Virginia Gun Charge: What is Brandishing a Firearm?

Brandishing a firearm is charged under Code of Virginia § 18.2-282. Commonwealth law makes it a criminal act to point, hold, or brandish a firearm in a manner that is likely to induce fear in the mind of a reasonable person. One of the most important things to know about Virginia’s brandishing statute is that the “gun” does not need to be capable of actually firing.

You cannot defend a brandishing charge on the grounds that there were no bullets in the weapon. If a reasonable person would have been in fear of their safety, pointing a gun is a crime. In fact, if you point or wave an object that is similar in appearance to a firearm, you could potentially be charged with brandishing. Put another way, a defendant may face brandishing charges over a toy gun or other object made to look like a real firearm.

In most cases, brandishing a firearm is charged as a Class 1 misdemeanor in Virginia. However, if the offense occurs within 1000 feet of a school, a defendant can be charged with a Class 6 felony offense. The maximum penalties will depend on the severity of the charge:

• Class 1 misdemeanor brandishing is punishable by up to 12 months in jail.
• Class 6 felony brandishing is punishable by up to 5 years in prison.

With either a misdemeanor or felony charge, a defendant can also face additional penalties. First, the judge can order that the firearm in question be destroyed. Beyond that, a concealed handgun permit can be revoked after a brandishing of a firearm conviction.

Similar to other weapons offenses, brandishing of a firearm charges should be defended on a case-by-case basis. Ultimately, the burden of proof rests on the shoulders of the prosecution. The proper defense strategy will depend, in large part, on the unique nature of the case. For example, some charges may be filed after wholly false accusations that need to be challenged aggressively.

Under Virginia law, self defense can be raised as an affirmative defense in a brandishing case. As defined by the Cornell Law School Legal Information Institute, self defense is the use of “force” to defend oneself from actual or likely physical violence from another party. If you were in reasonable fear for your safety, pointing a firearm at the other party may be an excusable act on Virginia law.

It should be noted that defense of another innocent person is also a valid affirmative defense in these cases. You can defend a brandishing charge on the grounds that your actions were in defense of the safety of others. As raising a self defense claim is complicated, it is crucial that you consult with a defense lawyer as soon as possible.

While self defense is a valid defense to a brandishing of a weapon charge, protection of property is not. You cannot raise defense on the mere grounds that you wanted to protect your stuff from theft or vandalism. Indeed, as the Supreme Court in Virginia ruled in an important case, “a deadly weapon may not be brandished solely in defense of personal property” (Commonwealth of Virginia v. Jon Douglas Alexander).

At Bain Sheldon, our Virginia criminal defense lawyers are aggressive, results-oriented legal advocates for our clients. If you or your loved one was charged with brandishing a firearm, we are here to offer guidance and support. To arrange a fully confidential initial consultation, please contact our legal team today. We represent defendants throughout Central Virginia, including in Henrico County, Chesterfield County, Dinwiddie County, and Goochland County.