Stop and ID an Open Carry CPL Holder in Concealed Pistol Free Zone?

[nichtta]

Hi everyone,

This is my first post, but I'm not new to the forum. I've been reading posts for some time now and have really benefited from what you all have written. Thanks for that!

I'm a fairly new MOC member, but I recently made this alternate account to remain anonymous while asking a few questions (and hopefully answering others' questions in the near future as I learn more myself) because of my employment.

I've become convinced by the three resources cited on this website of the legality of open carrying in a PFZ (see: MCL 28.425o) by a CPL holder. However, I had a couple questions about potential scenarios occurring while doing so:

1) If Person A were open carrying in a PFZ, must they keep their CPL with them? It does not seem to be necessary with what little I know about the law because Person A isn't carrying their pistol concealed (see: MCL 28.425f). At the same time, it also seems to me that they would need to have it on them in order to show the LEO stopping them that they are an exception to the prohibition (see: MCL 750.234d), but I wanted to see if any of you can provide more insight on this issue. Could this be argued as RAS (Reasonable Articulable Suspicion) or PC (Probable Cause) for a search and seizure? It seems like it to me, but, quite honestly, I still haven't been able to fully understand the difference between RAS and PC.

2) If a LEO were to stop Person B, a CPL holder who is open carrying in a PFZ, must Person B identify themselves to the LEO by showing their CPL and/or driver license? I know that MI is not a "Stop and ID State." I also know that while conceal carrying, a CPL holder must show a LEO their CPL and their driver license or Michigan personal identification card upon request (see: MCL 28.425f). However, this is surely not the case where a CPL holder is open carrying. Would open carrying in a PFZ be an exception to this?

Perhaps if one of you were open carrying in a place where the possession of firearms is normally prohibited (see: MCL 750.234d) but is not a PFZ (see: MCL 28.425o), such as a bank or an establishment licensed under the Michigan liquor control act where the primary source of income of the business is not the sale of alcoholic liquor by the glass and consumed on the premises, and were stopped by an LEO you could share your experience. Would you have to prove that you're a CPL holder and are exempt from MCL 750.234d?

What do you all think? Your insight would be greatly appreciated, as I frequent more than one type of PFZ on a, pretty much, daily basis. Although I haven't yet open carried at any of these locations, I do intend on doing so soon. You should know that if approached by a LEO while open carrying in a PFZ I think I would most likely identify myself and offer to show both my CPL as well as my driver license. However, I want to know the full extent of my rights.

P.S. Shouldn't "Pistol Free Zones" should be called "Concealed Pistol Free Zones" to help the general public be more aware of its legality? Or is it still too contentious of an issue? Just a thought...

[CV67PAT]

I agree that "Concealed Pistol Free Zone" is the proper nomenclature.

Based upon my absolute lay opinion, I also would identify myself as a CPL holder during an "encounter" with a LEO while OCing in a regulated location.

Many say that we only have to ID ourselves if engaged in a licensed activity (driving, fishing). However, I think that OCing in a CPFZ is a licensed activity.

So who is that behind the curtain?

[bigt8261]

Great questions. IMO they show you have been paying attention. I'm going to give you my best interpretation. It is my opinion and not MOC's. I am not a lawyer so treat my response like Wikipedia. You never cite it, but it's a great place to start your own research.

1. It is my opinion that you do NOT need to have your CPL on you when OCing in a PFZ. It says you must be licensed, it does not say that you have to have it on you (when OCing). You must also have a license to OC a pistol without a CPL in Michigan. What is known as a "Purchase Permit" not only allows you to purchase a pistol, it also allows you to carry it. However, you don't need to have that license on you when you are carrying.  Would it help clear up a situation where you have been detained a lot faster? Probably. You will have to make the choice of what is best for you.

There is a paragraph in this link that explains the difference between RAS and PC. RAS is a lesser standard than PC, but PC is needed for more severe actions. Think of it like this, you use RAS to get PC. http://legal-dictionary.thefreedictionary.com/Probable+Cause+and+Reasonable+Suspicion

Could it be argued that not having it is RAS? Yes absolutely, anything can be argued. Will it stick? That depends on the judge. Keep in mind that there is a judge in Michigan that believes OC in a PFZ with a CPL is an absurd interpretation. In my opinion no it is not RAS, but my opinion is not going to get you very far in court. Again, as far as I know, there is nothing saying that you have to have it on you if you are not CCing. (someone correct if wrong)

2. This is a debated point amongst MOC members. I believe it is the opinion of the MOC leadership that you *should*. I do not believe there is any precedent set here so if you would like to be a test case you are more than welcome to.

Personally, I do NOT believe you *must*. As there is no precedent, I have nothing solid to point to, but that is my feeling on how it would be ruled. Basically it comes down to does a firearm in a PFZ constitute RAS? We know through multiple decisions that a firearm alone does not. However, when you add a PFZ to the equation, that may or may not be enough to change things. I'm willing to bet that it's not enough for RAS. Am I willing to bet my time, money, and freedom? Probably not.

Keep in mind, someone CCing only needs to disclose during official contact. There is no duty to disclose for casual contact. (again, someone correct where wrong)

I have open carried into many PFZs (Banks, Bars, School, Theaters) and have yet to have a problem. Keep in mind, having a problem or not does not mean the correct thing happened.

[CV67PAT]

Tom articulates his opinion very well. And he supports it quite logically. I wouldn't necessarily disagree with him.

And like him, I have OCed in CPFZs frequently without incident.

[Zeteo]

I have open carried into many PFZs (Banks, Bars, School, Theaters) and have yet to have a problem. Keep in mind, having a problem or not does not mean the correct thing happened.

I don't see banks listed as a PFZ under the MCL 28.425o. The PFZ's are listed below:

"Pistol Free Areas

Individuals licensed to carry a concealed pistol by Michigan or another state are prohibited from carrying a concealed pistol or a portable device that uses electo-muscular disruption technology on the following premises:
Please refer to MCL 28.425o for the complete statutory text

Schools or school property but may carry while in a vehicle on school property while dropping off or picking up if a parent or legal guardian
 
Public or private day care center, public or private child caring agency, or public or private child placing agency.
 
Sports arena or stadium
 
A tavern where the primary source of income is the sale of alcoholic liquor by the glass consumed on the premises
 
Any property or facility owned or operated by a church, synagogue, mosque, temple, or other place of worship, unless the presiding official or officials allow concealed weapons
 
An entertainment facility that the individual knows or should know has a seating capacity of 2,500 or more
 
A hospital
 
A dormitory or classroom of a community college, college, or university
 
A Casino

"Premises" does not include the parking areas of the places listed above.

A pistol is subject to immediate seizure if the CPL holder is carrying a pistol in a "pistol free" area. The pistol is only subject to seizure if the holder is carrying it concealed. The following penalties may also be imposed:
First offense:  State Civil Infraction, $500 fine, CPL permit suspended 6 months
Second offense:  90-day misdemeanor, $1000 fine, CPL permit revoked
Third and subsequent offenses:  4-year felony, $5000 fine, CPL permit revoked
Furthermore, effective March 29, 2001, per Administrative Order 2001-1 of the Michigan Supreme Court:
"Weapons are not permitted in any courtroom, office, or other space used for official court business or by judicial employees unless the chief judge or other person designated by the chief judge has given prior approval consistent with the court's written policy."

[bigt8261]

I don't see banks listed as a PFZ under the MCL 28.425o. The PFZ's are listed below:

Forgive me. When I said PFZ's I meant GFZ's under 750.234d, "C"PFZ's under 28.450o, and WFSZ's under 750.237a.

[Zeteo]

Forgive me. When I said PFZ's I meant GFZ's under 750.234d, "C"PFZ's under 28.450o, and WFSZ's under 750.237a.

I'm just trying to be sure. As far as I understand it, banks are NOT PFZ's (unless we are talking federal banks) under Michigan law, correct? With a CPL we are able to carry concealed into our local 5/3, PNC, etc. as best I can tell. Am I wrong?

[TheQ]

I'm just trying to be sure. As far as I understand it, banks are NOT PFZ's (unless we are talking federal banks) under Michigan law, correct? With a CPL we are able to carry concealed into our local 5/3, PNC, etc. as best I can tell. Am I wrong?

With a CPL, yes. Without, no.

[TucTom]

I'm just trying to be sure. As far as I understand it, banks are NOT PFZ's (unless we are talking federal banks) under Michigan law, correct? With a CPL we are able to carry concealed into our local 5/3, PNC, etc. as best I can tell. Am I wrong?

We can carry open or concealed with a CPL in to a financial institution if I am not mistaken. As long as they do not have a "No Guns" sign posted.

[nichtta]

I appreciate the replies, especially Pat's and Tom's!

Tom, thanks for the link. The following paragraph clearly showed me the difference between PC and RAS and also helped me in better understanding the scenario about which I wrote above:

"Probable cause" means that the officer must possess sufficiently trustworthy facts to believe that a crime has been committed. In some cases, an officer may need only a reasonable suspicion of criminal activity to conduct a limited search. Reasonable suspicion means that the officer has sufficient knowledge to believe that criminal activity is at hand. This level of knowledge is less than that of probable cause, so reasonable suspicion is usually used to justify a brief frisk in a public area or a traffic stop at roadside. To possess either probable cause or reasonable suspicion, an officer must be able to cite specific articulable facts to warrant the intrusion. Items related to suspected criminal activity found in a search may be taken, or seized, by the officer.

Pat, what you wrote about fishing and hunting got me thinking about other licensed activities such as driving, for example. This is normally an illegal activity in MI unless one has obtained a driver license. However, a LEO cannot just stop someone while driving to make sure that it's specifically legal for them to be driving, checking that they have a drive license and aren't driving without being licensed to do so, unless, of course, there is "sufficient knowledge to believe that criminal activity is at hand." Isn't this correct? The same applies to open carrying a gun here in MI, right? Look at this short, ~six-minute video from an open carrier in Ohio, who gets stopped at the mall by four officers, while please ignoring the trespassing aspect and the mall (private property) policy because it's not relevant to the thread. I'm posting this to demonstrate an example of the point I'm trying to make:



Note that when the police initially stop him they request that he 1) identify himself and 2) surrender his firearm. It doesn't appear that they have "sufficient knowledge to believe that criminal activity is at hand," but what they argue is that 1) he may be a convicted felon, who cannot legally possess a firearm and/or 2) the firearm he is open carrying may be stolen and/or he may have illegally altered it. None of the officers is "able to cite specific articulable facts to warrant the intrusion." That is, they have stopped him out of the mere possibility that he may be committing a crime, which does not seem to qualify as PC nor RAS. Please do correct me if I'm wrong. Again, let's ignore the trespassing aspect in the video they bring in later and how the open carrier reacted because that is irrelevant to this thread.

I agree with what you both posted about open carrying in a CPFZ and that it constitutes a similar situation. Your replies got me thinking about it in a different way, and I wanted to share my thoughts on this thread. I don't think the very fact that someone is open carrying in a CPFZ constitutes "sufficient knowledge to believe that criminal activity is at hand," despite what the judge Tom mentioned has said.

I know we're talking about theory here, and the matter, ultimately, returns to what a court rules in such a case if someone were willing to be a test case, knowingly or unknowingly. However, I think that this is a beneficial discussion to get us thinking and researching more about the law as are so many other discussions I've read on this forum. I know that since getting my CPL and buying my first handgun I have become more aware of firearm laws, which has resulted in a raised awareness of laws in general. I think every citizen should research, learn, and discuss these matters because we have a role to know what's in the books, to have rich dialogue regarding these laws, as well as to find ways to legally change what's there if we view it as unconstitutional through, for example, the political activism we see from MOC. I appreciate the work the leadership has been doing to protect our 2A rights.

[bigt8261]

Another member and I had a great discussion on this at one point. I was hoping to see him again in a few days and then start a thread about it afterwards.

THEORETICALLY speaking, *must* you produce ID when OCing in a PFZ?

While the driving comparison is an ok comparison, I don't think it's good enough. It works in my mind, but that's not good enough. The judge that I mentioned (see People v Watkins) is wrong and I believe was proven so, but that doesn't mean it won't cost you or I more time and money to prove it.

Earlier I've approached this question from the angle of how CAN OCing in a PFZ constitute RAS. Again we know through multiple SCOTUS decisions that simple OC does not constitute RAS. However, we are not able to go further than that because the question of OCing in a PFZ has not been specially answered YET.

So instead, let's approach it from a different direction and here is what does the trick in my mind. How CAN'T OCing in a PFZ constitute RAS? If indeed you are not required to carry your CPL or ID on you while you are OCing in a PFZ, then how can you be compelled to provide something that you are not required to have on you? Again, I have yet to find something that says you must have it on you, but that doesn't mean there isn't something out there.

Think of a pedestrian walking down the sidewalk without a gun. That pedestrian is not only not required to provide ID, that pedestrian is also not required to have ID on their person. Michigan is not a stop and ID State, and this analogy convinces me more than anything else.

(CYA) Again, everyone must chose what's best for them in their particular situation.

Read up on this case http://www.ca4.uscourts.gov/opinions/Published/115084.p.pdf. Keep in mind it's from the 4th Circuit so it does not set precedent for Michigan, but the stuff it contains is pretty powerful. 

[FASBOLD]

@ nichtta

other licensed activities such as driving, for example. This is normally an illegal activity in MI unless one has obtained a driver license. However, a LEO cannot just stop someone while driving to make sure that it's specifically legal for them to be driving, checking that they have a drive license and aren't driving without being licensed to do so, unless, of course, there is "sufficient knowledge to believe that criminal activity is at hand."

I have a co-worker who was once a motorcycle cop. He said that he never pulled anyone over for a suspended license. It was always for some other infraction and THEN he got them for the suspended license.

[nichtta]

Those are some really good points, Tom. I don't really have much to say in response because you, pretty much, covered the issue in a thorough, comprehensive way from different angles. I also just read the whole case you posted, and it, as you said, contained some pretty powerful stuff. It was very insightful and educational for me. Your posts have not only been informative but also intellectually stimulating. Thanks for taking the time to reply.

FASBOLD, thanks for sharing that. It makes me wonder if your co-worker was only doing that in order to get two citations in one stop, which would make it a more worthwhile stop. I think a suspended license provides enough RS. See U.S. v. Ellison, 462 F.3d 557 (6th Cir. 2006). If I'm not mistaken, this sets precedent for the state of MI. Here's an excerpt:

“Thus, so long as the officer had a right to be in a position to observe the defendant’s license plate, any such observation and corresponding use of the information on the plate does not violate the Fourth Amendment. In this case, Officer Keeley had a right to be in the parking lot observing the van – he was in a public place conducting a routine patrol. The district court’s finding that the van was not parked illegally is thus irrelevant – such a finding goes only to probable cause, which is not necessary absent a Fourth Amendment privacy interest. Once Officer Keeley conducted the check and discovered the outstanding warrant, he then had probable cause to pull over the vehicle and arrest the man identified as Ellison. The arrest and resulting search during which the handguns were found in no way violated the Fourth Amendment, and the district court’s order granting the motion to suppress was in error.”

[FASBOLD]

Um, he did not know they had a suspended license until he pulled them over for speeding, or some other traffic infraction.

The point is, if you are driving with a suspended license, police have no way of knowing that is the case if you obey all the traffic laws and never get pulled over. But once you are pulled over, they soon find out that you have a suspended license.

[Bronson]

LEO cannot just stop someone while driving to make sure that it's specifically legal for them to be driving

That's because the SCOTUS has specifically ruled that LEO may not pull over a driver just to check them, Delaware vs. Prouse.  The problem arises when we assume that ruling applies to all licensed activity.  It doesn't.  It only applies to the very narrow, specific activity relevant to the ruling, i.e., driving.

It's a good argument, a damn good argument, but until a high court rules the same thing applies to the carrying of a firearm that's all it is...a really good argument.

Here's my take...I really need to save this because I keep having to write it out every few weeks when this question comes up 

There is nothing in MI law that I can find that requires you to show an exemption on the scene for open carrying a pistol in the Firearm Free Zones (FFZ) listed in 750.234d.

However if you do not or will not show an exemption then the officer will continue with the evidence he has available to him.

Officer: Sir, I notice you are carrying a firearm.  I'm sure you know that since Meijer's sells alcohol you either need a CPL or must meet the requirements for one of the other exemptions in the law in order to legally possess a firearm here.

You: Yes, officer I am aware of that.

O: Do you have a CPL or do you meet the requirements for another exemption?

Y: Yes.

O: Will you show it to me?

Y: No.

O: Sir, if you can't show me a CPL or proof that you meet the requirements for one of the other exemptions in the law then I'm going to have to carry forward with the evidence that I have available to me which is: 1) it is illegal to possess a firearm on these premises unless you meet the requirements for exemption 2) You are in possession of a firearm, which is an illegal act without an exemption.  3) I have seen no evidence that you meet the requirements for an exemption.

O: Are you sure you don't want to show me your CPL?

Y: I am not required by law to show you my CPL.

O: Sir, if you can't show me proof that you are exempt I am going to have to arrest you for violation of MCL 750.234d.

Y: Do what you gotta do.

O: Sir, please place your hands behind your back.....


Still, the law does not REQUIRE we disclose our CPL or proof of other exemption ON SCENE in these situations.  However, the law does require us to show it during the PROSECUTION of a case against us.

MCL 776.20

776.20 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.

Once you are arrested and go to court you must provide proof that you were exempt at the time of the arrest. 

So while we are not required by law to show proof of exemption on scene, we ARE required by law to show proof of exemption during prosecution.

Either way you are going to have to show proof that you are exempt from the FFZ.  If you show it on scene, you walk away and sleep in your own bed.  If you choose to not show it you are going for a ride in the back of a police car to sleep in a cell, spend a lot of $$$ on legal fees, cause a lot of hassle, and waste everybody's time....all to ultimately show your proof of exemption to the judge anyway.

I'm not a lawyer, that's just my take.

Bronson

[CV67PAT]

Let's take Bronson's example to another licensed activity.

DNR: "Sir I see you have a fishing pole in the water. And since you are required to have a fishing license, may I see it and your identification please?"

John Doe: "No."

Without typing everything, because I am lazy, you can see what I meant about engaging in a licensed activity and the need to provide the license and identification.

In Bronson's example, RAS on the officer's part is present. He only has to show the reasonable preponderance of suspicion. I doubt that any court would go against him in this circumstance.

[TheQ]

That's because the SCOTUS has specifically ruled that LEO may not pull over a driver just to check them, Delaware vs. Prouse.  The problem arises when we assume that ruling applies to all licensed activity.  It doesn't.  It only applies to the very narrow, specific activity relevant to the ruling, i.e., driving.

It's a good argument, a damn good argument, but until a high court rules the same thing applies to the carrying of a firearm that's all it is...a really good argument.

Here's my take...I really need to save this because I keep having to write it out every few weeks when this question comes up 

There is nothing in MI law that I can find that requires you to show an exemption on the scene for open carrying a pistol in the Firearm Free Zones (FFZ) listed in 750.234d.

However if you do not or will not show an exemption then the officer will continue with the evidence he has available to him.

Officer: Sir, I notice you are carrying a firearm.  I'm sure you know that since Meijer's sells alcohol you either need a CPL or must meet the requirements for one of the other exemptions in the law in order to legally possess a firearm here.

You: Yes, officer I am aware of that.

O: Do you have a CPL or do you meet the requirements for another exemption?

Y: Yes.

O: Will you show it to me?

Y: No.

O: Sir, if you can't show me a CPL or proof that you meet the requirements for one of the other exemptions in the law then I'm going to have to carry forward with the evidence that I have available to me which is: 1) it is illegal to possess a firearm on these premises unless you meet the requirements for exemption 2) You are in possession of a firearm, which is an illegal act without an exemption.  3) I have seen no evidence that you meet the requirements for an exemption.

O: Are you sure you don't want to show me your CPL?

Y: I am not required by law to show you my CPL.

O: Sir, if you can't show me proof that you are exempt I am going to have to arrest you for violation of MCL 750.234d.

Y: Do what you gotta do.

O: Sir, please place your hands behind your back.....


Still, the law does not REQUIRE we disclose our CPL or proof of other exemption ON SCENE in these situations.  However, the law does require us to show it during the PROSECUTION of a case against us.

MCL 776.20

Once you are arrested and go to court you must provide proof that you were exempt at the time of the arrest. 

So while we are not required by law to show proof of exemption on scene, we ARE required by law to show proof of exemption during prosecution.

Either way you are going to have to show proof that you are exempt from the FFZ.  If you show it on scene, you walk away and sleep in your own bed.  If you choose to not show it you are going for a ride in the back of a police car to sleep in a cell, spend a lot of $$$ on legal fees, cause a lot of hassle, and waste everybody's time....all to ultimately show your proof of exemption to the judge anyway.

I'm not a lawyer, that's just my take.

Bronson

Never seen that MCL -- thanks!

[bigt8261]

Good read Bronson and great cites.

I'm still convinced that an OCer in a PFZ would ultimately prevail, but I agree it may take a good amount of time and money to do so.

General OCing is also a licensed activity via "purchase permits" yet refusal to show ID and said license does not constitute RAS there.

"I'm going to have to carry forward with the evidence that I have available to me which is:" absolutely nothing.
"Sir, if you can't show me proof that you are exempt I am going to have to arrest you for violation of MCL 750.234d." What RAS do you have to believe that I am in violation of MCL 750.234d?

Again, failure to convince the officer of that will likely equate to lost time, money and freedom. Everyone has to choose what's the best way for them to proceed and I fully admit that I am not likely to gamble here.

[Bronson]

What RAS do you have to believe that I am in violation of MCL 750.234d?

750.234d Possession of firearm on certain premises prohibited; applicability; violation as misdemeanor; penalty.

Sec. 234d.

(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.

(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.

(3) A person who violates this section is guilty of a misdemeanor punishable by imprisonment for not more than 90 days or a fine of not more than $100.00, or both.

The mere possession of a firearm in a restricted area is all the RAS the officer needs.  It's up to you to show your are exempt.  You may choose to do it on scene, or be arrested and be required to show it in court.

Officers tend to work from a variation of the idea that "anything not specifically illegal is legal."  In Delaware vs. Prouse the officer stopped someone just to see if they were licensed....and this was likely dept. policy and had been going on for a long time.  Until they were told by someone higher up that they couldn't do that anymore.  The same applies for checking out an OCer in a NON RESTRICTED area.  I don't have time to find it right now but I've read something, it was either the courts or an A.G.O. or something carrying some authority, that says in general OC, IN AND OF ITSELF, is not a crime and the OCer cannot be stopped.  Once you OC in a restricted area it is no longer IN AND OF ITSELF, it becomes possession of a firearm in an area in which it is NORMALLY illegal to possess a firearm.

Bronson

[bigt8261]

I took some time to think about the last comment as I think Bronson makes a very compelling argument. I have a few questions that may or may not lead us in the right direction. If anyone has any of the answers, please chime in.

- "The mere possession of a firearm in a restricted area is all the RAS the officer needs.  It's up to you to show your are exempt." How does this comply with innocent until proven guilty? Does this methodology not apply outside of a court when only going for a standard of RAS?

- 750.234d (1) says "Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:", while 28.422 (1) says "Except as otherwise provided in this act, a person shall not purchase, carry, possess, or transport a pistol in this state without first having obtained a license for the pistol as prescribed in this section.". Now, we know that 28.422 does not give the officer RAS. Is the slight difference between the two enough, or is there something else that would give the officer RAS?

- Does 28.422 (1) make every place a "restricted area" for pistols? IF it does, is/how/why are the standards different?

What do you think? Am I going in the right direction, or am I missing something?