imported post
Of course the firearm possession is preempted. See my PM.
I just sent this to Grayling. You can modify it and send it to the Township board.
Dear Manager Thayer:
I noticed this ordinance (below) and was wondering what was meant by the term "Display"? Does the meaning refer to brandishing a firearm or to carry it openly? While Michigan law already prohibits bandishing a firearm it does allow the open carry of a firearm (1). If the intent is to prohibit the open carry of a firearm then the ordinance is illegal due to the1990 state preemption statute MCL 123.1102. (2). If the intent is to ban the open carry of a firearm please revise the ordinance and remove that portion. Please note the Court of appeals decision in the lawsuit taken against the City of Ferndale for such an ordinance. Please explain the intent of the ordinance within 7 business days.
Thank you,
Brian Jeffs
City of Grayling Ordinance: “THE FOLLOWING RULES AND REGULATIONS SHALL GOVERN ALL MUNICIPAL PARK LAND IN THE CITY OF GRAYLING.
ON SUCH LAND, NO UNAUTHROIZED PERSON SHALL: 11. Display, discharge, set off or use any firearms or weapon except by law enforcement officers. Adopted: July 11, 2005 Michele A. Moshier, City Clerk
(1) Attorney General Opinion No. 7101 February 6, 2002 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 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."
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 Michigan Penal Code, which prohibits brandishing a firearm in public. JENNIFER M. GRANHOLM, Attorney General
(2) 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.
MCRGO v. Ferndale, the Michigan Court of Appeals held that local units of government may not impose restrictions upon firearms possession.
THE MICHIGAN APPEALS 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.
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.
