This sentence from subsection "A" is the key, and if you read carefully, you'll find it doesn't really make sense. And if you read appellate opinions interpreting it, it makes even less sense:
It shall be unlawful for any person to point, hold or brandish any firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not, in such manner as to reasonably induce fear in the mind of another or hold a firearm or any air or gas operated weapon in a public place in such a manner as to reasonably induce fear in the mind of another of being shot or injured.
So, to parse that sentence, : "It shall be unlawful"
for any person to (point, hold or brandish)
any (firearm or any air or gas operated weapon or any object similar in appearance, whether capable of being fired or not,)
in such manner as to (reasonably induce fear in the mind of another)
OR
hold a (firearm or any air or gas operated weapon)
in a public place
in such a manner as to (reasonably induce fear in the mind of another of being shot or injured.)
So there are two clauses, separated by the conjunction, "or". So if you violate either of the two, that's a violation of the statute.
The first prohibits "pointing, holding, or brandishing", while the second only prohibits "holding". So the first clause covers a much wider range of behavior than the latter.
However, the latter only applies "in a public place". That's an important phrase, because there is a similar phrase that means something different. Consider the misdemeanor commonly called, "drunk in public": the phrase, "in public" means "in a place where one would be visible to members of the public if they happened to stroll by." On the other hand, "in a public place", means being physically located in a place that is generally open to the public (i.e., not your house, not the curtilage of your home, not in a friends house, etc.), such as a shopping mall or a public street.
Also, clause one only requires that the observe be reasonably induced to experience fear, a very general statement. Any kind of fear, apparently, as long as it's reasonably related to the brandishing, such as the fear that the hat one's companion is wearing may be perforated. However, clause two requires that there be fear that the hypothetical observer will experience specific fear that he, himself (as opposed to his companion) will be "shot or injured".
But since one violates the entire statute if he violates the first clause, why is the second clause there at all? No one knows. It's never used. The first clause is so broad and covers almost everything, the police, prosecutors, and courts routinely ignore the second clause. Why would anyone want to have to prove more facts than he has to in order to obtain a conviction?
However, in the words of Senior District Judge J.R. Zepkin whom we all know from the Surry County Finger Brandishing Case, you have to "do something" with the gun in order for it to be a case of brandishing. However, it makes absolutely no difference at all as to clause one of subsection "A" where you "do" that something.
Finally, you'd think that the adverbial phrase qualifying the "doing", "in such manner as to reasonably induce fear in the mind of another", would describe the behavior of the person charged with brandishing. "in such manner", would presumably make that pretty clear. But the Virginia Supreme Court has determined that the plain meaning of the phrase is to be ignored completely, and treats the adverbial phrase describing the prohibited behavior as a requirement that a specific person experience - wait - get this - not "fear", as it says in the statute, but "the apprehension of an immediate battery", as though the charge were one of assault.
So the way the statute is being prosecuted, if fifty people observe you standing on your front porch holding your firearm in an "ostentatious or shameful display" (a dictionary definition relied upon by the Court to determine what "brandish" means) such that they might theoretically form the conclusion, without any fear at all, that their companions' hats might be hit by bullets, then you're guilty of fifty counts of brandishing a firearm.
The statute makes no sense to begin with; it is internally inconsistent and very badly written; but given how it is written, the Courts have completely discarded the "plain meaning rule" of statutory construction and imported definitions and meanings not present in the statute, and completely ignored the grammar of the sentences, in order to make its effect much broader than the legislature intended. It is being used by prosecutors as a blunt weapon in an anti-gun crusade. And the first thing the cops do when they arrest someone for brandishing is confiscate "weapons".
A guy was recently charged with brandishing in a Virginia municipality for defending his home against attackers actually engaged in the act of breaking and entering - a violation of the "daytime burglary" statute. He was using his own shotgun at the time. The town cops came and arrested him and his brother and took not only their firearms, an heirloom police nightstick that had belonged to the guy's grandfather, and pocket and fishing knives, but also broke into the separate residences of his room-mates within the house and stole their firearms as well. Every door was flattened and no receipt was provided to any of the persons whose firearms were taken. It didn't matter that the guy was defending himself and his brother in their own home, and the perpetrators of the attack appear to have been "confidential informants" and were not charged with any crimes.
In my mind, this was a clear act of terrorism, as that crime is defined by the United States and Virginia Codes. They call it "brandishing a firearm".
Sorry for derailing the original point of the thread. I hope I answered the question.
