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Thread: MCRGO ENews pertaining to OC in a PFZ with CPL (by Stephen Dulan)

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    Campaign Veteran smellslikemichigan's Avatar
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    MCRGO ENews pertaining to OC in a PFZ with CPL (by Stephen Dulan)

    Monday, July 26, 2010


    When The Law Doesn't Mean What It Says

    One of the interesting things about teaching and practicing gun law is the fact that this area of law is not well-settled. It is cutting-edge, developing law. For example, readers may be aware that only very recently did the US Supreme Court rule, in McDonald v Chicago, that the Second Amendment applies to the states. Rather than being the end of the debate, that ruling led to Chicago adopting the most restrictive gun control regime in the United States, which was almost immediately challenged in court. The new case, and others like it, will help to define the outlines of our Second Amendment rights by forcing courts to rule on what restrictions are reasonable.

    We have similar issues of Michigan law currently being played out in Michigan courts. One of them is the right of CPL (Concealed Pistol License) holders to carry openly in places where others are prohibited from possessing firearms. Back in 1931, Michigan adopted MCL 750.234d which lists places where citizens may not possess firearms.

    "(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 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, Act No. 8 of the Public Acts of the Extra Session of 1933, being sections 436.1 to 436.58 of the Michigan Compiled Laws."

    Note the language "Except as provided in subsection (2)." Well, subsection (2) says:

    "(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) A person licensed by this state or another state to carry a concealed weapon."

    So, for quite some time, many in Michigan have concluded that, according to the plain, direct language of MCL 750.234d(2)(c), a person with a valid CPL is not subject to the prohibited list and may carry openly in the places listed. In fact, the Michigan Attorney General issued an opinion stating so and it has been the consistent position for some time of the Michigan State Police that a CPL holder may enter one of these places while openly carrying. The plain language of the law supports such an interpretation. This information is shared via various websites and posted and reposted in places on the Internet where interested citizens discuss these issues.

    One of my clients recently learned that there is another interpretation. He was carrying openly in a place that the court ruled is a "sports arena" under subsection (1)(e) of the above statute. We disagree with that interpretation. But, we'll save that issue for a future discussion (and his appeal.) The court also ruled that the plain language of the statute is not what the law really means. The court adopted the prosecution's interpretation which basically says that because MCL 28.425c (2) says:

    "(2) Subject to section 5o and except as otherwise provided by law, a license to carry a concealed pistol issued by the county concealed weapon licensing board authorizes the licensee to do all of the following:

    (a) Carry a pistol concealed on or about his or her person anywhere in this state.

    (b) Carry a pistol in a vehicle, whether concealed or not concealed, anywhere in this state."

    that the legislature must really mean that the only exception for CPL holders under MCL 750.234d must be when the CPL holder is carrying concealed and not openly. The court adopted this interpretation, even after being made aware that it is contrary to the relevant official opinion of the Attorney General and other commentators on this issue. My client was found guilty and fined. We are appealing the conviction on a number of grounds, including this specific ruling. However, it should be noted that those who choose to carry openly are subject to a number of practical and legal risks, the full extent of which is not currently clear. Reliance on opinions of law enforcement officers, legislators and others does not mean that a court will not interpret the law differently.

    My client in this case was arrested and his gun and ammo were confiscated. He has missed several days of work over a period of months, and has incurred significant legal bills. If not for the generous contribution by the MCRGO Foundation Firearms Civil Rights Defense Fund (www.MCRGOFoundation.org) his bills would have been potentially unmanageable. There have been literally hundreds of pages of legal documents generated so far in this case, and it is likely to continue for several more months as we appeal.

    Please consider making a tax-deductible contribution to the MCRGO Foundation to help support this kind of work as we move forward toward clarity in Michigan gun law.
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
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    Campaign Veteran smellslikemichigan's Avatar
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    while not yet case law, this is a startling reminder that the law is only as good as the judge who interprets it. hopefully, we see a positive outcome from this through the ruling of a higher court.
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by smellslikemichigan View Post
    while not yet case law, this is a startling reminder that the law is only as good as the judge who interprets it. hopefully, we see a positive outcome from this through the ruling of a higher court.
    Who's the client?

    We should all contribute to the appeals fund, this is VERY important to OCers with CPLs.
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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 fozzy71's Avatar
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    So, that court is trying to say we as CPL holders can carry concealed in all those places but not OC in those places
    Last edited by fozzy71; 07-26-2010 at 09:41 AM. Reason: Just when you thought our gun laws were already too confusing,...
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    No Fozzy, the court is saying that we CPL holders cannot carry openly in PFZ's. Legislating from the bench.

    Would this appeals case, if won, provide case law?

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    No, the law doesn't mean what it says, it means xxxxxxxx. WTF?

    If you win the appeals case, do you have the right to sue the first judge for damages and legal fees?

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    Campaign Veteran smellslikemichigan's Avatar
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    Quote Originally Posted by Venator View Post
    Who's the client?

    We should all contribute to the appeals fund, this is VERY important to OCers with CPLs.
    don't know who the client is, but i agree and i'm digging through my couch cushions, just like i did for the grand haven fiasco.
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
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    Regular Member EM87's Avatar
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    "The court also ruled that the plain language of the statute is not what the law really means."

    Go figure. Whoever the judge is, he/she must be a complete idiot to not understand this law. I am confident this will be overturned in the appeal.
    Last edited by EM87; 07-26-2010 at 12:46 PM.
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    Regular Member Jblack44's Avatar
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    I've been going into the bank quite often OC lately. This descision has made me think twice about doing that again...

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    Regular Member autosurgeon's Avatar
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    Quote Originally Posted by Jblack44 View Post
    I've been going into the bank quite often OC lately. This descision has made me think twice about doing that again...
    a bank is not a CPL law PFZ. This seems to pertain only to CPL law PFZ's IMOP
    Last edited by autosurgeon; 07-26-2010 at 12:48 PM.
    Anything I post may be my opinion and not the law... you are responsible to do your own verification.

    Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by Jblack44 View Post
    I've been going into the bank quite often OC lately. This descision has made me think twice about doing that again...
    If you have a CPL you can CC or OC in a bank. This case was about a person that had a CPL and OCed in a "sports arena" under the exemption in 750.234d. The judge got it wrong in my opinion and most other rational people.

    If you do not have a CPL you can't possess a firearm in a bank without permission.
    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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    Regular Member Jblack44's Avatar
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    Quote Originally Posted by Venator View Post
    If you have a CPL you can CC or OC in a bank. This case was about a person that had a CPL and OCed in a "sports arena" under the exemption in 750.234d. The judge got it wrong in my opinion and most other rational people.

    If you do not have a CPL you can't possess a firearm in a bank without permission.
    But a bank falls under 234d as well. I totally agree that the judge got it wrong...but how many other places are going to come up "suspect" when OCing with a CPL??

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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by Jblack44 View Post
    But a bank falls under 234d as well. I totally agree that the judge got it wrong...but how many other places are going to come up "suspect" when OCing with a CPL??
    But you can CC in a bank under 5o and since there is no requirment to "CC only" with a CPL you can OC in a bank. You would be covered under both statutes.
    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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    Regular Member malignity's Avatar
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    The attorney general (now governor) put out a statement stating you can openly carry in a PFZ with a CPL.

    HOW HARD IS IT TO UNDERSTAND.


    Not only would I be setting up a legal fund for defense, but I would be currently writing letters to both Mike Cox and Jennifer Granholm. This judge needs a new profession.
    All opinions posted on opencarry.org are my own, and do not necessarily reflect the views of opencarry.org or Michigan Open Carry Inc.

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    thats a good idea malignity. Be sure to point out that the judge has no regard for their opinion.

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    Regular Member eastmeyers's Avatar
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    I am poor, although I will be finding a way to make some kind of donation right now.

    You can't donate online?
    Last edited by eastmeyers; 07-26-2010 at 02:20 PM.
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    Anti-Saldana Freedom Fighter Venator's Avatar
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    Quote Originally Posted by eastmeyers View Post
    I am poor, although I will be finding a way to make some kind of donation right now.

    You can't donate online?
    http://www.mcrgofoundation.org/
    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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    Regular Member Jblack44's Avatar
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    Sorry for my confusion! I guess I didn't read the whole thing completely.....my bad. I thought he was saying that all PFZ's were off limits to OC (even with a CPL) carry on..

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    That's what he (the judge) was tryimg to pull.

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    Michigan Moderator DrTodd's Avatar
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    Quote Originally Posted by Venator View Post
    But you can CC in a bank under 5o and since there is no requirment to "CC only" with a CPL you can OC in a bank. You would be covered under both statutes.
    I took the ruling, which is being appealed, to mean what Jblack44 said: the judge is saying that the only time that a CPL holder is exempt under MCL 750.234d is when they are carrying concealed.
    Since Jblack OCs into a bank and therefore probably has a CPL, the judges logic would mean that, at a bank, he must CC otherwise he violates the law. CC is not prohibited at a bank under the CPL Act, so he would be good to go.
    In the other PLZs, under MCL 750.234d, he must conceal, to do otherwise violates MCL750.234d. However, if a CPL holder carries concealed in these places, he/she violates section 5o of the CPL ACT.

    So in a nutshell: In order to use the "benefit" of any of the general no-firearm area CPL exemptions under 750.234d, one MUST CC. But, by CCing in all the places except a bank, one violates section 5o of the CPL Act. Not good at all! This needs to fought intensely.
    If this ruling is allowed to stand, could armored-car companies face huge issues as they usually OC under a CPL while carrying money into and out of Firearm-Free Zones under either act? I understand it is the only way to be exempt from any carry restrictions as the business owner is not allowed under the law to give them permission for an exemption.
    Last edited by DrTodd; 07-26-2010 at 03:06 PM.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Campaign Veteran smellslikemichigan's Avatar
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    Quote Originally Posted by malignity View Post
    The attorney general (now governor) put out a statement stating you can openly carry in a PFZ with a CPL.

    HOW HARD IS IT TO UNDERSTAND.


    Not only would I be setting up a legal fund for defense, but I would be currently writing letters to both Mike Cox and Jennifer Granholm. This judge needs a new profession.
    there is a legal defense fund through mcrgo
    "If it ain't loaded and cocked it don't shoot." - Rooster Cogburn
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    Regular Member fozzy71's Avatar
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    Quote Originally Posted by fozzy71 View Post
    So, that court is trying to say we as CPL holders can carry concealed in all those places but not OC in those places
    Quote Originally Posted by stainless1911 View Post
    No Fozzy, the court is saying that we CPL holders cannot carry openly in PFZ's. Legislating from the bench.

    Would this appeals case, if won, provide case law?
    I think it is saying both things, according to DrTodd.

    Quote Originally Posted by DrTodd View Post
    I took the ruling, which is being appealed, to mean what Jblack44 said: the judge is saying that the only time that a CPL holder is exempt under MCL 750.234d is when they are carrying concealed.
    Since Jblack OCs into a bank and therefore probably has a CPL, the judges logic would mean that, at a bank, he must CC otherwise he violates the law. CC is not prohibited at a bank under the CPL Act, so he would be good to go.
    In the other PLZs, under MCL 750.234d, he must conceal, to do otherwise violates MCL750.234d. However, if a CPL holder carries concealed in these places, he/she violates section 5o of the CPL ACT.

    So in a nutshell: In order to use the "benefit" of any of the general no-firearm area CPL exemptions under 750.234d, one MUST CC. But, by CCing in all the places except a bank, one violates section 5o of the CPL Act. Not good at all! This needs to fought intensely.
    If this ruling is allowed to stand, could armored-car companies face huge issues as they usually OC under a CPL while carrying money into and out of Firearm-Free Zones under either act? I understand it is the only way to be exempt from any carry restrictions as the business owner is not allowed under the law to give them permission for an exemption.
    "I like users who quote smellslikemichigan in their signature lines." - fozzy71

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    Regular Member Michigander's Avatar
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    In my opinion, going by the facts presented, this sounds like illegal judicial activism. Perhaps a federal color of law lawsuit against the judge and prosecutor would be an appropriate measure after the appeal, which I have confidence will be successful.

    I disagree with Steve Dulan on a few things, and I don't have much faith at all left in MCRGO, but this definitely sounds like something MOC should get behind if it can be proved beyond a reasonable doubt that the facts are as stated.

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    Michigan Moderator DrTodd's Avatar
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    I hope that county prosecutors start levying charges against all the sheriff reserve officers who carry openly in the places listed in MCL 750.234d. It appears that they would also be violating the law as interpreted by this judge. Although they are exempt from the zones listed in section MCL 28.425o (Places in which carrying concealed is illegal), they do not carry concealed, they carry openly. Therefore, since they are not police officers as defined in under the Commission on Law Enforcement Standards Act, 1965 PA 203, MCL 28.601 to 28.616, they are carrying under authority of their CPL, which this judge believes requires them to carry concealed. Imagine all of the reserve officers at high school football and basketball games that are carrying illegally by doing so in a holster on their hip. I hope that Michigan sheriffs are aware of this judge's interpretation.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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    Michigan Moderator DrTodd's Avatar
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    After reading this I headed out to my local Meijer store to do some shopping. I have been 100% OC since the first part of June but tonight I covered up while shopping at Meijer. The reason I did this is in order for me to exercise my right to carry in a place listed in MCL 750.234d, "An establishment licensed under the Michigan liquor control act, Act No. 8 of the Public Acts of the Extra Session of 1933, being sections 436.1 to 436.58 of the Michigan Compiled Laws"; this judge believes that I am required to OC to fall under the exemption listed.

    In Michigan, this ruling along with the number of places that have a liquor license effectively ends OC as a viable way to carry. I know that it currently is a pain for those without a license and a CPL would still help with the whole transportation issue, but this is a major blow to the OC movement; perhaps even on a level of Saldana's "No OC" bill in California. I will be certainly sending some funds to help fight this.
    Last edited by DrTodd; 07-26-2010 at 09:36 PM.
    Giving up our liberties for safety is the one sure way to let the violent among us win.

    "Though defensive violence will always be a 'sad necessity' in the eyes of men of principle, it would be still more unfortunate if wrongdoers should dominate just men." -Saint Augustine

    Disclaimer I am not a lawyer! Please do not consider anything you read from me to be legal advice.

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