Veteran Convicted for ‘Brandishing’ a BB Gun, Now Challenges the Law

By Alex Madajian | May 15, 2019 | 4:27pm EDT
BB gun.  (YouTube)

( — After a man in Fredericksburg, Va., was arrested and convicted of “brandishing” a BB gun – holding it stock-down by his leg, in public -- an attorney filed a lawsuit against the police and the Commonwealth of Virginia to overturn existing and apparently vague state law on the “brandishing” of firearms.

Virginia is an “open carry” state, which means citizens 18 and older may carry loaded handguns or rifles in public provided the handgun does not hold more than 20 rounds of ammunition and, for a shotgun or rifle, no more than seven rounds.

However, there also is a law that says you may not walk around pointing a gun at someone, holding it, displaying it, or even looking at it in such a manner that it induces fear in someone. As explained by defense attorney Rebecca Wade, “Brandishing a firearm is to hold or point a gun in a manner that would reasonably induce fear in another.”


“So while you are allowed to be outside in the open with a gun, you can’t just walk up and point a gun at someone,” she said. “That would clearly be brandishing a firearm.”

On Jan. 3, 2019, in Fredericksburg, Jon Wolff  -- a U.S. veteran -- heard noise on his neighbor’s property. Because there had been incidents of illegal parking on that property, Wolff  “went out into his own backyard to find out what all the noise was about,” according to the his attorney's press release.

The press release explains when Wolff confronted two people on the property, he was “holding a B.B. gun down by his leg, upside down with the trigger hanging down near the ground. He then leaned the gun up against his own fence.” During the encounter, a woman screamed, “He’s got a gun!”

At this, the two alleged victims walked back to their work supervisor at a nearby construction site, and the supervisor called the City of Fredericksburg Police Department. Later, the police arrested Wolff for “assault by intimidation” – two counts because of two victims – and for “brandishing” – two counts because of two victims.

The brandishing law states, “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."

BB gun.  (YouTube)

Wolff was prosecuted and convicted of the two counts of brandishing, but not of assault by intimidation. He was sentenced to 30 days in jail but this was suspended because of his good behavior.

The press release from Wolff’s attorney states, “The Fredericksburg prosecutor argued that Wolff was guilty of frightening people with his B.B. gun because he grabbed the B.B. gun on the way out his back door for self-protection. The prosecutor turned that into guilt of assault by intimidation.”

The press release further states that during the trial in the General District Court of the City of Fredericksburg, one of the alleged victims admitted that Wolff  “never pointed the gun at anyone or waved it.”

Following the legal ordeal, Wolff and his attorney, Jonathan Moseley, filed a “declaratory judgment” lawsuit on April 11 in the U.S. District Court for the Eastern District of Virginia.

"Nobody knows what 'brandishing' means," said Moseley in his press release about the lawsuit.  “Virginia is a 'plain language' state in which dictionaries are routinely consulted in court to determine the common, ordinary meaning of key terms in statutes.”

“Various definitions of 'brandishing' do not agree with one other,” he said.

“Mr. Wolff was primarily convicted for ‘holding’ a gun ‘in such a manner’ as to make someone afraid,” said Moseley. "How can a law-abiding person know if they are holding a gun 'in such a manner' so as to be legal as opposed to 'in such a manner' that will be illegal? Nobody can say with the necessary precision what 'in such manner' means."

When asked why he filed the lawsuit, Moseley told, “The more I look at Virginia statutes, the more I began to worry, in that I thought there were really no standards in the Virginia laws about having a gun. And I began to see how easy it would be to find anybody guilt [for] just owning a firearm.” 

According to the lawsuit, “Va. Code § 18.2-282 is unconstitutionally ‘void for vagueness’ and overbroad under the Due Process clauses of the U.S. Constitution because the word ‘brandish’ has no discernible meaning which can provide clear standards or guidelines by which Plaintiffs may conform their behavior to lawful conduct.”

“Other than pointing,” Moseley explained, “nobody knows what ‘brandishing’ means.”  

Moseley has started a gofundme page to help cover the costs of the lawsuit.

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