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Missouri man charged after cops say he used handgun as hammer

OC for ME

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I must not have been reading closely enough; to whom did he show the firearm in a threatening manner?
The last thing the gubmint wants is to get a more precise definition of a term that does not even exists in the RSMo (571.030.1). If I were he I would have my shark lawyer press the CA on this point to leverage a misdemeanor plea deal on the gat on skrool property.

Unless he was hammering the tack in a "angry or threatening manner"...
 

davidmcbeth

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The last thing the gubmint wants is to get a more precise definition of a term that does not even exists in the RSMo (571.030.1). If I were he I would have my shark lawyer press the CA on this point to leverage a misdemeanor plea deal on the gat on skrool property.

Unless he was hammering the tack in a "angry or threatening manner"...

They'll expand the time honored definition for this guy. 100% sure of this....if it survives countless and expensive appeals is another.

For the C-H-I-L-D-R-E-N !!!!!!!!!!
 

Fallschirjmäger

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I believe, that as a matter of American jurisprudence that when a term is not specifically defined in a state's law, that the dictionary (common) definition of the word or phrase is understood to be meant. In the case of 'brandishing' the accepted definition runs closest to:.....


To wave or flourish (something, often a weapon) in a menacing, defiant, or excited way
To wave or flourish (a weapon) in a triumphant, threatening, or ostentatious way
To exhibit aggressively; "brandish a sword" - display, exhibit, expose - to show, make visible or apparent
To wield boldly and dramatically: flourish, sweep, wave.
To make a public and usually ostentatious show of:

From the above, I would think that mere visibility isn't 'brandishing' without a severe recharacterization of the phrase.
 

Ezek

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I believe, that as a matter of American jurisprudence that when a term is not specifically defined in a state's law, that the dictionary (common) definition of the word or phrase is understood to be meant. In the case of 'brandishing' the accepted definition runs closest to:.....


To wave or flourish (something, often a weapon) in a menacing, defiant, or excited way
To wave or flourish (a weapon) in a triumphant, threatening, or ostentatious way
To exhibit aggressively; "brandish a sword" - display, exhibit, expose - to show, make visible or apparent
To wield boldly and dramatically: flourish, sweep, wave.
To make a public and usually ostentatious show of:

From the above, I would think that mere visibility isn't 'brandishing' without a severe recharacterization of the phrase.


I'm gonna say it wasn't the way he was holding it that constitutes brandishing, but the way he was using it.

using a firearm, loaded, as a hammer could be construed as being used in a threatening manner, to either self or others. especially because of the chance for a ND from such use.
 

Fallschirjmäger

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Yeah, no....
A negligent discharge isn't necessarily 'threatening' and current jurisprudence demands 'guilt beyond a reasonable doubt'. You, yourself recognize there is a reasonable doubt by the use of "... could be construed as..."
 

davidmcbeth

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I believe, that as a matter of American jurisprudence that when a term is not specifically defined in a state's law, that the dictionary (common) definition of the word or phrase is understood to be meant. In the case of 'brandishing' the accepted definition runs closest to:.....


To wave or flourish (something, often a weapon) in a menacing, defiant, or excited way
To wave or flourish (a weapon) in a triumphant, threatening, or ostentatious way
To exhibit aggressively; "brandish a sword" - display, exhibit, expose - to show, make visible or apparent
To wield boldly and dramatically: flourish, sweep, wave.
To make a public and usually ostentatious show of:

From the above, I would think that mere visibility isn't 'brandishing' without a severe recharacterization of the phrase.

The term brandishing would likely be accepted to mean to include "any touching of a firearm...with some type of intent" ... as many states have seen it to mean. A court can look to other jurisdictions. With gun related laws they look for the all encompassing definitions like a warm blanket.
 
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Fallschirjmäger

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The term brandishing would likely be accepted to mean to include "any touching of a firearm...with some type of intent" ... as many states have seen it to mean. A court can look to other jurisdictions. With gun related laws they look for the all encompassing definitions like a warm blanket.

Yeah, I can see it now.
Judge: "Mr McBeth, the state of Missouri is charging you with 'concealment of identity' by not listing your state of residence in your profile. As you well know, the state of Rhode Island in RI 123-a sub-section (j) makes that a felony although Missouri Code is silent on the subject. How do you plead?"

If some state's two-bit solicitor is going to go to some other state's definition of what brandishing is in order to cherry pick a definition he thinks will fit, then my dollah-fiddy lawyer is going to go find three states definitions that agree with my actions.

But all this "Maybe, what it, possibly, ...." is useless unless you, me, or someone can come up with actual ... y'know.. instances of it happening.
 

OC for ME

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Unlawful use of weapons--exceptions--penalties. 571.030. 1. A person commits the crime of unlawful use of weapons if he or she knowingly:
...

(10) Carries a firearm, whether loaded or unloaded, or any other weapon readily capable of lethal use into any school, onto any school bus, or onto the premises of any function or activity sponsored or sanctioned by school officials or the district school board; or ...

3. Subdivisions (1), (5), (8), and (10) of subsection 1 of this section ... Subdivision (10) of subsection 1 of this section does not apply if the firearm is otherwise lawfully possessed by a person while traversing school premises for the purposes of transporting a student to or from school, or possessed by an adult for the purposes of facilitation of a school-sanctioned firearm-related event or club event. ...

4. Subdivisions (1), (8), and (10) of subsection 1 of this section shall not apply to any person who has a valid concealed carry permit issued pursuant to sections 571.101 to 571.121, ...

8. Unlawful use of weapons is a class D felony unless committed pursuant to subdivision (6), (7), or (8) of subsection 1 of this section, in which cases it is a class B misdemeanor, or subdivision (5) or (10) of subsection 1 of this section, in which case it is a class A misdemeanor if the firearm is unloaded and a class D felony if the firearm is loaded, ...
4H is a club event. It is likely that 4H and their volunteers were invited by the school (school board). This case should be interesting...or not.
 

Ezek

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Yeah, I can see it now.
Judge: "Mr McBeth, the state of Missouri is charging you with 'concealment of identity' by not listing your state of residence in your profile. As you well know, the state of Rhode Island in RI 123-a sub-section (j) makes that a felony although Missouri Code is silent on the subject. How do you plead?"

If some state's two-bit solicitor is going to go to some other state's definition of what brandishing is in order to cherry pick a definition he thinks will fit, then my dollah-fiddy lawyer is going to go find three states definitions that agree with my actions.

But all this "Maybe, what it, possibly, ...." is useless unless you, me, or someone can come up with actual ... y'know.. instances of it happening.

I think your in your own little bubble...

I have no doubt this guy was an IDIOT for using his firearm this way, I have no doubt that this use of his firearm COULD be threatening to an observer of this action, the fact that a ND didn't happen is circumstancial. and an ND occurring IS threatening, to anything in the bullets path, if the person guilty of the ND happens to get lucky and it misses anything organic and breathing, he is still threatening in the capacity of his STUPIDITY, which has already been observed once as cause for expenditure of ammo.
 

Fallschirjmäger

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"Drop safe" pistols and revolvers have been a thing since about the last 50 years or so. Would it have been 'threatening' if he had used a rock (a very handy ballistic weapon) instead?

I'm not saying he was a genius, his actions pretty much prove otherwise. But he didn't perform a dangerous, negligent, or threatening action. He's charged with bringing an item to a prohibited location. If you are convinced otherwise, I urge you not to delay and make an immediate phone call to (573) 545-3525, the public telephone number for the Benton, MO police department and express your concerns.

If you're not concerned enough to do that, then how important could your opinion be?
 

davidmcbeth

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Yeah, I can see it now.
Judge: "Mr McBeth, the state of Missouri is charging you with 'concealment of identity' by not listing your state of residence in your profile. As you well know, the state of Rhode Island in RI 123-a sub-section (j) makes that a felony although Missouri Code is silent on the subject. How do you plead?"

If some state's two-bit solicitor is going to go to some other state's definition of what brandishing is in order to cherry pick a definition he thinks will fit, then my dollah-fiddy lawyer is going to go find three states definitions that agree with my actions.

But all this "Maybe, what it, possibly, ...." is useless unless you, me, or someone can come up with actual ... y'know.. instances of it happening.

Motion to strike ... no plea needed.
 

Ezek

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"That is a lucid, intelligent, well thought-out motion. Overruled. Trial will commence in two weeks."

yeah, unless i'm on a jury my opinion is nothing but opinion and has no bearing.

and drop safe isn't a guarantee, as several SR9's where recalled/given parts upgrades to prevent ND if dropped. and they are a newer firearm.

as a result he IMO did perform a negligent action.
 

Fallschirjmäger

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Once you're empaneled you are free to vote your conscience, ... as long as it's a jury trial and there could be plenty of reasons why you'd want a judge familiar with what words mean rather than a random juror that thinks 'visible' equals 'brandishing'.
 

davidmcbeth

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"That is a lucid, intelligent, well thought-out motion. Overruled. Trial will commence in two weeks."

To be fair, I was busy writing my own motion that I filed today ... I have not seen the information or complaint in the poor guy's case.

(My case, state wants to dismiss a case .... oh no I said ... I want my right to face my accuser!) Traffic case....and will lead to 42 USC 1983 case -- 1000% sure of this.
 

Ezek

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Once you're empaneled you are free to vote your conscience, ... as long as it's a jury trial and there could be plenty of reasons why you'd want a judge familiar with what words mean rather than a random juror that thinks 'visible' equals 'brandishing'.

frankly, visible doesn't equal brandishing, unholstered and using as a hammer? maybe not brandishing, but definitely stupid. I would probably go with removing his CCW and disallowing him to obtain one for 2 years, and have mandatory firearms safety courses imposed, as well as courses on common sense. which if he missed 1 he better have a damn good excuse, or serve a week in jail for contempt of court/failure to follow a court order, however it go's, I havent' been in a courtroom or had to keep up on legal jargon for a LONG time. ( could be done over the course of days off so as not to detract from his ability to perform his job).

and probably knock it down to a misdemeanor. I believe he should retain his right, but needs to become a lot more responsible.

wouldn't impose community service, he has already showed he is incapable of reasonable logic and thought in the execution of such duties.
 
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