I frequently have clients come to my office facing charges of brandishing a firearm. Usually, these individuals are lawfully carrying a firearm, and find themselves the victim of malicious prosecution at the hands of private citizens who claim to have been threatened by the presence of the firearm.
Virginia Code §18.2-282 makes it a Class 1 misdemeanor to "point, hold, or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such a manner as to reasonably induce fear in the mind of another..." The penalties become far more serious if the offense occurs on or within 1000 feet of a school, wherein it is a Class 6 felony, punishable by up to 5 years in the penitentiary. This code section certainly serves a legitimate purpose, but many Virginians elect to lawfully carry their firearms openly, which can be misconstrued as a threatening gesture.
The ultimate question is whether the manner of carrying the firearm could reasonably induce fear in the mind of another. That is not to say whether the most timid individual conceivable would have been frightened by the manner of brandishing, but whether a reasonable person would have felt threatened. It is not a defense to establish that the firearm was not loaded, or was not functional at all, as the individual observing the firearm would have no way of knowing that. One could easily be frightened by an unloaded pistol, as it looks the same as one that is loaded.
If you or someone you know is facing a charge of brandishing a firearm in Virginia, contact our office right away. These charges can be dealt with effectively. We own guns, too, and respect your right to carry them!