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

[jgillmanjr]

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?

I would say you are going in the right direction.

Here's how I look at it: If we operate under the premise that an officer can stop you for carrying in a normally restricted area with the idea that you need to prove you are exempted, couldn't that exact same assertion be applied to open carry in general? After all, is open carry itself not restricted in some, way, shape, or form here in Michigan - however minimally?

Clearly, MSP Update 86 has indicated that officers can't stop people just for open carry. As such, I would say that people who carry in normally restricted (well, more restricted) areas should get the same benefit. However, I'm not an attorney. I would also be interested in seen an argument that can objectively differentiate the situations where an officer would be able to stop someone in one of these locations.

[drtodd]

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?

+1

[drtodd]

I would say you are going in the right direction.

Here's how I look at it: If we operate under the premise that an officer can stop you for carrying in a normally restricted area with the idea that you need to prove you are exempted, couldn't that exact same assertion be applied to open carry in general? After all, is open carry itself not restricted in some, way, shape, or form here in Michigan - however minimally?

Clearly, MSP Update 86 has indicated that officers can't stop people just for open carry. As such, I would say that people who carry in normally restricted (well, more restricted) areas should get the same benefit. However, I'm not an attorney. I would also be interested in seen an argument that can objectively differentiate the situations where an officer would be able to stop someone in one of these locations.

This has been debated here before. My UNPROFESSIONAL opinion is that, since possession of a firearm is forbidden by state law (MCL 750.234d), I would have to believe that an officer could state a reasonable belief that a law is being violated if the officer observes a person in possession of a firearm on the aforementioned premises. I am not an attorney however; I'm just telling you how I perceive the situation.

I also believe that if one is OCing and has been issued a cpl, it would be wise to have the license with you. I don't think it is necessarily required, though. The officer could check LEIN to ascertain that the person has in fact been issued a CPL.... if LEIN is operational at the time you are stopped. Since LEIN is down at various times, without the cpl in one's possession, the officer would probably have to take your word for it. Is that really likely?

[Raggs]

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?

I agree.

[CV67PAT]

I agree.

I would prefer that you not agree with me on anything whatsoever.

[CV67PAT]

This has been debated here before. My UNPROFESSIONAL opinion is that, since possession of a firearm is forbidden by state law (MCL 750.234d), I would have to believe that an officer could state a reasonable belief that a law is being violated if the officer observes a person in possession of a firearm on the aforementioned premises. I am not an attorney however; I'm just telling you how I perceive the situation.

I also believe that if one is OCing and has been issued a cpl, it would be wise to have the license with you. I don't think it is necessarily required, though. The officer could check LEIN to ascertain that the person has in fact been issued a CPL.... if LEIN is operational at the time you are stopped. Since LEIN is down at various times, without the cpl in one's possession, the officer would probably have to take your word for it. Is that really likely?

I am not an attorney either. Nor am I a police officer. But I have first hand knowledge that those enrolled and studying law enforcement are being taught that possession of a firearm in a restricted area is RAS of a possible crime being committed. And the court will recognize the officer's reasonable belief of that and that the subsequent detention while he investigates the RAS is not unreasonable.

And Terry v Ohio is not applicable if a person is not in possession of his identification and CPL. Any subsequent arrest, because of the inability of the officer to ascertain identification and issuance of a CPL, will not be considered unreasonable by any court.

So with this first hand knowledge of what is being taught, by very well credentialed and experienced former LEOs, I will have my CPL and identification on my person and be willing to provide both upon request during an encounter with a LEO.

[Ezerharden]

I would prefer that you not agree with me on anything whatsoever.

Aw why not? I am sure he is a fine upstanding individual

[bigt8261]

I'll start off by once again reiterating that I fully support MOC's recommendation that someone OCing in a PFZ/GFZ should, not only carry their CPL and ID with them, but also provide it when requested to do so by a LEO. My purpose is only to theoretically explore the laws behind in an attempt to better understand them.

The best point, to me, that has come across in support of OC in a GFZ(234d variety) constituting RAS (henceforth refereed to as GFZRAS), is the "restricted zone" theory. First, I'll summarize in my own words to make sure I have a proper understanding. MCL 750.234d (list of GFZs) makes the places listed therein "restricted areas". MCL 750.234d (1) stating: "(1) Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:" Subsection (2) then lists exceptions to subsection (1). We know that the sight of a firearm alone (Florida v J.L. (I think)) does not = RAS. However, when we add in a "restricted zone", the theory is that the officer would know that guns are not permitted in those areas without an exception, thus they have RAS (GFZRAS) to check for that exception.

I work in IT and as such, like to approach things in a logical manner. Even though I acknowledge the logical approach easily falls apart with a missing piece, which is common when it comes to understanding and interpreting law.

MCL 28.422 (1) says "(1) 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." My question here is, if 750.234d makes restricted zones, why doesn't 28.422? Both laws have an "except as otherwise provided" clause, yet 28.422 has a "without first" clause that 750.234d doesn't have. Is this enough of a difference? If so, how does that work? To me, it's different wording for the same thing. Kinda like 1+4 = 5 and 2+ 3 = 5.

If GFZs (234d) are "restricted" because they require a license to posses a firearm, then why doesn't 28.422 equally make the entire state a "restricted" area for pistols due to a license being required to posses one? And if it does, why wouldn't this meet the same standard for RAS?

It seems like I'm either missing something, or I'm naively attempting to apply logic to law.

[jgillmanjr]

I'll start off by once again reiterating that I fully support MOC's recommendation that someone OCing in a PFZ/GFZ should, not only carry their CPL and ID with them, but also provide it when requested to do so by a LEO. My purpose is only to theoretically explore the laws behind in an attempt to better understand them.

The best point, to me, that has come across in support of OC in a GFZ(234d variety) constituting RAS (henceforth refereed to as GFZRAS), is the "restricted zone" theory. First, I'll summarize in my own words to make sure I have a proper understanding. MCL 750.234d (list of GFZs) makes the places listed therein "restricted areas". MCL 750.234d (1) stating: "(1) Except as provided in subsection (2), a person shall not possess a firearm on the premises of any of the following:" Subsection (2) then lists exceptions to subsection (1). We know that the sight of a firearm alone (Florida v J.L. (I think)) does not = RAS. However, when we add in a "restricted zone", the theory is that the officer would know that guns are not permitted in those areas without an exception, thus they have RAS (GFZRAS) to check for that exception.

I work in IT and as such, like to approach things in a logical manner. Even though I acknowledge the logical approach easily falls apart with a missing piece, which is common when it comes to understanding and interpreting law.

MCL 28.422 (1) says "(1) 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." My question here is, if 750.234d makes restricted zones, why doesn't 28.422? Both laws have an "except as otherwise provided" clause, yet 28.422 has a "without first" clause that 750.234d doesn't have. Is this enough of a difference? If so, how does that work? To me, it's different wording for the same thing. Kinda like 1+4 = 5 and 2+ 3 = 5.

If GFZs (234d) are "restricted" because they require a license to posses a firearm, then why doesn't 28.422 equally make the entire state a "restricted" area for pistols due to a license being required to posses one? And if it does, why wouldn't this meet the same standard for RAS?

It seems like I'm either missing something, or I'm naively attempting to apply logic to law.

Tom,

Dammit, did our analytic thought processes somehow get cloned?

I to work in IT...

Coincidence?

[bigt8261]

I've been doing some more reading and I would like to pick this discussion back up. Again, please note that anything discussed here is theoretical and does not constitute a suggested action.

This morning I was re-reading US. v. Deberry. The case is about a man that was arrested for carrying a concealed weapon (illegally). As I understand it, there was an anonymous tip, as well as Deberry made some sort of gesture that the police witnessed. They stopped him, searched him, and upon finding the concealed weapon, which was illegal in Illinois, the police arrested Deberry.

The SCOTUS affirmed the conviction, but applied limits that I believe apply to our situation.

The only fact that saves the officer's stop of DeBerry, in my opinion, is the fact that it is unlawful in Illinois to carry a concealed weapon.   The tipster informed the police that DeBerry was armed, and it appears from the facts before us that the weapon was not in plain view.   I do not agree that this case would necessarily come out the same way if Illinois law, like the law of many states, authorized the carrying of concealed weapons.   At that point, the entire content of the anonymous tip would be a physical description of the individual, his location, and an allegation that he was carrying something lawful (a cellular telephone? a beeper? a firearm?).   This kind of nonincriminatory allegation, in my view, would not be enough to justify the kind of investigatory stop that took place here.   It would mean, in states that permit carrying concealed weapons, that the police no longer need any reason to stop citizens on the street to search them.   However, we do not have that situation.   Because I therefore consider the Court's comments on lawful concealed weapons to be dicta, I concur in the result reached today.

In US v. Debarry, Chief Judge Posner stated that the allegation of doing something that is legal is not enough to justify an investigatory stop. Carrying a concealed weapon requires a license, as does openly carrying a weapon into a "CPFZ". Both are legal when done so with said license. I can only assume that carrying a concealed weapon defaults to legal because the officer would not have a reasonable suspicion otherwise. I believe this same standard can be equally applied to OCing in a "CPFZ".

Therefor, I believe this supports the notion OCing in a "CPFZ" does NOT constitute RAS.

Again, theoretical discussion, not suggested action.