Arrested for Brandishing a Weapon or Firearm (Penal Code § 417) in California?

Brandishing a weapon or firearm in California is a serious criminal offense that can result in significant legal consequences, even if no one is physically harmed. Many people are surprised to learn that simply displaying a weapon in a threatening manner—even without using it—can lead to criminal charges under California Penal Code § 417.

At David P. Shapiro Criminal Defense Attorneys, we’ve helped numerous clients in San Diego and Chula Vista fight brandishing charges. This guide explains what constitutes brandishing under California law, the penalties you might face, and how an experienced criminal defense attorney can help protect your rights and freedom.

What is Brandishing a Weapon Under California Law?

California Penal Code § 417 defines brandishing as drawing or exhibiting a deadly weapon or firearm in a rude, angry, or threatening manner or unlawfully using a weapon in a fight or quarrel. The law covers both firearms and other deadly weapons, with different penalties depending on the specific circumstances.

It’s important to understand that brandishing doesn’t require that you point the weapon directly at someone or that you threaten to use it verbally. Simply displaying a weapon in a threatening manner can be enough for a brandishing charge.

Elements Prosecutors Must Prove

For a conviction under Penal Code § 417, prosecutors must prove beyond a reasonable doubt that:

1. You drew or exhibited a deadly weapon or firearm in the presence of another person
2. You did so in a rude, angry, or threatening manner or used the weapon unlawfully in a fight or quarrel
3. You were not acting in self-defense

Let’s look at each of these elements:

Drawing or Exhibiting a Weapon

“Drawing or exhibiting” means to take out, show, or display. This could involve:

• Removing a gun from a holster or waistband
• Taking a knife out of a sheath
• Displaying a weapon that was previously concealed
• Gesturing toward a visible weapon in a threatening way

In a Rude, Angry, or Threatening Manner

The prosecution must show that you displayed the weapon in a manner that was rude, angry, or threatening. This is typically determined by the context and circumstances of the incident, including:

• Your words and tone of voice
• Your body language and gestures
• The surrounding circumstances and setting
• Whether others felt threatened by your actions

Not Acting in Self-Defense

California law recognizes the right to self-defense. If you reasonably believed that you or someone else was in imminent danger and displayed a weapon to protect yourself or another person, this may provide a defense to brandishing charges.

Types of Brandishing Charges and Penalties

Penal Code § 417 creates several different offenses with varying penalties:

Brandishing a Deadly Weapon Other Than a Firearm (PC § 417(a)(1))

This includes weapons like knives, clubs, brass knuckles, or other potentially lethal instruments. This offense is a misdemeanor punishable by:

• A minimum of 30 days in county jail
• A fine of up to $1,000
• Probation with various conditions

Brandishing a Firearm (PC § 417(a)(2))

The penalties depend on whether the offense occurred in a public place and the type of firearm involved:

• If the violation occurs in a public place with a concealable firearm (such as a pistol or revolver): Misdemeanor punishable by 3 months to 1 year in county jail and/or a fine up to $1,000
• All other firearm brandishing: Misdemeanor punishable by a minimum of 3 months in county jail

Brandishing at a Day Care or Youth Program (PC § 417(b))

If you brandish a loaded firearm at a day care center or any facility where youth programs are being conducted while it’s in use, you can be charged with either:

• A felony punishable by 16 months, 2 years, or 3 years in state prison, or
• A misdemeanor punishable by 3 months to 1 year in county jail

Brandishing in the Presence of a Peace Officer (PC § 417(c))

Brandishing a firearm in the immediate presence of a peace officer who is performing their duties is a wobbler offense (can be charged as either a misdemeanor or felony):

• As a misdemeanor: 6 months to 1 year in county jail
• As a felony: 16 months, 2 years, or 3 years in state prison

Brandishing During Graffiti Cleanup (PC § 417(d))

If you brandish a weapon when someone is cleaning up graffiti or vandalism, you face a misdemeanor punishable by 3 months to 1 year in county jail.

Collateral Consequences of a Brandishing Conviction

Beyond jail time and fines, a brandishing conviction can have serious long-term consequences:

Firearms Restrictions

A conviction for brandishing a firearm typically results in a 10-year prohibition on owning or possessing firearms under California law.

Criminal Record

A brandishing conviction creates a permanent criminal record that can affect employment opportunities, housing applications, and professional licensing.

Immigration Consequences

For non-citizens, a brandishing conviction could potentially lead to deportation, inadmissibility, or other immigration problems, particularly if it’s charged as a felony.

Professional Licensing

Many professions requiring state licenses may view a weapons offense unfavorably, potentially affecting your ability to obtain or maintain professional credentials.

Common Defense Strategies for Brandishing Charges

Several defense strategies may be effective when facing brandishing charges:

Self-Defense or Defense of Others

If you reasonably believed that you or someone else was in imminent danger of bodily harm, and your display of a weapon was a reasonable response to that threat, you may have a valid self-defense claim.

No Rude, Angry, or Threatening Manner

Your attorney might argue that while you did display a weapon, you didn’t do so in a rude, angry, or threatening manner. For example, perhaps you were simply moving a weapon from one location to another with no intent to threaten anyone.

Lack of Intent

In some cases, a weapon might have been visible accidentally, without any intent to brandish it in a threatening way.

False Accusation

Unfortunately, some brandishing accusations arise during heated disputes where one party falsely claims the other displayed a weapon to get them in trouble.

Factual Disputes

There may be disputes about whether you actually had a weapon, whether it was actually visible to others, or about the manner in which it was displayed.

Examples of Brandishing Situations

To better understand what constitutes brandishing, consider these examples:

• During a road rage incident, a driver gets out of their car and shows a knife to another driver in a threatening manner
• A homeowner exposes  a gun to teenagers walking across their lawn
• In a bar argument, someone lifts their shirt to reveal a gun tucked in their waistband

In all these cases, even if there was no intent to actually use the weapon, the act of displaying it in a threatening manner constitutes brandishing under California law.

How David P. Shapiro Criminal Defense Attorneys Can Help

Brandishing charges require skilled legal representation because:

1. The law involves subjective elements like “threatening manner” that can be challenged
2. Self-defense claims require careful development and presentation
3. Negotiation with prosecutors may reduce charges or penalties
4. The consequences of conviction include potential firearm restrictions
5. Witness accounts often conflict and need thorough investigation

Our experienced San Diego defense team brings specific advantages to your case:

• Thorough case investigation: We examine all circumstances surrounding the alleged brandishing incident
• Witness interviews: We identify and interview all witnesses to get a complete picture of what happened
• Evidence analysis: We review any video footage, physical evidence, or other documentation
• Negotiation: When appropriate, we negotiate with prosecutors for reduced charges or dismissal
• Trial preparation: If your case goes to trial, we provide aggressive representation

We understand that brandishing charges often arise from misunderstandings, self-defense situations, or false accusations. Our approach focuses on presenting your side of the story and protecting your rights throughout the legal process.

Why You Need an Experienced Criminal Defense Attorney

Brandishing charges might seem straightforward, but they involve nuanced legal issues, including:

1. The subjective interpretation of what constitutes “threatening” behavior
2. The complex requirements for self-defense claims
3. Potential constitutional issues regarding the right to bear arms
4. Significant variations in penalties based on specific circumstances
5. Long-term consequences regarding firearm ownership rights

With so much at stake, experienced legal representation is essential to navigating these challenges effectively.

Contact a San Diego Brandishing Defense Attorney Today

If you or someone you love is facing criminal charges in California, swift action is imperative. The penalties can be life altering and long lasting. Give us a call today to set up a case evaluation with one of our attorneys and learn how to best protect your freedom and future.

Too often, we see clients who “wait and see,” unsure of the legal landscape ahead, only for charges to escalate. They then find themselves backpedaling into a bad defense and an even worse lawyer. Don’t let that happen to you. Protect your freedom. Protect your future. Know your rights.

The contents of this article and blog are meant for informational and marketing purposes only and do not constitute legal advice. Viewing and/or use of the blog does not form an attorney-client relationship. No statements in this post are a guarantee, warranty, or prediction of a particular result in your case.