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venator:
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IMPORTANT NOTICEThe information contained in this thread is not legal advice but is merely a starting point for your own research and a basis to form your own decision about appropriate courses of action.  No one posting information in this thread is a lawyer, if you'd like individualized legal advice, we'd be happy to refer you to some Law Practices with known firearm specializations.  At the minimum, we advise you to read this thread and all the information referenced here-in in its entirety.  It is crucial you understand the law before you begin open carrying.


YOU CAN OPENLY CARRY A HANDGUN IN MICHIGAN*

1) Any law abiding citizen of the State of Michigan who owns a Michigan registered handgun may openly carry (in a holster) said firearm in all places not explicitly exempt by law with or without a CPL.  Private property rules over-ride state law in regards to firearm possession.

MSP Legal Update Newsletters: April 2007 and June 2008: Did You Know: …It is not illegal under Michigan law to openly carry a pistol…...

PLACES off limits to firearms without a CPL: Sec. 234d (1) Except as otherwise provided in subsection (2), a person shall not possess a firearm on the premises of any of the following: a) A Bank. b) A church. 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 (Note-This is any place that sells alcohol, e.g. Krogers, party stores, etc.)

(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.

d) A person who possesses a firearm on the premises of an entity described in subsection (1) if that possession is with the permission of the owner or an agent of the owner of that entity.

2) If you don’t have a CPL, you must transport your handgun as prescribe by law. 

Michigan State Police Web Site.  Transporting a pistol in a motor vehicle?

Answer A person is now permitted to transport a pistol for a lawful purpose if the owner or occupant of the vehicle is the registered owner of the firearm and the pistol is unloaded and in a closed case in the trunk of the vehicle. If the vehicle does not have a trunk, the pistol may be in the passenger compartment of the vehicle unloaded and inaccessible to the occupants of the vehicle. 

3) No local ordinance concerning firearm possession is enforceable due to Michigan’s preemption law.

In 1990, the Michigan legislature enacted MCL 123.1102 which provides, in pertinent part:  A local unit of government shall not impose special taxation on, enact or enforce any ordinance or regulation pertaining to, or regulate in any other manner the ownership, registration, purchase, sale, transfer, transportation, or possession of pistols or other firearms, ammunition for pistols or other firearms, or components of pistols or other firearms, except as otherwise provided by federal law or a law of this state.

THE MICHIGAN  COURT of APPEALS CONCLUDED: April 29, 2003 9:10 am. v No. 242237 In sum, we conclude that § 1102 is a statute that specifically imposes a prohibition on local units of government from enacting and enforcing any ordinances or regulations pertaining to the transportation and possession of firearms, and thus preempts any ordinance or regulation of a local unit of government concerning these areas. 

Further, we conclude that the specific language of the 2000 amendments to MCL 28.421 et seq., particularly §§ 5c and 5o, which were adopted more than a decade after the enactment of § 1102, do not repeal § 1102 or otherwise reopen this area to local regulation of the carrying of firearms.17 Accordingly, we hold that the Ferndale ordinance is preempted by state law and, consequently, we reverse.
MCRGO v. Ferndale: The Michigan Court of Appeals held that local units of government may not impose restrictions upon firearms possession. 

4) Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm.

ADVISORY NOTE: Though this section on disturbing the peace does not deal with firearms, due to the nature of this code, this law has been cited by officers to suppress or discourage lawful open carry.   Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, nor is there any duty for anyone licensed to conceal their handgun, open carry is not disorderly conduct.  The open carrying of firearms is not by itself threatening, nor does it cause a hazardous or physically offensive condition.

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. 

5) A person openly carrying a firearm on foot in a legal manner when approached by a police officer and questioned where the only reason for the questioning is because of the openly carried firearm need not give that officer their name and address.  No license or ID is required to openly carry a firearm.   It is your option to provide ID/CPL.

ADVISORY NOTE: Each situation is different.  We recommend you cooperate with all lawful questions and requests.  Ask the officer if the reason you are being detained is for the legal open carry of a firearm. Ask if you are free to go, ask if you are being detained.  If they continue to ask questions about ID and why you are carrying a gun, repeat the question, am I free to go? Am I being detained?  If the situation escalates ask for a supervisor.  Remember the officer can arrest you for anything, don’t resist the arrest.  After an illegal arrest you may have legal options you can employ.

6) An AG opinion, the MSP and Senator Prusi stated that a person with a CPL can carry a firearm openly in the exempted areas listed in MCL 750.234d.  For example, with permission from the owner you can openly carry a handgun in a bar, sports arena, etc. 

Opinion No. 7097 January 11, 2002… A person licensed by this state… to carry a concealed weapon….By its express terms, section 234d prohibits certain persons from carrying a firearm in the enumerated places but explicitly exempts from its prohibition “[a] person licensed by this state or another state to carry a concealed weapon.” Thus, any person licensed to carry a concealed pistol, including a private investigator, is exempt from the gun-free zone restrictions imposed by section 234d of the Penal Code and may therefore possess firearms while on the types of premises listed in that statute.   

“Your analysis is correct.  Non-CPL pistol free zones do not apply to CPL holders.  The CPL pistol free zones only apply to CPL holders carrying a concealed pistol.  Therefore, a CPL holder may openly carry a pistol in Michigan's pistol free zones.” 

Sincerely, Sgt. Thomas Deasy, Michigan State Police Executive Resource Section, (517) 336-6441

“…My office has contacted the Michigan State Police legislative liaison and has received some answers to share with you. According to the liaison, it is legal to openly carry a firearm in a "Pistol Free Zone" if you are a licensed CPL holder. I was advised that your information was correct that MCL 28.425o and MCL 750-234d permit this activity. I was informed that there was no other additional relevant laws regarding this matter…” Michael A Prusi, State Senator 38th District"

ADVISORY NOTE:  Before carrying a handgun we recommend that you become familiar with all state and federal laws in regards to firearm laws and the use of deadly force.  Taking a self defense/firearm course is recommended.  Michigan has a self defense act PA No. 309 July 18, 2006 that states you do not have to retreat from a threat, but you must meet the legal  requirements before you engage in the use of deadly force.

FOR MORE INFO SEE http://WWW.OPENCARRY.ORG

*The information contained above is not meant to be legal advice, but is solely intended as a starting point for further research on the subject of open carry in Michigan.  You are responsible in determining the accuracy of any information listed above.  If you have further questions it is advisable to seek out an attorney that is well versed in firearm law.
 

venator:
Example FOIA letter.

With Thanks to Attorney...
Dean G. Greenblatt
Attorney and Counselor
Dean G. Greenblatt, PLC
4190 Telegraph Road
Suite 3500
P.O. Box 40
Bloomfield Hills, MI 48303-0040
248/644-7520 dgg@mnsi.net



Date:

VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED

FOIA COORDINATOR
ANYWHERE POLICE DEPARTMENT
1300 BLANK ST
POLICE HEADQUARTERS
ANYWHERE, MI 48484

RE:    FOIA Request

Dear FOIA Coordinator:

On February X, 20XX at approximately 00:00 PM, Anywhere Police Department Officers XXXXXXXXX and XXXXXXXXXXX engaged in the detention and investigation of a man with a pistol on the sidewalk at Some Street between That St and Another St in the City of Anywhere.  As a result of Officers XXXXXX and XXXXX’s investigation, Officer XXXXXX issued citations for firearm violations to You Yourself.

Pursuant to the Michigan Freedom of Information Act, MCL §15.231, I am requesting copies of documents relating to the aforementioned incident including:

Any and all recordings of radio communications related in any way to the dispatch, response, or request for assistance by the officers involved with the incident;

Any and all video recordings of the incident, including patrol car video;

Any and all documents that identify the officers dispatched to the scene as a result of the incident, including the police report; roll call rosters; vehicle logs; and, audio recordings;

Any and all emails, memos, letters and/or other correspondence between employees of the Anywhere Police Department and any other person regarding the incident; and,

Any and all property booking notes, cards, papers recording the property seized by Officer XXXXXX and XXXXXXXXXXXX associated with the incident.

Should the cost for researching, compiling and copying the requested information exceed $30.00, please inform me of the anticipated cost, and provide me with a time and place for a physical inspection of the requested information before researching, compiling or copying the requested information.

Please respond to this request by replying to the following address:

You Yourself
123 Anystreet
Whatever City, MI  48484
313-555-5555

I appreciate your anticipated cooperation with this request.  If you have any questions, please do not hesitate to call me at the number above.

Sincerely,

venator:
Suggestions when contacted by an LEO for lawful open carry.

1.  Be polite and ask the law enforcement officer (LEO) why he is detaining you.  If the LEO response is for open carry, inform the LEO it is legal to open carry in Michigan, and ask if you are free to go.

2.  If the LEO states that you are not free to go, ask again if the only reason you are being detained is because of lawful open carry and repeat “officer am I free to go”.

3.  If the LEO continues to detain you and asks for an ID or a license to carry a concealed pistol (CPL), tell the LEO you are not required to have an ID or a CPL to open carry.  By law if the stop is only for the legal open carry of a firearm, you do not have to give your name.  It is your option to provide an ID/CPL if you desire.  Providing an ID or CPL may expedite the stop and we recommend that you do so. 

4.  If the officer wants to disarm you let him remove your firearm.  Do not place your hands anywhere near the firearm.  We recommend you cooperate with all lawful requests.  Continue to repeat that open carry is legal and ask “officer am I free to go”.

5.  Do not argue with the LEO, do not say anything that will be used against you. Do not editorialize on the law. 

6.  If the situation escalates ask for the LEO’s supervisor.  Remember the officer can arrest you for anything, don’t resist the arrest.  After an illegal arrest you may have legal options you can employ.

7.  Never consent to a search of your person or vehicle.  State “I DO NOT consent to any search.  The LEO may search you anyway don’t fight the search.  Save any arguments for a court of law.  Keep asking if you are free to go, and “Why am I being detained.” 

8.  If you are arrested, ask for an attorney and remain silent until you have counsel.

We recommend you carry a voice recorder to tape the interaction between yourself and the LEO.  Taping a public conversation is legal in Michigan. 

venator:
DEADLY FORCE IN MICHIGAN

The “CASTLE DOCTRINE” package of bills was signed into law on July 20, 2006. The law became effective on October 1, 2006.

This law removes the duty to retreat from a violent attack. Individuals in Michigan, as in most states, have always had the right to stand their ground and defend themselves with no duty to retreat when attacked inside the four walls of their home. However, if attacked outside the four walls of their home, even if on their own property (such as the backyard, detached garage, or a pole building), individuals in Michigan were required to retreat from a violent attack if able to do so safely. As of October 1, 2006, there is no longer a “duty to retreat” from a violent attack as long as the individual is in a place where they have a legal right to be and as long as they are not engaged in illegal activity.

The “Use of Deadly Force” continuum still applies. The escalating degrees of force still apply to all situations and the “Reasonable Man” standard is still used to evaluate an individual’s actions in a given circumstance. This means that the following three valid reasons to use deadly force still apply to all situations:

1) Fear of Death.

2) Fear of Serious Bodily Injury.

3) Fear of Forcible Sexual Penetration.

In addition to these three reasons for the use of deadly force, the following three conditions must exist in order for the use of deadly force to be justifiable:

1. Imminent - One of the three above listed reasons for the use of deadly force must be about to happen; it cannot be something that will happen tomorrow or in a few weeks.

2. Intent - The attacker has to have demonstrated some sort of intent. This can be verbal or non-verbal. The display of a weapon, verbal threats, or aggressive advances after being told to stay away are all indications of intent.

3. Ability – The attacker has to have the ability to carry through with their intended attack. If someone says they are going to shoot you, but have no firearm, then they do not have the ability to shoot you at that moment.

You still must act reasonably and apply the above principles of the use of deadly force.
Here is what this law does change. This law removes the duty to retreat anywhere that an individual has a legal right to be provided that they are not engaged in illegal activity. If a person acts with reasonable force, up to and including deadly force, then the prosecuting attorney must prove that the person acted unlawfully in order to take the case to trial. This is a change from current procedure where a person who acts in self-defense must prove that they acted lawfully after being charged and possibly taken to court. In addition, if a person cannot be charged and convicted criminally, the new law provides that they cannot be prosecuted civilly. If for some reason a civil case is allowed to proceed, the person who used justifiable self-defense shall be awarded court and attorney’s fees.

This all means that you must still act in a reasonable manner. Your firearm should still be your “tool of last resort” for self-defense. The emotional trauma and aftermath of shooting another human being will be absolutely devastating. It should be avoided if at all possible. This law mitigates the aftermath so that a decision made under the duress of defending oneself against a criminal does not destroy your life criminally or financially.

You are encouraged to read these laws for yourself and evaluate them. For professional legal advice, you should consult a lawyer familiar with firearms law and the use of deadly force in Michigan. The new laws are 2006 PA 309 and 2006 PA 313.
Above modified From: http://www.southsidesportsmanclub.com/stand-your-ground.html

SELF-DEFENSE ACT (EXCERPT)
Act 309 of 2006
780.972 Use of deadly force by individual not engaged in commission of crime; conditions.
Sec. 2.
(1) An individual who has not or is not engaged in the commission of a crime at the time he or she uses deadly force may use deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if either of the following applies:

(a) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent death of or imminent great bodily harm to himself or herself or to another individual.

(b) The individual honestly and reasonably believes that the use of deadly force is necessary to prevent the imminent sexual assault of himself or herself or of another individual.

(2) An individual who has not or is not engaged in the commission of a crime at the time he or she uses force other than deadly force may use force other than deadly force against another individual anywhere he or she has the legal right to be with no duty to retreat if he or she honestly and reasonably believes that the use of that force is necessary to defend himself or herself or another individual from the imminent unlawful use of force by another individual.  2006, Act 309, Eff. Oct. 1, 2006.
 

venator:
Here is a text copy of the .pdf of the Lansing PD memo on interaction with open carry.  I have deleted the last portion which is a list of places you can OC CC and or both, etc.  There were too many mistakes in it to post it here.  Also Keep in mind I disagree with some parts of this memo.  I have added the pdf of the memo as the size limit problem has been corrected.

February 1, 2010

WHAT YOU NEED TO KNOW ABOUT "OPEN CARRY" OF FIREARMS

Open Carry: Openly carrying a handgun in public in Michigan.

As a police officer you may have the following initial thoughts about “open carry”. You may think :

_ Open Carry goes against society's culture.
_ Flies in the face of all good judgment.
_ Is against every officer's instinct of survival.
_ Is contrary to every officer's safety principle that is taught when confronted with armed offenders.

You are absolutely right in your thinking. However, these thoughts aside, Michigan law allows a person to openly carry a handgun in Michigan.... as long as it is fully exposed and they comply with the law. There is no statute that specifically prohibits carrying a visible pistol or revolver. (Long guns should be treated in the same manner as handguns).

Statement of the Law

Any 18-yr. old or older, law abiding citizen of the State of Michigan who owns a legally registered handgun may openly carry a firearm in a holster in all places not explicitly exempt by law.

The Core of An Officer’s Ability to Detain A Person Who Openly Carries Mere Possession of a handgun in a non-exempted place is NOT PROBABLE CAUSE or REASONABLE SUSPICION of a crime.  Unless a person who is openly carrying a handgun is engaged in activity which gives rise to a reasonable suspicion of criminal activity or probable cause, that person may not be detained by police.
_ Do Not seize the handgun (s) for safekeeping without having a crime.

OPEN CARRY

What Open Carry Is Not

Carrying a handgun itself does not support disorderly conduct. Brandishing occurs only when the person is waving the firearm around in a threatening manner.

Another person’s fear of the mere presence of a firearm does not make an assault. Also, do not rely on the enforcement of a local ordinance to trump the Constitution. If a person who is openly carrying a handgun is committing a crime or is in a prohibited place, or if the owner/agent of the premises wants the individual to leave, then officers have a legal reason to engage a subject and enforce the law which may be in process of being violated.  Otherwise, a person carrying openly is no different from any other person in the same environment.

So how are we going to handle this type of call?

RETHINK  ‘MAN WITH A GUN’ CALL

Historically the ‘Man With a Gun Call’ may have prompted a full court press that urgent police action was required. Not necessarily so anymore.

911 Center / Dispatch Considerations

If a complaint comes through dispatch, staff needs to ask for more information than what has been asked in the past.  At one end of the spectrum is the phrase “man with a gun”.  With the prevalence of Concealed Pistol Licenses and Open Carry laws, people may be seen in public with handguns. At the other end of the spectrum might be a call that there is an active shooter. The person merely possessing an open carry gun should prompt a very different police response than the call of an active shooter,  for example.

KEY: THE FOCUS IS WHAT IS THE PERSON WITH THE GUN DOING
WITH THE GUN??

-Ask what the specific behavior the subject engaged in led to the complaint.
-Ask what the subject is specifically doing at the location.
-Ask if other people are with the subject.
-Ask if others are visibly armed.
-Ask if other people are behaving normally.
-Ask if the caller is on private property and are they the owner/agent.
-Ask the caller if the only reason for the call is that the subject is armed.
-If they are in a bank — ownership of the bank details are needed.

Officer Considerations On Scene

When dispatched to a subject with a gun type call in a public place, business, etc.:

_ If available, wait for a second or backup officer.
_ Question the complainant to see if the only reason for the call is that the subject is armed.
_ From concealment, first observe the behavior of the subject.
_ Contact the property owner/agent for their policy on firearms on the premises and their wishes regarding the open carry of firearms on their premises.
_ If nothing seems suspicious, unusual or criminal then approach the person openly carrying in a normal manner but keeping aware of cover and a tactical advantage.
_ With the aid of a second officer use Cover/Contact tactics.
_ Be aware of others in close proximity of the subject.
_ Identify yourself right away, even if in uniform, and explain why you are there.
_ Remember the subject is not obliged to be cooperative.
_ Be polite, ask questions, and make requests; do not give commands.
_ Do not make the contact a test of will.
_ Speak how you would like to be spoken to.
_ Do not voice your political opinion or your view on open carry. Do not lecture or be judgmental.
_ Remember many people openly carrying a firearm are making a political statement.
_ Do not become a victim because you allowed your ego to override your good judgment.
_ Always thank subjects for their cooperation.
_ Do not seize any firearm(s) for safekeeping without having a crime.

A Friendly Chat with the subject....

OFFICERS MAY APPROACH A SUSPECT TO ENGAGE IN A FRIENDLY CHAT.  AND THE PERSON WHO IS OPENLY CARRYING MAY CHAT WITH THE  OFFICER OR MAY SIMPLY WALK AWAY FROM THE OFFICER.

Remember the courts have found that officers do not violate the Fourth Amendment by merely approaching an individual on the street or in another public place, by asking them if they are willing to answer some questions. However, the courts have held - the person need not answer any question put to them; indeed, they may decline to listen to the questions at all and may go on their way. They may not be detained even momentarily without reasonable, objective grounds for doing so; and their refusal to listen or answer does not, without more, furnish those grounds. If there is no detention—no seizure within the meaning of the Fourth Amendment—then no constitutional rights have been infringed.  In short, a consensual encounter does not amount to a seizure, and a police officer does not need reasonable suspicion or probable cause before approaching a person to ask questions.

THE PERSON MAY NOT BE DETAINED WITHOUT SUSPICION OR
PROBABLE CAUSE.

Officers need to remember that in Michigan, the subject does not have to answer the
questions and can walk away and the officer cannot use that action as a reason to
arrest.
See, however, People v Shankle, 227 Mich App 690, 693; 577 NW2d 471 (1998)
as a Michigan case that supports the concept that a general discussion with the subject could very well lead to reasonable suspicion if the subject's behavior is off or the subject is furtive or evasive while speaking with the officer. It does not violate a person's rights to stand around and ask occasional questions while watching what that person is doing.  The key is that the officer should never give the impression that the officer intends to detain or obstruct the free will of the person to move about.

Additional Legal Considerations

_ Remember that openly carrying a firearm is not by itself threatening, nor does it cause a hazardous or physically offensive condition under the law.
_ Know the Michigan Statutes on Concealed Pistol License and what gun free or restricted areas are.
_ Have a detailed understanding of Terry v Ohio.
-Reasonable Suspicion
-Probable Cause
-Limitations of Search
-Clearly defining a subject's actions that establish reasonable suspicion.
-Report writing that requires officers to use specific and plain language when defining probable cause.

Sources: 1. Audrey Forbush of Plunkett Cooney, PC. 2. Law Enforcement Action Forum (LEAF) of the Michigan Municipal League.

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