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Everything You Need to Know About Brandishing a Weapon or Pulling a Gun

 
10/21/2021
Weinstein Legal
Read Time: 5 Minutes

If you own a weapon or are have a permit to carry a concealed weapon in the state of Florida, you owe it to yourself to be familiar with the laws affecting the carrying, concealment, and display of guns and other weapons. Knowing the law may be the difference between using force to defend yourself as a law-abiding citizen and the police arresting you on a weapons charge. If you’ve been arrested for assault, battery, aggravated assault, or unlawful display of a firearm, you need to take the matter seriously. Call Weinstein Legal to retain the services of one of the top criminal defense attorneys in South Florida

Brandishing a Weapon in Public

So, what is brandishing a weapon? Under Florida state statute 790.10, it’s illegal for any person to exhibit a firearm or other weapon in a “rude, careless, angry, or threatening manner.” Under this statute, the reckless display of any weapon is a first-degree misdemeanor, punishable by up to a year in jail and $1,000 in fines. Interestingly, the state does not have an enhanced penalty for defendants who are convicted of carrying a firearm, as opposed to individuals who are convicted of carrying other, less-lethal weapons. 

Other Weapons Charges in Florida

It’s important to note the key differences between brandishing a weapon in public and more serious offenses, such as aggravated assault or aggravated battery. Typically, law enforcement officers will charge a defendant under the improper exhibition of a weapon (“brandishing”) statute when they cannot establish that the defendant made direct threats to the victim. If the defendant used the weapon to threaten, coerce, or intimidate the alleged victim, law enforcement would typically opt for an aggravated assault or another charge. 

Aggravated Assault

Under FSS 784.021, aggravated assault occurs when an individual commits an assault with a deadly weapon without the intent to kill. A direct threat with a deadly weapon can be charged under this statute. This is a third-degree felony, punishable by up to five years in prison and a $5,000 fine. 

Aggravated Battery in Florida

FSS 784.045 defines aggravated battery as committing a battery (unlawful physical touch) with a deadly weapon. This is a second-degree felony punishable by up to 15 years in prison and up to $10,000 in fines. 

Enhanced Penalties for Weapons

The Florida criminal code often includes enhanced penalties for occasions when the defendant is alleged to have been carrying a weapon at the time of the crime. Here are some examples:

Burglary

In Florida, burglary is a third-degree felony, but it can be elevated to armed burglary, a first-degree felony if the defendant is armed or arms themselves upon entry.

Robbery 

Unarmed robbery is a second-degree felony under Florida law. Armed robbery, however, can either be a first-degree felony if a non-firearm weapon was used or a first-degree felony punishable by life if a firearm was used. 

Florida law is full of enhanced penalties for defendants who possess a gun or weapon during their alleged crimes. Consult a Florida criminal defense lawyer to discuss your charges and your penalty exposure. 

Defenses for Brandishing a Firearm or Weapon

If you’ve been arrested or charged with a weapon crime, your first step should be to contact a criminal defense lawyer. Trying to talk yourself out of your charges or negotiate with the police can damage your case or lead to additional charges. In the Fort Lauderdale or West Palm Beach areas, contact Weinstein Legal for immediate and effective representation. 

The following are some of the most common defenses for weapon charges, such as brandishing a weapon. 

Self Defense

You are legally allowed to display or deploy a weapon or to use force in self-defense. Florida is a “stand your ground” state, which means you do not have a duty to retreat. If you believe that you were defending yourself, your attorney can possibly use this defense, particularly if the other party was the aggressor. 

No-Weapon Discovered

In moments of fear, people often mistake innocuous items for weapons. That’s why police will always attempt to find the weapon involved either on the suspect or in their immediate vicinity. If no weapon is located, it makes the prosecutorial argument more difficult. 

Illegal Search

In their effort to secure a weapon, police will often exceed their authority to conduct warrantless searches. For instance, the police can not search a locked compartment within your car without consent or a warrant. If the police violate your Fourth Amendment rights while conducting a search, any evidence they discover will be inadmissible. It’s important to note that the police can search persons and property under exigent circumstances if they believe the weapon can be used or destroyed. 

Frequently Asked Questions About Weapon Charges

If you have been arrested or charged with a crime in Broward or Palm Beach counties, contact the professional criminal defense team at Weinstein Legal. Otherwise, retain the services of a criminal defense lawyer in your area. 

What Does Brandishing a Gun Mean?

In the state of Florida, it is illegal to recklessly display a firearm. That means that if you pull a gun out or you show another person that you have a gun in a reckless or threatening way, you can be charged with a crime, even if you haven’t done anything else with the gun. 

Is Brandishing a Weapon Considered Assault?

Assault is a different charge than brandishing a weapon, and both crimes are covered under different statutes. While the distinction is fairly narrow, there is a difference. Brandishing a weapon means that you’ve displayed a weapon in a threatening manner, while assault means that you’ve threatened a person with the immediate, apparent ability to do harm. For example, if you show someone that you have a weapon in your waistband, they might interpret it as a threat, but there isn’t immediacy since you’d have to pull the weapon to use it. On the other hand, if you draw the weapon from your waistband and point it at the victim or hold it toward them in a threatening manner, your actions may rise to the charge of aggravated assault since it would appear to the victim that you could cause immediate harm. 

Is Brandishing a Gun or Weapon a Felony?

Brandishing a gun or other weapon is a misdemeanor in Florida, but this is not a charge that you can underestimate. Police officers and state attorneys will frequently attempt to stretch the charge of brandishing a weapon or brandishing a firearm into a felony crime like aggravated assault or even attempted murder. 

If you’ve been arrested for brandishing a firearm in South Florida, contact a weapons charges attorney in West Palm Beach and Fort Lauderdale. Call Weinstein Legal today for aggressive legal defense.

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