If this is the case he had fired it. Had it on him and grabbed and threw it.
MORRIS v. COMMONWEALTH | FindLaw

That is the case. No question he had the flare gun "on him", and that one "fired round" (i.e., a spent cartridge) was inside the device. There was no evidence as to who fired it or when, and if it had been a factor in the case, the Commonwealth's Attorney would have probably charged the guy with attempted murder, rather than brandishing. And, when accosted by law enforcement, he evidenced a desire to rid himself of the object, which he did; but again, that incident took place only after the actions relevant to the charges presented were over.

The issue, in my mind, is the use of a secondary definition from a dictionary of popular usage to redefine already well-defined terminology. As I've already said, that's like consulting People Magazine to figure out what the law is. You'd think the Supreme Court of Virginia (let alone whatever circuit court judge made the original decision that was on appeal) would have better sense.

I think what really happened (in court, not the graveyard) is that the cops originally had the guy charged with the wrong offense - it should have been assault, not brandishing - but the defendant was clearly a "bad guy" who needed punishing, and since the Commonwealth had already charged and convicted the guy, the Sup. Ct. made up what I regard as a completely spurious basis for a conviction on the brandishing charge. Sort of like what Aunt Polly said to Tom Sawyer when she found she'd punished him unjustly: "Well, you ain't a lick amiss, I reckon." Too bad it also created a very bad precedent.

[Wheatfield]

We are being decimated by alternate facts.
Not really, I think we are being annihilated by them.

[photoptimist]

It's amusing that we are arguing about the (non)standardization of verbal communication using a case involving nonverbal communication.

Are laws against "brandishing" meant to prohibit are some specific left-right-left-right motion with a weapon. Or are they meant to prohibit a more general non-verbal communication act of displaying a weapon in some way that communicates an implied threat?

Do we need a dictionary of non-verbal communication so that everyone knows the difference between friendly and hostile displays of weaponry?

[swanlefitte]

That case had many terms of question.
They argued he never touched the gun that was on him. It was against his body.
Hold is another term. Was he holding? Which definitions do you use or exclude? One could say in possession of a fire arm is clearly different from holding but as far as I know that is only my interpretation of what law makers meant. A judge doesn't go off what was meant but what the law is. When the law is unclear how could the doj work well?
I would say law makers do not write laws with enough precision for courts not to guess.
Then again, raising your right hand is used to spellbind you to the truth😂

It's amusing that we are arguing about the (non)standardization of verbal communication using a case involving nonverbal communication.

Are laws against "brandishing" meant to prohibit are some specific left-right-left-right motion with a weapon. Or are they meant to prohibit a more general non-verbal communication act of displaying a weapon n some way that communicates an implied threat?

Do we need a dictionary of non-verbal communication so that everyone knows the difference between friendly and hostile displays of weaponry?

A rhetorical question, right? The simple answer is that the crime of "assault" is different from the crime of "brandishing a firearm". Oh, and by the way - the crime of assault does not involve touching. Assault is "an offer to touch", while "battery" is the result of the assault.

But that issue doesn't have much to do with the elements of a criminal offense, which do have to be defined carefully and well, so that everyone can know, not just whether or not he's being hostile, but whether he's going to be subject to punishment for his actions. In the U.S. there is a specific requirement that the average person has to be able to tell whether or not what he's doing is a crime or not. The "due process" clause of the Constitution has been interpreted to mean (et alia) that a criminal statute can be "void for vagueness", and thus unenforceable, if it is not intelligible to the average person.

Clearly what that requires, then, is that the statute express the proscribed conduct in words that have definite and clear meaning. That word, "definite" is important in particular, since the word "definition" refers to specification of meaning. "That's all just semantics!", they say, derisively. But they're right - semantics is the study of meaning. And if there is no definite (i.e., well defined) meaning, then the words are useless. If a word can mean whatever a person wants it to mean (the Humpty Dumpty principle), then it means nothing, for it fails to be a mechanism of effective communication. If a court rely upon definitions from popular sources, in which people use words without real regard to actual meaning, whether analogically or otherwise, then the average person can't possibly know what the words in a statute mean. The result of that process gets us back to Stalinist Russia, and you can be locked up because other people don't like you or what you think. It makes it easy to "get the bad guys", and even easier to characterize others as "bad guys" based on inappropriate criteria (wrong skin color, wrong religion, etc.).

I can't wait until my 1933 OED gets here. I should add a disclaimer: when I was in my first year of law school (with a bachelor's degree in history), the professor asked a question which I answered. He stood silent for a while in the middle of the room, open book in his hand, staring at me. Then he announced to the class, "Mr. Hawes is in the wrong century."

[Wheatfield]

It's amusing that we are arguing about the (non)standardization of verbal communication using a case involving nonverbal communication.

Are laws against "brandishing" meant to prohibit are some specific left-right-left-right motion with a weapon. Or are they meant to prohibit a more general non-verbal communication act of displaying a weapon in some way that communicates an implied threat?

Do we need a dictionary of non-verbal communication so that everyone knows the difference between friendly and hostile displays of weaponry?

Nah. Point your weapon at yourself = friendly, point it at me = unfriendly.

---------- Post added Jul 31st, 2019 at 08:27 AM ----------

That case had many terms of question.
They argued he never touched the gun that was on him. It was against his body.
Hold is another term. Was he holding? Which definitions do you use or exclude? One could say in possession of a fire arm is clearly different from holding but as far as I know that is only my interpretation of what law makers meant. A judge doesn't go off what was meant but what the law is. When the law is unclear how could the doj work well?
I would say law makers do not write laws with enough precision for courts not to guess.
Then again, raising your right hand is used to spellbind you to the truth😂

Laws are, more and more, becoming drift nets. The vague language is deliberate.
It also needs to be. There are two factors, the letter of the law and the spirit of the law. If a law is written with to much specificity, then the letter can be used to undermine the spirit.
And yes, judges always go off on what they think the law means, not necessarily what the law is. Were this not the case, there would never be appeals on convictions or judgements.
We are also, more and more, seeing politicization of the laws, and it is now painfully obvious that some people are definitely working under a different set of rules from everyone else. This is especially dangerous as if the law is not impartial, the system gets called into question, and eventually breaks down entirely.

[swanlefitte]

A Wisconsin case will be appealed because the defendant refused to raise his hand and was denied testimony. He wouldn't show if he had previously had a run in with the law that had only been recorded by a branding. Perhaps related to brandishing. That is the reason purportedly for raising the hand.
Do Witnesses Have to Raise Their Right Hand While Giving an Oath?
In this case a single word "may" is in question.
"The Wisconsin Statutes only state that a witness “may” take the oath by an uplifted hand. "
Perhaps we have polluted the term testimony too much and we should grab our testicles again. Women and eunuchs will not be allowed once more.🤔

[swanlefitte]

I posted this in a thread that went off on chimping.
Do You Even Language, Bro? Understanding Why Nouns Become Verbs | JSTOR Daily
A main point is
"Using the noun instead of a verb would otherwise require a longer expression. Compare “We got out by nudging others out of our way with our elbows” (more literal) with “We elbowed our way out” (more figurative). It’s remarkably economical, following Gricean principles of conversation, "
Or perhaps to convert a phrase, a description is worth a 1000 proscribed words at the cost of exactness.

[MarkJerling]

I can't wait until my 1933 OED gets here. I should add a disclaimer: when I was in my first year of law school (with a bachelor's degree in history), the professor asked a question which I answered. He stood silent for a while in the middle of the room, open book in his hand, staring at me. Then he announced to the class, "Mr. Hawes is in the wrong century."

What was the question, and what was your answer?

What was the question, and what was your answer?

I wish I could remember...

By the way, that incident took place more than thirty years ago.

[swanlefitte]

This was in my "feed" just now.
38 Americanisms the British Can't Bloody Stand | Literary Hub

[robgski]

FWIW, I prefer my dictionaries to be prescriptive. I have misused words, and been corrected in their use, even as an adult, and I've been grateful for each correction.

This is a post-literate age by that I mean people no longer gain an understanding of language by reading, they gain it more by hearing it colloquially, more properly mishearing, and having little foundation in grammar and etymology, they propagate the misuse of words, and mangle phrases.
Not only that, the language used in most published media, websites, magazines, news broadcasts, is at a lower level of vocabulary than it was even 50 years ago. Sure there is a time when a simple word gets the point across better than a fancy word, but read a newspaper article from 40-50 years ag0o, and one could learn expand one's vocabulary and improve one's grammar. Now, I often feel a bit dumber for having read an article, such poor, pointless, redundant, imprecise use of words and phrases. It's almost like the dumbing down of language via Newspeak, but we don't need a Ministry of Truth to impose it, we don't demand better writing.
Even the mass market fiction bestsellers found on news stand racks were better written 20 years ago.
Yes, I know language evolves, but I also believe that one should have command of the richness of one's language in order to make the most of it.

Don't even get me started on the use of the word "impact" as a verb....

[kevinWE]

We are being decimated by alternate facts.
Not really, I think we are being annihilated by them.

There are NO alternatives to facts, just people who push falsehoods.

We are being annihilated by lies.

Well, the big news is that my copy of the 1933 OED arrived. Thirteen volumes, each about an inch and a half thick. I shall no longer be frustrated by my inability to come up with a proper idea of what a word really means. As Gran'ma Joad said, "Purraise Gawd fur Vittory!!!"

This was in my "feed" just now.
38 Americanisms the British Can't Bloody Stand | Literary Hub

I agree with the author of that article on most of what he says. Some of the things he hates are merely "cutsieisms", if I may coin a brand-new repulsive term.

FWIW, I prefer my dictionaries to be prescriptive. I have misused words, and been corrected in their use, even as an adult, and I've been grateful for each correction.

This is a post-literate age by that I mean people no longer gain an understanding of language by reading, they gain it more by hearing it colloquially, more properly mishearing, and having little foundation in grammar and etymology, they propagate the misuse of words, and mangle phrases.
Not only that, the language used in most published media, websites, magazines, news broadcasts, is at a lower level of vocabulary than it was even 50 years ago. Sure there is a time when a simple word gets the point across better than a fancy word, but read a newspaper article from 40-50 years ag0o, and one could learn expand one's vocabulary and improve one's grammar. Now, I often feel a bit dumber for having read an article, such poor, pointless, redundant, imprecise use of words and phrases. It's almost like the dumbing down of language via Newspeak, but we don't need a Ministry of Truth to impose it, we don't demand better writing.
Even the mass market fiction bestsellers found on news stand racks were better written 20 years ago.
Yes, I know language evolves, but I also believe that one should have command of the richness of one's language in order to make the most of it.

Don't even get me started on the use of the word "impact" as a verb....

That's a really good observation, the idea that people aren't getting their grasp of English by reading, anymore. Though I'm not sure about the "post-literage age" idea. I figure most folks have never been what I would call, "literate". The best most folks have ever been able to do, if they could read at all, is what I call, "interpreting print". Their language is primarily spoken, and they have to translate the printed symbols into aural symbols before they can understand them.

My most hated development is the use of two tenses of verbs in news reporting. I can't tell what happened when, when they talk about things that haven't happened yet in the present tense, and two or three things that happened in the past can't be serialized because they have no perfect tenses on TV.

I remember the first time I heard the word, "impact", used as a verb. It was in the middle of the "civil rights movement", when a woman who was participating in a mass protest demonstration in DC was interviewed. When asked why she, a white woman, was in the middle of a black-folks' protest movement, she responded, "What impacts the blacks, impacts me." That was about 1968 or '69. But you see it was so shocking, I remember it clearly. There are some new ones creeping into the news-faces vocabulary, too, which are merely further symptoms of the degradation of public education since the "special interests" took over in the FDR administration.

There are NO alternatives to facts, just people who push falsehoods.

We are being annihilated by lies.

I liked what Joe Biden said recently, that he prefers "truth" to facts.