When can I legally reach towards my gun?

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I have a friend who was in a situation where he really would have liked to have been carrying.

Long story short, he made a guy mad (without breaking any laws, or even social norms, for that matter) and the guy started walking towards him quickly and aggressively while yelling "HEY! YOU NOSY F***!" (My friend had just saved an honest guy from being scammed out of some money by this other guy who had tried to scam me a couple weeks before, while my friend was present.) This guy was a lot bigger than my friend and was clearly aggressive, although we never found out if he would have become violent because my friend got in his car and drove away very quickly, before the guy could reach him.

If my friend would have been carrying, at what point could he have reached towards his gun and put his hand on the grip, without drawing? I know that cops can lay their hand on the grip whenever they feel threatened at all, but can we do the same without an immediate fear of death/injury?

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I would think, that while open carrying, these scenes would be less likely to happen. People seem to dig up some of those good ol' fashioned manners when they see a gun on the hip.

If and when it does happen however, I don't see anything in the law that says you can't place your hand on your holster/grip. I'm constantly adjusting my serpa for maximum comfort, when OC'ing. The closest issue seems to be "brandishing" and we've all read up on that and it's lack of legal definition. I don't think it should be done unless absolutely necessary and you/he absolutely anticipates drawing and firing the weapon. I wouldn't want to give the anti's a foothold on the issue. All we need is everyone who OC's reaching for their side-arm every time someone is less than cordial with them.

My .02

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i was always taught as a general rule "ready at 20", IE when the threat is 20 feet away be ready to draw and fire. When a threat is inside 15 feet they are within a few strides of you and can easily disarm you while you are drawing.

Im not a lawyer but I cant remember a law that states you cannot touch your firearm when you are carrying.

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Hmm, might it be time once again to email the good Sergeant Deasy? Venator seems to have good luck with hearing the information he wants to hear from Sgt. Deasy, so I might leave the emailing up to him.

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EM87 wrote:

I have a friend who was in a situation where he really would have liked to have been carrying.

Long story short, he made a guy mad (without breaking any laws, or even social norms, for that matter) and the guy started walking towards him quickly and aggressively while yelling "HEY! YOU NOSY F***!" (My friend had just saved an honest guy from being scammed out of some money by this other guy who had tried to scam me a couple weeks before, while my friend was present.) This guy was a lot bigger than my friend and was clearly aggressive, although we never found out if he would have become violent because my friend got in his car and drove away very quickly, before the guy could reach him.

If my friend would have been carrying, at what point could he have reached towards his gun and put his hand on the grip, without drawing? I know that cops can lay their hand on the grip whenever they feel threatened at all, but can we do the same without an immediate fear of death/injury?

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In my CPL class, the instructor taught us to remember AIM as a means to justify lethal force.

For example,

A (Ability)=Does s/he have to Ability to inflict great bodily harm, rape or death?
Yes, s/he's within 20 feet and approaching aggressively.

I (Intent)=Does s/he have Intent to inflict great bodily harm, rape or death?
Yes, s/he's approaching aggressively while yelling; I'm going to kill you unless you give me your money.

M (Means)=Does s/he have the Means to inflict great bodily harm, rape or death?
Yes, s/he's approaching aggressively wielding a baseball bat.

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FatboyCykes wrote:

The closest issue seems to be "brandishing" and we've all read up on that and it's lack of legal definition.

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I looked up brandishing and found this:

"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."

But it doesn't define it!

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AG Opinion 7101 on brandishing

In pertinent part:

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."

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

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Found this:

"BRANDISHING Opinion No. 7101 February 6, 2002: …In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions…..the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions…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, that…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."

It applies to off duty cops but defines brandishing, in a way.

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Where did you find that EM87, I've been looking all over for it. :lol:

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EM87 wrote:

Found this:

"BRANDISHING Opinion No. 7101 February 6, 2002: …In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions…..the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions…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, that…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."

It applies to off duty cops but defines brandishing, in a way.

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Notice the bold faced print. It is not makes no mention of "off duty cops". It shows that "reserve police officers", are not "off duty cops", but are in fact just private citizens.

Like SpringerXCacp said. If you can articulate a reasonable fear for death, rape, or great bodily harm, then you have a green light.

Skip Coryell made a good statement in one of his books (or articles). I'm not sure of the exact quote so I'll paraphrase.

If your friend didn't know that it might be a problem for him to out the con man in front of both him and the mark, does he have good judgment to avoid trouble when carrying a gun? I understand standing up for righteousness, but when firearms are involved, the ramifications can be much more severe.

I will say that if I was on a jury where a person was shot in such a situation where the aggressor is considerably larger than the defender, I would probably find it justifiable. I personally don't even think there should be need for a disparity of force. One punch can prove to be fatal, either in and of itself, or in conjunction with furtherance of the assault. The fact is, once the fists start flying, there's no telling what the result can be.

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SpringerXDacp wrote:

Where did you find that EM87, I've been looking all over for it. :lol:

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Whoops. I looked it up and posted without reloading the thread.

Ghostrider, are you saying that a reserve police officer is just another name for a civilian? I'm slightly confused about that one.

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EM87 wrote:

SpringerXDacp wrote:

Where did you find that EM87, I've been looking all over for it. :lol:

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Whoops. I looked it up and posted without reloading the thread.

Ghostrider, are you saying that a reserve police officer is just another name for a civilian? I'm slightly confused about that one.

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First, police officers and other non-military LEO are "civilians".

Second,

Read the whole opinion.

The opinion clearly states that unless the Reserve officer who is:

A reserve police officer with general law enforcement authority who is regularly employed would qualify as a "peace officer"...

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This means that they are employed with full authority of a regular peace officer.
It also states that:

...a reserve police officer with limited law enforcement authority would not qualify as a "peace officer" under subsection 2 of section 234e of the Michigan Penal Code.
...

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A reserve officer is not a "peace officer" under the statute. Under the statute, that officer is essentially a private citizen as far as the statute goes.

It makes it sound like there are reserve officers who are hired on as regulars, with full police authority, and that there are reserve officers who do not have such authority.

Now, that just means that the reserve officer (absent government employment mentioned in the opinion) does not fall under the protection of the statute given to "peace officers".

However, that does not matter, because she went on to state that it isn't brandishing

regardless whether he or she qualifies as a "peace officer".

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The opinion is not saying that it applies to off duty cops. It's saying that the reserve officer mentioned does not qualify as a "peace officer" under the statute, and therefore does not qualify for the exemption for "peace officer" under the statute.

It also is saying that it doesn't matter because a holstered weapon is not in and of itself brandishing.


To sum it up, She is saying that a reserve officer as mentioned is not different than a private citizen under the statute, and that a holstered weapon is not in and of itself brandishing.


Now,

I'm fairly confident that if you put your hand on your gun and warn someone to back off, then it could be brandishing. The intent seems to be to intimidate, using the weapon as a tool of that intimidation. The way the law is written, you are only authorized to use lethal force in the already mentioned situations. This is why I agree with Skip, and stress the responsibility of avoiding such conflict. It allows too much room for bad things to happen, and too much legal gray area.

I understand the good intentions of your friend not wanting to stand by and let the mark get taken for his cash, but put yourself in that position with a concealed handgun (probably wouldn't have happened with a OC gun because the con would have probably taken him for a cop). Your about to do something that could possibly end up in you being involved in a fight, and you are carrying a gun. (If you don't know that doing something that can affect the con's livelihood can end up in a fight, then you might want to do a little more learning. People can be testy about such things.) Do you really want to get into a fight while your carrying a gun? What other options are there. What will happen if you get into a fight while carrying a gun?

Your friend did the right thing by driving away.


Sorry about the bold faced print. Couldn't edit it out.

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Woah, I didn't mean to set you off like that, I just didn't have time to read the opinion in its entirety when I posted. That's good info though, thanks!

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EM87 wrote:

Woah, I didn't mean to set you off like that, I just didn't have time to read the opinion in its entirety when I posted. That's good info though, thanks!

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Didn't set me off.

I couldn't figure out how to remove the bold faced print and go back to normal. That's the reason for my last line.

Remember that when information is posted here, you aren't the only one reading it. Thus, I tried to be thorough.

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If I feel it nessassary to put my hand on my pistol I have already pulled it out and fired it. Anythingless is brashishment by law.

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If you honestly feel you are about to be killed or have serious bodily injury deadly force is allowed.

As for drawing a weapon to stop an attack that is case by case. If I had to do that I would as soon as possible call the police and report it. Generally thefirst to call 911 wins in he said she said. If the aggressor calls and said you pointed a gun at him and the police come and find a gun on you...oh boy bad things can happen. The LEO's are going to lean harder on you than the aggressor.

If you call and explain what happened you are the good guy and may get a break. Besides if you feared for your life you should probably call the police on the aggressor anyway.

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MACHINEGUNMATT wrote:

If I feel it nessassary to put my hand on my pistol I have already pulled it out and fired it.  Anything less is brashishment by law.

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IMO, It's not brandishing to place your hand on your firearm. My opinion also coincides with the Attorney General's opinion, which defines Brandishing as "To wave or flourish menacingly."

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EM87 wrote:

I have a friend who was in a situation where he really would have liked to have been carrying.

Long story short, he made a guy mad (without breaking any laws, or even social norms, for that matter) and the guy started walking towards him quickly and aggressively while yelling "HEY! YOU NOSY F***!" (My friend had just saved an honest guy from being scammed out of some money by this other guy who had tried to scam me a couple weeks before, while my friend was present.) This guy was a lot bigger than my friend and was clearly aggressive, although we never found out if he would have become violent because my friend got in his car and drove away very quickly, before the guy could reach him.

If my friend would have been carrying, at what point could he have reached towards his gun and put his hand on the grip, without drawing? I know that cops can lay their hand on the grip whenever they feel threatened at all, but can we do the same without an immediate fear of death/injury?

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If your friend had enough time to get in his car and drive away while he was unarmed he probably would have had enough time to get away in the same manner while armed.

That means the gun is non-essential and it would not be logical for the friend to wish that he would have been carrying. In that situation it is useless to have the gun. Actually, having the gun might influence the friend to stick around longer, since he had the equalizer.

This seems like a classic case of foolishly wishing for a gun to handle a situation that is not a gun situation. Silly, probably. Shortsighted, certainly. Wishing for the gun is a tangential approach to solving a specific problem.

What kind of scam was this? Something illegal or shady? That background, at least in general, is probably not irrelevant.

If you can't answer that, answer this: How much $$ was involved?

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EM87 wrote:

SpringerXDacp wrote:

Where did you find that EM87, I've been looking all over for it. :lol:

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Whoops. I looked it up and posted without reloading the thread.

Ghostrider, are you saying that a reserve police officer is just another name for a civilian? I'm slightly confused about that one.

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Ghostrider is correct, reserve officers generally are not considered "peace officers" in Michigan. In order to be a "peace officer", the major issues revolve around how the person who is a reserve officer is paid and what training they have had.

Most reserve officers are paid for the time they put in when they work a specific event: a fair, a community rally, directing traffic after a large church lets out, etc. However, they volunteer their time in the patrol car or at the sheriff's office, these hours are usually set as a certain minimum per month. If the "Reserve officer" is regularly paid though, they would fall under the requiremeents for training listed below.

In Michigan, there is, I believe a fund for dependents of "peace officers" killed in the line of duty to pay for college. Also, peace officers are eligible for retirement.

In regards to training, a "peace officer" needs to be certified by MCOLES (Michigan Commission on Law Enforcement Standards" . People who serve as a "Reserve"or "Auxiliary" officer are generally exempt from the requirement. Additionally, people who are given "police powers" as a function of their employment are also exempt. In my job, I am considered an "attendance officer" for the school district for whom I work, and when performing my job, I am given the powers of a deputy sheriff. However, under Michigan law, I am not considered a "peace officer".

The AG opinion is now a "non-issue". PA 407, which came into effect Apr. 6, 2009, states that reserve police officers are exempt from the CPL "Pistol Free Zones", listed in MCL28.425o.

BTW, Motor Carrier Officers with the MSP are also not "peace officers" in Michigan. They have been added to those whom CPL holders must inform, though, as there was some confusion when the law was first written.

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HankT wrote:

What kind of scam was this? Something illegal or shady? That background, at least in general, is probably not irrelevant. 

If you can't answer that, answer this: How much $$ was involved?

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The amount of money scammed (attempted) was around 20 bucks. Yes, I know that it's not a big deal in the grand scheme of things, so whether or not my friend was carrying, walking away was the right thing to do. I don't need to hear that concept repeated because I understand it fully.

The guy, at least when he tried it on me, said that he had locked his keys and wallet in his car and needed money to pay the tow truck guy to open it, and could pay back the money as soon as it was opened because he had money in his wallet (in the car.)