify. Usually there is not even an arrest unless a victim makes a complaint.

Anonymous said...

There is no law against pointing an unloaded gun in private. The cops were wrong to make the arrest.

Well, this was just plain false.

So, it doesn't need to be loaded, doesn't need to be in public, and there doesn't need to be a complaint filed by the victim, right ? How much of what George has said is actually true ?

George said...

If there were a law against pointing a gun, then most Hollywood westerns and other action movies would be illegal. I posted the law against brandishing. It does not mention pointing a gun. Convicting someone of brandishing requires proving the elements of the law, and pointing is not sufficient.

Anonymous said...

Oh please... In Hollywood westerns ?
They weren't making a movie, this was real life. In Hollwood westerns, it's not done in a rude, menacing fashion.

It was brandished in a rude way. It was pointed, which is worse so it was illegal and a felony, too.

Grasping at some weak straws ?

Anonymous said...

Pointing a Firearm at Another Person – Penalties under Indiana Law

If you point a gun at someone you could be charged with this Class D felony punishable by 6 months to 3 years in prison.

George said...

Maybe that is one reason Hollywood does not like to make movies in Indiana.

I do not believe that cops, social workers, prosecutors, and judges should be micro-managing harmless home child-rearing and activities. I believe people are innocent until proven guilty. I believe charges should be based on written statutes and rules of evidence. You obviously disagree, so go ahead and say how you think how the law ought to be.

Anonymous said...

Pointing an AK rifle at your child is harmless home child rearing or an activity ? No, it's a crime. He is still innocent until he is proven guilty, despite the report that he admitted that he had done it. The charges are based on written statutes and rules of evidence. I guess you just don't like what's on the books.