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LegalKnowledge, Attorney
Category: Legal
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Experience:  9+ years handling Legal, Real Estate, Criminal Law, Family Law, Traffic matters.
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Harassing neighbor looking from his balcony called the police

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Harassing neighbor looking from his balcony called the police on a friend when my friend found what he though to be a real gun by the trash can. My friend who is a stay at home father moved the gun to report it so the neighborhood kids would not find it but then realized that it was a toy gun and didn't. By then it was to late and the neighbor called the cops stating that he brandished the gun at him in an "argument". The police did not arrest my friend the first time they came but came back later and arrested him. It is my friends word against the neighbors. In which, I am assuming the neighbors word was taking because of the arrest? What does a person have to say to prove that someone was brandishing (just say they that were)? And, how can you proved that you were indeed not brandishing?
Hi! I will be the professional that will be helping you today. I look forward to providing you with information to help solve your problem.

Good morning. I certainly understand the situation and your concern. A key element for a person to be guilty of this is that their actions need to "reasonable induce fear". As such, it would need to be determined what actually transpired, that resulted in this neighbor claiming that your friend brandished the toy gun at him. Moreover, it would need to be determined just how real this toy gun looked and if it really did have the appearance of a real gun. In a situation like this, it would be the word of your friend against the word of the neighbor, if the case went to trial. The State has the burden of proving the charge beyond a reason doubt, which is very high, so they may not have enough evidence to convict, so this may be a situation where he wants to go to trial and testify on his own behalf, since he did not do anything wrong. It seems as though this situation escalated very quickly, so it would need to be determined just how the neighbor got in involved and what interaction your friend had with him. Absent any physical evidence to show what happened, it would be the testimony of each person and any witnesses.

§ 18.2-282. Pointing, holding, or brandishing firearm, air or gas operated weapon or object similar in appearance; penalty.

A. 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. However, this section shall not apply to any person engaged in excusable or justifiable self-defense. Persons violating the provisions of this section shall be guilty of a Class 1 misdemeanor or, if the violation occurs upon any public, private or religious elementary, middle or high school, including buildings and grounds or upon public property within 1,000 feet of such school property, he shall be guilty of a Class 6 felony.

B. Any police officer in the performance of his duty, in making an arrest under the provisions of this section, shall not be civilly liable in damages for injuries or death resulting to the person being arrested if he had reason to believe that the person being arrested was pointing, holding, or brandishing such firearm or air or gas operated weapon, or object that was similar in appearance, with intent to induce fear in the mind of another.

C. For purposes of this section, the word "firearm" means any weapon that will or is designed to or may readily be converted to expel single or multiple projectiles by the action of an explosion of a combustible material. The word "ammunition," as used herein, shall mean a cartridge, pellet, ball, missile or projectile adapted for use in a firearm.

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Customer: replied 3 years ago.

Did you get a reply?

Customer: replied 3 years ago.

Man i put in a reply and it didn't send let me see if I can remember what I asked. What do you mean by "need to determine how the neighbor go involed and the interaction my friend had." When we have been out in passing of the neighbor there is nothing said and no interaction. No one has ever complained about arguing with one another or anything. The office informed us that they filed a complaint when my friend accidentally dropped something on there balcony, knocked on their door, and asked to retrieve it, but other than than the office did not say anything else to us about disturbing them or arguing with them. I thought about filing a complaint on the neighbors a while ago because once we were coming home with my daughter and he was standing outside his door yelling and doing some chant, but I just ignored it. I probably would not do any good to file one now? If I write a letter, get other neighbor to write on the character of my friend would that be good to bring to court? He has never been accused of this typy of behavior before, what kind of punishment is he facing? I just don't get how they could have believed the neighbors why would my friend do something like that and is a stay at home dad he was watching my daughter while I was gone that day and just took the trash out. Anyway thanks for this.

You are welcome. The State is going to need to determine if there is enough evidence to file charges. They are going to read the report of the officer and statement by the neighbor, to determine if they should proceed. The complaint which you want to file is not really relevant at this time, so that would not do any good for his case and the letters from neighbors and friends is not necessarily relevant or will be admitted at trial either. If he has a clean record, he could be looking at a probationary sentence, depending on the facts of the case. Like I said above, if he found this toy gun and was not aware that the neighbor was watching him or had any interaction with the neighbor, there would be no intent in his actions. For the neighbor to allege he brandished a weapon at him, would not make sense if he never saw the neighbor and had the intent to do so.
Customer: replied 3 years ago.

Once more question, would the fact that the office has no record of there being a problem in our building between the two be proof/admissable/or relevant?

Its not likely and something which could just be testified to by your friend if he was asked if he has ever had any problems with this neighbor. In addition, just because he has never had problems in the past does not mean there was not a problem this time
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Customer: replied 3 years ago.

Well thank you this is a terrible situation and seems very hopeless but thank you so much for your quick responses.

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