"Reasonable suspicion" to stop

[Michigander]

One other thing I feel the need to add, is that the law does not contain an illegal stipulation about being able to stop people only for carrying guns, despite believing it's probably legal. California has that, Michigan doesn't. Nor is Michigan in the district that had that MARTA ruling, which I don't believe would stand up to the review of the SCOTUS anyway.

Because the law doesn't describe that type of discretion as being specifically available to officers, I would argue that Terry, and 2a and 4a provide a buffer against being stopped, even as this law stands now with your description of an affirmative defense factored in. Unless of course there is other evidence, such as eye witness testimony of a concealed weapon, as happened to stainless.

 

[the500kid]

Disclosing

I guess my ultimate question is he knew I had a CPl before I knew he was a LEO. So once he knows I have it don't I have to give it to him?

 

[Jblack44]

Would "showing" the officer your CPL, but covering the the license # with your finger be enough? He would be able to see that it's your picture, and the expiration date, verifying that it's you and your CPL But not offer it for him to run a LEIN. You've proven that you have one

 

[eastmeyers]

All you do is get a t-shirt made up, on the front a large blown up picture of your CPL with what ever info you want blacked out, and on the back you get a big blown up picture of your drivers license with whatever info you want blacked out. Problem solved. Oh sorry what was that about the fourth amendment? :uhoh::uhoh:

 

[DrTodd]

Would "showing" the officer your CPL, but covering the the license # with your finger be enough? He would be able to see that it's your picture, and the expiration date, verifying that it's you and your CPL But not offer it for him to run a LEIN. You've proven that you have one

I assume you mean OCing in a PFZ.

Hmmm, good question, I don't see why not. Or... maybe having it in a case of some sort which covered the number. How about a photocopy of it with certain sections blacked out? This goes back to my earlier statement regarding "proof"... I think it is MORE than adequate, a judge may not.
But, I do think it would be hard for them to show that it is not indicative that you have a cpl since there is no requirement to have on you;the law only requires that you have been "issued a CPL", and that you can prove it to a certain degree... that's for a court to ultimately decide. I definitely would not carry my DL, though, leave that in the car.

ONLY IF YOU HAVE TIME:
A good way to play it might be to actually have it hidden on you and have them arrest you. When you get down to the station, tell them at that point. The officer is going to be P.O.'d that he has to spend an hour writing up the whole incident. He or she may just ignore the next OCer seen in a PFZ until the person actually does something more than just carry. There is no law that says that they MUST enforce it.

 

[DrTodd]

All you do is get a t-shirt made up, on the front a large blown up picture of your CPL with what ever info you want blacked out, and on the back you get a big blown up picture of your drivers license with whatever info you want blacked out. Problem solved. Oh sorry what was that about the fourth amendment? :uhoh::uhoh:

I wouldn't do this... not an issue in most places one goes... just the pfz's.

 

[eastmeyers]

I wouldn't do this... not an issue in most places one goes... just the pfz's.

it was a joke

 

[DanM]

If I refuse to show my ID/CPL I will not be charged with any "stop and ID" violation as Michigan doesn't have one, however, I will be charged with the mcl 750.234d violation. . . .

The elements of the crime of carrying in a MCL 750.234d area are:
1. Possession of a firearm.
2. In one of the listed places (banks, Alcohol Licensee, etc)

You are missing a third element, which is in the law:
3. Not a person fitting the listed exceptions to MCL 750.234d

An officer is free to investigate whethor or not you are in violation of all three of these elements, however he may not legally detain/arrest you until he has RAS or PC that you are in violation of all three. You are legally free to not talk to him or provide ID during his investigation (you are not being detained/arrested), AND legally you are free to go while he is investigating (you are legally not being detained/arrested). He he may not legally detain/arrest you without RAS or PC that you are in violation of all three elements.

You are OCing in a Bank:

Element 1 is evidenced by the pistol being clearly seen on your belt (possession)
Element 2: You are in a Bank (defined by state law but probably pretty apparent)

That is the crime... the ONLY elements. Upon seeing this the officer now not only has Reasonable Suspicion but also PC to arrest on the MCL 750.234d misedemeanor.

No. You must include the third element mentioned. Upon seeing you, the officer must have RAS or PC that you are not an excepted person to go beyond investigation to detention/arrest of you. He can try to ascertain the third element with all the legal powers at his disposal just short of detention/arrest of you, but bottom line is, legally, he may try to engage you in a voluntary stop and answering questions/showing ID, but he may not legally detain/arrest you for suspected violation of MCL 750.234d unless he has RAS or PC that you are in violation of the THREE elements discussed (not just the two you cite).

If we took the logic of posters here who thinks that an officer needs to have a reasonable suspicion of the exceptions to the laws, this is what we would have:

1. Can't even investigate a person smoking Marijuana on their front yard unless the officer ascertains that the person doesn't have a Medical Marijuana Card? If I ask for ID, have I turned Michigan into a Stop and ID state and violate the 4th Amendment??

2. Driving by a house late in the eveneing and see someone breaking into a house; oh, can't investigate unless the officer knows for certain that the person is not the homeowner. If the officer does go and ask for ID to prove the person lives there, they somehow turn Michigan into a "stop and ID" state?

No one is prohibiting the officer from investigating. The officer is prohibited from detaining or arresting a person without RAS or PC.

3. Actually, since "insanity at the time of the crime" is a defense to any crime, under your logic, police officers would need to prove that a person is NOT insane at the time of the crime in order to even question a suspect they see most likely breaking a law, let alone arrest.

So, since the arrest and or detention for any crime at anytime is most likely just a pretext to ID you, and because you think that the officer needs to prove you ARE NOT an exception (insane), you will sue under your 4th Amendment rights, and win.
Good luck with that...

Insanity is not a defense, in the sense of a finding of whether or not you are committing or have committed a crime. It is a defense against you being found wholly or partially responsible for a crime you have been found to have committed. Notice, the question of whether or not you are committing or have committed a crime has been settled. The question of insanity comes after it is determined you have committed a crime, not during the investigation into whether or not you are committing a crime. During the investigation into whether or not a person is in the act of committing a crime (such as MCL 750.234d violation) RAS and PC being legally established before a proper detention/arrest is made is completely required.

 

[Venator]

There is a difference: the lack of a CPL makes this a crime vs. The CPL provides an exception to the crime. Lack of a driver's license is an element to driving a car without a license, it is not a defense against some law that makes it a crime to drive a car. Driving a car is not a crime. Possessing a firearm in certain places is.

I thought driving a car without a license is a crime, just like having a firearm in some places without a CPL.

 

[Venator]

YES see http://www.freerepublic.com/focus/f-news/2408804/posts

Of course one case decision hurts, but is still not the end all. An appeals court decision or higher would be more binding. BTW, quoting from a line in an Officer and a Gentleman...."I strongly object" with the ruling in this case.

 

[DrTodd]

One other thing I feel the need to add, is that the law does not contain an illegal stipulation about being able to stop people only for carrying guns, despite believing it's probably legal. California has that, Michigan doesn't. Nor is Michigan in the district that had that MARTA ruling, which I don't believe would stand up to the review of the SCOTUS anyway.

Because the law doesn't describe that type of discretion as being specifically available to officers, I would argue that Terry, and 2a and 4a provide a buffer against being stopped, even as this law stands now with your description of an affirmative defense factored in. Unless of course there is other evidence, such as eye witness testimony of a concealed weapon, as happened to stainless.

As I understand it, the ability of the police in CA to do a stop and check if the pistol is loaded is based on a court case regarding enforcement of PC 12031(e), not specifically the law itself.

Your argument would have merit of you were talking about OC in general (wearing a firearm openly in a holster in a non-prohibited place) BECAUSE there is no crime which has as its ONLY element: possession of a pistol.

However, there is a crime: MCL 750.234d Possession of a firearm on certain premises... The elements of this are : you possess a firearm, you are on certain premises. That is all. LATER in the act, an affirmative defense to the charge is that you have a CPL.
Once againYou appear to be confusing "elements of a crime" with "defenses to a crime".

However, lets take a look at another possession law: "Felony possession of a firearm"
The elements of this are: 1. person is a felon, 2. person possesses a firearm. Since being a felon is an element of the crime, unless the officer had information which would lead a reasonable officer to suspect you are a felon, any demand to run you through LEIN would be unconsitutional. However, if you are a known felon to the officer and do possess the firearm, then at that point the person would have to assert any possible defenses to being found guilty of the crime. (Yes there are defenses to this)

Hopefully, your unwillingness to separate "elements of a crime" with "defenses to a crime" is starting to fade. If not...

Since I have provided a federal case above where a court found carrying CC was found to be Probable Cause, much more "powerful" than even RAS, here is my challenge to you: find 1 court case where the elements of a crime were openly observed by a police officer, a suspect was arrested, and because the officer did not determine whether the person fell under an exception during an investigation before the arrest, the arrest and/or detention was held invalid according to the 4th Amendment of the US Constitution.

 

[DrTodd]

I thought driving a car without a license is a crime, just like having a firearm in some places without a CPL.

Yes, but in a legal context there is no general crime of "Driving a Motor Vehicle" with an exception to "people with a valid license". No, there is no crime of "having a firearm in some places without a CPL", but there is the crime of "having a firearm in some places".

No, the crime is "driving a vehicle without a License" where, since no license is an element of the crime, the police need to articulate a reasonable suspicion you didn't have one and a prosecutor needs to prove (in the legal sense) that you in fact did not have one in order to convict.

The crime is: "Possession of a firearm on certain premises", not "Possession of a firearm on certain premises w/out a CPL" If it were, they would have to prove a suspect didn't have a CPL and an officer, in order to even detain a person, would need to articulate why they suspected the person did not have a CPL (RAS).

The crime is "Breaking and Entering", not "Breaking and Entering if you are not the owner or agent or have permission from the owner or agent".

The crime is "Carrying a Concealed Weapon", not "Carrying a Concealed Weapon unless you are carrying a pistol and have been issued a CPL" or "Carrying a Concealed Weapon if you have not been issued a CPL and are carrying a pistol"

See the difference?

 

[Michigander]

Hopefully, your unwillingness to separate "elements of a crime" with "defenses to a crime" is starting to fade. ..

I've got the concept! And I understand that you have a potentially valid point under state law, and state law alone.

I'm saying that the core problem is the idea that a judicial rule can be used to bypass the bill of rights. Using the concept of a crime that broadly criminalizes a specific behavior and only lists defenses later as a legit way to bypass the constitution doesn't make it past a common sense check. Using that logic, a law against talking other than on your own private property without a license would be fine, and the police would have a right to stop and check your ID, as long as it was a crime for everyone to talk, and only a defense to have a talking license. The same could be applied to housing soldiers in your home without a license to kick them out, and the police would have every right to check your license at any time if no soldiers are there, because it would only be a defense to not having any there if you are licensed. The only difference between these things is that the second amendment is the latest in the BOR to finally be on its way to being enforced.

Under McDonald and Heller, we now have the start of very solid SCOTUS case law on having an individual right to keep and BEAR arms. Much more so than when the idiotic MARTA case happened. For the reasons I stated in this post and others, I believe quite fully that if this issue went up the court food chain, it would be ruled to be unconstitutional to stop based on activities that are potentially legal with no RAS to believe they aren't.

 

[DrTodd]

You are missing a third element, which is in the law:
3. Not a person fitting the listed exceptions to MCL 750.234d

An officer is free to investigate whethor or not you are in violation of all three of these elements, however he may not legally detain/arrest you until he has RAS or PC that you are in violation of all three. You are legally free to not talk to him or provide ID during his investigation (you are not being detained/arrested), AND legally you are free to go while he is investigating (you are legally not being detained/arrested). He he may not legally detain/arrest you without RAS or PC that you are in violation of all three elements.


No. You must include the third element mentioned. Upon seeing you, the officer must have RAS or PC that you are not an excepted person to go beyond investigation to detention/arrest of you. He can try to ascertain the third element with all the legal powers at his disposal just short of detention/arrest of you, but bottom line is, legally, he may try to engage you in a voluntary stop and answering questions/showing ID, but he may not legally detain/arrest you for suspected violation of MCL 750.234d unless he has RAS or PC that you are in violation of the THREE elements discussed (not just the two you cite).



No one is prohibiting the officer from investigating. The officer is prohibited from detaining or arresting a person without RAS or PC.



Insanity is not a defense, in the sense of a finding of whether or not you are committing or have committed a crime. It is a defense against you being found wholly or partially responsible for a crime you have been found to have committed. Notice, the question of whether or not you are committing or have committed a crime has been settled. The question of insanity comes after it is determined you have committed a crime, not during the investigation into whether or not you are committing a crime. During the investigation into whether or not a person is in the act of committing a crime (such as MCL 750.234d violation) RAS and PC being legally established before a proper detention/arrest is made is completely required.

I submit the following jury instructuions for CCW, which like "possession in prohibited places", exempts those with a CPL.

CJI2d 11.1
(1) The defendant is charged with the crime of carrying a concealed pistol. To prove this charge, the prosecutor must prove each of the following elements beyond a reasonable doubt:
[Use the following if defendant is charged with carrying a pistol concealed on person:]
(2) First, that the defendant knowingly carried a pistol. It does not matter why the defendant was carrying the pistol, but to be guilty of this crime the defendant must have known that [he / she] was carrying a pistol.[*]
(3) Second, that this pistol was concealed on or about the person of the defendant. Complete invisibility is not required. A pistol is concealed if it cannot easily be seen by those who come into ordinary contact with the defendant.
[Use the following if defendant is charged with carrying a pistol carried in vehicle:]
(4) First, that a pistol was in a vehicle that the defendant was in.[*]
(5) Second, that the defendant knew the pistol was there.
(6) Third, that the defendant took part in carrying or keeping the pistol in the vehicle.

-------------------------------------------------------
I do not see that a prosecutor needs to prove that the person did not have a CPL, that they were not on their own property, or that they had any other exemptions under the law. Since a PROSECUTOR does not need to prove that a person is not an excepted class, how can you believe that a POLICE OFFICER needs to have higher determination of "proof" for RAS than a Prosecutor needs to convict??

 

[Outdoorsman]

My brain hurts reading all this!

 

[Agent1]

Yes, but in a legal context there is no general crime of "Driving a Motor Vehicle" with an exception to "people with a valid license". No, there is no crime of "having a firearm in some places without a CPL", but there is the crime of "having a firearm in some places".

No, the crime is "driving a vehicle without a License" where, since no license is an element of the crime, the police need to articulate a reasonable suspicion you didn't have one and a prosecutor needs to prove (in the legal sense) that you in fact did not have one in order to convict.

The crime is: "Possession of a firearm on certain premises", not "Possession of a firearm on certain premises w/out a CPL" If it were, they would have to prove a suspect didn't have a CPL and an officer, in order to even detain a person, would need to articulate why they suspected the person did not have a CPL (RAS).

The crime is "Breaking and Entering", not "Breaking and Entering if you are not the owner or agent or have permission from the owner or agent".

The crime is "Carrying a Concealed Weapon", not "Carrying a Concealed Weapon unless you are carrying a pistol and have been issued a CPL" or "Carrying a Concealed Weapon if you have not been issued a CPL and are carrying a pistol"

See the difference?

Great points Dr. Todd.

I wasn't following your line of reasoning at first but now I can see the gray area that this falls on. The lesson here is to be careful about properly ID'ing oneself.

Michigander, I also agree that the State's outlook on this is crap. I too feel that it is a scrape on the 4th A!

 

[DrTodd]

Just in case that you think that the "affirmative defense" issue is always a negative, the state of MIchigan does allow a peculiar affirmative defense for CCW.

CJI2d 11.6
It is not against this law to carry a gun that is so [out of repair / taken apart with parts missing / welded together / plugged up] that it is totally unusable as a firearm and cannot be easily made operable. (This is not a defense for Felon in Possession

In the context of the concealed weapons statute, MCL 750.227, the Court of Appeals has held that an inoperable handgun was not a “firearm.” See People v Parr, 197 Mich App 41, 45; 494 NW2d 768 (1992), People v Gardner, 194 Mich App 652, 654; 487 NW2d 515 (1992), and People v Huizenga, 176 Mich App 800, 804-805; 439 NW2d 922 (1989)

 

[lapeer20m]

thank you dr todd.

i totally disagreed with you at first. after reading the points you have made i now have a different view. while not b/w you have introduced a lot of gray to the issue.

 

[DrTodd]

One last thing...

MCL 76.20 Firearms violations; burden of establishing exception.
Sec. 20.

In any prosecution for the violation of any acts of the state relative to use, licensing and possession of pistols or firearms, the burden of establishing any exception, excuse, proviso or exemption contained in any such act shall be upon the defendant but this does not shift the burden of proof for the violation.


History: Add. 1968, Act 299, Eff. Nov. 15, 1968


© 2009 Legislative Council, State of Michigan

 

[Bronson]

DrTodd, I bow to your excellent display of Googlefu.

Bronson