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Thread: LEO's who violate/don't know gun laws

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    It seems to me that LEOs who violate your rights regarding gun laws, for example, by making unwarranted felony stops when they see you carrying, confiscating your weapon, charging you (with all the consequent expense and hassle to clear yourself), etc., are performing their duties in an incompetent manner, and this should be grounds for a suit, or at least a complaint,against the city, state, or department. At the very least it should result in notes in the officer'srecord, reprimands, or possibly just annoying "retraining" time. I don't know of anyone who has done this, but it seems like it should be feasible, and a rash of such complaints/suitsmight tend to make senior LEOs keep their less informed, or overly authoritarian, brethren under better control. My reasoning is as follows: Since LEOs have to consider the question of the potential presence of weapons at virtually EVERY stop they make, they can reasonably be expected to have to be especially familiar with the local laws governing weapons (lest they encounter one). After all, the gun laws are generally pretty straightforward, less complex than drug laws or traffic laws, and have a more direct bearing on the officer's safety. Since it is something the LEO has to deal with so often, probably more than any other single factor, it would be reasonable to ensure that officers are especially well trained in the relevant laws. I bet they all know about the "21 foot rule," eventhe ones whohaven't heard about the legality of OC in their state- that doesn't seem right to me. I'm supposing that getting nasty notes in your record, or facing the possibility of more "retraining" or other hassles, would at least get the officer on the scene to check with his watch commander or supervisor before doing something like what happened in Penn just recently.

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    Anyone that knowingly violates the law, ANY law is a criminal. Period.

    A LEO that intentionally and knowingly breaks the law is no different thana childcare workerthat sexually abusesa child. It is a complete failure of the public trust andtheimmoralabuse of authority and power.

    Just another car in the long train of usurpations...



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    I agree about anyone who knowingly violates the law being a criminal, but I was aiming more at the idea that LEOs rightfully claim they can't beexpected to be fully aware of every law on the books. While I get that, it seemed to me that they have a duty to be ESPECIALLY cognizant of gun/weapon laws, more so than perhaps any other area, since they must consider these lawsat virtually every stop they make. I think that should mean that lack of knowledge in THIS particular area is grounds for complaints about the LEO's competence to perform his duties, as well as a suit against the department for putting incompetent officers on the street. That is, I don't think the LEO should be able to claim ignorance of the law as a way to avoid consequences for wrongfully enforcing it, in THIS specific area, more than any other. I think this is true regardless of whether the LEO actually knows the law or not. (S)he should reasonably be EXPECTED to know the gun/weapon laws thoroughly.

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    I agree with the OP. I would think that the laws that immediately effect LEO and public safety and would immediately lead to a misunderstanding that would violate citizen rights (eg knowing if OC is legal and therefore not using OC as a supposed RAS for a stop) would be the first and most thoroughly ones taught.
    Bob Owens @ Bearing Arms (paraphrased): "These people aren't against violence; they're very much in favor of violence. They're against armed resistance."

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    BobCav wrote:
    Anyone that knowingly violates the law, ANY law is a criminal. Period.

    A LEO that intentionally and knowingly breaks the law is no different thana childcare workerthat sexually abusesa child. It is a complete failure of the public trust andtheimmoralabuse of authority and power.

    Just another car in the long train of usurpations...
    Bob... that is a real bad comparison!!

    Sexually abusing a child does not rank the same...

    But both are crimes and you can be charged. The problem is that everyone knows you cannot perform any sexual acts with a child where as in this caseyou have to prove the LEO knewOCwas legal and his stopping the person was done for illegal purposes.

    I know.... A LEO should know!! But remember where LEOs come from? They are citizens that are hired to do the job. The same citizens people on this board report almost daily that believe it is against the law to OC.

    The academy cannot teach you every code and here is no code that says you CAN OC.From the LEO contacts reported here on this board there are LEOs that do not know it is legal. So I do not see any evil intent.

    Sure, you can fault the LEOfor not knowing since you should know the law before you enforce it. But thinking openly.... If the LEO, while a citizen, believed it was against the law and has never seen an OCer... he will not know unless he is told by someone or the academy while in class. It is only when he tries to find the code banning it that he learns it is permitted.

    So while he may be attempting to enforce a law that does not exist.... this is no different than whenthe police do investigative stops.It is not even known if a crime was committed but it is suspected..

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    Shotgun49 wrote:
    I agree about anyone who knowingly violates the law being a criminal, but I was aiming more at the idea that LEOs rightfully claim they can't beexpected to be fully aware of every law on the books. While I get that, it seemed to me that they have a duty to be ESPECIALLY cognizant of gun/weapon laws, more so than perhaps any other area, since they must consider these lawsat virtually every stop they make. I think that should mean that lack of knowledge in THIS particular area is grounds for complaints about the LEO's competence to perform his duties, as well as a suit against the department for putting incompetent officers on the street. That is, I don't think the LEO should be able to claim ignorance of the law as a way to avoid consequences for wrongfully enforcing it, in THIS specific area, more than any other. I think this is true regardless of whether the LEO actually knows the law or not. (S)he should reasonably be EXPECTED to know the gun/weapon laws thoroughly.
    They do cover code sections on guns..... but remember that OCing is not a code section.

    But in actuality.... it is not that commonto work a case involving a gun.

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    Shotgun49 wrote:
    It seems to me that LEOs who violate your rights regarding gun laws, for example, by making unwarranted felony stops when they see you carrying, confiscating your weapon, charging you (with all the consequent expense and hassle to clear yourself), etc., are performing their duties in an incompetent manner, and this should be grounds for a suit, or at least a complaint,against the city, state, or department. At the very least it should result in notes in the officer'srecord, reprimands, or possibly just annoying "retraining" time. I don't know of anyone who has done this, but it seems like it should be feasible, and a rash of such complaints/suitsmight tend to make senior LEOs keep their less informed, or overly authoritarian, brethren under better control. My reasoning is as follows: Since LEOs have to consider the question of the potential presence of weapons at virtually EVERY stop they make, they can reasonably be expected to have to be especially familiar with the local laws governing weapons (lest they encounter one). After all, the gun laws are generally pretty straightforward, less complex than drug laws or traffic laws, and have a more direct bearing on the officer's safety. Since it is something the LEO has to deal with so often, probably more than any other single factor, it would be reasonable to ensure that officers are especially well trained in the relevant laws. I bet they all know about the "21 foot rule," eventhe ones whohaven't heard about the legality of OC in their state- that doesn't seem right to me. I'm supposing that getting nasty notes in your record, or facing the possibility of more "retraining" or other hassles, would at least get the officer on the scene to check with his watch commander or supervisor before doing something like what happened in Penn just recently.
    I had an "incident"where an Officer said that I could NOT plead Ignorance under the Law BUT he and his fellow Officer could.

    So what he meant wether he was right or wrong he was "covered" by his Badge and could plead Ignorance for ANY wrongdoing on his part. His fellow Officers OF COURSE sided with him



    TJ

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    UTOC-45-44 wrote:
    I had an "incident"where an Officer said that I could NOT plead Ignorance under the Law BUT he and his fellow Officer could.

    So what he meant wether he was right or wrong he was "covered" by his Badge and could plead Ignorance for ANY wrongdoing on his part. His fellow Officers OF COURSE sided with him


    TJ
    Innocence is a possiblefinding in court once your case has been heard.

    You can plead Guilty or Not Guilty. You can always claim you are innocent as everyone does in prison.



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    Interesting observations. First, I must point out that not everyone who knowingly violates the law is a criminal. There are certain exceptions and defenses to every criminal code and the law books cannot cover every possible set of circumstances.

    Now, LEO229, have you ever made a stop a/o arrest because you believed there was a violation of law - and it turned out there was none? I am not talking about misinterpreting an action but a situation where you honestly believed it was illegal to wear a red shirt on Thursdays only to go "Never mind..." Given that there are plenty of actual statutes to be violated how does a LEO get in his mind that an act is a violation, where he couldn't possibly have seen it anywhere because it doesn't exist?

    What would you think of an effort where the local police receive a letter saying something like "We just wanted to remind your officers that the open carry of a pistol in this jurisdiction is legal (with these exceptions.....(if any)) - How would such a missive be received? What is the practical difference between a LEO who makes an honest mistake and one who knows or should have known but disagrees with the state of the law as it is?

    Do you know any LEO's in your area who do not know thelegal status of open carry? If so, do you feel an obligation to educate them?



    LEO 229 wrote:

    Shotgun49 wrote:
    I agree about anyone who knowingly violates the law being a criminal, but I was aiming more at the idea that LEOs rightfully claim they can't beexpected to be fully aware of every law on the books. While I get that, it seemed to me that they have a duty to be ESPECIALLY cognizant of gun/weapon laws, more so than perhaps any other area, since they must consider these lawsat virtually every stop they make. I think that should mean that lack of knowledge in THIS particular area is grounds for complaints about the LEO's competence to perform his duties, as well as a suit against the department for putting incompetent officers on the street. That is, I don't think the LEO should be able to claim ignorance of the law as a way to avoid consequences for wrongfully enforcing it, in THIS specific area, more than any other. I think this is true regardless of whether the LEO actually knows the law or not. (S)he should reasonably be EXPECTED to know the gun/weapon laws thoroughly.
    They do cover code sections on guns..... but remember that OCing is not a code section.

    But in actuality.... it is not that commonto work a case involving a gun.

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    Criminal is a conclusion of a trier of fact.

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    apjonas wrote:
    Interesting observations. First, I must point out that not everyone who knowingly violates the law is a criminal. There are certain exceptions and defenses to every criminal code and the law books cannot cover every possible set of circumstances.

    1. Now, LEO229, have you ever made a stop a/o arrest because you believed there was a violation of law - and it turned out there was none? 2.I am not talking about misinterpreting an action but a situation where you honestly believed it was illegal to wear a red shirt on Thursdays only to go "Never mind..." Given that there are plenty of actual statutes to be violated how does a LEO get in his mind that an act is a violation, where he couldn't possibly have seen it anywhere because it doesn't exist?

    3. What would you think of an effort where the local police receive a letter saying something like "We just wanted to remind your officers that the open carry of a pistol in this jurisdiction is legal (with these exceptions.....(if any)) - How would such a missive be received? What is the practical difference between a LEO who makes an honest mistake and one who knows or should have known but disagrees with the state of the law as it is?

    4. Do you know any LEO's in your area who do not know thelegal status of open carry? If so, do you feel an obligation to educate them?
    1. I do not recall ever stopping for one thing alone that I believed was a violation. If I am not sure and it is not a big deal... I let them move on. I have had people stopped some something else and believed there were multiple violations and was not able to substantiate them. I check the book as efficiently as I can but after taking a while decide to let it go.

    2. If you do not agree with a right or law... that is a personal thing and this should never enter the picture.

    3. I think a letter to all the area departments is a great idea if done tastefully.

    4. I have spoke to many LEOs that did not know OC was legal... including rookies!!!



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    LEO 229 wrote:
    BobCav wrote:
    Anyone that knowingly violates the law, ANY law is a criminal. Period.

    A LEO that intentionally and knowingly breaks the law is no different thana childcare workerthat sexually abusesa child. It is a complete failure of the public trust andtheimmoralabuse of authority and power.

    Just another car in the long train of usurpations...
    Bob... that is a real bad comparison!!

    Sexually abusing a child does not rank the same...

    But both are crimes and you can be charged. The problem is that everyone knows you cannot perform any sexual acts with a child where as in this caseyou have to prove the LEO knewOCwas legal and his stopping the person was done for illegal purposes.

    I know.... A LEO should know!! But remember where LEOs come from? They are citizens that are hired to do the job. The same citizens people on this board report almost daily that believe it is against the law to OC.

    The academy cannot teach you every code and here is no code that says you CAN OC.From the LEO contacts reported here on this board there are LEOs that do not know it is legal. So I do not see any evil intent.

    Sure, you can fault the LEOfor not knowing since you should know the law before you enforce it. But thinking openly.... If the LEO, while a citizen, believed it was against the law and has never seen an OCer... he will not know unless he is told by someone or the academy while in class. It is only when he tries to find the code banning it that he learns it is permitted.

    So while he may be attempting to enforce a law that does not exist.... this is no different than whenthe police do investigative stops.It is not even known if a crime was committed but it is suspected..
    Now you know I'mnot comparing all LEO's, just the ones that KNOW better and still knowingly push their own agenda - breaking the law.Same for any bad politician, criminal, priest, or any citizen that is entrusted with a certain amount of the public trust and intentionally violates it.

    Difference being that a LEO has the means and opportunity to set it right; to makeone simple radio call and find out that it IS legal. Failing that, they choose to become part of the problem and not part of the solution. They DO have the means to discover the truth, yet turn a blind eye to the detriment of the public trust. That make sense? Follow where I'm going?



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    BobCav wrote:
    Now you know I'mnot comparing all LEO's, just the ones that KNOW better and still knowingly push their own agenda - breaking the law.Same for any bad politician, criminal, priest, or any citizen that is entrusted with a certain amount of the public trust and intentionally violates it.

    Difference being that a LEO has the means and opportunity to set it right; to makeone simple radio call and find out that it IS legal. Failing that, they choose to become part of the problem and not part of the solution. They DO have the means to discover the truth, yet turn a blind eye to the detriment of the public trust. That make sense? Follow where I'm going?
    I got ya Bob....

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    This is specifically addressed to LEO229... but applies to all LEOs.

    I used to be of the opinion that LEOs should be cut some slack when it comes to weapons laws, because, after all, there are thousands of laws to know, and frankly as humans we can't be expected to know them all.

    BUT (haha, you knew that was coming)

    I think there are two solid reasons LEOs need to know gun laws perhaps more than just about any other law category.
    1. Like the original poster said, they deal with weapons all the time. Suspects have knives, clubs, and guns and other weapons. They need to know what to do with them when they run across them, wether it be a legit "Terry stop" or arrest or anything else.
    2. Firearms (the 2nd amendment) are a really touchy issue in this country... and the further things go, the more likely some Vietnam vet is going to decide that one day he's had enough being harrassed for OCing that 1911 he used to keep this country free with and a cop's going to go down because the cop was being overly belligerent and assertive about something he didn't know jack sh$% about.

    My point is. If you are not certain, don't be a dumb a$$ and try to detain or harass a citizen for a "maybe" crime you're not even sure is on the books.
    A story will illustrate this.
    I was at xyz location and was OCing with my brother. Two deputies were assigned to this recreational area. One casually walked down to us and made small talk, not even commenting on the firearms. He walked away. (I assume was sizing up our demeanor and 'type'). Then a few minutes later he and his partner returned before we launched our boat to inform us that carrying at that location was illegal and we should unload and leave them in the boat as they conceeded leaving them in the car wasn't too responsible.

    Moral to the story: These LEOs suspected there was a law against carrying loaded firearms at that location, but they were not sure. The second guy stayed in the cruiser to look up the law to make sure, beforeapproaching us to tell us we had to disarm. Then once sure, they approached us to inform us. This is the correct way to deal with some presumed infraction... find out if it really is, then deal with it.

    The point is this. Don't go off half-cocked and use the ignorance excuse "I'll let the court sort things out," which translated really means "I'm an ignorant LEO, but feel like harassing someone on some matter that might or might not be illegal... even though they're not posing a threat to someone anyway, I'll let the court decide if I was right on my hunch about the law. I really don't care this will likely cost an innocent person hundreds to thousands of dollars if I'm wrong."

    The last sentence is what bothers me most about being harassed for something not illegal.

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    Good luck with all that, shotgun. I'm not being a smartass, I really mean to commiserate with you. I've run up against it, and I don't have an answer (not a legally and socially acceptable one anyway). Lawsuits and such sound wonderful, but the overwhelming majority of lawyers will not take on the police, and most of the ones who will are ambulance-chaser types. Even then, you'll be pressed to win your own case, let alone some civil rights judgment. And even if you do win, good luck collecting (appeals, etc)...

    I wish everyone - LEOs and regular citizens - knew and obeyed the law. But then we wouldn't need cops at all if that were the case, would we? When you strap on your gun, you're rolling the dice (as you are when you go about unarmed as well). Throw the dice enough times and you will crap out. You may get arrested, you may get shot - whatever. It's statistically inevitable if you live infinitely long. Most people sneak by without too many major disasters in their finitelives, so they have the luxury of debating these things abstractly. Know and obey the law and you will have fewer problems than others, but there are no guarantees, and no easy fixes when it goes badly. Anyone who says otherwise is selling something.

    -ljp

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    As I said.... I have seen things that I was not sure was legal or not. I do not stop people and then hold them while I check unless it is necessary.

    And I would agree that if you have the opportunity to do some research and not detain... this is a no brainer.

    OCing is not an "emergency" type event but can be a cause for concern for many people. Some may feel it is necessary to make contact and prevent it from being used while the situation is checked out.

    Keeping in mind that some people carry weapons and intend to use them to cause harm to others. We all know that criminals do not normally show that they have a weapon before hand but there are times that they do.

    And just because someone is OCing does not automatically make him a law abiding person.

    But in a perfect world... in ideal situations... checking the book first is always the best option. But ifthe person is about to leave or drive away this means that there is no longer any time to keep looking in the book.

    You have to decide..... let it go... or stop and verify it is legal.

    It is a judgement call you have to make based on how important it is.


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    LEO 229 wrote:
    Shotgun49 wrote:
    I agree about anyone who knowingly violates the law being a criminal, but I was aiming more at the idea that LEOs rightfully claim they can't beexpected to be fully aware of every law on the books. While I get that, it seemed to me that they have a duty to be ESPECIALLY cognizant of gun/weapon laws, more so than perhaps any other area, since they must consider these lawsat virtually every stop they make. I think that should mean that lack of knowledge in THIS particular area is grounds for complaints about the LEO's competence to perform his duties, as well as a suit against the department for putting incompetent officers on the street. That is, I don't think the LEO should be able to claim ignorance of the law as a way to avoid consequences for wrongfully enforcing it, in THIS specific area, more than any other. I think this is true regardless of whether the LEO actually knows the law or not. (S)he should reasonably be EXPECTED to know the gun/weapon laws thoroughly.
    They do cover code sections on guns..... but remember that OCing is not a code section.

    But in actuality.... it is not that commonto work a case involving a gun.
    I inquired into the Michigan State Police academy's training on open carry. I received this response below. Apparently they do cover the topic of open carry. He didn't say what that was.

    "Good afternoon. My name is Sgt. Jeff Munoz and I am in charge of the Ordnance Unit for the Michigan State Police. Part of my responsibilities is Recruit training in the firearms area. Included in that area is a lengthy legal section. We do in fact cover the legal area of "Open carrying of a handgun in Michigan". We appreciate your efforts and concerns to make sure police officers receive the best training possible in all areas. If there are any other areas of concern or if some issue(s) becomes a hot topic, please contact us.

    Thank you, Sgt. Jeff Munoz, Ordnance and Marksmanship Unit Training Division (517) 322-6349"
    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.

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    LEO 229 wrote:
    Shotgun49 wrote:
    I agree about anyone who knowingly violates the law being a criminal, but I was aiming more at the idea that LEOs rightfully claim they can't beexpected to be fully aware of every law on the books. While I get that, it seemed to me that they have a duty to be ESPECIALLY cognizant of gun/weapon laws, more so than perhaps any other area, since they must consider these lawsat virtually every stop they make. I think that should mean that lack of knowledge in THIS particular area is grounds for complaints about the LEO's competence to perform his duties, as well as a suit against the department for putting incompetent officers on the street. That is, I don't think the LEO should be able to claim ignorance of the law as a way to avoid consequences for wrongfully enforcing it, in THIS specific area, more than any other. I think this is true regardless of whether the LEO actually knows the law or not. (S)he should reasonably be EXPECTED to know the gun/weapon laws thoroughly.
    They do cover code sections on guns..... but remember that OCing is not a code section.

    But in actuality.... it is not that commonto work a case involving a gun.
    I send this out to Michigan police departments as the situation warrents.



    PURPOSE: To provide guidance in calls for services that involves a person who is openly carrying a pistol in a holster.

    As you may know any law abiding citizen of the State of Michigan who can legally possess a firearm may openly carry (in a holster) said firearm in all places not explicitly exempt by law without a CPL (1). Those that do not have a CPL when transporting their firearms must do so as prescribe by law. No local ordinance concerning firearm possession is enforceable due to Michigan’s preemption law (2).

    Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney General Opinion 7101, 2/02 states “…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.”]In regards to disorderly conduct due to the nature of this code, this law has been cited by officers to suppress or discourage lawful open carry.Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, nor is there any duty for anyone licensed to conceal their handgun, open carry is not disorderly conduct. The open carrying of firearms is not by itself threatening, nor does it cause a hazardous or physically offensive condition.

    person openly carrying a firearm on foot in a legal manner when approached by a police officer and questioned where the only reason for the questioning is because of the openly carried firearm need not give that officer their name and address.No license or ID is required to openly carry a firearm. Officers should not editorialize against open carry by private citizens in any way shape or form, or in any way suggest that a person should conceal their firearm.Suggestions and editorializing against lawful open carry may be interpreted as “commands” by civilians who are lawfully open carrying and may subject officers to complaints filed against them, as well as possible legal action against themselves and the department.

    Recently it has been opined by the AG opinion, the MSP and Senator Prusi that persons with a CPL can carry a firearm openly in the exempted areas listed in MCL 750.234d. (4).

    It is suggested that Law enforcement supervisors inform their staff in regards to the legality of openly carrying a handgun in Michigan. It is also suggested that an officer protocol be developed in dealing with such a call. It also would be beneficial to inform your dispatchers and your county 911 department in developing a protocol on receiving a “man with a gun” call. An example of some questions to ask a person calling 911 about a person openly carrying is included.

    It is our hope that by informing you and all law enforcement personnel throughout the state about the legality of open carry that we can avoid any civil or criminal actions that might otherwise occur. If you have questions or concerns please contact your prosecuting attorney. We thank you for your time and consideration in this regard, and as law abiding citizens we appreciate the demanding and dangerous work you all do.


    Footnotes:


    (1)[/b] Sec. 234d (1) Except as otherwise 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 religious 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.


    (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.

    c) [/b]A person licensed by this state or another state to carry a concealed weapon[/b].[/b]

    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. [/b]

    (2)[/b] MSP Legal Update Newsletter: April 2007[/b]
    Did You Know: It is not illegal under Michigan law to openly carry a pistol.

    Preemption:[/b] In MCRGO v. Ferndale[/b], 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.

    THE MICHIGAN SUPREME COURT CONCLUDED: April 29, 2003 9:10 am. v No. 242237

    In sum, we conclude that § 1102 is a statute that specifically imposes a prohibition on local units of government from enacting and enforcing any ordinances or regulations pertaining to the transportation and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government concerning these areas. [/b]
    [/b]
    Further, we conclude that the specific language of the 2000 amendments to MCL 28.421 et seq., particularly §§ 5c and 5o, which were adopted more than a decade after the enactment of § 1102, do not repeal § 1102 or otherwise reopen this area to local regulation of the carrying of firearms.17 Accordingly, we hold that the Ferndale ordinance is preempted by state law and, consequently, we reverse. [/b]

    In 1990, the Michigan legislature enacted MCL 123.1102 which provides, in pertinent part: A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.
    [/b][/b][/b]
    (3)[/b] [/b]Act 328 of 1931
    750.234e Brandishing firearm in public; applicability; violation as misdemeanor.
    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.
    History: Add. 1990, Act 321, Eff. Mar. 28, 1991

    Opinion No. 7101 [/b]February 6, 2002[/b][/b]In part:

    … 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,2 none of the cases define the term.

    In[/b] the absence of any reported [/b]Michigan[/b] appellate court decisions defining "brandishing,"[/b] 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, SecondCollege 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."

    Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," when carrying a handgun in a holster in plain view, is not waving or displaying the firearm in a threatening manner. Thus, such conduct does not constitute brandishing a firearm in violation of section 234e of the Michigan Penal Code.

    It is my opinion, therefore, …by carrying a handgun in a holster that is in plain view, does not violate section 234e of the [/b]Michigan[/b] Penal Code, which prohibits brandishing a firearm in public. [/b][size=JENNIFER M. GRANHOLM, Attorney General]

    [/b][/b][/b](4) [/b]Three opinions on this topic. An AG’s opinion, the Michigan State Police, and a State Senator’s.[/b]

    AG opinion No. 7097 [/b]FIREARMS LAWS OF MICHIGAN January 11, 2002: This conclusion is not affected by the provisions of section 234d of the Michigan Penal Code, 1931 PA 328, MCL 750.1 et seq. That statute prohibits certain persons from possessing firearms on certain types of premises as follows: Sec. 234d (1) Except as otherwise 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 religious 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.
    (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.
    c) [/b]A person licensed by this state or another state to carry a concealed weapon[/b].[/b]
    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. [Emphasis added.]
    By its express terms, section 234d prohibits certain persons from carrying a firearm in the enumerated places but explicitly exempts from its prohibition “[a] person licensed by this state or another state to carry a concealed weapon.” Thus, any person licensed to carry a concealed pistol,… is exempt from the gun-free zone restrictions imposed by section 234d of the Penal Code and may therefore possess firearms while on the types of premises listed in that statute.[/b]

    MSP opinion:[/b] Your analysis is correct. Non-CPL pistol free zones do not apply to CPL holders. The CPL pistol free zones only apply to CPL holders carrying a concealed pistol. Therefore, a CPL holder may openly carry a pistol in Michigan's pistol free zones. Sincerely, Sgt. Thomas Deasy, Michigan State Police Executive Resource Section, 714 S. Harrison Rd. East Lansing, MI 48823
    (517) 336-6441

    Senator Prusi’s opinion:[/b] My office received your inquiry regarding the legality of a licensed CPL holder to open carry a firearm in "Pistol Free Zones." On Friday we received a copy of your correspondence, as Senator Carl Levin's Office referred your letter to my office because your concerns mainly pertain to state issues. As such, I am happy to assist you in this matter.

    My office has contacted the Michigan State Police legislative liaison and has received some answers to share with you. According to the liaison, it is legal to openly carry a firearm in a "Pistol Free Zone" if you are licensed a CPL holder. I was advised that your information was correct that MCL 28.425o and MCL 750-234d permit this activity. I was informed that there was no other additional relevant laws regarding this matter….Michael A Prusi, State Senator 38th District"

    Example of a 911 Protocol for a
    “Person with a gun call”

    911: [/b]This is 911 what is your emergency?[/b]
    [/b]
    [/b]Caller: Ah….not sure if this is an emergency but there’s some guy with a gun on his belt here in the Wal-Mart.[/b]


    911: Is the gun in a holster or is this person waving the gun around or threatening anyone? Is anyone injured? What is the man doing?

    Caller: [/b]Aaah…no one is hurt. Aaaah…the guy is just shopping. Pushing a cart looking at some frozen carrots I think. Yah he’s looking at carrots.[/b]

    [/b]911: [/b]Does this man seem to be intoxicated or mentally impaired? Does he appear to be acting irrationally?
    [/b]
    [/b]Caller: No he doesn’t seem to be acting strange other than the gun. Can’t you send some officers here to check him out? Think of the children.

    [/b]911: Does the person appear to be 18 years old or older?

    [/b]Caller: I would say he’s about 35 years old, average build, dark short hair, and he has a short beard. He’s wearing khaki pants with a dark blue polo shirt.
    [/b]
    [/b]911: Sir, the open carry of a handgun is legal in Michigan by any lawful person 18 years old or older. Unless the person is waving it around in a threatening manner or is acting irrationally there is nothing we can legally do. Now if the person should threaten someone or become agitated let us know and we’ll send a car, but until then have a good night.[/b]

    [/b]If 911 dispatchers had a protocol similar to this over simplified example for handling this type of call; that is just by asking a few short questions the adrenalin factor would be reduced and officer stress would be diminished. Each department can decide if a patrol car needs to be dispatched to investigate this kind of call, and if so, the officer would have more information on how to handle the encounter.

    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.

  20. #20
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    WOW, that was great stuff!! You guys are making me rethink my position here. I realize I was getting pretty PO'd reading about the recent Wilkes-Barre incident, and was probably getting myself into an "Us vs. Them" mindset about the police because of it. You really do a good job of pointing out a better way to approach the whole thing. I don't generally OC because I live in Texas where it isn't legal (Texas, of all places...Go figure!) but I do carry concealed and I OC'd when visiting in some neighboring states rather than lock my 1911 in the trunk and not have it available. Now we have reciprocal CCW with most of these, and I usually prefer that mode, so the issue may not arise again. In any case, I generally get along fine with LEOs I encounter, and to be honest, I have never had one who was the least bit put off by my carrying. I even had one nice policewoman pull my vest back over my pistol when it pulled up. I was the first person at a MVA scene and was leaning in the window holding a compress on the driver's lacerated forehead. The last thing I was thinking about was my vest pulling up and "flashing" the gun. After things settled down a little, she came up and "offered" to pull my vest down for me since my hands were a mess.Anyway, I have always had good relations with the LEOs I encounter, but frankly, I very rarely interact with LEOs on duty, which I suspect (hope) is true for most of us. It's easy to forget that I don't actually KNOW any LEO's who would be likely to act like the ones in these incidents, so maybe they're not all that common. I like your letter and "911 Protocol" a lot better than the idea of filing complaints and bringing suits anyway, it's really more my style usually. Anyway, thanks for the great ideas. Seems they'd be equally useful in issues regarding concealed carry too.

  21. #21
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    Example of a 911 Protocol for a
    “Person with a gun call”

    911: This is 911 what is your emergency?[/b]
    [/b]
    [/b]Caller: Ah….not sure if this is an emergency but there’s some guy with a gun on his belt here in the Wal-Mart.[/b]


    911: Is the gun in a holster or is this person waving the gun around or threatening anyone? Is anyone injured? What is the man doing?

    [/b]Caller: Aaah…no one is hurt. Aaaah…the guy is just shopping. Pushing a cart looking at some frozen carrots I think. Yah he’s looking at carrots.[/b]

    [/b]911: [/b]Does this man seem to be intoxicated or mentally impaired? Does he appear to be acting irrationally?
    [/b]
    [/b]Caller: No he doesn’t seem to be acting strange other than the gun. Can’t you send some officers here to check him out? Think of the children.

    [/b]911: Does the person appear to be 18 years old or older?

    [/b]Caller: I would say he’s about 35 years old, average build, dark short hair, and he has a short beard. He’s wearing khaki pants with a dark blue polo shirt.
    [/b]
    [/b]911: Sir, the open carry of a handgun is legal in Michigan by any lawful person 18 years old or older. Unless the person is waving it around in a threatening manner or is acting irrationally there is nothing we can legally do. Now if the person should threaten someone or become agitated let us know and we’ll send a car, but until then have a good night.[/b]

    [/b]If 911 dispatchers had a protocol similar to this over simplified example for handling this type of call; that is just by asking a few short questions the adrenalin factor would be reduced and officer stress would be diminished. Each department can decide if a patrol car needs to be dispatched to investigate this kind of call, and if so, the officer would have more information on how to handle the encounter.

    [/b]

    THAT's how it's suppose to go:celebrate

    Thank you Venator



    TJ

  22. #22
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    Sir... Drop the carrots and put your hands in the air!!

    Ya... The call takers really need to know how to help solicit information to determine what a "man with a gun" is doing.

    If a guy is with his family shopping is should be more than obvious he is just legally packing and not a threat to the public.

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    LEO 229 wrote:
    Sir... Drop the carrots and put your hands in the air!!
    My carrot would probably go limp, anyway.

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    Shotgun49 wrote:
    [Thread Title]
    Don't let the conversation steer towards LEO's not knowing the law.

    Its a diversion. A red herring.

    The simplicity of it is that an LEO should not be taking nonconsensual enforcement action without knowing for a complete fact that a law exists and is being violated.

    If there is no law against it, an LEO cannot possibly misunderstand it. There is nothing in theCode to misunderstand if there is no law there at all.

    If there is no law against it, an LEO can not possibly be mistaken about it, except that he added his own idea into it.

    The problem we have is not LEO's not understanding the law. The problem we have is LEO's taking nonconsensual enforcement action without a shred of lawful authority to take that action.

    What are they thinking? It definitely is not, "That is illegal.Iknow it is illegal because I have read the Code on it."
    I'll make you an offer: I will argue and fight for all of your rights, if you will do the same for me. That is the only way freedom can work. We have to respect all rights, all the time--and strive to win the rights of the other guy as much as for ourselves.

    If I am equal to another, how can I legitimately govern him without his express individual consent?

    There is no human being on earth I hate so much I would actually vote to inflict government upon him.

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    Citizen wrote:

    The simplicity of it is that an LEO should not be taking nonconsensual enforcement action without knowing for a complete fact that a law exists and is being violated.
    exactly what I have said all along. I have worked a few different jobs in my life, and they all involve 1 thing ... TRAINING.

    most jobs have guiidelines and protocols that you have to follow, and these are put into an employees manual. in a way, local, state, and federal law is an LEOs employee handbook. If they can't take the time to learn how to properly do their job, then they should be given the opportunity to find work in a different field, simple as that.

    a carpenter can't install windows in teh floor, and doors in teh ceiling and claim "they didn't know", why should an LEO?

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