Page 1 of 3 123 LastLast
Results 1 to 25 of 65

Thread: OC Codify HB 5091 & HB 5092

  1. #1
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181

    OC Codify HB 5091 & HB 5092

    The Legislative Team of Michigan Open Carry Inc would like to introduce HB 5091 & HB 5092

    This is the first bill our organization has taken the grass roots lead on.

    Together these bills will effectively codify open carry for the first time in Michigan. Open Carry is generally accepted as lawful in Michigan, however some law enforcement officers (LEOs) don't like the practice and charge or threaten to charge an individual open carrying with brandishing or disturbing the peace. These two bills would provide some statutory clarification on the matter.

    HB 5091, introduced and sponsored by State Representative Joel Johnson (R - Clare) updates the Brandishing Statute (MCL 750.234e) to specifically state the following is NOT brandishing:
    "(E) A person who is not prohibited from owning or possessing a firearm and is in lawful possession of an openly carried firearm that is holstered or carried on a sling."

    HB 5092, introduced and sponsored by State Representative Brandon DIllon (D - Grand Rapids) specifically defines brandishing in statute as:
    “Brandish” means to point, wave about, or display in a threatening manner.

    We look forward to working with legislatures on both sides of the aisle to bring the clarification these bills represent into law. Please stay tuned for more!

    http://us4.campaign-archive2.com/?u=...&id=3aa7ed2ec8

  2. #2
    Regular Member FreeInAZ's Avatar
    Join Date
    Oct 2012
    Location
    Secret Bunker
    Posts
    2,573
    The only tweak needed in my humble opinion would be to HB 5902. The use of the word "display" has given over zealous police & prosecutors just enough wiggle room to bring bogus charges in the past. It is too subjective in my opinion. Maybe use to unholster or handle unholstered in a threatening manner instead? Sadly, some LEO's & DA's have become masters of wordsmithing, so the law needs to be so clear it cannot be abused by them.

    Just my 2˘ - YMMV
    Last edited by FreeInAZ; 10-17-2013 at 11:43 PM.
    ---------------------------------------------------------------------------------------------------------------------------------------------------
    "You must be the change you wish to see in the world" by Mahatma Gandhi

    “Your beliefs become your thoughts. Your thoughts become your words. Your words become your actions. Your actions become your habits. Your habits become your values. Your values become your destiny.” by Mahatma Gandhi

  3. #3
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    FreeInAz, we thought about that too. This definition is about as best as we can get. One can only do so much hand holding. However, when taken in conjunction with our new exception to brandishing, not only would the statute effectively state that OC is NOT brandishing, IMO it would also bolster any related activities like taking your firearm out of your trunk. Currently, prosecutors can already go after you, but with these changes, they will have a much harder time. I also believe our exception would help to cut the legs out from under disorderly conduct charges. One may even be able to make a 123.1102 case out of it.

    22Luke36, we thought of that too. To us, the threshold for drawing is the same threshold for use of deadly force. As long as you meet that threshold, you are good to go just as it works now. The bills will not change that relation.

    Thanks guys for your feedback.

  4. #4
    Anti-Saldana Freedom Fighter Venator's Avatar
    Join Date
    Jan 2007
    Location
    Lansing area, Michigan, USA
    Posts
    6,445
    The issue with stand your ground versus drawing your firearm and NOT shooting is a problem. SYG protects you if you shoot. But there have been cases where someone just drew their firearm and deterred the attack without discharging their weapon and have been charged with a crime. We need some language that protects the LAWFUL brandishing (without shooting) in theses cases. Is their such language in the existing statutes.
    An Amazon best seller "MY PARENTS OPEN CARRY" http://www.myparentsopencarry.com/

    *The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research. These are my opinions, if you have further questions it is advisable to seek out an attorney that is well versed in firearm law.

  5. #5
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    In my opinion, justifiable brandishing would fall under justifiable use of deadly force. However, I am not a lawyer.

    I understand the concern here, but this is not something I believe we can address in these bills. Also, I'm not entirely convinced this is something we need to address, although I'm open to being educated. If this is indeed a problem, we will add it to our legislative agenda and work on it in the future.

    Either way, I do not see these bills making such a scenario worse.

  6. #6
    Regular Member
    Join Date
    Jul 2011
    Location
    northern wis
    Posts
    3,195
    Defensive display should allowed if one can stop a assault with the just a display of a firearm and not the actual shooting of it.

    Its a Win Win the antis don't like it because it just provides another reason and use for carry.
    Personal Defensive Solutions professional personal firearms, edge weapons and hands on defensive training and tactics pdsolutions@hotmail.com

    Any and all spelling errors are just to give the spelling Nazis something to do

  7. #7
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    I see what you are saying about "defensive display" but that is not a topic we are addressing at this time.

    If you have any specific examples, please point to them. We would need to know how the problem arises in order to combat it.

  8. #8
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    Again I understand what you are saying, but please hear me out.

    We are not the ones that decide which legislation get's passed, only which legislation our organization pushes. If we want to maintain credibility and effectiveness, then we must pick and choose which legislation we push and when. Therefore we are only pushing legislation we believe we have a chance of getting passed.

    Now keep in mind, there are a lot of things that go into the likelihood of a bill getting passed. One of them is the perceived need for a bill. When it comes to combating brandishing, we have a plethora of people that we can bring in to testify, and cases to reference. On the other hand, if we are unable to show how the current law has caused problems, especially over a significant length of time, then it is less likely our bill will gain traction.

    I want to help, I really do. All I'm asking is that you help me.
    Last edited by bigt8261; 10-18-2013 at 10:51 AM.

  9. #9
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    Forgive me, while I do read through OCDO, I do not frequently post. I am Tom Lambert, Assistant Legislative Director of Michigan Open Carry. I helped come up with these bills and get them to where they are now. Notice my credits in the bottom of the link in the OP. You may also know me as the guy that attends Grand Rapids city commission meetings.

  10. #10
    Regular Member autosurgeon's Avatar
    Join Date
    Sep 2008
    Location
    Lawrence, Michigan, United States
    Posts
    3,845
    Bigt is part of the MOC leadership team. He is on the legislative team.


    Stay informed about MOC events in your area http://miopencarry.org/updates
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

  11. #11
    Regular Member Bikenut's Avatar
    Join Date
    Jul 2009
    Location
    Saginaw, Michigan, USA
    Posts
    2,756
    Ok.... I'm running off my memory and don't recall exactly how it worked... or even which law was involved.

    Wasn't there a bit of a wording change in the law that defined what legal reasons for transporting a firearm were because the list could be taken that anything not on the list wasn't legal?

    Couldn't the same kind of thing happen with these bills? Is there wording to prevent that in those bills? I know that with legalese the devil isn't in the details but is in the exact black letter wording that is used.

    Something like... "includes but is not limited to" ... stuck in the proper place might ward off future unintended consequences?????
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

  12. #12
    Regular Member Raggs's Avatar
    Join Date
    Jul 2012
    Location
    Wild Wild West Michigan
    Posts
    1,188
    I think having a legal definition of what is and what is not brandishing to be a positive thing. I would like to see somehow worded that legal OC is not and cannot be considered disturbing the peace. As has been pointed out the less wiggle room the better. I do like the addition of sling to the law however I can see this being used by some to mean a pistol on a sling would be okie dokie.
    My reasons to OC
    1. to raise awareness of the legality of open carry in Michigan
    2. To raise awareness that good people carry guns
    3. A deterrent to people so that I won't be targeted
    4. Because it's more comfortable than CC in most situations
    5. Because I can and want to
    6. Because it's perfectly legal
    7. Self defense

  13. #13
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    Bikenut I think you are referring to HB 5282. Took me a bit of research to remember. http://www.legislature.mi.gov/%28S%2...e=2012-HB-5282

    Think of it this way. What 5282 got rid of was a list of what was considered ok. What 5091 does is add to the list of what can't be considered bad. I hope the difference there makes sense.

    Like saying (A) you can wash your car on Monday, as opposed to saying (B) washing your car on Sunday is not illegal.

    (A) leaves little room to wash your car outside of Moday
    (B) leaves every day available, but ensures that Sunday is ok.

  14. #14
    Regular Member TheQ's Avatar
    Join Date
    Aug 2010
    Location
    Lansing, Michigan
    Posts
    3,448
    Quote Originally Posted by Raggs View Post
    I think having a legal definition of what is and what is not brandishing to be a positive thing. I would like to see somehow worded that legal OC is not and cannot be considered disturbing the peace. As has been pointed out the less wiggle room the better. I do like the addition of sling to the law however I can see this being used by some to mean a pistol on a sling would be okie dokie.
    And what would be wrong with that?

    *slips back into the shadows.*
    Call for a cop, call for an ambulance, and call for a pizza. See who shows up first.

    I am not a lawyer (merely an omnipotent member of a continuum). The contents of this post are not a substitute for sound legal advice from a licensed attorney in your jurisdiction.

    Comments and views stated in my post are my own and do not necessarily represent the views of Michigan Open Carry, Inc. unless stated otherwise in the post.

  15. #15
    Regular Member Bikenut's Avatar
    Join Date
    Jul 2009
    Location
    Saginaw, Michigan, USA
    Posts
    2,756
    Quote Originally Posted by bigt8261 View Post
    Bikenut I think you are referring to HB 5282. Took me a bit of research to remember. http://www.legislature.mi.gov/%28S%2...e=2012-HB-5282

    Think of it this way. What 5282 got rid of was a list of what was considered ok. What 5091 does is add to the list of what can't be considered bad. I hope the difference there makes sense.

    Like saying (A) you can wash your car on Monday, as opposed to saying (B) washing your car on Sunday is not illegal.

    (A) leaves little room to wash your car outside of Moday
    (B) leaves every day available, but ensures that Sunday is ok.
    First off... better minds than mine have already spent many hours thinking this through so please understand I'm only asking questions.

    Let me take the "(B) washing your car on Sunday is not illegal" example...

    Taken at face value that says it is Ok to wash your car on Sunday but leaves the other days of the week in a grey area...

    However, if it is said that "washing your car, including but not limited to, on Sunday is not illegal" leaves no doubt it is not illegal to wash your car no matter what day of the week.

    And I'm trying to wrap my head around the idea that it is necessary to have a law that says what is not against the law. That is backwards thinking since if there isn't a law against something then that something is legal by default. If we try to write laws that say what is allowed instead of what isn't allowed... to my mind... that is a door we do NOT want to open.

    To my way of thinking.... all that is necessary is to define "brandishing" without tying in specific behaviors. But if specific behaviors are mentioned they should be as examples with wording of:

    "including but not limited to"

    so they are only examples... not specific behaviors. This allows that law to apply to unforeseen circumstances in the future.

    Or I'm out in left field............ and it wouldn't be the first time.
    Last edited by Bikenut; 10-18-2013 at 04:39 PM.
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

  16. #16
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    You're going down the right road, but you're doing it backwards.

    The brandishing definition (HB 5092) is the part that says what you can't do. That's that actual law. It should be illegal to brandish and I think few would disagree with that. The problem is what is brandishing? So let's define it to something we agree with, rather than let someone else define it to something we don't agree with. We want that as specific as possible.

    No matter how specific we get the wording, it will never be 100% certain, thus the exception (HB 5091) comes in. The exception basically says this specific thing does not count under the definition and therefore cannot be considered illegal. That does NOT make everything else illegal, it just says this one thing CANNOT be considered illegal.

    I hope I'm helping.

  17. #17
    Regular Member Bikenut's Avatar
    Join Date
    Jul 2009
    Location
    Saginaw, Michigan, USA
    Posts
    2,756
    Quote Originally Posted by bigt8261 View Post
    You're going down the right road, but you're doing it backwards.

    The brandishing definition (HB 5092) is the part that says what you can't do. That's that actual law. It should be illegal to brandish and I think few would disagree with that. The problem is what is brandishing? So let's define it to something we agree with, rather than let someone else define it to something we don't agree with. We want that as specific as possible.

    No matter how specific we get the wording, it will never be 100% certain, thus the exception (HB 5091) comes in. The exception basically says this specific thing does not count under the definition and therefore cannot be considered illegal. That does NOT make everything else illegal, it just says this one thing CANNOT be considered illegal.

    I hope I'm helping.
    I don't know what the actual wording of the bill is so I'm just speculating...

    If one sets down what cannot be considered illegal the door is still open to use that as the standard for everything else possibly being illegal because everything else was not mentioned.

    Defining "brandishing" is a good thing to do but, in my opinion, limiting that definition to a specific set of circumstances as not being "brandishing" leaves the door open to exclude all other sets of circumstances as not being "brandishing" and therefor are "brandishing".

    There is a reason laws are written in vague manners because that leaves the door open for that law to be applied to as yet unknown future circumstances. Perhaps I'm just trying to caution that it is wise to carefully word things so as to hedge your bets and not put all your eggs into one definition.

    "includes but is not limited to" leaves that bit of vagueness so future circumstances can also be classified as "not brandishing".
    Last edited by Bikenut; 10-18-2013 at 05:13 PM.
    Gun control isn't about the gun at all.... for those who want gun control it is all about their own fragile egos, their own lack of self esteem, their own inner fears, and most importantly... their own desire to dominate others. And an openly carried gun is a slap in the face to all of those things.

  18. #18
    Regular Member FreeInAZ's Avatar
    Join Date
    Oct 2012
    Location
    Secret Bunker
    Posts
    2,573
    Quote Originally Posted by TheQ View Post
    And what would be wrong with that?

    *slips back into the shadows.*
    OMG! People take out your home owners insurance policies and inspect them for coverage in the event of a tear in time & space? Why? Believe it or not, the Q and I agree on something!

    ETA - some "pistols" are much more easily carried via a sling system.
    http://www.youtube.com/watch?v=ZqHqWuAOuEg
    Last edited by FreeInAZ; 10-18-2013 at 06:22 PM.
    ---------------------------------------------------------------------------------------------------------------------------------------------------
    "You must be the change you wish to see in the world" by Mahatma Gandhi

    “Your beliefs become your thoughts. Your thoughts become your words. Your words become your actions. Your actions become your habits. Your habits become your values. Your values become your destiny.” by Mahatma Gandhi

  19. #19
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    Bikenut, currently we have a tenuous definition in an AG opinion that is not always obvious to police or citizens (Edit: nor is it required that they follow this opinion). That AG opinion states that a "holstered handgun" is not brandishing and stops there.

    These bills add a very similar (yet slightly better IMO) definition right into the statue where it is easy to find for citizens and law enforcement. They also exempt holstered AND SLUNG firearms. These bills do everything we currently have and more, but in a better way.

    Also keep in mind that we need to "sell" our bills. Right now, since we are very close to what we currently have, we can sell the bills as simply codifying something that is essentially already law thereby eliminating confusion for everyone. The further we reach, the harder it will be to sell, especially with a governor that is not OC friendly.
    Last edited by bigt8261; 10-20-2013 at 08:51 AM.

  20. #20
    Regular Member
    Join Date
    Jan 2009
    Location
    Northwest Kent County, Michigan
    Posts
    757
    The exemption is just silly, really.

    First, HB 5091(E) seems like it would offer an affirmative defense to brandishing even if the firearm was displayed with the obvious intent to threaten another, simply because the firearm remained holstered or supported by its sling while the threat was made.

    Second, why on earth exempt certain modes of lawful carry and not others? Why should in-hand carry, sling-less carry, waistband carry (sans holster), retention clip carry, or any other form of legal carry not be deserving of an exemption enshrined in law?

    It may be true that there is no shortage of law-abiding citizens who have been harassed for open carry under the current law, but you only want to exempt holster or sling carry, why? The proposed exemption will solve nothing, you'll soon have an equally long list, perhaps even longer, of innocent citizens charged with brandishing simply because their otherwise peaceable carry method didn't involve a holster or sling. Problem not solved!

    Where this legislation goes horribly wrong is that the exemption focuses on the 'manner' of carry and not on the 'behavior' of the citizen carrying!

    If you want to have a list of exemptions, make peaceable carry itself one of the exemptions, not particular carry methods for god's sake.

    Since we are talking about a legislative definition of brandishing and the term hadn't been defined before by the legislature, why not start with a clean chalkboard and drop the term 'display' altogether. That is the weasel word that allows law enforcement and prosecutors to unfairly focus on the sight of the firearm, instead of the behavior of the carrier.

    Define brandishing as "Pointing or waving about in a threatening manner." and be done with it.
    Last edited by OC4me; 10-19-2013 at 08:30 PM.

  21. #21
    Regular Member autosurgeon's Avatar
    Join Date
    Sep 2008
    Location
    Lawrence, Michigan, United States
    Posts
    3,845
    Part of getting legislation passed is not proposing a law that is too broad as that makes it easier to attack. That why this legislation is focused on what we sort of already have in the AG opinion.



    Sent from my LG Optimus G using Tapatalk
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

  22. #22
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    OC4me, thank you for sharing your concerns. It appears as though all of them have been previously addressed in this thread. Please start from the beginning and especially reference my last post. Thank you.

  23. #23
    Michigan Moderator DrTodd's Avatar
    Join Date
    Jun 2008
    Location
    Hudsonville , Michigan, USA
    Posts
    3,337
    My only caution is watch the bill sponsored by Mr Dillon. Although he seems generally friendly enough, his statements regarding OC at schools indicate that he may not be as supportive of our aims as we wish he would be. Watch for some OC restrictions to eventually be added.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

  24. #24
    Regular Member
    Join Date
    Jan 2013
    Location
    Grand Rapids
    Posts
    181
    Quote Originally Posted by DrTodd View Post
    My only caution is watch the bill sponsored by Mr Dillon. Although he seems generally friendly enough, his statements regarding OC at schools indicate that he may not be as supportive of our aims as we wish he would be. Watch for some OC restrictions to eventually be added.
    DrTodd, I share your concerns. To put it simply, Brandon Dillon does not have the same strong pro 2A reputation that Joel Johnson has, even though I sincerely hope this is the start of one. This is why we split the bills the way we did.

    Rep. Johnson's bill (HB 5091) is the "parent" bill, while Rep. Dillon's bill (HB 5092) is the "child" bill. Not only is Rep. Johnson in control of both bills, having a Republican in control increases the likelihood that these bills will actually be considered, while having a Democrat on board helps with bipartisanship support.

  25. #25
    Michigan Moderator DrTodd's Avatar
    Join Date
    Jun 2008
    Location
    Hudsonville , Michigan, USA
    Posts
    3,337
    Quote Originally Posted by bigt8261 View Post
    DrTodd, I share your concerns. To put it simply, Brandon Dillon does not have the same strong pro 2A reputation that Joel Johnson has, even though I sincerely hope this is the start of one. This is why we split the bills the way we did.

    Rep. Johnson's bill (HB 5091) is the "parent" bill, while Rep. Dillon's bill (HB 5092) is the "child" bill. Not only is Rep. Johnson in control of both bills, having a Republican in control increases the likelihood that these bills will actually be considered, while having a Democrat on board helps with bipartisanship support.
    I agree with your strategy and your assessment of the "politics" involved. The Q filled me in, also.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer – I am not a lawyer! Please do not consider anything you read from me to be legal advice.

Page 1 of 3 123 LastLast

Posting Permissions

  • You may not post new threads
  • You may not post replies
  • You may not post attachments
  • You may not edit your posts
  •