OC Codify HB 5091 & HB 5092

Raggs said:

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.

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And what would be wrong with that?

*slips back into the shadows.*

bigt8261 said:

Bikenut I think you are referring to HB 5282. Took me a bit of research to remember. http://www.legislature.mi.gov/(S(qt...g.aspx?page=GetObject&objectname=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.

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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.

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.

bigt8261 said:

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.

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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".

TheQ said:

And what would be wrong with that?

*slips back into the shadows.*

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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

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.

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.

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.



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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.

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 said:

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.

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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.

bigt8261 said:

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.

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I agree with your strategy and your assessment of the "politics" involved. The Q filled me in, also.

Will it will stop harassment and illegally (imho) seizing one's firearm during a stop? In fact I think it will give them even more protection to harass people because how do they know the person isn't prohibited from possessing and the firearm legal without checking them?

jfmi,

It won't, sorry but LEO's that want control will find a reason. Now what it does do is put that same LEO in a very hot position. IF there is NO definable RAS (and by Michigan law person with a gun is NOT one) and it can be shown that the LEO did this without the structure of the law, that group will be looking at some nasty legal expenses. I have read part of what is being modified by this bill and from the way BigT is explaining and what that will give in additional protection to LOC persons will a very strong wall in the way of LEO's coming up with flimsy RAS to justify their stop.

While I agree that this is not the best that we could want IT is most certainly a step down the proper path. IF we get the law passed as it is or with slightly better wording (there is always ways to improve as well as mess up), and then get this information out to LEO groups that support 2A in Michigan, it would be a major win. From what I see from reading and checking law (I am NOT a Lawyer) and knowing how rules can get bent by those who wish to mis-use them (7yrs MP), this is a good step forward. Now IF we can only get a true conservative in the Governor's Office we would be better off yet. That is where all members of pro 2A groups and pro conservative groups really need to work together. If someone is a bit crazy Ted has offered to run for office (ducks behind wall). -Michael

jfmi said:

Will it will stop harassment and illegally (imho) seizing one's firearm during a stop? In fact I think it will give them even more protection to harass people because how do they know the person isn't prohibited from possessing and the firearm legal without checking them?

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The only thing that will stop that illegal behavior, is if we as a united front, all simply refuse to speak to them if they chose to disarm us. At the point of disarmament simply reply, "Due to your lack of respect for me, and my rights, this conversation is now over. Better a felon than a traitor."

MOC has been working with the sponsors of these bills to get better language. This morning a substitute bill was offered and unanimously adopted for each bill. You may find sub language here:

Amendment H-1 for 5091
Amendment H-1 for 5092

We (MOC) expect the bills to be voted on and passed out of committee next week.

bigt8261 said:

MOC has been working with the sponsors of these bills to get better language. This morning a substitute bill was offered and unanimously adopted for each bill. You may find sub language here:

Amendment H-1 for 5091
Amendment H-1 for 5092

We (MOC) expect the bills to be voted on and passed out of committee next week.

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Looks pretty good to me. Well done.

I was hoping for something more useful out of this session... :/

Blame Snyder and the Republican leadership. The truth is, Democrats simply do not have enough power in Lansing to stop anything. There is only one answer to what the problem is.

Dems have no power, Repubs have no balls.