You had best be very careful if you brandish your gun during an argument or fight. You really need to ensure that you are lawfully defending yourself, defending others, or property. Otherwise you will be charged with brandishing a firearm.
Sometimes called brandishing a weapon, or as Utah Code Ann. 76-10-506 (2020) states, “threatening with or using dangerous weapon in fight or quarrel.”
What is Brandishing a Dangerous Weapon During a Fight?
A “dangerous weapon” is defined for purposes of brandishing a weapon to mean:
An item that in the manner of its use or intended use is capable of causing death or serious bodily injury. The following factors shall be used in determining whether an item, object, or thing is a dangerous weapon:
(i) the character of the instrument, object, or thing;
(ii) the character of the wound produced, if any; and
(iii) the manner in which the instrument, object, or thing was exhibited or used.
“Dangerous weapon”, like most other definitions of a dangerous weapon in Utah law, is drafted very broadly to include many normally harmless objects. Whether a rock, butter knife, or wooden stick, it’s how that object is used and the intent of the person using it that makes a dangerous weapon.
Having a persuasive defense attorney can make all the difference in explaining to the jury that a harmless object should not be considered a dangerous weapon. Ultimately, a jury of your peers in the community makes the decision on whether or not the object you were brandishing was a dangerous weapon.
Again, the jury makes the ultimate decision on whether the person was carrying the object in a threatening manner. However, the Utah brandishing statute gives the jury some guidance on what “threatening manner” means and states:
“Threatening manner” does not include:
(i) the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or
(ii) informing another of the actor’s possession of a deadly weapon to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402(3)(a).
The mere wearing of an open-carry pistol by itself is not threatening under Utah’s brandishing laws. This provision was clearly added by a gun owners’ lobby to protect gun-carrying, law abiding citizens from getting wrapped up with charges from a poorly informed screening prosecutor.
Brandishing a dangerous weapon in Utah is a Class A Misdemeanor. This could mean a sentence up to one year in the county jail and maximum fine of $2,500.
In Utah you always retain the right to self-defense. This means you can point a gun at someone in self-defense, but you better make sure you fit the definition of what self-defense is under Utah law. Self-defense laws are complicated and Utah self-defense factors are set out under Utah Code Ann. 76-2-402 (2020). Using self-defense in Utah is entirely too complicated to discuss in this article, but can be roughly summed up as follows:
“An individual is justified in threatening or using force against another individual when and to the extent that the individual reasonably believes that force or a threat of force is necessary to defend the individual or another individual against the imminent use of unlawful force.
An individual is justified in using force intended or likely to cause death or serious bodily injury only if the individual reasonably believes that force is necessary to prevent death or serious bodily injury to the individual or another individual as a result of imminent use of unlawful force, or to prevent the commission of a forcible felony.”
The following are closely-related firearms and weapons charges in Utah:
Section 503 Restrictions on possession, purchase, transfer, and ownership of dangerous weapons by certain persons — Exceptions. Utah Code Ann. 76-10-503.
Section 505 Carrying loaded firearm in vehicle or on street.
Section 505.5 Possession of a dangerous weapon, firearm, or short barreled shotgun on or about school premises — Penalties.
Section 506 Threatening with or using dangerous weapon in fight or quarrel.
Section 507 Possession of deadly weapon with criminal intent.
Section 508 Discharge of firearm from a vehicle, near a highway, or in direction of specified items — Penalties.
Section 508.1 Felony discharge of a firearm — Penalties.
Section 509 Possession of dangerous weapon by minor.
Section 509.4 Prohibition of possession of certain weapons by minors.
Section 509.5 Penalties for providing certain weapons to a minor.
Section 509.6 Parent or guardian providing firearm to violent minor.
Section 509.7 Parent or guardian knowing of minor’s possession of dangerous weapon.
Section 509.9 Sales of firearms to juveniles.
Section 511 Possession of loaded firearm at residence or on real property authorized.
Section 520 Number or mark assigned to pistol or revolver by Department of Public Safety.
Section 521 Unlawful marking of pistol or revolver.
Section 522 Alteration of number or mark on pistol or revolver.
Section 528 Carrying a dangerous weapon while under influence of alcohol or drugs unlawful.
Section 529 Possession of dangerous weapons, firearms, or explosives in airport secure areas prohibited — Penalty.
Section 530 Trespass with a firearm in a house of worship or private residence — Notice — Penalty.
EXPERIENCED CRIMINAL DEFENSE OF UTAH GUN OWNERS. Call Jake Gunter. Free consultation. (801) 373-6345. See Jake Gunter’s biography at https://www.provolawyers.com/attorney-profiles/jacob-s-gunter/
Here is the actual code language for those interested.
Effective 5/14/2019
76-10-506. Threatening with or using dangerous weapon in fight or quarrel.
(1) As used in this section:
(a) “Dangerous weapon” means an item that in the manner of its use or intended use is capable of causing death or serious bodily injury. The following factors shall be used in determining whether an item, object, or thing is a dangerous weapon:
(i) the character of the instrument, object, or thing;
(ii) the character of the wound produced, if any; and
(iii) the manner in which the instrument, object, or thing was exhibited or used.
(b) “Threatening manner” does not include:
(i) the possession of a dangerous weapon, whether visible or concealed, without additional behavior which is threatening; or
(ii) informing another of the actor’s possession of a deadly weapon to prevent what the actor reasonably perceives as a possible use of unlawful force by the other and the actor is not engaged in any activity described in Subsection 76-2-402(3)(a).
(2) Except as otherwise provided in Section 76-2-402 and for an individual described in Section 76-10-503, an individual who, in the presence of two or more individuals, and not amounting to a violation of Section 76-5-103, draws or exhibits a dangerous weapon in an angry and threatening manner or unlawfully uses a dangerous weapon in a fight or quarrel is guilty of a class A misdemeanor.
(3) This section does not apply to an individual who, reasonably believing the action to be necessary in compliance with Section 76-2-402, with purpose to prevent another’s use of unlawful force:
(a) threatens the use of a dangerous weapon; or
(b) draws or exhibits a dangerous weapon.
(4) This section does not apply to an individual listed in Subsections 76-10-523(1)(a) through (f) in performance of the individual’s duties.
