Virginia Brandishing Law: 18.2-282
VA Code § 18.2-282 criminalizes brandishing; it is a serious offense punishable by time behind bars in all cases. Unlike some criminal charges, jail is often likely depending upon the circumstances.
In Virginia, brandishing cases may range from the benign to the extremely serious. This is a crime even if the weapon is not capable of shooting a round.
Elements of Virginia Brandishing Law
“Elements” of a criminal offense are the building blocks of the criminal behavior prohibited by the statute. For example, most criminal laws require the defendant to have acted intentionally.
The basic elements of an offense are essential to the Commonwealth’s case. The prosecution must prove, beyond a reasonable doubt, that all elements of the offense have been sufficiently shown to the trier of fact — the judge or jury.
- Pointing, holding, brandishing air/gas operated weapon (or fake weapon);
- With the intent to reasonably induce fear in another; and,
- The fear is of being shot or injured.
Virginia Brandishing Penalties
Brandishing is treated as a Class 1 misdemeanor, however, in some circumstances may be charged as a felony. If the offense is alleged to have taken place in a school, or on public property within 1,000 feet of a school, it is a Class 6 felony.
Class 1 misdemeanors are punishable by up to 12 months confinement, $2,500 fine, or both. Class 6 felonies are punished more severely.
Defenses to Brandishing in Virginia
Each case is factually unique and requires analysis before any legal professional or criminal attorney can competently explain the possible outcomes. The examples of Virginia case law and defense theories are for general information purposes only.
It is justifiable to use reasonable force to repel an attacker – this is an old common law principle rooted in the early justice system. The law does apply to any person acting in such a way deemed to be excusable or justifiable as self-defense. Defense of others is not addressed, but an experienced and knowledgeable Fairfax criminal lawyer or other Northern Virginia defense attorney can explain how this may still be raised.
An “inadvertent sighting” is not sufficient to convict someone of this statute. Virginia case law correctly pointed out in 1996 that such facts do not reasonably induce fear, which is an element of the offense. 
it was enough evidence for the court to determine the actions constituted brandishing, when it found the defendant allegedly showed a victim a flare gun strapped to his pants.
No Defense: Protecting Property
While it may be a defense to assault or brandishing when protecting yourself or another person, protection of property is not recognized as to give rise to a legal justification to reasonably induce fear in another by displaying a firearm. 
Brandishing is Not Lesser Included Offense of Robbery in Virginia
The Court of Appeals (Virginia) said brandishing is not a crime involving the taking of property. The crimes brandishing and robbery may be committed without the other necessarily taking place.2
Similarly, brandishing is not a lesser included offense of “Use of a Firearm in Commission of a Felony,” a very serious offense. 
If you or a loved one faces criminal charges, whether brandishing, robbery, theft, or drug possession, it is important to secure a local Northern Virginia criminal attorney as early as possible. Evidence…and the memory of witnesses…can fade fast.
 Crewe v. Commonwealth, No. 2709-95-2 (Ct. of Appeals Oct. 29, 1996).
 Morris v. Commonwealth, 269 Va. 127, 607 S.E.2d 110, 2005 Va. LEXIS 3 (Va. 2005).
 Commonwealth v. Alexander, 260 Va. 238, 531 S.E.2d 567, 2000 Va. LEXIS 99 (Va. 2000).
 Nasser Nasser Ghalambor Dezfuli v. Commonwealth, 58 Va. App. 1, 707 S.E.2d 1, 2011 Va. App. LEXIS 105 (Va. Ct. App. 2011).
Vincenzes Law Staff
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