Brandishing

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This is bugging me. If the MSP says open carry is legal, and legal even if cities and townships pass laws against it, I can believe they are correct. They are as reliable and complete in their work as anyone in any profession, but, any way I look at it, the law on brandishing seems to forbid open carry by private individuals.






THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.234e Brandishing firearm in public; applicability; violation as misdemeanor; penalty.
Sec. 234e.
(1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.
(2) Subsection (1) does not apply to any of the following:
(a) A peace officer lawfully performing his or her duties as a peace officer.
(b) A person lawfully engaged in hunting.
(c) A person lawfully engaged in target practice.
(d) A person lawfully engaged in the sale, purchase, repair, or transfer of that firearm.
(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both.

History: Add. 1990, Act 321, Eff. Mar. 28, 1991

© 2007 Legislative Council, State of Michigan




I'm trying to organize a few pages to print off with conclusive legal proof that OC in Michigan by regular folks without CPL's is legal, so that when I get stopped by police (hasn't happened yet, but it almost certainly will) I can have proof that I'm within my rights. But I don't understand this part, and frankly, I want to be able to avoid being arrested, even for a stupid misdemeanor. I'm no cop, and I'm not hunting, target shooting, or going to a gun shop when I OC walking down a city street.

Do we have any LEGALLY BINDING proof that mere possession of a holstered handgun isn't brandishing?

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I don't live in Michigan, but I was able to dig up some stuff. It doesn't look like the code defines it, so a AG opinion paper used the definition from the dictionary. The outcome seems to be that openly carrying in a holster is not brandishing.

AG's opinion paper:
http://www.ag.state.mi.us/opinion/datafiles/2000s/op10176.htm

MCRGO FAQ:
http://www.mcrgo.org/mcrgo/d_ccwfaq.asp (bottom of the page)

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Hmmmm.

I saw that once before but missed that section of the opinion. I thought it only applied to reserve officers. Shows how important it is to read through stuff.

:?

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Yeah, that was my first reaction too. But looking at it I am pretty sure that the opinion is carrying ¹ brandishing, and the case just happened to be about a reserve officer.

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Guess I may as well post it here. Here's what I have for proof that OC is legal. It's not exactly user friendly for the uninitiated, but it should get the point accross to any cop that stops someone in Michigan. I'm going to carry all of this information every time I OC.

I suppose it would be a good idea to make a nice little presentable brochure that we could print off.

MICHIGAN Article II, Section 5
. Every person has a right to bear arms for the defense of himself and the state.


From the May 2007 MSP newsletter:

In the April 2007 edition of the Update we noted that openly (non-concealed) carrying a pistol in Michigan is generally legal. Here we will note a couple of things to keep in mind during open carry situations.

First, a person may not "open carry" a pistol in the passenger compartment of a vehicle. Once a person enters a passenger compartment with a pistol they are carrying it concealed in violation of MCL 750.227. In order to carry in a passenger compartment, a person must either be licensed to carry a concealed pistol or otherwise be exempted from Section 227 (e.g., a police officer).

Second, in the April edition we noted that a pistol cannot be carried in public where it violates local ordinance. This is true, but only where the ordinance is specifically authorized by state law.

In MRCGO v. Ferndale, the Michigan Court of Appeals held that local units of government may not impose restrictions upon firearms possession. Therefore, officers should check with their prosecutors before enforcing an ordinance that imposes a general ban on openly carrying a pistol.
[align=center] [/align] Text of MCL 750.234d, Possession of firearm on certain premises prohibited; applicability; violation as misdemeanor; penalty:

(1) Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:

(a) A depository financial institution or a subsidiary or affiliate of a depository financial institution.
(b) A church or other house of worship.
(c) A court.
(d) A theatre.
(e) A sports arena.
(f) A day care center.
(g) A hospital.
(h) An establishment licensed under the Michigan liquor control act, Act. No. 8 of the Public Acts of Extra Session of 1933, being sections 436.1 to 436.58 of the Michigan Compiled Laws.

(2) This section does not apply to any of the following:
(a) A person who owns, or is employed by or contracted by, an entity described in subsection (1) if the possession of that firearm is to provide security services for that entity.
(b) A peace officer.
[highlight= rgb(255, 255, 0);](c) A person licensed by this state or another state to carry a concealed weapon.
(d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession is with the permission of the owner or an agent of the owner of that entity.

(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.

________________________________________________________________________


THE MICHIGAN PENAL CODE (EXCERPT)
Act 328 of 1931

750.234e Brandishing firearm in public; applicability; violation as misdemeanor; penalty.
Sec. 234e.
(1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.
(2) Subsection (1) does not apply to any of the following:
(a) A peace officer lawfully performing his or her duties as a peace officer.
(b) A person lawfully engaged in hunting.
(c) A person lawfully engaged in target practice.
(d) A person lawfully engaged in the sale, purchase, repair, or transfer of that firearm.
(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days, or a fine of not more than $100.00, or both.
[size=
[b]History:[/b] Add. 1990, Act 321, Eff. Mar. 28, 1991
][/size]
© 2007 Legislative Council, State of Michigan



__________________________________________________________________
From-
Opinion No. 7101
February 6, 2002
Honorable Bill Bullard, Jr.
State Senator
The Capitol
Lansing, MI
Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term "brandishing" appears in reported Michigan cases,[sup]2[/sup] none of the cases define the term.
In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

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Its also interesting to note that the AG who issued this opinion is none other than (now) Gov. Jennifer Granholm. Even a blind squirrel will find a nut once in a while .