Weapon Possession, Brandishing, and Threat Assessment

Overview

In police use-of-force cases, the statement that “the subject was armed” is often legally incomplete. The Fourth Amendment generally requires a more specific inquiry. Courts commonly distinguish among possessing a weapon, visibly holding it, displaying or exposing it, refusing to drop it, raising or orienting it, making a furtive or threatening movement, advancing with it, directing it toward an officer or third party, attempting to throw or use it, and actually attacking. Those states are not equivalent. The central question is not merely whether a weapon was present but what the weapon, together with the subject’s movement, distance, commands, prior conduct, and apparent intent, objectively communicated about the immediacy of the threat.

For edged-weapon encounters, this distinction is especially important because a knife, hatchet, axe, sword, machete, or similar weapon generally requires proximity, movement, or some other means of bringing it to bear before it can inflict injury. That makes weapon status and threat geometry particularly important.

“Brandishing” Is Not a Single Constitutional Category

The term brandishing is useful descriptively but should be used cautiously. Federal and state criminal statutes may define “brandishing” differently, and for Fourth Amendment excessive-force analysis there is no universal constitutional rule that brandishing alone justifies deadly force, or that mere possession alone prohibits it. Courts examine the totality. The better research approach is to decompose “brandishing” into observable components: weapon visible, weapon in hand, weapon raised, weapon pointed or oriented, weapon waved, weapon thrust, weapon swung, weapon moved toward another person, weapon thrown or prepared for throwing, weapon retained while advancing, weapon retained while retreating.

Possession Alone

Mere possession of a weapon generally carries less threat significance than active threatening use–particularly where possession is lawful, the weapon remains lowered, the person is stationary or moving away, no one is within immediate reach, there is no threatening movement, and the person has not directed the weapon at anyone. The Fourth Circuit has repeatedly emphasized this distinction.

The Fourth Circuit has developed the clearest line of authority on this distinction. In (Hensley ex rel. North Carolina v. Price, 2017), officers shot a man holding a firearm pointed toward the ground, and the court held that lawful possession of a firearm, without more, does not justify deadly force. (Knibbs v. Momphard, 2022) refined the rule: a deputy shot a homeowner through a window after hearing him load a shotgun that was not pointed at the deputy, and the Fourth Circuit stated that failure to obey commands while possessing a weapon justifies deadly force only when the person makes some sort of furtive or other threatening movement with the weapon signaling an intent to use it imminently. That formulation translates directly to edged-weapon cases.

(Byers v. Painter, 2026) makes the distinction most explicit. Byers held a hatchet at his side or waist, ignored commands to drop it, verbally challenged officers to “come get it,” and remained approximately 25 feet away–moving away from officers, not toward them. The Fourth Circuit majority held that possession plus noncompliance does not equal an immediate deadly threat without additional threatening conduct, and that this rule was clearly established by Hensley and Knibbs. The court focused on hatchet position, the absence of threatening movement, Byers’s increasing distance, and the absence of any specific person in immediate danger. On the verbal challenge, the majority concluded that hostile words without corresponding weapon movement are analytically distinct from hostile weapon use.

The dissent in Byers is also instructive. Chief Judge Diaz argued that Byers slightly raised the hatchet, the blade faced the officers, he challenged them to act, and bystanders were nearby–facts the dissent read as making the qualified-immunity question uncertain. The disagreement illustrates a recurring problem: whether an observed movement counts as mere possession, display, or a threatening movement can itself be a disputed factual question. Researchers should therefore avoid collapsing video evidence into a conclusory label. Rather than coding “brandished weapon: yes,” prefer a description such as “raised hatchet slightly; blade orientation toward officers disputed; no swing, thrust, charge, or throw.”

The Tenth Circuit reaches similar results through the Larsen factors. In (Baca v. Cosper, 2025), Amelia Baca was holding knives, had reportedly threatened family members, was ordered to drop them, took two slow steps, but did not charge and made no slicing or stabbing motions. The Tenth Circuit held that a reasonable jury could find she did not present an immediate threat when shot, emphasizing the Larsen framework: whether officers ordered the suspect to drop the weapon; whether hostile motions were made with the weapon; distance; and manifest intentions. citeturn712637view0 citeturn712637view1 Baca reinforces that holding a weapon and moving are not the same as making a hostile movement; the character of the movement is what matters.

Weapon Possession and Noncompliance Must Be Separated

One of the most important analytical errors in this area is treating the combination of weapon possession and ignored commands as equivalent to an active deadly threat. Federal appellate cases repeatedly resist that simplification. A person can possess a weapon, refuse to drop it, and still not be making an immediate threatening movement. That does not mean the person presents no risk; it means that risk and immediate deadly threat should not be treated as synonyms.

Risk vs Immediate Threat

A person holding a weapon can create substantial background risk–including the possibility of sudden attack, throwing the weapon, moving toward a civilian, re-entering a residence, or accessing another weapon. But deadly force ordinarily turns on whether that risk has developed into a sufficiently imminent threat of serious physical harm. This distinction helps avoid converting every armed encounter into automatic deadly-force authorization.

Display vs Threatening Orientation

Weapon orientation matters. For an edged weapon, relevant positions may include hanging loosely at the side, held at waist, held point-down, held across the body, raised above shoulder, extended toward another, cocked for throwing, drawn back for striking, actively thrusting, and actively swinging. Those positions can communicate very different levels of threat. The law does not provide a universal hierarchy, but courts repeatedly use weapon orientation as part of the totality.

Furtive Movement

The phrase furtive movement appears frequently in case law but should not be treated as a magical legal phrase. A movement is significant because of what it reasonably communicates in context. Potentially threatening movements include reaching rapidly toward a concealed area, raising a firearm, drawing back a knife, turning suddenly with a weapon, moving a weapon toward another person, adopting a striking posture, or reaching for a dropped weapon. A small or ambiguous movement may create a factual dispute rather than resolve one. Byers is a good example: the majority described the movement as, at most, a slight upward tilt, while the dissent characterized it as a threatening raising of the blade–a difference that materially affected the analysis.

Advance vs Retreat

Direction matters. A person holding a knife and advancing presents a different threat geometry from a person holding a knife and backing away. In Byers, the majority repeatedly emphasized that Byers increased distance from officers. By contrast, cases such as Ventura v. Rutledge involve continued movement toward a recently assaulted third party. The weapon may be the same; the threat is not.

Distance Must Be Relational

Distance should never be coded simply as a bare number without identifying the reference point. Relevant measures include subject to officer, subject to civilian, subject to prior victim, subject to weapon if dropped, officer to cover, subject to doorway, and subject to escape route. For edged weapons, who can be reached matters more than an abstract number.

Third-Party Threats

A weapon may be lowered and still create a significant immediate threat if the person is moving toward someone nearby. Ventura v. Rutledge illustrates this. The Ninth Circuit considered that Ventura had reportedly assaulted Andrade, continued toward her, held a knife, ignored repeated stop commands, ignored an explicit warning that the officer would shoot, and came to approximately 10–15 feet from Andrade. The court resolved the case on qualified immunity, not the merits. But the case shows that weapon posture must be interpreted together with movement toward a potential victim.

Manifest Intent

The Tenth Circuit’s Larsen framework expressly considers “manifest intentions.” Intent cannot usually be known with certainty; courts infer it from objective facts such as statements, direction of travel, repeated advance, prior violence, weapon movement, compliance or noncompliance, attempts to flee, efforts to reach another person, and efforts to access a weapon. A subject’s diagnosis, emotional state, or internal motive does not replace the objective analysis.

Self-Directed Weapon Use

A person holding a knife to their own body presents a different threat than one directing the knife toward another. Self-directed possession can still create serious risk, but for Fourth Amendment deadly-force analysis courts may distinguish danger to self from immediate danger to officer or third party. This distinction is particularly important in suicide calls, welfare checks, and mental-health crises.

Refusal to Drop the Weapon

Failure to drop a weapon is relevant–it can increase risk and uncertainty–but it does not automatically establish an immediate deadly threat. The significance depends on how many commands were given, whether they were understood, the time allowed to comply, whether the subject was physically capable of compliance, whether the weapon was moving, whether distance was closing, whether another person was within reach, and whether the subject’s conduct communicated intent to use it. This intersects directly with the separate Commands, Opportunity to Comply, and Timing of Force Backgrounder.

CEW and Weapon Retention

A particularly important special case involves conducted-energy weapons. If an officer deploys a CEW and obtains neuromuscular incapacitation, the subject may fall, retain the weapon, experience involuntary contraction, or temporarily lack voluntary ability to release it. Continued possession after CEW exposure therefore does not automatically equal continued voluntary resistance or brandishing. Weapon retention, motor capacity, and behavioral intent should be analyzed separately.

Possession After Being Shot

A similar issue arises after firearm force. A wounded person may continue gripping a weapon, retain it during collapse, drop it only after falling, or move involuntarily. Weapon still in hand is not automatically equivalent to a continuing intentional attack. But weapon accessibility remains relevant: the threat may persist if the person raises the weapon again, attempts to regain footing, reaches for another person, or otherwise reinitiates threatening conduct.

Brandishing and Action–Reaction

The possession/brandishing distinction intersects with action–reaction timing. Officers need not always wait until a knife is swung, a hatchet is thrown, or a gun is fully aimed where other facts objectively signal an imminent attack. But this does not eliminate the need to identify the transition point from possession to imminent threat. Potential transition indicators include raising the weapon, orienting toward the target, rapidly closing distance, cocking the arm, sudden acceleration, threatening statements combined with movement, and reaching for a previously dropped weapon. The key is the combination of facts.

Firearms and Edged Weapons Are Not Geometrically Identical

The law generally treats both as deadly weapons, but their practical threat geometry differs. A firearm can project lethal force over substantial distance; an edged weapon ordinarily requires physical approach, throwing, or another means of closing the gap. The Byers majority explicitly observed that a hatchet was less dangerous at 25 feet than a firearm would be in analogous circumstances. citeturn680206search0 This does not mean an edged weapon presents low threat; it means weapon type affects how distance and movement should be interpreted.

“Armed” Is a Poor Standalone Research Variable

For research purposes, the variable “armed = yes” has limited explanatory value. A stronger dataset should separately capture:

Weapon possession

• visible in hand
• concealed/suspected
• within reach
• dropped

Weapon posture

• lowered
• neutral
• raised
• pointed/oriented
• strike-ready
• unknown

Weapon movement

• none
• slight/ambiguous
• raised
• thrust
• swung
• thrown
• reached for

Subject movement

• stationary
• backing away
• lateral
• advancing
• running
• lunging

Threat target

• self
• officer
• civilian
• mixed
• indeterminate

Distance

• subject→officer
• subject→civilian
• subject→weapon
• subject→barrier

Commands

• weapon-drop command
• stop command
• warning of force
• compliance opportunity

This permits a much more accurate analysis of actual threat state.

Leading Decisions – Chronological

Zuchel v. City & County of Denver

Rule: Deadly force can be unreasonable where an officer had reason to believe the subject held only a knife, was not charging, and made no slicing or stabbing motion.

Importance: Foundational Tenth Circuit edged-weapon distinction between possession and hostile weapon use.

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Sigman v. Town of Chapel Hill

Rule: Qualified immunity granted in a volatile edged-weapon confrontation involving threatening behavior and close-range danger.

Importance: Useful counterpoint showing that weapon possession becomes more significant when combined with threats, movement, and proximity.

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Walker v. City of Orem

Rule: Reinforces that possession of a knife without charging or hostile blade movement does not automatically justify deadly force.

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Estate of Larsen v. Murr

Rule: Immediate-threat analysis should consider commands/compliance, hostile motions with the weapon, distance, and manifest intentions.

Importance: Provides a structured framework for distinguishing possession from threatening weapon use.

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Hensley ex rel. North Carolina v. Price

Hensley ex rel. North Carolina v. Price, 876 F.3d 573 (4th Cir. 2017) – lawful possession of a firearm pointed toward the ground, without threatening movement or orientation toward officers, does not automatically justify deadly force; see full discussion above.

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Knibbs v. Momphard

Knibbs v. Momphard, 30 F.4th 200 (4th Cir. 2022) – noncompliance while possessing a weapon justifies deadly force only when the person makes a furtive or threatening movement signaling imminent intent to use the weapon; see full discussion above.

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Baca v. Cosper

Baca v. Cosper, No. 23-2159 (10th Cir. 2025) – a reasonable jury could find deadly force excessive where a knife-holding subject was not charging and made no slicing or stabbing motions; qualified immunity denied; see full discussion above.

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Byers v. Painter

Byers v. Painter, 173 F.4th 155 (4th Cir. 2026) – majority held that a hatchet held lowered while the subject moved away at distance did not establish an immediate threat; the dissent read the same footage as showing a threatening orientation; qualified immunity denied; see full discussion above.

What the Rule Does Not Establish

This body of law does not establish that:

• mere weapon possession is harmless;
• brandishing has one universal constitutional definition;
• officers must wait for an actual swing or stab;
• every raised knife creates an immediate deadly threat;
• every lowered knife is non-threatening;
• refusal to drop a weapon is irrelevant;
• distance alone decides the threat;
• verbal threats alone always justify deadly force;
• a person moving away can never remain dangerous;
• an edged weapon is categorically less dangerous than a firearm;
• or every ambiguous weapon movement must be resolved in favor of the subject.

The inquiry remains the totality of objectively observable circumstances.

Policy Implications

Policy and training can improve threat articulation by encouraging officers to describe where the weapon was, how it was held, how it moved, who it was directed toward, the subject’s direction and speed, distance, barriers, warnings, and third-party exposure. Reports should avoid relying solely on labels such as armed, brandishing, aggressive, furtive, or threatening. Where possible, describe the observable behavior that supports the label. Rather than “Subject brandished a knife,” prefer a description such as “Subject raised the knife from waist level to shoulder level, oriented the blade toward Officer A, and advanced approximately three steps.”

Research-Library Coding Implications

The Lab should consider replacing or supplementing binary weapon variables with:

1. Weapon possession

• in hand
• on person
• within reach
• suspected
• dropped
• unknown

2. Weapon visibility

• clearly visible
• partially visible
• concealed
• suspected only

3. Weapon orientation

• lowered
• neutral
• toward self
• toward officer
• toward civilian
• raised but direction unclear
• indeterminate

4. Weapon movement

• none
• slight/ambiguous
• raised
• lowered
• pointed/oriented
• swung
• thrust
• thrown
• reached for

5. Subject locomotion

• stationary
• retreating
• lateral
• advancing slowly
• advancing rapidly
• running
• lunging

6. Threat target

• self
• officer
• civilian
• mixed
• none apparent
• indeterminate

7. Distance at force onset

• subject→officer
• subject→civilian
• subject→weapon if dropped

8. Commands

• drop weapon
• stop
• show hands
• force warning
• none

9. Compliance

• complying
• attempting
• no compliance
• unable
• indeterminate

10. Prior threatening conduct

• assault
• threats
• property damage only
• self-harm
• none known
• indeterminate

11. Threat movement immediately before force

• yes
• no
• disputed
• indeterminate

12. “Brandishing” label used by source

• yes
• no

13. Observable conduct supporting brandishing label

• separately coded narrative

This prevents source language from becoming the analytical conclusion.

Relationship to Other Backgrounders

This Backgrounder should be read with:

• Federal Constitutional Excessive-Force Standard
• Threat Timing, Action–Reaction, and the Start and Stop of Police Force
• Commands, Opportunity to Comply, and Timing of Force
• What Is Clearly Established Law?
• Qualified Immunity
• Officer-Created Jeopardy and Pre-Force Conduct
• Emergency Aid, Welfare Checks, and Warrantless Entry

The combined analytical sequence is: weapon possession → weapon posture/movement → subject movement → distance/target → commands → threat assessment → force.

Research-Library Conclusion

“Armed” is not a sufficiently precise description of threat in police use-of-force analysis. Federal appellate courts repeatedly distinguish possession of a weapon from threatening deployment of that weapon. The most useful indicators are observable: how the weapon is held, whether it is raised or oriented toward someone, whether the subject advances or retreats, whether hostile weapon movement occurs, distance to the officer or third party, prior violence, commands, and manifest intent. Byers v. Painter makes the distinction especially clear in the Fourth Circuit: possession of a hatchet and repeated refusal to drop it did not, according to the majority, create an immediate deadly threat where the weapon remained lowered and the subject was moving away. Baca v. Cosper reaches a similar result through the Tenth Circuit’s Larsen factors, emphasizing the absence of charging, slicing, or stabbing motions. For research purposes, “brandishing” should therefore be treated as a descriptive label requiring decomposition into observable weapon posture and movement rather than as a binary proxy for imminent threat.

Not Legal Advice

This Backgrounder is for research and educational purposes. It summarizes federal constitutional doctrine and selected appellate authorities. It is not legal advice and should not substitute for jurisdiction-specific legal research by qualified counsel.

References

Baca v. Cosper (2025).

Byers v. Painter (2026). 173 F.4th 155.

Hensley ex rel. North Carolina v. Price (2017). 876 F.3d 573.

Knibbs v. Momphard (2022). 30 F.4th 200.

How to cite

Edged-Weapon Response Lab. (2026). Weapon Possession, Brandishing, and Threat Assessment. In EWRL Law & Policy Analysis (Version 1.0). https://droptheknife.org/law-and-policy/brandishing