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Thread: Question re: Brandishing..

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    Regular Member FatboyCykes's Avatar
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    Quick question....

    Below is what is provided in the letter to LEOs.

    ---------------------------------------------------------------------------------------------------
    (3) 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 February 6, 2002In 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, 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 Michigan Penal Code, which prohibits brandishing a firearm in public. JENNIFER M.
    GRANHOLM, Attorney General
    ---------------------------------------------------------------------------------------

    My question is...

    How do we make the leap that this applies to us? Maybe I'm just not understanding the regardless whether he or she qualifies as a "peace officer" part. Also the three little red dots are originally referencing peace officers again in the original opinion.

    It is my opinion, therefore, that a reserve police officer, 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.
    How can we make sure this is not used against us when the full AGO is taken at face value? I believe it would take an overzealous prosecutor and judge to let it stick, but what is our defense if we are unlucky enough to come across them?




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    I would think a good 2A attorney would be able to hammer that home almost immediately.



    I'll be terribly surprised if a LEO is dumb enough to even tr to charge that to an OCer.



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    Regular Member FatboyCykes's Avatar
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    I agree, but the AGO is specifically referenced in our material and the AGO is in regards to Peace Officers so I'm just curious.

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    I know what you mean. My guess is that most LEO's never even read that stuff. I would bet the prosecutors do and inform the LEO's in charge of training on how it is to be handles. Of course that may just be a fantasy I have in my head and none of them read them. We can only hope they do and then apply common sense.



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    FatboyCykes wrote:
    I agree, but the AGO is specifically referenced in our material and the AGO is in regards to Peace Officers so I'm just curious.
    Read the full opinion ( http://www.ag.state.mi.us/opinion/da...0s/op10176.htm ).

    Question was whether a Reserve police officer would be brandishing.

    She starts by saying that a reserve officer doesn't qualify as a peace officer.

    She then says, regardless of whether you're a peace officer, a handgun in a holster in plain view isn't brandishing.

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    Regular Member FatboyCykes's Avatar
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    zigziggityzoo wrote:
    FatboyCykes wrote:
    I agree, but the AGO is specifically referenced in our material and the AGO is in regards to Peace Officers so I'm just curious.
    Read the full opinion ( http://www.ag.state.mi.us/opinion/da...0s/op10176.htm ).

    Question was whether a Reserve police officer would be brandishing.

    She starts by saying that a reserve officer doesn't qualify as a peace officer.

    She then says, regardless of whether you're a peace officer, a handgun in a holster in plain view isn't brandishing.
    Thus, 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. A reserve police officer with general law enforcement authority who is regularly employed would qualify as a "peace officer" under subsection (2) of section 234e. See OAG, 1973-1974, No 4792, p 78 (August 27, 1973), and OAG, 1979-1980, No 5806, p 1055 (October 28, 1980).
    Forgive my persistence, but all in all it still seems to still revolve around peace officers and reserve officers only.

    Even when she says a reserve officer does not have to qualify as a peace officer, she is still dealing with a reserve officer, not a non LEO.

    If I were defending myself in court, for OCing w/ gun in holster, against a brandishing charge(I'm not) how would I do it, this AGO doesn't seem to explicitly protect me.


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    FatboyCykes wrote:
    zigziggityzoo wrote:
    FatboyCykes wrote:
    I agree, but the AGO is specifically referenced in our material and the AGO is in regards to Peace Officers so I'm just curious.
    Read the full opinion ( http://www.ag.state.mi.us/opinion/da...0s/op10176.htm ).

    Question was whether a Reserve police officer would be brandishing.

    She starts by saying that a reserve officer doesn't qualify as a peace officer.

    She then says, regardless of whether you're a peace officer, a handgun in a holster in plain view isn't brandishing.
    Thus, 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. A reserve police officer with general law enforcement authority who is regularly employed would qualify as a "peace officer" under subsection (2) of section 234e. See OAG, 1973-1974, No 4792, p 78 (August 27, 1973), and OAG, 1979-1980, No 5806, p 1055 (October 28, 1980).
    Forgive my persistence, but all in all it still seems to still revolve around peace officers and reserve officers only.

    Even when she says a reserve officer does not have to qualify as a peace officer, she is still dealing with a reserve officer, not a non LEO.

    If I were defending myself in court, for OCing w/ gun in holster, against a brandishing charge(I'm not) how would I do it, this AGO doesn't seem to explicitly protect me.
    Alright, let's make it easier.

    The part that helps us here is where she defines brandishing. This is where it's important. It doesn't matter who you are, this is how you brandish.

    If you're not doing those acts (waving about, pointing, menacing/threatening, etc.), then you're not brandishing, correct?

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    Regular Member FatboyCykes's Avatar
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    Agha! Thank you Zig. I guess that kind of clears it up. I'm just over complicating it, it would seem.

    So this AGO does nothing to protect OCing specifically, but does specifically give an AG's definition of brandishing, which we can use in court.

    Again, my thanks Zig.

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    This 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."

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    FatboyCykes wrote:
    Forgive my persistence, but all in all it still seems to still revolve around peace officers and reserve officers only.

    Even when she says a reserve officer does not have to qualify as a peace officer, she is still dealing with a reserve officer, not a non LEO.

    If I were defending myself in court, for OCing w/ gun in holster, against a brandishing charge(I'm not) how would I do it, this AGO doesn't seem to explicitly protect me.
    I realize that zigziggittyzoo cleared it up for you, but here is something else that I think your not understanding.

    The statute is making an excetpion for "peace officers", not "LEO". Being an LEO has nothing to do with brandishing, and thinking of that when considering the statute on Brandishing can confuse things. As per the AGO, not all LEO are Peace officers under the statute.

    When she refers to reserve officers not qualifying as "peace officers", it means nothing that they are not a "non LEO", because the exception in the statute is not for "non LEO".

    Essentially, as far as the statute and AGO are concerned, the reserve officer who does not qualify as a "peace officer" has the same limitations as a non LEO.

    Like zig said, it's further explained in the statute. There really isn't much room for a prosecutor to gain latitude.

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    Regular Member Springfield Smitty's Avatar
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    I agree with the OP on this. I think we should include AGO No. 3158 from 1945 which addresses OC. I too feel that there is too much focus on reserve officers in Granholm's opinion which could be seen as an attempt by us to "alter" the intent of the AGO.

    Maybe I'm just over-thinking this as well, but seems to me that it is not very relevant to the OC movement as a wholeanyway. I do not feel that it should be included in the pamphlets that we hand out to everyday folks anyway. I think it should only be included in the LEO packets and then it should be cited wholly (if it is not already) and emphasis put on the definition portion. Just so nobody says we are "misapplying" the AGO. I know we are not, but others may not see it that way. Just keep in simple is my opinion.
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    Springfield Smitty wrote:
    I agree with the OP on this. I think we should include AGO No. 3158 from 1945 which addresses OC. I too feel that there is too much focus on reserve officers in Granholm's opinion which could be seen as an attempt by us to "alter" the intent of the AGO.

    Maybe I'm just over-thinking this as well, but seems to me that it is not very relevant to the OC movement as a wholeanyway. I do not feel that it should be included in the pamphlets that we hand out to everyday folks anyway. I think it should only be included in the LEO packets and then it should be cited wholly (if it is not already) and emphasis put on the definition portion. Just so nobody says we are "misapplying" the AGO. I know we are not, but others may not see it that way. Just keep in simple is my opinion.
    It will stay in the MOC info packet, it's very relevant to OC. Two reasons, it helps define what brandishing is and is not. The wording about a reserve officer being like anyone else is relevant as well. Besides AG opinions are only binding between the State and the entity requesting the opinion. It has no other legal power.

    AG opinions do help in guiding future legal decisions outside of the intended requester, but only as advice. Prosecutors and judges can and have disregarded them in the past.

    Anyone is free to create another info packet with whatever you want, but without the MOC logo and endorsement.

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    *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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    Regular Member FatboyCykes's Avatar
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    One more....sorry again...

    What is the SCOTUS cite, about a gun alone not being enough for a Terry stop. Was it Terry vs. Ohio?

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    FatboyCykes wrote:
    One more....sorry again...

    What is the SCOTUS cite, about a gun alone not being enough for a Terry stop. Was it Terry vs. Ohio?
    You know you are getting as bad as a newbie Almost all the answers to open carry questions are posted here: http://opencarry.mywowbb.com/forum30/13328.html

    It's in the first post about half way down...Police interaction article.

    A very handsome and intelligent person helped to compile all that data for people to use.:P

    …More recently though, the U.S. Supreme Court in 2000 ruled that an anonymous tip that a person is carrying a gun is not sufficient to justify a police officer's stop and frisk of that person, even where descriptive detail regarding the subject has been corroborated….

    Florida v. J.L., 529 U.S. 266, 120 S. Ct. 1375, 146 L.Ed.2d 254 (2000).



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    *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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    Regular Member FatboyCykes's Avatar
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    Lol, don't I know it. I seriously read it over like six times and missed that.... Effing ADD. Thanks Brian.

    Now wheres that law legalizing OC?

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    FatboyCykes wrote:
    Lol, don't I know it.* I seriously read it over like six times and missed that....* Effing ADD.* Thanks Brian.

    Now wheres that law legalizing OC?
    I'll point it to you as soon as you point me to the law that says it's legal to wear striped green shirts on Tuesdays.


    But if you want to get reeeeally technical:

    http://legislature.mi.gov/doc.aspx?mcl-28-422


    Permit to purchase, CARRY, possess, or transport pistol...etc. etc.

  17. #17
    Regular Member FatboyCykes's Avatar
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    That one was a gimme Zig :P I know based on the last question I might have put a little doubt in your mind, but, c'mon :P

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