Virginia Law Explained: Brandishing Firearm, Va Law 18.2-282
Under Virginia law 18.2-282, it is a class 1 misdemeanor criminal offense to point, hold or brandish any firearm in such manner as to reasonably induce fear in the mind of another. The maximum penalty for brandishing a firearm in Virginia is 12 months in jail and a $2500 fine.
If the firearm brandishing occurs within 1000 feet of a school, the crime is elevated to a class 6 felony offense. The maximum penalty on the felony offense is 5 years in prison and a $2500 fine.
Self-defense, when justified and proven in court by the accused, is a defense to the crime of brandishing.
§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.
A. It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.
C. For purposes of this section, the word “firearm” means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word “ammunition,” as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.
Relevant Virginia Case Law on Brandishing
Kelsoe v. Com. – Va: Supreme Court 1983
Kelsoe had an argument with three men. After they walked away from him, the defendant withdrew a pistol from his coat and pointed it at them. The men were standing together a few feet from Kelsoe, facing him. They were frightened and backed away from the defendant. Thereupon, Kelsoe replaced the pistol in his coat.
The defendant contends his act constituted but one offense, and the imposition of three punishments violates the constitutional prohibitions against double jeopardy. U.S. Const. amend. V; Va. Const. art. I, § 8. We do not agree.
Code § 18.2-282, in pertinent part, provides that “[i]t shall be unlawful for any person to point, or brandish any firearm… whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another.” There are two elements of the offense: (1) pointing or brandishing a firearm, and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim. The agreed facts establish that Kelsoe “pointed the pistol toward” the three men and that each was “afraid and backed away from the defendant.”
When considering multiple punishments for a single transaction, the controlling factor is legislative intent. Missouri v. Hunter, ___ U.S. ___, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983); Cartwright v. Commonwealth, 223 Va. 368, 288 S.E.2d 491 (1982). In Code § 18.2-282, the General Assembly clearly proscribed an offense against the person. The gravamen of the offense is the inducement of fear in another. We conclude, therefore, that when the defendant frightened the three men by pointing his weapon, he committed three separate crimes. Since the trial court was authorized to impose multiple punishments, the defendant’s sentences were not barred by the double jeopardy clause. Cartwright, 223 Va. at 372, 288 S.E.2d at 493-94.
Diffendal v. Com. – Va: Court of Appeals 1989
Harry Albion Diffendal was convicted of “point[ing] or brandish[ing] [a] firearm … in such manner as to reasonably induce fear in the mind of another.” Code § 18.2-282. Diffendal contends that the trial judge erred in (1) restricting voir dire of the jury venire and later refusing to grant a mistrial when a juror informed the judge that he was a retired state police officer, and (2) restricting the scope of his defense and refusing to instruct the jury as to his defense. We do not address the first issue because, for the reasons that follow, we hold that the trial judge erred in restricting the scope of the defense, and we reverse the conviction.
On August 1, 1986, Diffendal and a companion, Gaines Brown, went to Arthur Smith’s farm to engage in target shooting. Smith, who is Diffendal’s client and friend, was in Alaska at the time. Donna Pete, who also lives in Smith’s residence on the farm, had gone to Alaska that morning. While he was away, Smith had empowered Diffendal to look after his property.
The farm is posted, “No Trespassing.” Although the farm is at the end of a one lane road that connects to the highway, an automobile cannot be driven from the highway to Smith’s residence because the bridge over a creek is in disrepair. When Diffendal and Brown arrived at the farm, they discovered an automobile parked on the road by the creek behind Donna Pete’s automobile. Diffendal positioned his vehicle behind the unfamilar automobile.
Barbara Wachter, a police officer from a nearby town, was at the Smith residence. Wachter, whose mother owned adjoining property, testified that she had known Pete since 1975 and that she had been invited to Smith’s residence “hundreds” of times. On this occasion, Wachter stated that she went to take Pete to Wachter’s mother’s house to do laundry. Pete, however, denied that she had invited Wachter to the property or that she intended to do any laundry. Wachter, who had previously given a game warden information that formed the basis for a search of the Smith property on July 3 and July 30, also testified that she was asked by the game warden to go to the residence “to check on [Pete], to see if she was okay.” The residence was locked when Wachter arrived. As Wachter was trying “to open the sliding door” to “holler in,” she heard a vehicle enter the road from the main highway. Wachter testified that she waited at the residence for a while because she believed Pete may have been in the vehicle that arrived.
25*25 After no one appeared, Wachter, who was dressed in casual slacks and a t-shirt, went down the path to her vehicle. Wachter was also wearing a holstered handgun. Wachter testified that when she left the house, she checked the handgun on her belt and pulled the t-shirt out of her slacks so that the handgun was underneath the t-shirt. As she neared her vehicle, Diffendal and Brown, “jumped out from behind a bunch of trees with guns pointing at [her].” Diffendal said to her, “This is private property,” to which Wachter replied, “I know. Where is Donna?” Diffendal did not know Wachter and asked Wachter to identify herself. The conversation continued about Pete’s whereabouts.
Wachter testified that Diffendal began to talk about the police having earlier been on the property, at which time she told Diffendal that she was wearing a gun. She testified that Diffendal said “he thought [she] was a cop” and then stated that if other police officers came to search the property he would shoot first and read the warrant later. During the conversation, Diffendal lowered the gun. Diffendal, a lawyer, testified that due to his suspicion that the two previous searches involved police misconduct, he said to Wachter: “As a matter of fact, we thought that you might have been a police officer, because of seeing the clipboard in the car. I wouldn’t like to catch a police officer up here without a warrant.” Wachter never identified herself as a police officer.
After this brief conversation, Wachter walked to her vehicle accompanied by Diffendal, whose rifle was “cradled in his arm,” and Brown, whose rifle “was pointed down.” Diffendal moved his automobile, which was blocking the one lane road behind Wachter’s car, and Wachter left the premises. Wachter then called the game warden, who had searched Smith’s property. He advised her to secure arrest warrants and accompanied her when she secured the warrants.
Throughout the proceedings below, and in numerous instructions, Diffendal sought to show that even if a violation of Code § 18.2-282 occurred, he was privileged to detain Wachter by pointing a firearm at her because he reasonably believed her to be a trespasser who posed a threat to himself and the Smith property. The trial judge thwarted Diffendal’s efforts to assert that defense and denied Diffendal’s proffered instructions, stating, “I don’t think what you are arguing here right now… is the law in Virginia.” In so doing, the trial judge erred.
To gain a conviction under Code § 18.2-282, the Commonwealth must prove two elements: “(1) pointing or brandishing a firearm, and (2) doing so in such a manner as to reasonably induce fear in the mind of a victim.” Kelsoe v. Commonwealth,226 Va. 197, 198, 308 S.E.2d 104, 104 (1983). Code § 18.2-282 is silent, however, on the subject of possible defenses to the charge. Although no decided Virginia cases address the particular defenses that can be raised, we are aided in resolving this question by well established rules of statutory construction.
“Whatever is newly created by statute draws to itself the same qualities and incidents as if it had existed at the common law. In other words, the statute is to be interpreted after the rules and incidents of the common law.”
The common law in this state has long recognized that a person who reasonably apprehends bodily harm by another is privileged to exercise reasonable force to repel the assault. Jackson v. Commonwealth, 96 Va. 107, 113, 30 S.E. 452, 454 (1898); see also Montgomery v. Commonwealth, 99 Va. 833, 835, 37 S.E. 841, 842 (1901) (recognizing the right of a landowner “to order [a 26*26 trespasser] away, and if he refuse[s] to go, to use proper force to expel him” so long as no breach of the peace is committed in the outset). The privilege to use such force is limited by the equally well recognized rule that a person “shall not, except in extreme cases, endanger human life or do great bodily harm.” Montgomery v. Commonwealth, 98 Va. 840, 843, 36 S.E. 371, 372 (1900). Moreover, the amount of force used must be reasonable in relation to the harm threatened. See id. at 844, 36 S.E. at 373 (“it is not reasonable to use deadly force to prevent threatened harm to property, such as a mere trespass or theft”); W. LaFave & A. Scott, Criminal Law, 466 (2d ed. 1986).
At trial, Diffendal attempted to defend on the ground that even if, as the Commonwealth asserted, he pointed the shotgun, he was privileged to do so under the circumstances. At most, the present case involved no more than a threat to use deadly force, as distinguished from the actual resort to such force. See Montgomery, 98 Va. at 841, 36 S.E. at 372. We cannot say that the threat to use deadly force constituted excessive force as a matter of law under the circumstances of this case. The question whether Diffendal reasonably perceived Wachter, an armed trespasser, to pose a threat to himself and the Smith property was a jury question. The evidence indicates that the Smith residence is located in a remote, rural area, accessible only by a single lane road. Smith’s residence contained numerous items of value which could be secreted on a person and carried away. Diffendal, who was authorized to look after the property, testified that he did not know the person who was leaving the residence.
Wachter was dressed in street clothes and was armed. It is undisputed that Wachter did not at any point identify herself as a police officer. The testimony is conflicting, however, as to whether the revolver could have been seen protruding from under the T-shirt she was wearing. Wachter did not believe it was noticeable. Diffendal testified that he saw the gun holster as Wachter came down the path. Diffendal further testified that he warily approached the armed intruder to determine her identity and reason for being on the property. Although Wachter testified that Diffendal and Brown pointed their rifles at her, she testified that after Diffendal asked who she was and after she identified herself, Diffendal relaxed and lowered the rifle as the conversation ensued.
In view of this testimony, we conclude that a factual issue was raised whether Diffendal’s pointing of the shotgun was reasonably proportioned to the perceived threat posed by Wachter’s presence on the property while armed with a handgun. The resolution of that issue was a question appropriately within the province of the jury. See United States v. Black, 692 F.2d 314, 318-19 (4th Cir.1982) (Inmate defendant’s “threat” to use knife in response to perceived danger posed by correctional officer was not excessive as a matter of law; consequently, an erroneous instruction which foreclosed from jury’s consideration reasonableness of force used was not harmless). Furthermore, where evidence tends to sustain both the prosecution’s and the defense’s theory of the case, the trial judge is required to give requested instructions covering both theories. Jackson, 96 Va. at 114, 30 S.E. at 454. As this Court noted in Cooper v. Commonwealth, 2 Va. App. 497, 345 S.E.2d 775 (1986), “[t]he purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict.” Id. at 500, 345 S.E.2d at 777.
Although we conclude that Diffendal was entitled to an instruction concerning his theory of the case and that the trial court erred in refusing proffered instructions, we also note that Diffendal proffered seventeen instructions. Obviously, “`[i]t is not desirable to multiply instructions.'” Johnson v. Commonwealth, 2 Va.App. 447, 457, 345 S.E.2d 303, 309 (1986) (quoting Ambrose v. Commonwealth, 129 Va. 763, 766, 106 S.E. 348, 349 (1921)). Moreover, any instruction that is given should relate to the specific evidence in the case, Terry v. Commonwealth, 5 Va.App. 167, 170, 360 S.E.2d 880, 882 (1987), and should not incorrectly state the law or mislead the 27*27 jury. See Cooper, 2 Va.App. at 500, 345 S.E.2d at 777. On remand, the trial judge may properly refuse any instructions that are misleading or redundant. See Agostini v. Commonwealth, 136 Va. 658, 663, 116 S.E. 384, 385 (1923). We leave this determination for the trial court based on the evidence as presented upon re-trial.
Accordingly, we reverse the judgment of conviction and remand the case for retrial if the Commonwealth be so advised.
Reversed and remanded.
 Code § 18.2-282 states in pertinent part:
(a) It shall be unlawful for any person to point, or brandish any firearm, as hereinafter described, or any object similar in appearance to a firearm, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor.
Delacruz v. Com. – Va: Court of Appeals 1990
Inescio Delacruz was convicted by a jury of brandishing a firearm in violation of Code § 18.2-282 and fined $500. The sole question presented by this appeal is whether Delacruz was entitled to have the jury instructed on the law of self defense. For the reasons that follow, we conclude that the jury should have been so instructed.
The statement of facts recites that twelve police officers, some of whom were not in uniform, went to Ramon Bido’s residence at 11 p.m. with a warrant for Bido’s arrest. Four families, including Delacruz and his wife, lived in the single family residence where Bido lived. One hour prior to the arrival of the police, Delacruz and his wife arrived home. Delacruz and his wife both worked two jobs that day and went to bed in their basement bedroom at 10:30 p.m.
When the officers arrived at the residence, a Spanish speaking officer explained the purpose of the raid to the teenager who opened the door. Armed with shotguns and other weapons, the officers rushed in and began to search the residence. Four officers who were not in uniform and the Spanish speaking officer, who was in uniform, headed for the basement stairs. Bido’s wife told them that Bido was not in the basement and that the families who lived in the basement did not speak English. When the officers entered the basement, they kicked in the door to the bathroom, removed a man from the shower, and ordered him to lie on the floor of the family room. The officers also removed Delacruz’s brother and the brother’s wife from a bedroom and sent them to the family room.
According to the Commonwealth’s evidence, one of the officers observed through a space at the bottom of a door that a light was turned on in another room. The officers heard movement in that room and tried to open the door. After the officers tried several times to open the locked door, one officer kicked the door and another rammed the door with his shoulder. The door was knocked off its hinges and crashed into the room. Two officers testified that they “shouted in Spanish, `Police! Open the door!'” as they forced in the door. Delacruz was knocked down by the door but pointed a gun at a police officer. The officer testified that he shouted twice in English, “Police! Drop the gun!,” and held his badge facing Delacruz. He testified that he shot Delacruz when Delacruz did not drop the gun. Delacruz fell over the bed and came back up with the gun. Other officers shot into the room with a shotgun and handguns. Delacruz never fired his handgun.
Delacruz testified that he was awakened by the commotion and screams and thought that intruders or robbers were invading the house. He retrieved a loaded handgun from under his bed and stood by the door. His wife stood on the other side of the door. As they were trying to determine what was occurring, the door crashed in and knocked him onto the bed. The door fell over his wife. Two of the residents who had been directed to the family room testified that the officers were shouting in English as they “crashed through the door, not prior to the application of force at the door.” Other residents testified that the Spanish speaking officer was upstairs when the shooting began and then rushed to the basement. Delacruz testified that he heard no announcement as the door crashed in and that he did not know that the men who rushed in were police. Delacruz further testified:
that if he pointed the gun it was incidental to falling down. He stated he did not intentionally point a gun at Investigator Whilden. He learned the men were police 105*105 when he was lying on the bed bleeding from gunshot wounds and observed Officer Lopez in a Fairfax County Police uniform.
Delacruz was wounded by a shot in the stomach. His wife was hit by a bullet and a shotgun blast and died.
Instruction Number 1, which the trial judge gave to the jury, covered the elements of brandishing a firearm: “The Commonwealth must prove beyond a reasonable doubt … (1) that the defendant pointed or brandished a firearm; and (2) that the defendant did so in such a manner as to reasonably induce fear in the mind of another person.” The trial judge rejected, however, the following instructions offered by Delacruz:
Instruction Number E: If you believe that the defendant was without fault in provoking or bringing on the incident and if you further believe that the defendant reasonably feared, under the circumstances as they appeared to him, that he was in danger of being killed or that he was in danger of great bodily harm, then his brandishing a firearm was in self defense and you shall find the defendant not guilty.
Instruction Number A: [Identical to Instruction Number 1 with this additional language] The jury is instructed that any police officer, in the performance of his duty in making an arrest under the provisions of the law shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, or brandishing such firearm … with the intent to induce fear in the mind of another.
If there is evidence in the record to support the defendant’s theory of defense, the trial judge may not refuse to grant a proper, proffered instruction. See Painter v. Commonwealth, 210 Va. 360, 365, 171 S.E.2d 166, 168 (1969). “Furthermore, where evidence tends to sustain both the prosecution’s and the defense’s theory of the case, the trial judge is required to give requested instructions covering both theories.” Diffendal v. Commonwealth, 8 Va.App. 417, 422, 382 S.E.2d 24, 26 (1989). When instructing the jury, the trial judge must be mindful that:
[t]he jury is not required to accept, in toto, either the theory of the Commonwealth or that of an accused. They have the right to reject that part of the evidence believed by them to be untrue and to accept that found by them to be true. In so doing, they have broad discretion in applying the law to the facts and in fixing the degree of guilt, if any, of a person charged with a crime.
Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d 1, 4 (1958) (citations omitted). The evidence in this record could support a jury finding that Delacruz acted in self defense. See Diffendal, 8 Va.App. at 420-422, 382 S.E.2d at 25-26.
The Commonwealth asserts, however, that Instructions “F” and “I,” which were proffered by Delacruz and accepted, sufficiently advised the jury of Delacruz’s right to arm himself. Although both instructions were appropriately given, it cannot be fairly said that either instruction fully informed the jury of the right of self defense or offered the jury the option of finding Delacruz not guilty. As this Court noted in Cooper v. Commonwealth, 2 Va. App. 497, 345 S.E.2d 775 (1986), “[t]he purpose of an instruction is to furnish guidance to the jury in their deliberations, and to aid them in arriving at a proper verdict.” Id. at 500, 345 S.E.2d at 777. Instruction E 106*106 was appropriate to the factual issue proved in this case and, unlike Instructions F and I, guided the jury with respect to the law of self defense. Accordingly, we conclude that the trial judge erred in refusing to so instruct the jury.
Delacruz also contends that his Instruction A, which covered the elements of the offense of brandishing a firearm, should have been granted instead of Instruction 1 which the trial judge gave. We conclude that this argument has no merit. Instruction A differed from Instruction 1 only in that Instruction A contained the following additional paragraph:
The jury is instructed that any police officer, in the performance of his duty in making an arrest under the provisions of the law shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, or brandishing such firearm, or object which was similar in appearance to a firearm, with the intent to induce fear in the mind of another.
Although the paragraph contains almost verbatim language from Code § 18.2-282(B), that language pertains to civil actions and had no bearing upon the questions before the jury.
For the reasons stated, we reverse the judgment of conviction and remand the case for retrial if the Commonwealth be so advised.
Reversed and remanded.
 Those instructions read as follows:
Instruction Number F: In passing upon the danger, if any, to which the accused was exposed, you will consider the circumstances as they reasonably appeared to the accused and draw such conclusions from these circumstances as he could reasonably have drawn, situated as he was at the time; in other words, the court instructs you that the accused is entitled to be tried and judged by facts and circumstances; and
Instruction Number I: When a person reasonably apprehends that another intends to attack him for the purpose of killing him or doing serious bodily harm, then such person has a right to arm himself for his own necessary self-protection, and in such case, no inference of malice can be drawn from the fact that he prepared for it.