- Feb 12, 2009
- Northern Piedmont
Police: SWAT Officer Shoots Fairfax County Man Who Brandished Gun
A SWAT team officer shot and wounded a Virginia man who brandished an “assault style weapon” at authorities who were serving a drug-related search warrant Tuesday night
Admittedly, this defendant has a long history of illegal activity (I checked the docket), and was apparently being targeted for some drug possession charge. But what disturbs me is that the police justified the use of deadly force on the basis of "brandishing a firearm". Note they didn't say he was a dangerous felon trying to escape or that he had made any threat such that "self defense/defense of others" would be appropriate. It appears that this police officer gratuitously shot a suspect merely because he was openly carrying a gun at the time.
Since the "brandishing" statute has been "interpreted" by the Virginia Supreme Court to mean that if (1) a person is carrying a firearm (lawfully or not), and (2) someone else observes the fact that he's carrying; and (3) the someone else says "I felt fear", then that's "brandishing a firearm". That puts brandishing on a very different footing from self defense. (What the statute actually says is that if someone "points, holds, or brandishes" a firearm "in such manner" as would cause a reasonable person to be put in fear of serious injury or death, that's brandishing.) What the Court's "interpretation" (as though the statute had been written in Ancient Greek or something) does is to remove the requirement of both an "actus reus" and a "mens rea" from the statute - it doesn't matter whether the defendant actually did something or committed some overt act, and it doesn't matter what was in his mind at the time.
Thus, the mere fact that the defendant was holding a gun, and we can assume that the cop will testify, "I felt fear", justified the cop's having shot the defendant merely because he felt like doing so. A clear violation of the defendant's right to due process under U.S. Sup. Ct. decisions, particularly Tennessee v. Garner, 471 U.S. 1 (1985) .
What I read into this is that cops are going to feel justified in shooting anyone who is openly carrying a firearm, particularly since the fascist Bloomburger Party has taken over in Richmond.