Brandishing a Deadly Weapon or Firearm

Except in cases of self-defense, it is unlawful to “draw or exhibit” (brandish) any deadly weapon or a firearm in the presence of another if done in a “rude, angry, or threatening manner” or if done during a fight or quarrel. (Penal Code section 417(a).)  Under some scenarios, the penalty for brandishing can include a state prison sentence. If you are charged with brandishing a weapon or a firearm, you need an experienced brandishing defense attorney as a knowledgeable advocate who can identify your best defense to the charge.

A” deadly weapon” under the brandishing law can be almost any object that could cause death or significant or substantial injury. Objects that might be considered a deadly weapon include the obvious such as a baseball bat, but also objects such as a bottle or even a sharp pencil. (People v. Brown (2012) 210 Cal.App.4th 1, 6-8.)

Brandishing a firearm, whether loaded or unloaded, is an offense under this law, but carries greater penalties. Brandishing a deadly weapon is a misdemeanor, punishable by a maximum of 30 days in jail, while brandishing a firearm, also a misdemeanor, is punishable by a minimum of 3 months in jail up to one year in jail (depending on the place and type of firearm) and/or a fine of $1,000.

Under certain circumstances, brandishing a firearm is a wobbler, meaning it may be charged as a felony with a penalty of 16 months up to three years in state prison. Those circumstances include:

  1. Brandishing a loaded firearm on the grounds of a day care center or recreational program serving persons under the age of 18 and
  2. Brandishing a firearm, loaded or unloaded, in the immediate presence of a peace officer.
  • Jim, the office hothead, is up to bat at the company baseball game. Jordan, Jim’s nemesis at work, is acting as the umpire. When Jordan calls the third strike on what Jim believed should have been called a ball, Jim turns to Jordan bat in hand and angrily yells at Jordan, putting the bat right up to Jordan’s face. Jim could be charged with brandishing a deadly weapon. There is no requirement in the statute that Jordan feel actual fear from Jim’s conduct nor any requirement that Jim appeared as if he might hit Jordan with the bat.
  • Martha, an avid gardener, is showing a friend at the community garden her new Japanese sickle. The sickle looks like a large, curved sword with teeth. She demonstrates to her friend the swinging motion one uses when cutting vegetation with the sickle. During her demonstration an elderly couple strolling through the park come upon Martha’s demonstration. Believing she is swinging a sword in a threatening manner, they call 9-1-1. Martha is not violating the brandishing law because, although she was displaying a potentially dangerous weapon, she was not doing so in a rude, angry, or threatening manner.

A person is not guilty of brandishing a deadly weapon or firearm if the brandishing is in self-defense. For example, a person who grabs a crowbar to ward off a legitimate threat would not be guilty of brandishing. However, to invoke self-defense, you must have a legitimate fear of imminent danger.

Besides self-defense, there are several valid defenses to a brandishing charge. Your Orange County brandishing defense attorney will carefully review the prosecution’s evidence and identify potential defenses. For example, the prosecution must prove that the defendant was exhibiting the weapon in a rude, angry, or threatening manner or that the act occurred during a quarrel or fight. This is not often easy to prove as “rude, angry, and threatening” are subjective states of mind. Furthermore, the prosecution must establish that the object or weapon could cause death or great bodily injury. Depending on the circumstances, this can be difficult to prove. In the sharp pencil example above, the pencil may be capable of causing great bodily injury if it is, for example, held directly against a person’s neck, but would be hard to prove as a deadly weapon if the pencil, even if sharp, was merely pointed at a person. Note that in the case of brandishing a firearm, the fireman need not be capable of causing death or great bodily injury as the law is violated even if the firearm is unloaded.


Mr. Weinberg has defended hundreds of clients accused of a crime, including those accused of brandishing. Every client’s case is different and Mr. Weinberg is always focused on the best way to defend against the charges given the particular circumstances and evidence. Contact him at his Irvine office by calling (949) 474-8008 or by emailing him at

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