What is Brandishing?
It would be nice if there was an actual definition that was legally meaningful in all of the states and local jurisdictions. Unfortunately, that is not the case.
The Oxford dictionary defines the verb “to brandish” as follows:
“Wave or flourish (something, especially a weapon) as a threat or in anger or excitement.”
Dictionary.com defines it as follows:
“To shake or wave, as a weapon.”
The Merriam Webster dictionary defines it two ways:
“To shake or wave (something, such as a weapon) menacingly.”
“To exhibit in an ostentatious or aggressive manner.”
The essence of these dictionary definitions is that a weapon must be present, that it must be visible to the person considered to be an assailant, and that it must be exhibited in a manner by which the assailant will perceive it as a threat.
A search of Wisconsin Statutes resulted in no matches for the word “brandish.” A search of City of Madison Ordinances resulted in no matches. A search of Dane County Ordinances resulted in 3 “matches” that did not even contain the word, and had nothing to do with the subject.
A search of St. Louis County in Missouri ordinances, chosen because of the misguided prosecution of Mark and Patricia McCloskey in 2020, resulted in 3 matches, but the matches were not in the ordinances themselves. Instead, they were press releases about non-related criminals that pointed guns at law enforcement.
As beauty is in the eye of the beholder, so is perception of a threat in the mind of an assailant, and just as important, in the mind of a district attorney, and therein lies our problem. To scare off an assailant, the more that any exposure of a weapon will drive him off, and preclude the need for the actual use of deadly force, the better. However, to avoid prosecution by a misguided district attorney, the less exposure of a weapon the better.
Almost everyone would agree that actually pointing a firearm at an assailant would be a form of brandishing. Such an action offers a high probability of driving off the assailant, which by itself is a good result, as it protects you from physical harm, and keeps the assailant from being shot. However, in many jurisdictions, pointing a firearm at someone is a crime itself. Don’t expect that the assailant will tell the truth. He is apt to claim that he was peaceably minding his own business when you pointed a gun at him with no justification. Without video evidence, or the testimony of supportive witnesses, it’s your word against that of the assailant, and a liberal district attorney will probably side with the assailant.
An intermediate action would be to draw the gun and hold it in a ready position. Here again, without supporting evidence, an assailant will claim that you pointed it at him, and a corrupt district attorney will prosecute you.
Even if you only expose the gun without actually drawing it, such as pulling aside a jacket, the assailant will lie and a corrupt district attorney will believe him.
In summary, the definition of the verb “to brandish” is whatever the local district attorney says that it is. Therefore, make every possible effort to avoid getting into situations where you might have to draw your gun, since even if you don’t fire it, you can still get yourself into a legal mess. Stay away from dangerous areas, and minimize your time in high population counties, as those counties are the ones with the highest probability of having liberal anti-gun district attorneys. If you are prosecuted under some variation of brandishing, with a good attorney you will probably win, but when you consider the cost of your defense in both money and time, you still lose.