Birmingham: Open Carry is brandishing (Sounds like we need to attend another meeting)

No I agree with you 100%. I just brought that up because another member recently decided to post a comment on how my post that Detroit is a dangerous city could be considered racist. Even though I never mentioned race, color, etc and only stated crime statistics, it was potentially racist.

See the Detroit Fireworks thread for more info.

Glock9mmOldStyle said:

The Police control the DA! Not the other way around.

The DA is just a hired (gun) - law firm from outside Birmingham. They/She are just trying to save their contract with the city. The Police are to blame for this mess. They need to hear from the public & so does the commission. Only then will this get resolved. Cockroaches do not like the spotlight, let's light it up and see who scurries for cover first. Public opinion can often trump old school politics. If we show up at public events, be the normal, law-abiding, friendly people we are, the public will start to understand (eventually) we are not the ones breaking the law here.

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Is the city attorney handling the case, or the county prosecutor? Is this going to be in a city court, or county court? This seems odd to me. I always thought most criminal trials were held in county court, and prosecuted by the county PA.

Big Gay Al said:

Is the city attorney handling the case, or the county prosecutor? Is this going to be in a city court, or county court? This seems odd to me. I always thought most criminal trials were held in county court, and prosecuted by the county PA.

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Circuit or distinct, city attorneys often prosecute cases. They do this because the county prosecutor may not want to handle the case so the city does it. County prosecutors have to answer to their constituents, the city attorney only answers to the city counsel, etc...

Venator said:

Circuit or distinct, city attorneys often prosecute cases. They do this because the county prosecutor may not want to handle the case so the city does it. County prosecutors have to answer to their constituents, the city attorney only answers to the city counsel, etc...

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All charges were misdemeanors, therefore the district court (local city) will be handling the case.

budlight said:

All charges were misdemeanors, therefore the district court (local city) will be handling the case.

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County prosecutors can do misdemeanors. Like I said cities like to have their own attorneys to try cases in case the county prosecutor wont take it one for whatever reason. City attorneys don't just do civil infractions and local ordinances.

budlight said:

Don't bring up black......even without bringing it up we have one member who turns posts into racist issues.

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You chose to disregard what I had to say, in spite of repeated attempts to explain it to you.

You chose to insult me, in spite of me making it clear I wasn't attempting to insult you.

Whether you want to admit it or not, racial relations play an integral role in the perceptions and attitudes about detroit both inside of it and out. And these perceptions play directly into actual crime rates, due to economic and other issues brought on by them.

If this is too complicated for you or something, or if you otherwise don't care to fully understand such things, that's not my problem. It does become my problem, and in fact a problem for our entire community when you bring yourself down to the level you seem so determined to go down to.

Kindly please either listen to my view points, or disregard them. But please stop trash talking me with no good reason.

here we go

stainless1911 said:

here we go

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Deep, but really funny.

Wow, the anti have no shame at all do they.....

His lawful purpose could have simply been walking to the store to get an ice cream.

They even brought out the old "THINK OF TEH CHIKLDRENZZZ!!!!".

Would he have been charged if he walked around at night where a large number of adults gathered at night? What about a large number of chipmunks?

Big scary military surplus rifle.... What if it was just a run of the mil 22lr? 30/6? BMG? What did the fact it was surplus military have to do with anything?

Wow. I hope it works out.

"Rather, he is left to argue that he was carrying a fully loaded, frightening looking high-powered military surplus weapon, for no legitimate purpose"

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Huh.....

This attorney must have been absent the day they told everyone that there is no reason needed to carry a firearm.

Must have went to one of those "We dont teach the Constitution" colleges.

Glock9mmOldStyle said:

The Police control the DA! Not the other way around.

The DA is just a hired (gun) - law firm from outside Birmingham. They/She are just trying to save their contract with the city. The Police are to blame for this mess. They need to hear from the public & so does the commission. Only then will this get resolved. Cockroaches do not like the spotlight, let's light it up and see who scurries for cover first. Public opinion can often trump old school politics. If we show up at public events, be the normal, law-abiding, friendly people we are, the public will start to understand (eventually) we are not the ones breaking the law here.

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budlight said:

All charges were misdemeanors, therefore the district court (local city) will be handling the case.

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That was my impression as well, it sounds like this is STILL the city, and they can call it off at anytime, but won't. Hence the need to protest.

The city council said it's in the court system now so it's out of their hands.

I say BS.

It's in the city prosecutors hands and his boss IS THE CITY COUNCIL.

Pressure the city council to get the prosecutor to DROP THE CHARGES!

dougwg said:

The city council said it's in the court system now so it's out of their hands.

I say BS.

It's in the city prosecutors hands and his boss IS THE CITY COUNCIL.

Pressure the city council to get the prosecutor to DROP THE CHARGES!

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Exactly my take as well.

I'm up for another meeting, and will be there on the 9th, anyone else?

Michigander said:

You chose to disregard what I had to say, in spite of repeated attempts to explain it to you.

You chose to insult me, in spite of me making it clear I wasn't attempting to insult you.

Whether you want to admit it or not, racial relations play an integral role in the perceptions and attitudes about detroit both inside of it and out. And these perceptions play directly into actual crime rates, due to economic and other issues brought on by them.

If this is too complicated for you or something, or if you otherwise don't care to fully understand such things, that's not my problem. It does become my problem, and in fact a problem for our entire community when you bring yourself down to the level you seem so determined to go down to.

Kindly please either listen to my view points, or disregard them. But please stop trash talking me with no good reason.

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Excuse me but I didn’t ask to go down this road, you did. I was very insulted that you commented on my original post how it could be, or contribute to racism. READ MY ORIGINAL POST AGAIN……I never said black, or anything like it. I just said Detroit is a dangerous place. Anything else inferred from this is taken totally out of context. Just because Detroit is predominantly black doesn’t have a thing to do with racism as I never stated or inferred that the majority of crime is committed by blacks. I understand that in some cultures everything that goes wrong is automatically racist or prejudiced. However I wasn’t raised that way, and I assess all situations before pointing blame when something doesn’t go my way.

Also I totally disagree with you regarding the perceptions of outsiders. The overwhelming majority of problems and crime in Detroit is caused by its own people, not outsiders who fear to go there. Everyone has choices to make, if they decide to rape, rob, steal, murder, etc……that is their own choosing, it is not caused by some outsiders perception on life. If an OCer walks into a store and people fear that he is carrying a gun does it give him a right to shoot people? NO. Same thing here, just because an outsider fears Detroit doesn’t give the people there the right to kill them.

Now my last post was not to insult you or anyone else on this form. I simply stated that we should not mention race as it could become another heated debate.

budlight and Michigander

You both need to stop.

There is a young mans future here that we should be more concerned with.

Take your bickering to PM's please. Or better yet, call each other.

dougwg said:

budlight and Michigander

You both need to stop.

There is a young mans future here that we should be more concerned with.

Take your bickering to PM's please. Or better yet, call each other.

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Thank you.

Regarding the prosecuting attorney bringing up that he had carried the rifle and was not doing so for whatever reason is because of the way the brandishing law is written.

The only exceptions where one can "brandish" a firearm legally is in the following situations:

(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.

http://www.legislature.mi.gov/(S(ec...g.aspx?page=GetObject&objectname=mcl-750-234e

Since Sean did not meet any of the listed exempt persons/activities, this law can be used against him. Additionally, the only legal commentary we have regarding brandishing is Granholm's opinion that a pistol, carried in a holster outside of the clothing, does not constitute "brandishing". Sean does not meet this exception either. Basically, since there is an absence of case law regarding the charge, it is possible that a jury will agree with the charge. Basically, a very poorly written law has the possibility to be the ruin a young man's life. This law needs to be changed immediately. But, since this republican legislature is hell bent on passing legislation that lessons the ability to carry a firearm, good luck. To me, this REPUBLICAN legislature has been an enemy to gun owners.

The legislative intent of that brandishing law is questionable at best. When you consider that law makers from the past had some pretty lowly intentions, and that true brandishing while hunting still should be a crime by most peoples definitions, the law itself looks pretty stupid.

Using the definition of brandishing from the AG opinion, which is consistent with most, if you were carrying a rifle ONLY to be seen menacingly, and admitted so, I do believe you'd be liable to get convicted of brandishing, especially without more case law.

The issue that I would bring up, is that we have a right protected by the constitutions of Michigan and the US to carry weapons to defend ourselves and the state. It would seem to me, that without doing anything especially bad to warrant a brandishing charge, that merely having a gun with you that you would deploy defensively if needed, would be a very solid defense to a brandishing charge. In other words, any other small technicalities about enjoying side effects of responses from people, including the cops, should mean nothing, at least by any laws I'm familiar with, provided that you'd actually intend to defend yourself with your slung long gun if needed, and weren't attempting to intimidate anyone, even if you did.

Had he perhaps carried it unloaded, and not had any ammo with him, and then admitted that he was just trying to cause a commotion, it'd maybe be more of a situation where I'd think brandishing could stick, because the prosecutor could argue he just had it to "brandish". As is, I have a very hard time understanding how he could be found guilty, especially on appeal, unless a series of judges decide they want to legislate from the bench.

DrTodd said:

Thank you.

Regarding the prosecuting attorney bringing up that he had carried the rifle and was not doing so for whatever reason is because of the way the brandishing law is written.

The only exceptions where one can "brandish" a firearm legally is in the following situations:

(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.

http://www.legislature.mi.gov/(S(ec...g.aspx?page=GetObject&objectname=mcl-750-234e


Since Sean did not meet any of the listed exempt persons/activities, this law can be used against him. Additionally, the only legal commentary we have regarding brandishing is Granholm's opinion that a pistol, carried in a holster outside of the clothing, does not constitute "brandishing". Sean does not meet this exception either. Basically, since there is an absence of case law regarding the charge, it is possible that a jury will agree with the charge. Basically, a very poorly written law has the possibility to be the ruin a young man's life. This law needs to be changed immediately. But, since this republican legislature is hell bent on passing legislation that lessons the ability to carry a firearm, good luck. To me, this REPUBLICAN legislature has been an enemy to gun owners.

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THESE are the exemptions to brandishing. But brandishing is not defined. So we look at what the dictionary defines it to be. As was argued in the CADL case, there has to be some intent to intimidate. The mere presence of a firearm carried in the open does not meet this definition as there was no intent to intimidate anyone.

Just because someone MAY FEEL intimidated at the the sight of a firearm does not a brandish make. He has a defense and it's a good one. It will come down to how well this is explained to the jury.

My prediction is that this will be pleaded down to a disturbing the peace only. He will take it and it will not go to trial.

Does this upstanding young man have a legal defense fund?

Michigander said:

SNIP

Had he perhaps carried it unloaded, and not had any ammo with him, and then admitted that he was just trying to cause a commotion, it'd maybe be more of a situation where I'd think brandishing could stick, because the prosecutor could argue he just had it to "brandish".

Exactly, very well said.

unless a series of judges decide they want to legislate from the bench.

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This is what concerns me the most about this case.