In Minnesota, prosecutors sometimes charge lawful weapon carriers with Felony Assault 2, not for their conduct, but for the subjective perception of another person. And Minnesota’s Second Degree Assault crime statute allows a felony charge for assault, even with no bodily harm at all, if “with” a weapon. Moreover, Prosecutors enjoy implying something nefarious about the word, “brandishing.”
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 perhaps 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.)
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, and my (threatened) use of force was reasonable and proportionate to the threat at the time.” (Affirmative defense of self-defense.)
Since a self-defense case admits the intentional use or threat of force, the same person would not make both these defenses at the same time. So, pick one.
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 ineligible to possess a firearm, due to a past criminal conviction or other legal disability.
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.
Even without a carry permit, 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.
Open Carry vs. Conceal Carry
Is open carry, “brandishing?” Some might say.
But 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.)
And in Minnesota today, contrary to common misconception, 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.
Hoplophobia: irrational aversion to weapons
Even though firearm open carry is just as legal as concealed carry, and sometimes more so, some people react with fear at the mere sight of a firearm.
So, in order to avoid frightening these sensitive people, many carry permit holders choose to conceal their Everyday Carry Weapon.
Without Criminal Intent, We Have No Crime
We’ve now set the stage for our discussion of Minnesota Felony Assault 2 cases without any actual harm.
Brandishing? Let’s look at Minnesota Statutes
We don’t find “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 IN THE SECOND 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.Minnesota Statutes §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.”
“Subd. 10. Assault. “Assault” is:Minnesota Statutes §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):
Minnesota Statutes §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? 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 …”
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 when committing that act.
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.’Minnesota Statutes §609.02 Definitions, 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, in every criminal case. 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 are driving your car on a beautiful day, enjoying the drive. Just then, another driver violates the rules of the road and hits your car.
You both pull over. You’re not happy, but you know these things happen. Before you get out of your vehicle, you retrieve your Everyday Carry Weapon from your glove box, as you always do when getting out of your car. That’s a best practice. And yes, you have a Carry Permit.
But the other driver is hopping mad, screaming at you on the side of the road. You respond calmly, trying to de-escalate conflict. You suggest exchanging insurance information.
But the other driver sees your gun, and calls 911. He tells 911 he was afraid because “she has a gun!”
Police arrive. They arrest you, and book you into jail on a Probable Cause Hold for PC Assault 2.
No shots were fired. A gun was never drawn. No bodily harm happened.
Brandishing: What will your legal 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 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 bodily harm. He appears to be about to physically assault you. But you have no way to escape it. 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.
Strictly speaking, this may not be brandishing. But 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
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, under Minnesota’s current version of self-defense law.
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.
Brandishing “in the eye of the beholder?”
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:
Takeaways from brandishing cases
- Some people suffer from hoplophobia: an irrational aversion to weapons. And some even fear the sight of a gun, more than deadlier weapons like kitchen knives.
- A person cannot be guilty of felony Assault 2 merely as a result of lawfully carrying a firearm.
- But people with irrational fears can cause police to arrest innocent people lawfully carrying.
- We have two main defenses to a felony Assault 2 charge where no harm resulted: (a) no evidence of specific intent to cause fear of immediate bodily harm; and (b) self-defense.
- Avoid doing or saying anything that another could construe as threatening; unless as a last resort as self-defense, where no retreat is safe. (And avoid alcohol while carrying.)
- After you survive the physical threat, you must survive the legal threat. Legal readiness means learning about the law. And it means preparation for potential legal threats and dealing with police. Moreover, if someone is going to call police, it may be better if you are the first to call.
I hope this article helps you consider these issues and prepare for them. Brandishing of firearm alone is not enough for a Minnesota assault crime. But we should minimize the risks. And we can do that by knowing the law; avoiding conduct others might misperceive; and by preparing to deal with police.
About the Author
Attorney Thomas C. Gallagher is a Minneapolis 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.
Have a question about a criminal case in Minnesota? Call Minneapolis Defense Attorney Thomas C. Gallagher, at 612 333-1500
And check out our related articles
- Escalation, Dominance, Deception in Self-defense
- Self-defense and “The Other”
- Disparity of Force and Self-Defense