Author Topic: OC Codify HB 5091 & HB 5092  (Read 18118 times)

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Offline bigt8261

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OC Codify HB 5091 & HB 5092
« on: October 17, 2013, 10:42:57 PM »
The Legislative Team of Michigan Open Carry Inc would like to introduce HB 5091 & HB 5092

This is the first bill our organization has taken the grass roots lead on.

Together these bills will effectively codify open carry for the first time in Michigan.  Open Carry is generally accepted as lawful in Michigan, however some law enforcement officers (LEOs) don't like the practice and charge or threaten to charge an individual open carrying with brandishing or disturbing the peace.  These two bills would provide some statutory clarification on the matter.

HB 5091 updates the exceptions to the brandishing prohibition to better fit with the definition.

HB 5092 defines "brandishing" as : TO POINT, WAVE ABOUT, OR DISPLAY IN A THREATENING MANNER WITH THE INTENT TO INDUCE FEAR IN ANOTHER PERSON.

Phil (TheQ) and I look forward to working with legislatures on both sides of the aisle to bring the clarification these bills represent into law.  Please stay tuned for more!

http://us4.campaign-archive2.com/?u=710075bba75b914b805e1861a&id=3aa7ed2ec8
« Last Edit: May 20, 2014, 01:59:06 PM by bigt8261 »

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #1 on: October 23, 2013, 10:33:58 AM »
Ok,

Now that I've had a chance to read the text of the bills, here is my take.

5092 is good. It specifically defines brandishing. It could use *one* improvement, but I'll get to that in a minute.

5091 on the other hand is, at a minimum, not required, and possibly detrimental.

Why do I say this?

MCL 750.234e(1) states:
Quote
Except as provided in subsection (2), a person
 
shall not knowingly brandish a firearm in public.

Subsection (2), with the amendments as made by HB 5091, states:
Quote
Subsection (1) does not apply to any of the following:
 
     (a) A peace officer lawfully performing his or her duties as a
 
peace officer.
 
     (b) A person lawfully engaged in hunting.
 
     (c) A person lawfully engaged in target practice.
 
     (d) A person lawfully engaged in the sale, purchase, repair,
 
or transfer of that firearm.
 
     (E) A PERSON WHO IS NOT PROHIBITED FROM OWNING OR POSSESSING A
 
FIREARM AND IS IN LAWFUL POSSESSION OF AN OPENLY CARRIED FIREARM
 
THAT IS HOLSTERED OR CARRIED ON A SLING.

"So, what's the rub here?" you might ask.

To start, the definition of brandishing, as would be added by HB 5092, specifically defines what constitutes brandishing, and would then provide a logically implied exclusion of openly carrying a holstered or slung firearm from the definition. This should be sufficient on it's own.

However, if you actually analyze what HB 5091 is saying, you'll see that you could still brandish as long as:
  • You are not prohibited from owning or possessing a firearm, and
  • You are possessing an openly carried firearm that is holstered or carried on a sling

Now I can hear the cries: "Jason, you dumbass, how can you brandish a firearm that is holstered? It's not possible!". Indeed, it is impossible to wave around a holstered firearm. However, this exclusion relates to the activities of a person who is in possession of an openly carried firearm that is holstered or carried on a sling.

The proposed exemption is actually saying that you can, in fact, brandish a firearm as long as you are open carrying (basically, two firearms in play here). The exemption doesn't apply to just a firearm that is holstered.

And that is why I think 5092 is the way to go, and 5091 should be dumped.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #2 on: October 23, 2013, 10:55:54 AM »
Keep in mind that we are essentially cementing what we already have. While it seems your argument is logically correct, this isn't the way things currently work, and I believe it is reasonable to expect things to continue to work in much the same way. Perhaps a true legal beagle may be able to better explain why this is.

Also, dropping HB 5091 would effectively kill HB 5092. The current sentiment in Lansing seems to be that Democrat sponsored bills don't move. These two bills are "tie bared", with the Republican sponsored bill as the "parent" bill.

Lastly, it is possible to brandish a holstered firearm.

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #3 on: October 23, 2013, 11:01:04 AM »
Lastly, it is possible to brandish a holstered firearm.

Yeah, I guess you could do it with some gymnastics, or actually waving the holster, with the firearm inside, around.

I figured trying to address that would have cluttered up my response more than it already was heh.

You are correct though - the two bills are tie bared.

As for the way things currently work, if I was a defense attorney representing someone who was brandishing a firearm, who was also openly carrying another holstered firearm, you bet your sweet ass I'd be pointing out that exemption.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #4 on: October 23, 2013, 11:12:10 AM »
Person A to person B - "You owe me $5 for mowing your lawn"
Person B (with gun) to person A - "Oh yeah?" (specifically drawing attention to holstered pistol)
Brandishing

If you're a defense attorney, you can try that, but do not think it would work. Again, a true legal beagle would need to explain this. Keep in mind that there is a judge in Lansing that said the plain language of the law (in regards to OC in a PFZ with a CPL) was absurd.

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #5 on: October 23, 2013, 11:42:20 AM »
Person A to person B - "You owe me $5 for mowing your lawn"
Person B (with gun) to person A - "Oh yeah?" (specifically drawing attention to holstered pistol)
Brandishing

Well played, Sir, well played.

If you're a defense attorney, you can try that, but do not think it would work. Again, a true legal beagle would need to explain this. Keep in mind that there is a judge in Lansing that said the plain language of the law (in regards to OC in a PFZ with a CPL) was absurd.
Well, at this point, you bring up a broader problem with the legal system (judges disregarding what the plain language states). After all, if statutory language is clear, yet gets ignored, we might as well have no law at all, as the judge essentially is making up the law at that point.

But I digress.

I think see what was being attempted with 5091 - it was just executed horribly.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #6 on: October 23, 2013, 11:50:37 AM »
The puzzle pieces are being placed where they fit. It's not our fault the puzzle itself is junk.

Offline Scott Leyder

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Re: OC Codify HB 5091 & HB 5092
« Reply #7 on: October 23, 2013, 12:10:57 PM »
Well, I have read through the discussion and I think I see the concern about it.  I would say that one could still point to the fact that Jennifer Granholm has maintained that having a holstered weapon in public is not brandishing.  I mean, this still works off of what has been understood as the norm.

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #8 on: October 23, 2013, 12:18:16 PM »
Well, if we define brandishing in the statute, we may lose her exemption for a holstered pistol as the entire AG opinion may become irrelevant. HB 5091 helps protect our exemption while hopefully strengthening it.

Offline sircapsalot

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Re: OC Codify HB 5091 & HB 5092
« Reply #9 on: October 23, 2013, 01:37:22 PM »
Curious - taking a look at the wording here
Quote
A PERSON WHO IS NOT PROHIBITED FROM OWNING OR POSSESSING A
 
FIREARM AND IS IN LAWFUL POSSESSION

I sense that LEO's will try to use this as an excuse to look up your ID to make SURE that it *IS* in lawful possession.

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #10 on: October 23, 2013, 01:44:08 PM »
They can try, but that wording will make it no easier for them to do so. Bottom line, what reasonable articulable suspicion do they have to believe you are not lawfully in possession? A hunch? Sorry, doesn't cut it.

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #11 on: October 23, 2013, 03:34:53 PM »
They can try, but that wording will make it no easier for them to do so. Bottom line, what reasonable articulable suspicion do they have to believe you are not lawfully in possession? A hunch? Sorry, doesn't cut it.

So, instead of being a dick and complaining about the wording of 5091, I've done some work on it.

Running it by certain individuals privately at first and will let them decide if it should go public, or be kept close to the chest for the time being..
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Offline gryphon

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Re: OC Codify HB 5091 & HB 5092
« Reply #12 on: October 23, 2013, 05:09:27 PM »
Perhaps a true legal beagle may be able to better explain why this is.

I wish Shyster or esq_stu or Steve Dulan posted here.  SteveS used to, but I haven't seen him post here in a long time.   Melissa Pearce, either.  :(

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #13 on: October 23, 2013, 05:54:58 PM »
So, instead of being a dick and complaining about the wording of 5091, I've done some work on it.

Running it by certain individuals privately at first and will let them decide if it should go public, or be kept close to the chest for the time being..
So those that complain about the wording of 5091 are dicks??? I am sure glad I kept my mouth shut.
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Offline fozzy71

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Re: OC Codify HB 5091 & HB 5092
« Reply #14 on: October 23, 2013, 09:45:15 PM »
I wish Shyster or esq_stu or Steve Dulan posted here.  SteveS used to, but I haven't seen him post here in a long time.   Melissa Pearce, either.  :(

He has been posting about it in the thread on MGO about these bills - http://www.migunowners.org/forum/showthread.php?t=267827

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #15 on: October 24, 2013, 05:30:50 AM »
So those that complain about the wording of 5091 are dicks??? I am sure glad I kept my mouth shut.

Er, I should have qualified my statement.

I would have been a dick if I just griped about the bill and not offered any potential improvements.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #16 on: October 24, 2013, 07:31:31 AM »
Jason (jgillmanjr) has been helpful and his intentions are good. At least, they seem to be. :)

Offline Jeff

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Re: OC Codify HB 5091 & HB 5092
« Reply #17 on: October 24, 2013, 11:53:50 AM »
Jason (Jgillmanjr) constantly steals my trash can lids and tricks orphans into buying them as over sized frisbees.  ;D

Offline TheQ

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OC Codify HB 5091 & HB 5092
« Reply #18 on: October 24, 2013, 02:07:39 PM »
Jason works 2 miles from where I work (true story). He MUST be a good fellow.
I Am Not A Lawyer (nor a gunsmith).

Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #19 on: October 25, 2013, 07:45:20 AM »
Jason (Jgillmanjr) constantly steals my trash can lids and tricks orphans into buying them as over sized frisbees.  ;D

I also sell ice to eskimos on the side, too!
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