Brandishing a firearm; intent to induce fear, etc., penalty. (HB560)

Introduced By

Del. Scott Lingamfelter (R-Woodbridge)

Progress

Introduced
Passed Committee
Passed House
Passed Senate
Signed by Governor
Became Law

Description

Brandishing a firearm; intent; penalty. Requires that a person pointing, holding, or brandishing a firearm or similar weapons must have the intent to induce fear in the mind of another or know or reasonably should know that his conduct would induce such fear in order to be convicted of the crime of brandishing. Currently, the perpetrator's intent is not an element of the offense. Amends § 18.2-282, of the Code of Virginia. Read the Bill »

Status

04/07/2016: vetoed by governor

History

DateAction
01/11/2016Committee
01/11/2016Prefiled and ordered printed; offered 01/13/16 16100402D
01/11/2016Referred to Committee for Courts of Justice
01/12/2016Impact statement from VCSC (HB560)
01/14/2016Assigned to sub: Subcommittee Criminal Law
01/14/2016Assigned App. sub: Subcommittee Criminal Law
01/14/2016Assigned Courts sub:
01/19/2016Impact statement from DPB (HB560)
01/20/2016Subcommittee recommends reporting (8-Y 3-N)
02/03/2016Reported from Courts of Justice (14-Y 7-N) (see vote tally)
02/05/2016Read first time
02/08/2016Read second time and engrossed
02/09/2016Read third time and passed House (68-Y 32-N)
02/09/2016VOTE: PASSAGE (68-Y 32-N) (see vote tally)
02/10/2016Constitutional reading dispensed
02/10/2016Referred to Committee for Courts of Justice
02/24/2016Reported from Courts of Justice (10-Y 5-N) (see vote tally)
02/26/2016Constitutional reading dispensed (39-Y 0-N) (see vote tally)
02/29/2016Read third time
02/29/2016Passed Senate (21-Y 17-N) (see vote tally)
03/02/2016Enrolled
03/02/2016Bill text as passed House and Senate (HB560ER)
03/02/2016Impact statement from DPB (HB560ER)
03/02/2016Signed by Speaker
03/05/2016Signed by President
03/07/2016Signed by President
03/07/2016G Governor's Action Deadline Midnight, Monday, April 11, 2016
03/07/2016Enrolled Bill communicated to Governor on 3/7/2016
03/07/2016G Governor's Action Deadline Midnight, Sunday, April 10, 2016
04/07/2016G Vetoed by Governor
04/20/2016Placed on Calendar
04/20/2016House sustained Governor's veto (66-Y 34-N)
04/20/2016VOTE: OVERRIDE GOVERNOR'S VETO (66-Y 34-N)
04/20/2016Requires 67 afirmative votes to override Governor's veto

Video

This bill was discussed on the floor of the General Assembly. Below is all of the video that we have of that discussion, 3 clips in all, totaling 19 minutes.

Transcript

This is a transcript of the video clips in which this bill is discussed.

ANGE THEIR VOTE? THE CLERK WILL CLOSE THE ROLL. AYES 28, NOS 10. AYES 28, NOS 10. THE BILL PASSES. HOUSE BILL 560. A BILL RELATING TO BRANDISHING A FIREARM INTENT PENALTY REPORTED FROM THE COMMITTEE FOR COURTS OF JUSTICE. THE SENATOR FROM ROCKINGHAM, SENATOR OBENSHAIN. MR. PRESIDENT, I MOVE THAT THE BILL PASS AND SPEAKING TO THE BILL. MR. PRESIDENT, MEMBERS OF THE SENATE, INCREASINGLY WE HAVE SITUATIONS IN WHICH PEOPLE WERE CONVICTED OF CRIMES FOR WHICH THEY HAD NO CRIMINAL INTENT AND THAT IS A SIGNIFICANT PROBLEM AT THE FEDERAL LEVEL REALLY A BIG PROBLEMMAL THE FEDERAL LEVEL AND OF THE AND PROBLEM AT THE STATE LEVEL AS WELL. THIS IS ADDRESSING JUST ONE SUCH INSTANCE. BRANDISHING FIREARM -- A FIREARM REQUIRES AMONG OTHER THINGS THAT CAUSE SOMEBODY TO APPREHEND THE POSSIBILITY OF FEAR OF BODILY HARM AND ONE CONCERN IS IN AN ARENA IN WHICH THERE IS HEIGHTENED SENSITIVITY PARTICULARLY IN SOME AREAS, CONCERNING THE POSSESSION OF A FIREARM THERE IS CONCERN GREAT CONCERN IN MY VIEW AND THE VIEW OF THE PATRON, VERY LEGITIMATE CONCERN ABOUT INSTANCES IN WHICH PEOPLE APPREHEND SOME FEAR THAT MAY BE UNREASONABLE. MAY BE THAT SOMEBODY WITH A CONCEALED CARRY PERMIT IS REACHING FOR A WALL MET AND WALD EXPOSES THEIR FIREARM AND MAY BE EXPOSED TO PROSECUTION FOR BRANDISHING. THIS REQUIRES THAT AN EXPRESS ELEMENT OF INTENT TO CAUSE THAT TYPE OF FEAR WHICH IN MY VIEW IS CONSISTENT WITH OUR PRINCIPLES OF JURISPRUDENCE THAT WE WANT TO MAKE SURE THAT WE ARE PROSECUTING AND IMPRISONING PEOPLE FOR CRIMES WHERE THEY HAD THE INTENT TO COMMIT A CRIME. THANK YOU, SENATOR. THE SENATOR FROM FAIRFAX. WOULD THE GENTLEMAN YIELD FOR A QUESTION. WOULD THE GENTLEMAN YIELD FOR A QUESTION. I YIELD. HE YIELDS. I ASK DOESN'T THE WORD BRANDISH IN AND OF ITSELF IMPLY THAT THE PERSON DISPLAYING THE WEAPON IS DOING SO WITH THE MEANS OF INCITING FEAR IN OTHERS. THE SENATOR FROM ROCKINGHAM? APPARENTLY NOT. THIS MAKES IT PERFECTLY CLEAR THAT IN ORDER TO BE CONVICTED OF THAT CRIME THAT IT HAS TO BE DONE WITH THE INTENT TO INDUCE FEAR BY ANOTHER. TAKE FOR EXAMPLE SOMEBODY WHO REMOVES HAS THEIR WEAPON IN A WHO WILL TERRITORY AND PULLING IT OUT OR OFF TO PUT IT IN A LOCKED GLOVE COMPARTMENT IN THEIR CAR. SOMEBODY MAY SEE THAT AND BE GREATLY DISTURBED AND MAYBE EVEN APPREHENSIVE. IN TERMS WHAT WE TRY TO CONFINE THE BOUNDS OF CRIMINAL BEHAVIOR TO, IT WAS NOT SOMETHING DONE WITH THE INTENT TO INDUCE FEAR. FURTHER QUESTION, MR. YIELD FOR AN ADDITIONAL PRESIDENT. QUESTION? I YIELD. HE YIELDS. DOESN'T THE LAW HAVE A REASONABLENESS STANDARD UNDER LINE 17 WHICH SAYS IN SUCH MANNER AS TO REASONABLY INDUCE FEAR IN THE MIND OF ANOTHER. THE SENATOR FROM ROCKINGHAM. MR. PRESIDENT, WHAT I WOULD SUGGEST IS THAT THOSE ARE TWO DIFFERENT ISSUES. WHETHER IS REASONABLY INDUCED FEAR. YOU COULD DO SOMETHING ENTIRELY INNOCENT, ACCIDENTAL AND A REASONABLE PERSON MAY BE TERRIFIED BY THAT. IF IT WAS COMPLETELY INNOCENTLY DONE AND THAT PERSON HAD NO INTENT TO INDUCE THAT KIND OF FEAR IN ANOTHER, IT MAY BE SOMEBODY WHO WAS RIDING A BICYCLE NEXT TO A CAR AND SEES A GUY PULL A HANDGUN OUT AND DOESN'T REALIZE THAT HE IS PUTTING IT IN HIS GLOVE BOX. THAT PERSON YOU KNOW MAY BE REASONABLY AFRAID BUT THAT IS NOT HIMMIAL BEHAVIOR. OKAY, MR. PRESIDENT. SPEAK BRIEFLY TO THE BILL. THE SENATOR HAS THE FLOOR. MR. PRESIDENT, LADIES AND GENTLEMEN OF THE SENATE IF YOU READ THE STATUTE IT IS A READS RIGHT NOW IF IS COHERENT AND IF YOU PUT IN YOU WILL HAVE TWO REASONABLENESS STANDARDS IN ONE STATUTE. I DON'T KNOW HOW YOU WOULD INSTRUCT A JURY IN THAT CASE. I THINK THE LAW WRITTEN ANTICIPATES THIS SITUATION AND I THINK WE SHOULD DEFEAT THE BILL. THANK YOU, SENATOR. THE SENATOR FROM ROANOKE CITY. MR. PRESIDENT, SPEAKING TO THE BILL. THE SENATOR HAS THE FLOOR. I VOTE AGAINST IT BECAUSE MR. PRESIDENT, WHAT THIS BILL DOES CONTRARY TO WHAT THE SENATOR FROM ROCKINGHAM IS SAYING, IT ACTUALLY ADDS A NEGLIGENCE STANDARD. NOT AN INTENTIONAL STANDARD. ED IT KIND OF AMBIGUOUS. THE LAW IS CLEAR THAT YOU HAVE TO BRANDISH THE FIREARM YOU HAVE TO HAVE SOME INTENT THAT YOU KNOW WHAT YOU ARE DOING. IN THIS CASE IT SAYS IT IS UNLAWFUL FOR ANY PERSON WITH THE INTENT TO INDUCE OR KNOW OR REASONABLY SHOULD KNOW. AND BRANDISHES A FIREARM. THIS ADDS A NEGLIGENCE STANDARD AND I WOULD THINK WE WANT TO VOTE NO ON THE BILL BECAUSE IT IS DOING THE OPPOSITE OF WHAT THE PATRON INTENDED FOR IT TO DO. THANK YOU, MR. PRESIDENT. THANK YOU, SENATOR. THE SENATOR FROM BUCKINGHAM, SENATOR GARRETT. MR. PRESIDENT, I WOULD ASK THE SENATOR FROM FAIRFAX CITY AND SENATOR WOULD GOOGLE HENRICO BRANDISHING CASE. I SEE YOU OVER THERE TYPING. I AM GRATEFUL OF. AN ACCOUNT OF AN INDIVIDUAL WHO MOVED A FIREARM FROM A GLOVE BOX TO A CARRY POSITION. HE WAS ON THE WAY TO A MEETING FOR THOSE WHO ADVOCATED FOR OPEN CARRY. HE DIDN'T EVEN KNOW HE WAS OBSERVED UNTIL A WEEK LATER WHEN USING HIS LICENSE PLATE INFORMATION HE RECEIVED WORD THAT HE HAD BEEN CHARGED WITH BRANDISHING. HE DIDN'T DISPLAY WITH INTENT. AND I ASK THE SENATOR FROM ROANOKE IF MAYBE HE WOULD TAKE THE TIME TO LOOK AT THIS POLITELY. I THINK IT IS WORTH WHILE. HE DIDN'T DISPLAY IT WITH INTENT AND HE WAS CHARGED WITH BRAINING AND CONVICT THE EVER BRANDISHING AND IT WAS UPHELD ON APPEAL. THERE IS NO EVIDENCE HE KNEW ANYBODY HAD SEEN HIM. SO THE BEST ARGUMENT AGAINST THIS SLAW THAT BAD CASES MAKE BAD LAW. IT IS NOT A CONTEMPLATED INJUSTICE. AN ACTUAL CASE FROM HERE IN THE COMMONWEALTH OF VIRGINIA. I WOULD IMAGINE THIS HAPPENED MORE THAN ONCE. AND SO WHILE THERE IS A MENSREA STANDARD, SOMEBODY MISSED WHAT THE SENATOR FROM FAIRFAX DIDN'T. I WOULD AGREE THAT BRANDISHING IN AND OF ITSELF IMPLIES A CONSCIOUS ACT BUT THAT IS NOT THE WAY THE COURTS ARE RULING AND SO I THINK IT MAKES SENSE TO CLARIFY THE INTENT OF THE FRAMERS OF THE ORIGINAL CODE. YES, I WOULD YIELD FOR A QUESTION. MR. PRESIDENT, WOULD THE SENATOR YIELD FOR A QUESTION. HE YIELDS, SENATOR. MR. PRESIDENT, IS THE NOR AWARE THAT WE FREQUENTLY DEAL WITH BAD DECISIONS MADE BY ONE CIRCUIT COURT JUDGE SOME WHERE AND ONE GENERAL DISTRICT COURT JUDGE SOME WHERE AND THAT DOESN'T MEAN THAT IS WHAT THE LAW IS. THE SENATOR FROM BUCKINGHAM. I WOULD SUBMIT THIS IS A BAD DECISION MADE BY A POLICE OFFICER, A BAD DECISION MADE BY MAGISTRATE AND MADE BY A PROSECUTOR AND GENERAL DISTRICT COURT JUDGE AND CIRCUIT COURT JUDGE AND THIS LAW WOULD CLARIFY THOSE BAD DECISIONS WERE IN FACT BAD DECISIONS AND PROTECT THE RIGHTS OF LAW ABIDING VIRGINIA CITIZENS. THE INDIVIDUAL IN QUESTION HERE WAS 46 YEARS OLD WITH NO CRIMINAL HISTORY. NONE. DRIVING DOWN THE ROAD. MOVED A FIREARM FROM ONE POSITION TO ANOTHER. HE WAS OBSERVED. HE WAS CONVICTED AND IT WAS UPHELD. THAT IS FIVE LEVELS OF BAD DECISIONS. PUT THE SAME KNOWLEDGE AND INTENT AND MENS REA THAT WE HAVE ON OTHER LAWS. IF THE SENATOR AGREES THIS IS NOT THE LAW OF VIRGINIA WHY SHOULD WE CHANGE THE LAW JUST BECAUSE SOME PEOPLE DON'T KNOW HOW TO READ IT PROPERLY. THANK YOU, MR. PRESIDENT. THE SENATOR FROM FAIRFAX. IF NOBODY ELSE DESIRES TO WEEK, IF I COULD SPEAK TWICE. THERE IS ONE OTHER. GO AHEAD, JURY. IT WAS A JURY VERDICT AND THERE WAS CONFLICTING TESTIMONY IN THE CASE AND THE COACH OF THE HIGH SCHOOL BASEBALL TEAM THOUGHT THAT THE GENTLEMAN WAS POINTING THE WEAPON AT HIM AND THE GENTLEMAN SAID HE WAS JUST LOADING IT. BUT THERE WAS SOME DEGREE OF CONFLICTED TESTIMONY AND A $1,500 FINE AND NO JAIL TIME AND A MISDEMEANOR BUT LOST HIS CONCEALED CARRY LICENSE. WHO KNOWS IF IT WAS A GOOD DECISION OR NOT BUT THE BOTTOM LINE IS THE SLAW MORE THAN JUST ONE DECISION. THE QUESTION IS SHOULD HOUSE BILL 560 PASS. ALL IN FAVOR OF THE MOTION WILLS AYE, THOSE OPPOSED NO. ARE THE SENATORS READY TO VOTE? HAVE ALL THE SENATORS VOTED? DO ANY SENATORS DESIRE TO CH THEIR VOTE? ANGE THE CLERK WILL CLOSE THE ROLL. AYES 21, NOS 17. AYES 21, NOS 17.
GOVERNOR'S VETO, I'D LIKE TO SPEAK TO THE MOTION.

Del. Bill Howell (R-Fredericksburg): GENTLEMAN HAS THE FLOOR.

[Unknown]: THANK YOU, MR. SPEAKER. MR. SPEAKER, AS THE GENTLEMAN FROM AUGUSTA JUST DID I WOULD LIKE TO JUST REVIEW BRIEFLY WHAT THIS BILL DOES. AND THEN, TALK WHAT THE GOVERNOR'S VETO MESSAGE PRESUMES OF IT. THE BILL REQUIRES THAT A PERSON HOLDING OR POINTING OR BRANDISHING A FIREARM OR WEAPON MUST HAVE THE INTENT TO INDUCE FEAR IN THE MIND OF ANOTHER OR KNOW OR SHOULD HAVE KNOWN THAT HIS CONDUCT WOULD ENDUES FEAR IN ORDER TO BE CONVICTED OF THE CRIME OF BRANDISHING CURRENTLY THE PERPETRATORS INNOCENT. IT'S NOT AN ELEMENT SO I WANT TO GIVE YOU AN EXAMPLE. YOU JUST PURCHASED A FIREARM. AND SOMEONE WALKS UP AND SEES YOU HOLDING THIS FIREARM. UNDER LAW, ALL THAT PERSON HAS TO DO IS FEEL THREATENED. THERE IS NO INTENT. YOU MAY NOT KNOW THAT PERSON IS STANDING BEHIND YOU. IT MAINTAINED THAT THE, AND I'M READING HERE, BY THE WAY, THE GOVERNOR HAS THIS. HE HAS THE FACTS. AND IN THIS CASE IT SAYS WHEN THE EVIDENCE MERELY PROVE A PERSON HOLDING A FIREARM WAS SEEN BY ANOTHER. AND SO, THE PURPOSE OF THIS BILL, THE EVIDENCE IN THIS CASE PROVES EVIDENCE DID NOT PROVE BEYOND A REASONABLE DOUBT THE INDIVIDUAL HELD A GUN IN SUCH AS MANNER TO REASONABLY INDUCE FEAR IN THE MIND OF ANOTHER SO. WHAT THIS BILL DOES IS INCORPORATES A DECISION OF THE COMMON WEALTH. THAT IS ALL THAT IT DOES. THE GOVERNOR'S VETO STATEMENT READS AS IF HE COULDN'T READ THE BILL. COURTS INTERPRETED THIS THIS LANGUAGE TO MEAN IT'S NOT ENOUGH, THERE MUST BE, THE GOVERNOR SAYS, ADDITIONAL EVIDENCE THE PERSON INTENDED INDUCE FEAR. SO THIS IS INCLUDED. AND WE'VE INCLUDED THE COURT DECISION. HE SUGGESTS WHAT THE COURTS INTERPRETED AS NECESSARY IS AN UNNECESSARY BURDEN ON PUBLIC SAFETY OFFICIALS AND POTENTIALLY CREATES DIFFERENCES. WHAT HAPPENED TO INNOCENT UNTIL PROVEN GUILTY? WHATEVER HAPPENED TO THE FACT THAT THE COMMONWEALTH NEEDS TO HAVE THE BURDEN OF PROOF ON THEM. TO DEMONSTRATE A PERSON INTENDED TO DO SOMETHING. SO WHY IS THIS HERE? WELL, WE'VE SEEN THE VOTES. WE KNOW YOU'RE IN LOCK STEP. WE KNOW THE GOVERNOR WANTED A GUN BILL TO VETO. AND TO CUDDLE UP BECAUSE AFTER ALL, THEY GAVE HIM A TONGUE LASHING IN THE PRESS. IT IS UNFAIR AND UNJUST. THAT WILL COME FROM IT. YOUR VOTE TO SUSTAIN THIS VETO WILL BE A VOTE TO SUSTAIN INJUSTICE.

Del. Bill Howell (R-Fredericksburg): GENTLEMAN FROM ARLINGTON, MR. LOPEZ.

Del. Alfonso Lopez (D-Arlington): THANK YOU, MR. SPEAKER.

[Unknown]: I HAVE TO TELL YOU, ACCUSING THE GOVERNOR OF POLITICS WHEN TALKING ABOUT PUBLIC SAFETY IS OUT THERE. 560 IS OVERLY BROAD. A PERSON WHO PULLS OUT A FIREARM ON THE PARK OR SIDEWALK SHOULDN'T BE ABLE TO SAY IT WASN'T MY INTENTION TO FRIGHTEN THAT MOM, KID, OR ELDERLY COUPLE AND FAMILY. FROM JOHN LOTT STUDY, 93% OF FOLKS CAN DEFEND THEMSELVES BY INSTILLING FEAR IN THE ALLEGED ATTACKER. THE BRANDISHING OF A GUN INSTILLS FEAR. AND THIS BILL SAYS IT SHOULDN'T CREATE FEAR IN AN INDIVIDUAL. HERE IS THE THING. WHY SHOULD WE NOT ASSUME SHOWING A GUN TO AN INNOCENT PERSON WOULD NOT INDUCE EQUAL FEAR? POINTING A GUN DOES INDUCE FEAR. THIS WOULD CREATE UNINTENDED CONSEQUENCES FOR LAW ENFORCEMENT ATTEMPTING TO SECURE CONVICTIONS FOR VIOLATORS AND WOULD UNNECESSARILY BURDEN OR PUBLIC SAFETY OWE FISHES AND -- OFFICIALS. AND IN FACT, THIS PROVISION IS USED BY PROSECUTORS AGAINST GANG MEMBERS. IT WOULD MAKE THE JOB HARDER. POINTING OR HOLDING A FIREARM IN A MANNER THAT INDUCES FEAR SHOULD BE ADDRESSED WITHIN OUR JUSTICE SYSTEM. CURRENT LAW PROVIDES CLEAR GUIDELINES FOR LAW ENFORCEMENT. THE GOVERNOR VETOED THIS BILL BECAUSE OF SERIOUS UNINTENDED CONSEQUENCES. IT'S UNNECESSARY. I HOPE IT'S THE WILL OF THE BOD YES TO SUSTAIN THE GOVERNOR'S

Del. Alfonso Lopez (D-Arlington): VETO.