In Minnesota, prosecutors sometimes charge lawful weapon carriers with Felony Assault 2, not for their conduct, but for another person’s subjective perception. And Minnesota’s Second Degree Assault statute allows a felony charge, even with no bodily harm at all, if “with” a weapon. “Brandishing” implies showing a weapon as an intentional threat of violence.
Forewarned is forearmed: As a result, every lawful carrier should enhance their legal readiness for that legal threat. And that is our purpose here.
Two Defenses (But Pick One)
To oversimplify, we often have two, either-or defenses to an assault “cause fear” charge solely based on “brandishing” a weapon. Either:
1. “I did nothing to say or imply a threat. I did not act in any menacing way. If someone ‘saw a weapon’ on my person and was fearful, simply due to seeing a weapon, I lack any criminal intent; and so never committed a crime.” (Defeats element of criminal intent.)
OR,
2. “I did show my weapon intending to cause fear, but I did it in self-defense; I had no safe way to retreat or avoid, I was a reluctant participant, I was in fear of great bodily harm or death, and my (threatened) use of force was reasonable and proportionate to the threat at the time.” (Defense of self-defense.)
Since a self-defense case admits the intentional use or threat of force, logic tells us that the same person would not make both these defenses at the same time. So, pick one.
Lawful Carry
But first, let’s touch upon lawful carry. Why does lawful carry matter here? While a person could face felony Assault 2 charges for “brandishing” (intentionally threatening) with a firearm regardless whether they are carrying lawfully, that “brandishing” charge will make a bigger difference for a person otherwise law-abiding in every way.
In the case of a firearm, some people are prohibited to possess a firearm, due to a past criminal conviction or other legal disability stripping their civil rights.
But assuming a person has their full citizenship rights intact; laws still limit when, where and who may lawfully carry a firearm. And one important factor here is the Minnesota carry permit. But carrying in public may be lawful in certain situations, even without a Carry Permit. So, any person with full citizenship rights can lawfully possess a gun in certain places, such as their home or business, the gun range, hunting, etc. And carry permit holders can lawfully carry just about anywhere, with a few exceptions.
Is Open Carry the same as “Brandishing?”
Is open carry, “brandishing?” No, it is not. “Brandishing” means showing a weapon as an intentional threat of violence. But open carry is not an intentional threat of violence. Compare to carrying any other weapon. Context makes the difference.
Traditionally in the United States and Minnesota, “Open Carry” of a Firearm has been legally favored over “concealed weapon carry.” And “brandishing” a weapon means using a weapon to communicate a threat of violence. (Merely carrying a weapon, alone, is no threat.)
In Minnesota today, contrary to misconception by some, we do not have a “conceal” carry permit. But rather, we have a “Carry Permit.” So if a person can lawfully carry a firearm in Minnesota, then that person can lawfully “Open Carry” in public.
Hoplophobia: irrational fear
Even though firearm open carry is at least as legal as concealed carry, and sometimes more so, some people react with fear at the mere sight of a firearm (but not other, more common weapons). So, in order to avoid frightening these sensitive people, many carry permit holders choose to conceal their Everyday Carry Weapon.
Without Intent, No Crime: We’ve now set the stage for our discussion of Minnesota Felony Assault 2 cases without any actual harm.
Brandishing? Look at the Statutes
We don’t find the word “brandishing” in Minnesota’s assault statutes. So we look to the common meaning, “to wave or flourish (something, especially a weapon) as a threat.” And we need to understand what is in Minnesota’s assault statutes.
§609.222 ASSAULT 2ND DEGREE
“Subdivision 1. Dangerous weapon. Whoever assaults another with a dangerous weapon may be sentenced to imprisonment for not more than seven years or to payment of a fine of not more than $14,000, or both.
Minn. Stat. §609.222, subd. 1 (2019)
Subd. 2. Dangerous weapon; substantial bodily harm. Whoever assaults another with a dangerous weapon and inflicts substantial bodily harm may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.”
And:
§609.02 Definitions
“Subd. 10. Assault. “Assault” is:
Minn. Stat. §609.02, subd. 10 (2019)
(1) an act done with intent to cause fear in another of immediate bodily harm or death; or
(2) the intentional infliction of or attempt to inflict bodily harm upon another.”
Lesser-included, misdemeanor brandishing
But compare this with the misdemeanor crime of intentionally pointing a gun toward another. Minnesota Statutes §609.66, Subdivision 1 (a) (2):
“intentionally points a gun of any kind, capable of injuring or killing a human being and whether loaded or unloaded, at or toward another…”
Minn. Stat. §609.66, Subdivision 1 (a) (2)
We can make a similar analysis. Either there was no intentional pointing toward another; or if there was, it was in self-defense; with no safe way to retreat or avoid, and reluctant participant, in fear of great bodily harm, and the (threatened) use of force was reasonable and proportionate to the threat at the time.
Intent to Cause Fear vs. Bodily Harm
Criminal law has three levels of “bodily harm:”
- Great bodily harm (high probability of death; or causes serious permanent disfigurement, or serious bodily harm)
- Substantial bodily harm (bodily injury involving a temporary substantial disfigurement; or causes a temporary substantial impairment of a bodily organ, or a fracture)
- Bodily harm (physical pain or injury, illness, or impairment of physical condition)
But of course, mere brandishing is by definition, not bodily harm of any kind.
(As an aside, we rarely see one of these cases in a domestic assault fact pattern. Usually the complainant is a stranger to the person they accuse.)
No Harm, No Crime? No Intent to Cause Fear
Should the law allow a felony assault conviction for a criminal act that causes no bodily harm? Many say, “are you kidding, no!” But, in Minnesota today, some prosecutors actually do charge such cases.
And when they do, they base the felony Assault 2 charge on Minnesota Statutes §609.222 ASSAULT SECOND DEGREE, Subdivision 1. “Whoever assaults another with a dangerous weapon …” and Minnesota Statutes §609.02 Definitions, Subd. 10. “Assault” is: (1) an act done with intent to cause fear in another of immediate bodily harm …”
They “saw a gun:” But I’m Innocent!
When prosecutors charge these brandishing cases, a common problem is that someone was afraid after seeing gun. And that person will be a prosecution witness. But you are innocent-in-fact, because you did not intend to cause fear. Remember, every crime requires convincing evidence that the defendant had criminal intent.
What is criminal intent?
At minimum, the prosecutor must show evidence that the defendant not only did a prohibited act, but also intended to do that act. We call that “general intent.”
An intent defense points out the lack of evidence of criminal intent.
But an Assault crime based on mere “intent to cause fear” is a “specific intent crime.” And specific intent crimes require not only evidence that that the defendant intentionally performed a prohibited act; but also that she intended to cause a particular result.
Consider Minnesota Statutes §609.02 Definitions, Subd. 9. Mental state:
“(1) When criminal intent is an element of a crime in this chapter, such intent is indicated by the term ‘intentionally,’ the phrase ‘with intent to,’ the phrase ‘with intent that,’ or some form of the verbs ‘know’ or ‘believe.’
Minn. Stat. §609.02, Subd. 9 (2019)
(2) ‘Know’ requires only that the actor believes that the specified fact exists.
(3) ‘Intentionally’ means that the actor either has a purpose to do the thing or cause the result specified or believes that the act performed by the actor, if successful, will cause that result. In addition, except as provided in clause (6), the actor must have knowledge of those facts which are necessary to make the actor’s conduct criminal and which are set forth after the word “intentionally.”
(4) ‘With intent to’ or ‘with intent that’ means that the actor either has a purpose to do the thing or cause the result specified or believes that the act, if successful, will cause that result.”
Defendant’s Point-of-View: Brandishing?
The law requires the jury to view the evidence from the point-of-view of the defendant. What did the defendant see and hear at the time? And what did the defendant know, at the time?
It must be this way. After all, would it be fair to hold you criminally liable for another person’s subjective perception of you, without evidence that you intended a threat?
Specific Intent: Higher Proof Threshold
Moreover, when the law creates a “specific intent crime,” the government’s burden of proof is even higher. So even if the facts support a possible inference that the defendant (you) should have known her behavior would “cause fear,” that’s just not enough.
Rather, the prosecutor must admit evidence that the defendant actually wanted the other person to fear “immediate bodily harm.”
Intent to Cause Fear of Immediate Bodily Harm
Now let’s consider a hypothetical “brandishing” fact scenario.
You’re driving on a beautiful day. Then, a driver violates the rules of the road, hits your car. You pull over — not happy, but accidents happen. You retrieve your Carry Weapon from the glove box, as always when getting out, a best practice. And yes, you have a Carry Permit.
The other driver is mad, screaming at you. You respond calmly, de-escalate. You suggest exchanging insurance info.
But the other driver sees your gun, calls 911– saying he’s afraid because “she has a gun!” Police arrive. They arrest, book you into jail on a Probable Cause Hold for Assault 2. No shots fired. No gun drawn. No threat. No bodily harm.
Brandishing: What will your defense be?
The defense should be that that the prosecution lacks evidence to support the specific intent element of the criminal statute, “intent to cause fear of immediate bodily harm.”
So by now you should be thinking about the fact that what you say, or don’t say, could have a big impact on that case.
Self-Defense vs. Brandishing
Now let’s change the hypothetical. In the above hypothetical; fact pattern, the defendant never intended to cause fear of immediate bodily harm. And if the other driver felt fear, it was irrational, subjective, and incidental to lawful behavior. So now, let’s change the facts.
Under our new hypothetical, during the argument the other driver escalates the conflict to the point that you reasonably felt fear of immediate “death or great bodily harm.” He appears to be about to physically assault you with a weapon.
But you have no way to escape it in time. And then you pull away your jacket to display your now visible firearm in an inside the waistband holster. The other driver reacts with fear and backs away to his car; and calls 911. Then, you admit to police that you showed the gun to intimidate the other driver to prevent him from physically assaulting you.
What will your defense be? In this scenario, the government seems to have evidence that you “intended to cause fear of immediate bodily harm” by showing your weapon.
“Duty to Retreat,” an abomination
Duty to Retreat? But if you did so in lawful self-defense, you could raise the defense of self-defense. After all, your actions prevented anyone from getting hurt. Reasonable, indeed.
Still, we can expect a prosecutor to harp on the “duty to retreat” outside the home, not in defense of another, under Minnesota’s current self-defense law.
We can simplify and summarize the Duty to retreat in Minnesota, when:
- Not inside your home (place where you reside); or
- Not defending another.
The Minnesota “duty to retreat” was created by judges, not the legislature. Until 2024, Minnesota court decisions had applied it to “use of force” in self-defense cases, but not “threat of force” case. That changed with State v. Blevins, 10 NW 2d 29 (Minn. Supreme Court 2024). That case requires you to first clear the legal hurdle of showing no reasonable opportunity to retreat existed, before you then have to show that you used force reasonably in self-defense. This is hostile to the rights of peaceable people, inviting second-guessing a person put under stress and adrenaline by a criminal act. And the “duty to retreat” creates a danger to public safety. Because usually the “show of force” threat does in fact prevent actual use of force.
But the Minnesota legislature can pass a new statute eliminating this judge-created “duty to retreat.” Currently, “duty to retreat” allows judges to gatekeep (deny) your right to a trial by a jury on the fundamental issue of the reasonable use of force in self-defense. To help get this legislative change, see the Minnesota Gun Owner’s Caucus page: Pass Stand Your Ground in Minnesota.
And yes, at this point you should be thinking about how what you say, or don’t say, could have a big impact on that case. So refresh your memory on the duty to retreat, when and where it applies, and the law of self-defense at the two links above.
Is brandishing in the eye of beholder? No. Space does not permit a full exploration of all the issues we raise here. (You can follow links to other pages developing many of them.) But here are some quick takeaways.
Brandishing case takeaways
- Some suffer irrational aversion to weapons. And some fear the sight of a gun, more than weapons like kitchen knives.
- Merely carrying a firearm is not felony Assault 2.
- But people with irrational fears can cause police to arrest people lawfully carrying.
- Two defenses to a felony Assault 2 charge with no harm: (a) no specific intent to cause fear of immediate bodily harm, vs. (b) self-defense.
- Avoid anything that another could construe as threatening; unless a last resort as self-defense. (And avoid alcohol while carrying.)
- If you survive the physical threat, you must survive the legal threat. Legal readiness means learning law. Moreover, if someone is going to call police, better it first be you.
I hope this article helps you consider these issues and prepare. We can minimize the risks of brandishing of a firearm as a basis for a Minnesota assault crime. And we can do that by knowing the law; avoiding conduct others might misperceive; and by preparing to deal with police.
More: Brandishing & Self-defense
Escalation, Dominance, Deception in Self-defense
Self-defense & “The Other”
Disparity of Force & Self-Defense
Question? Call Attorney Thomas Gallagher, 612 333-1500
Thomas Gallagher is a Minnesota Criminal Defense Attorney. He defends people facing charges of assault, gun charges, and in self-defense cases. And Attorney Thomas Gallagher frequently speaks and writes on criminal defense, gun laws, and self-defense.
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