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A driver who regularly carries their firearm lifts their shirt and displays their holstered handgun during a road rage incident with another driver. The other driver panics and calls 911. By the time the first driver exits I-76, the police are waiting for them. But is brandishing a gun a crime in Ohio?
The gun owner may have wrongfully assumed that showing their firearm without aiming or firing it isn’t a crime. It’s also a common misconception that permitless carry protects them. While Ohio doesn’t have a law that makes brandishing a firearm illegal specifically, there are other criminal charges that could apply to the situation.
Brandishing a gun in Ohio isn’t a distinct criminal offense in the state. However, the term does appear in Ohio’s criminal code, and there are other criminal offenses that a gun owner could be charged with in relation to their act of brandishing their firearm. These related statutes, such as R.C. 2941.145, define what brandishing is. To brandish a weapon, someone would display their weapon by flashing, waving, or showing it to another individual with the intention of threatening or intimidating them.
Some gun owners mistakenly believe that Ohio’s permitless carry law can protect them when displaying their weapon. However, this is incorrect. Senate Bill 215 protects gun owners' right to carry, not how it’s used or displayed.
Someone who is menacing is exhibiting or communicating threats of physical harm. They are typically not of a serious nature. This crime is usually a fourth-degree misdemeanor under R.C. 2903.22. Aggravated menacing takes menacing a step further under R.C. 2903.21. Someone convicted of aggravated menacing knowingly caused someone else to believe they were under threat of serious physical harm to themselves, their property, their unborn child, or a member of their immediate family.
A conviction of aggravated menacing is a first-degree misdemeanor, with a penalty of up to 180 days in jail. The charge for aggravated menacing can be upgraded to a felony depending on the circumstances. Felony charges may apply if the defendant has a prior history of violence or the person they threatened is an officer or an employee of public children services agencies.
A key point to aggravated menacing convictions is the victim’s belief, not the defendant’s actual intentions or ability. The state prosecutor doesn’t have to prove that the defendant could carry out their threats or even intended to carry them out. An example of this can be seen in how Ohio criminal courts have ruled in previous cases. In State v. Wilk, the court upheld a conviction that involved the brandishing of a BB gun.
While brandishing a gun isn’t a crime in Ohio, there are several other criminal charges a person who displays a firearm could face. Depending on the facts of the situation, there could be several criminal charges that all stem from that single incident, including:
It’s important for gun owners to recognize that these charges aren’t isolated. Weapons charges can and are often stacked, resulting in the defendant facing multiple criminal charges.
For many gun owners, the purpose of having their gun is for self-defense. They would never dream of using it in an aggressive or instigating manner. Under Ohio law, people are allowed to use their guns in self-defense to use or threaten force. Once the person being accused of brandishing a gun in Ohio establishes evidence supporting their self-defense claim, the prosecutor must disprove it beyond a reasonable doubt.
The trouble many gun owners run into is the associated facts to their claim of self-defense. You cannot start or escalate the confrontation. In addition, the threat they are responding to needs to justify the use of a gun for self-defense. You also cannot continue to display the firearm after the immediate threat has ended.
If a gun owner is convicted of a criminal offense, it could directly impact their ability to own firearms in the future. Individuals convicted of a drug-related or violent felony are prohibited from owning a weapon. Aggravated menacing and menacing are classified as offenses of violence under Ohio law. Under R.C. 2923.125, Ohio gun owners may not be able to maintain or renew their handgun license.
In addition to Ohio state law, federal law bans firearm ownership for anyone convicted of a felony with a potential prison sentence of more than one year and domestic violence misdemeanors.
Restoration of firearm rights will depend on the specific criminal convictions, nature of the original offense, and the amount of time that has passed since the conviction. If you are interested in getting your gun rights back, speaking with a lawyer can help you understand your legal options.
While Ohio law may not specifically use the word brandishing, there are several criminal charges that you may face after displaying your gun. The charges will typically depend on the facts, who started the confrontation, and what was said.
Because these cases are highly fact-specific, Wesley Buchanan, Esq. can help apply the law to your situation. Our team of experienced attorneys represents clients defending themselves against weapons and violent crime charges across Northeast Ohio. Schedule a consultation through our Contact Page or by calling 330-249-1778 to discuss your case.
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