Author Topic: OC Codify HB 5091 & HB 5092  (Read 19898 times)

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Offline Golden Eagle

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Re: OC Codify HB 5091 & HB 5092
« Reply #20 on: November 16, 2013, 01:41:52 AM »
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, introduced and sponsored by State Representative Joel Johnson (R - Clare) updates the Brandishing Statute (MCL 750.234e) to specifically state the following is NOT brandishing:
"(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."

HB 5092, introduced and sponsored by State Representative Brandon DIllon (D - Grand Rapids) specifically defines brandishing in statute as:
“Brandish” means to point, wave about, or display in a threatening manner.

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
We could change it to "displays a firearm or other deadly weapon in a public place in a manner calculated to alarm.” That sounds good and simple but (maybe you know) this is from Texas law and now Texas police say that law makes all OC illegal.

We don't have problems now, why change it? To me this could vary likely make unholstering your gun at your trunk illegal.

It looks to me like this new law would make what we do at our Mendon gun shop illegal. If we need to transport a long gun from the store to the shop for a quick repair we just grab the gun in the middle and walk it across the lot. Right now the local police just wave. I see this making it law to put most guns (since most don't have a sling) in a case for a short walk. ???

"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good."

George Washington

Offline Jeff

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Re: OC Codify HB 5091 & HB 5092
« Reply #21 on: November 16, 2013, 09:02:10 AM »
and that it's not brandishing IF "a person who is not prohibited from owning or possessing a firearm"

I believe they will say that it's brandishing only if they can legally possess it, and how will they know without checking.  And it seems like they would have reasonable cause to suspect you of brandishing to be allowed to check your ID and gun serial number.  Pretty sure that's how the cops will treat it.

I think if a NOT brandishing definition is in there it should be like "Possessing a visible firearm is not brandishing"

I don't think there needs to be a not brandishing definition as long as brandishing is defined as "to point, wave about, or display in a threatening manner"  Then again, would they try to say that simply open carrying is "displaying in a threatening manner" maybe it should read..."Or display as part of a threat"

Offline jfmi87

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Re: OC Codify HB 5091 & HB 5092
« Reply #22 on: November 17, 2013, 04:09:49 AM »
I would like to see a law where the accuser has to prove brandishing and not the gun owner having to prove innocence. Some people embellish about a holstered gun being 'waved around' out of ignorance or on purpose because they have an anti-gun agenda.

Offline Golden Eagle

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Re: OC Codify HB 5091 & HB 5092
« Reply #23 on: November 17, 2013, 03:27:36 PM »
...

I don't think there needs to be a not brandishing definition as long as brandishing is defined as "to point, wave about, or display in a threatening manner"  Then again, would they try to say that simply open carrying is "displaying in a threatening manner" maybe it should read..."Or display as part of a threat"
I don't want to see an angry person with a gun in hand in public getting off saying it legal OC. I like your wording.

Remember the mess with this old law:
Lawful carry:
Quote
· While en route to or from a hunting or target shooting area.
· While transporting a pistol en route to or from his or her home or place of business and place of repair.
· While moving goods from one place of abode or business to another place of abode or business.
· While transporting a licensed pistol en route to or from a law enforcement agency or for the purpose of having a law enforcement official take possession of the weapon.
· While en route to or from his or her abode or place of business and a gun show or places of purchase or sale.
· While en route to or from his or her abode to a public shooting facility or public land where discharge of firearms is permitted by law, rule, regulation, or local ordinance.
·  While en route to or from his or her abode to a private property location where the pistol is to be used as is permitted by law, rule, regulation, or local ordinance.
Even with (I think it was)"includes but not limited to" added, LEO's still charged people.
"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good."

George Washington

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #24 on: November 17, 2013, 04:19:50 PM »
I don't want to see an angry person with a gun in hand in public getting off saying it legal OC. I like your wording.

Remember the mess with this old law:
Lawful carry:Even with (I think it was)"includes but not limited to" added, LEO's still charged people.
I remember all to well how those in the "gun community" argued that we would get jacked up if we stopped, even at the gas station, on our way to and from the range. then came the internal arguing that transporting a firearm in the parking lot of alcohol selling establishments was a violation.

If we can't agree on these ambiguous statutes, imagine what will happen if a person doesn't have their gun on a sling or in a holster. Those are not ambiguous conditions cited in the proposed statutes.

If in a holster or on a sling is NOT brandishing, then not in a holster or on a sling IS brandishing.
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Offline LD

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Re: OC Codify HB 5091 & HB 5092
« Reply #25 on: November 18, 2013, 07:09:52 AM »
Ok... A couple of points...

First we should address the problem of a Democrat introduced bill being DOA .
If it's a good bill, it should be considered. Our republican legislators should work for ALL of us.

Second,
this is the bill as introduced,

Quote
HOUSE BILL No. 5091
 
October 22, 2013, Introduced by Reps. Johnson, Dillon, Outman, VerHeulen, Brown, Dianda, McMillin, Kivela, LaVoy, Lamonte and Yonker and referred to the Committee on Judiciary.
 
     A bill to amend 1931 PA 328, entitled
 
"The Michigan penal code,"
 
by amending section 234e (MCL 750.234e), as added by 1990 PA 321.
 
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
 
     Sec. 234e. (1) Except as provided in subsection (2), a person
 
shall not knowingly brandish a firearm in public.
 
     (2) 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.

 
     (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.
 
     Enacting section 1. This amendatory act does not take effect
 
unless Senate Bill No. ____ or House Bill No. ____ (request no.
 
03299'13) of the 97th Legislature is enacted into law.

What I would like to see is  "THAT IS HOLSTERED OR CARRIED ON A SLING" removed from the bill.

(Really I would like 5091 dropped but you say that can't happen.)

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #26 on: November 18, 2013, 08:32:37 AM »
First, I would just like to remind everyone to please carefully read the entire thread first. Many concerns posted over the last few days have already been addressed.

The most important thing to keep in mind is that these bills will effectively cement in Statute what has come from AG opinion 7101 (Granholm saying a holstered pistol is not brandishing). Courts may, and usually do, follow AG opinions, but they don't have to. They do, however, have to follow statutes. Also, AG opinions are not as noticeable or easy to find for officers or perhaps an overworked public defender. If you are questioning how these bills will work, then you should be questioning how the AG opinion works.

Next, the sentiment that what we have isn't broke, is not true. Just ask people like Sean Combs that have been charged with brandishing despite 7101. Not only is a AG opinion less solid, it's less powerful.

Keep in mind that 5091 provides an exception. An exception does NOT make everything else inherently illegal. If the opposite were the case, then OC would already be brandishing except while hunting and in cases of self defense. 7101 has not been interpreted to mean this, and I don't believe these bills will either. The exception will, however, show that the legislature did intend to say OC is OK. This may also help undercut disorderly conduct charges. Bottom line, a specific exception will help non-listed forms of carry more than it will hurt.

Being that we are attempting to effectively codify what we already have, any changes to these bills will take us away from that, thus making these bills a tougher sell. Especially with our current governor.

Offline LD

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Re: OC Codify HB 5091 & HB 5092
« Reply #27 on: November 18, 2013, 12:07:55 PM »
How does removing "THAT IS HOLSTERED OR CARRIED ON A SLING" hurt this bill if "AND IS IN LAWFUL POSSESSION OF AN OPENLY CARRIED FIREARM" is left in?
Open carry is still acknowledged but not restricted.
 

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #28 on: November 18, 2013, 01:07:48 PM »
How does removing "THAT IS HOLSTERED OR CARRIED ON A SLING" hurt this bill if "AND IS IN LAWFUL POSSESSION OF AN OPENLY CARRIED FIREARM" is left in?
Open carry is still acknowledged but not restricted.

First, your language is significantly different from 7101.
Second, do you know what the acronym IHOC means?

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #29 on: November 18, 2013, 01:45:53 PM »
After re-reading my post, I realized that my last post might come off as rather dickish. So let me explain.

AG opinion 7101 says
Quote
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.
Adjusting the language away from this may make the bills harder to sell and may make any existing case law irrelevant.

---------------------------------------

IHOC means In Hand Open Carry. IIRC (if I recall correctly) the inventor of this definition has been banned from MOC for other reasons.

Offline mosnar87

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Re: OC Codify HB 5091 & HB 5092
« Reply #30 on: November 18, 2013, 04:22:44 PM »
snip/
IHOC means In Hand Open Carry. IIRC (if I recall correctly) the inventor of this definition has been banned from MOC for other reasons.

I'm not sure Neil invented IHOC, I think Kwikrnu (a very... passionate... individual from Tennessee) did some sort of "protest" while carrying a black powder revolver in hand, thus provoking the preempted but grandfathered local jurisdiction into updating, and thus invalidating, their local firearms ordinance. The whole story may be found on his website.
"I don't want to be someone that successfully defends himself with a pistol.  I want to be someone that never has to defend himself with a pistol."
-Bronson, 2013

"Its not what I do for a living, its that I want to keep doing it"
-Evil Creamsicle, 2010

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #31 on: November 18, 2013, 04:52:06 PM »
I'm not sure Neil invented IHOC, I think Kwikrnu (a very... passionate... individual from Tennessee) did some sort of "protest" while carrying a black powder revolver in hand, thus provoking the preempted but grandfathered local jurisdiction into updating, and thus invalidating, their local firearms ordinance. The whole story may be found on his website.

Thanks for the correction and education mosnar87!

Offline Golden Eagle

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Re: OC Codify HB 5091 & HB 5092
« Reply #32 on: November 20, 2013, 12:35:09 AM »
First, your language is significantly different from 7101.
Second, do you know what the acronym IHOC means?

You sound like you wouldn't mind a bill that would out law IHOC. Something we aren't even allowed to talk about. ???
« Last Edit: November 20, 2013, 01:26:08 AM by Golden Eagle »
"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good."

George Washington

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #33 on: November 21, 2013, 09:44:08 PM »
You sound like you wouldn't mind a bill that would out law IHOC. Something we aren't even allowed to talk about. ???
This bill does outlaw IHOC.
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Offline jfmi87

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Re: OC Codify HB 5091 & HB 5092
« Reply #34 on: November 22, 2013, 12:51:04 AM »
Outside a range or gun store I can't think of any reason for such a concept. If you don't shoot yourself, someone else might.

Offline Golden Eagle

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Re: OC Codify HB 5091 & HB 5092
« Reply #35 on: November 22, 2013, 01:54:09 AM »
Outside a range or gun store I can't think of any reason for such a concept. If you don't shoot yourself, someone else might.
Anyone without a CPL loading or unloading at their trunk...
"The very atmosphere of firearms anywhere and everywhere restrains evil interference - they deserve a place of honor with all that's good."

George Washington

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #36 on: November 22, 2013, 08:07:43 AM »
This bill does outlaw IHOC.
I disagree that these bills make such a thing illegal. Upon reading the bills, the only thing that is made illegal is brandishing under the definition of:

Quote
"Brandish" means to point, wave about, or display in a threatening manner.

Keep in mind that this opinion came from AG opinion 7101, so little changes.


Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #37 on: November 22, 2013, 08:35:48 AM »
You have your opinion, TOM. And I have mine. In the simple language "in a holster or on a sling" is not brandishing. And while you like to "think" IHOC or LGIHOC isn't,  my spider swnses tell me that ir won't take long for people to sraer getting jacked up because of this poorly wrirrwn bill. Defining brandishing is a good thing. Narrowly defining what it isn't is not. A lot od people had ro deal with the poorly written transportation law. One lawmaker was even convicted under it. It took decades to ger that one fixed after enactment. This one needs to be fixed prior to enactment.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #38 on: November 22, 2013, 09:08:25 AM »
Did AG 7101 make all forms of carry other than a holstered pistol illegal? No. This will do the same as it is essentially the same language.

Perhaps you didn't mean it this way, but I take issue with some of your syntax.
Quote
Defining brandishing is a good thing. Narrowly defining what it isn't is not.
We are technically NOT defining what brandishing isn't. All 5091 says is that this one thing isn't. Similar to AG 7101. Just as 7101 didn't imply everything else is brandishing, neither do these bills.

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #39 on: November 22, 2013, 10:39:23 AM »
First, In an attempt to eliminate you're taking issue with my statement, I will repair the syntax for you...

Defining brandishing is a good thing. Narrowly defining what isn't brandishing is not a good thing.

Insofar as AG 1701 is concerned, it was prepared in direct response to a very specific question. Taking it out out its context and utilizing it in a broad sense to define what is not brandishing will lead to a literal interpretation by a jury. Furthermore, you very well know, or at least should, AG Opinions don't make anything whatsoever illegal or legal.

Again, this is what happened to the application of the list of exceptions in the transportation statute. There is absolutely no reason to believe that it won't be successfully prosecuted under this bill, regardless of how you "think" it won't, just like it was with the transportation statute.

There is absolutely no need for this bill (5091). Define brandishing and leave it at that. Don't muck things up with describing what isn't brandishing. This bill is poorly written, as with many of the bills that are produced by our inept legislature.

ETA:

Even MCRGOsees this legislation as problematic...
Quote
However, MCRGO board expressed strong concerns about HB 5091 & HB 5092 regarding codification of open carry and brandishing. It voted to take a neutral position on the bills. It is felt that open carry and brandishing are already settled case law and any change in statute will allow a judge to open the new language up to interpretation and result in starting the fight all over again.
« Last Edit: November 22, 2013, 10:52:21 AM by CV67PAT »
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