Brandishing a Weapon

Displaying a weapon in a rude or threatening manner - even if you have zero intention of actually using it - is unlawful in California.

brandishing weapon 417 pc - long beach criminal defense attorney don hammond
brandishing weapon 417 pc - long beach criminal defense attorney don hammond

Misunderstandings and disagreements happen, but escalating them by displaying a weapon can result in substantial legal consequences. California 417 PC defines the elements of this offense, along with penalties for defendants convicted of this crime.

California Penal Code 417 makes brandishing a weapon unlawful. For the purposes of this law, brandishing means displaying a weapon in a threatening manner, but not for the purpose of self-defense or defense of another. The intent of this statute is to prevent ordinary confrontations from being escalated to potentially deadly levels by the introduction of a weapon.

Elements of the crime

To obtain a conviction for a charge under 417 PC, the prosecution must prove beyond a reasonable doubt all of the following elements:

  • The defendant drew or exhibited a firearm or other deadly weapon in the presence of another person.
  • The defendant did so in a rude, angry, or threatening manner OR unlawfully during a fight.
  • The defendant was not acting in self-defense, of in the defense of someone else.

It is important to note that a violation under this statute does not require the intent to actually cause harm. The defendant does not have to actually fire a gun or point a weapon at the victim, nor does the victim have to actually see the weapon in question. The mere act of angrily exhibiting the weapon—in the presence of any other person—constitutes an offense.

For example, if Oscar pulls out a gun in front of his friends and angrily states that he is going home to kill his wife, he could potentially be charged with brandishing a weapon, even though he clearly did not intend to harm his friends, and his wife did not see the gun.

For purposes of this statute, a deadly weapon is any weapon or other object that can be used to cause death or great bodily harm or that is inherently dangerous. This would not include body parts such as fists or feet. Although guns and knives are obvious examples of deadly weapons, anything which can be used to harm another — such as a plastic bag or pillow for suffocation, a baseball bat or golf club, or even an attack dog — can qualify as a deadly weapon under 417 PC.

Criminal penalties for brandishing a weapon

Due to the wide variation of situations which can qualify as violations of 417 PC, there is a range of penalties for this crime. Brandishing a weapon is a wobbler, meaning it can be prosecuted and/or sentenced as a misdemeanor or a felony, depending upon the totality of circumstances and the defendant’s prior criminal history, if any.

As a misdemeanor, brandishing a weapon during a fight is punishable by a minimum of thirty days in county jail, unless the weapon was a firearm, in which case the incarceration penalty increases to three to six years.

If the weapon is concealable—such as a folding knife or handgun—the potential sentence includes any or all of:

  • Three months to one year in county jail.
  • A fine of up to $1,000.

Brandishing a weapon on the property of a child-care facility during business hours carries a penalty of three months to one year in county jail for a misdemeanor offense, while a felony offense is punishable by 16 months to three years in state prison.

According to California’s Gun Free Safe Schools Act (626.9 PC), brandishing a weapon in a school zone is a felony punishable by between three and seven years in state prison.

Brandishing a weapon in a rude, threatening, or angry manner—even an unloaded firearm—in the presence of a police officer who is on the job is punishable by nine months to one year in county jail for a misdemeanor conviction, or 16 months to three years in state prison for a felony conviction.

Legal defenses

Anyone accused of brandishing a weapon under 417 PC should seek legal advice applicable to their unique situation from a qualified criminal defense attorney. Potential legal defenses to a charge of brandishing a weapon include:

  • Self-defense or defense of others.
  • False allegations.
  • Wrongful arrest.
  • Unlawful search.