Every year or two, some legislator brings forth a proposal to curry the favor of Georgia’s armed populace. Usually the proposed law is a feel-good political measure to ease the minds of gun owners worrying about their rights being infringed.
This year, that legislator is Republican state Sen. Tyler Harper. And the farmer from Ocilla did not disappoint. His bill was a smorgasbord of fixes to existing gun laws, but the headliner of his offering was a tweak that is being called the "Brandish Bill."
The bill is being touted as a way to let Good Guys With Guns avoid felony charges when they feel the need to ease a tense situation by displaying their firepower.
“The purpose of this is to decriminalize the showing of that weapon,” Harper told a Senate committee last week. He said gun owners could be criminally charged only if they did the following with their weapon: “Brandish it in a fashion to where you use it and aim it offensively toward the other person.”
He added a provision that pulling a weapon could be a crime “if used in a threatening manner.”
Harper explained his thinking to his fellow senators: "There have been situations where people are charged with aggravated assault for brandishing their firearm in a show of force to de-escalate a situation."
Credit: David Barnes for the AJC
Credit: David Barnes for the AJC
Aggravated assault can bring up to 20 years, but that kind of lengthy sentence rarely occurs unless the gunman (or woman) actually shoots someone.
“My argument is, just because I have a weapon on my person and I show my weapon, I should not be charged with a felony for simply brandishing my firearm in an attempt to de-escalate what I consider a situation where I feel threatened,” Harper said.
Now, the verbiage of the bill — What exactly is brandishing? What is threatening? What is de-escalation? — is as clear as a Rorschach test or a Picasso.
What’s the difference between a positive brandishing versus the threatening variety? (I suppose the person doing the brandishing has a different definition than the person who triggered it.)
I reached out to Harper a couple of times for specifics but he was busy law-making and never got back to me. The bill passed in committee by a 5-3 vote along party lines last week and is awaiting further passage.
The proposed change to the law says a person with a gun can be charged with felony aggravated assault only if “the firearm is held within the person’s hands and aimed offensively or otherwise used in a threatening manner toward the other person.”
It seems clear from a reading that sticking the business end of a pistol in another fellow’s face is a no-no. But then the term “threatening manner” gets a bit quizzical.
Is pulling out a gun and keeping it at a low-ready aim threatening? How about holding it at your side? What if you pull up your jacket and clutch your Glock — is that threatening? Who knows? It’s in the eyes of the beholder.
More importantly, it’s in the eyes of the cops arriving on the scene and later, the prosecutor.
I called Gwinnett County District Attorney Danny Porter, who started prosecuting when most handguns were revolvers, not semi-automatics. He seemed confused by the definitions and the intent of the law.
“For aggravated assault, you have to place the victim in fear of injury or death with a firearm,” he said.
However.
He seemed to say that defining aggravated assault is akin to how a U.S. Supreme Court justice famously defined pornography: You know it when you see it.
“It’s a combination of circumstances and words and actions,” Porter said.
A guy pulls his gun at McDonald’s to urge the waitstaff to work faster? Aggravated assault. Ditto if one aims a gun at a person during an argument.
“But if I’m downtown and someone suspicious approached me at night and I show a weapon, that’s not aggravated assault,” Porter said. “I’ve never prosecuted a case like that.”
Former DeKalb County district attorney J. Tom Morgan, who is now a professor, has read the bill and said, “Every prosecutor is scratching his head. If it passes, it totally changes things.”
“The way I read it, if you’re in a disagreement, you can now pull a gun out,” Morgan said. But he added, “As soon as you pull it out of your holster, you’ve escalated.”
It could become the law of unintended consequences, he said.
“The good guy pulls out his gun, the other guy thinks, ‘I’m going to have to shoot him to protect myself.’”
And then real bad stuff happens.
I asked Morgan: Could a law like this embolden some gun owners to engage in stupid behavior?
“Absolutely,” he said. “Absolutely.”
Last week during the Senate committee meeting, state Sen. Harold V. Jones, a Dem from Augusta, said Harper’s bill was a solution seeking a problem.
Currently, he said, there are several existing misdemeanor charges prosecutors can consider when people flash guns: Reckless conduct, disorderly conduct, or even "pointing a gun at another." The prosecutor can even decide the display of force was necessary, given the situation, and not charge the person.
Jones said the Legislature doesn’t need to be weakening the law to make it easier for folks who want to brandish their weaponry.
“A person who pulls their gun out and has it at their side — at their side — would not fit this new definition of aggravated assault,” Jones said. “I just don’t think there’s any reason to be doing that.”
Before the voting occurred, state Sen. Bill Heath, a Republican from Bremen who has proposed his own gun bill, indicated he didn’t think what Jones was pondering was all that bad.
“My question is that I’m not sure of a place it’s illegal to have a gun in your hand, except in prohibited places,” Heath told the committee. “Any place you can have a gun, is there anything that prohibits you from having a gun in your hand?”
It was a rhetorical question that said a lot.
