Under New York law, Penal Law 120.18, a person who intentionally places or attempts to place a police or peace officer in reasonable fear of physical injury, serious physical injury or death by displaying a deadly weapon, knife, pistol, revolver, shotgun, machine gun or other firearm is guilty of menacing a police officer or peace officer, which is a class D felony. Under New York’s Penal Law, the officer must have been performing official duties at the time of the conduct and the defendant must know or reasonably should have known the victim was a police or peace officer.
Unfortunately, as Criminal Lawyer Buffalo NY know, as under Penal Law 120.18, the firearm need not be loaded. However, whether the firearm was loaded would be a relevant fact in determining whether the police officer was placed in reasonable fear of physical injury, if the officer knew the firearm was unloaded. Bottom line, the question of whether the officer was in reasonable fear of physical injury is very fact-specific.