Author Topic: OC Codify HB 5091 & HB 5092  (Read 17458 times)

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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #40 on: November 22, 2013, 11:40:18 AM »
Personally, I see 5092 without 5091 as dangerous.

5092:
Quote
(c) "Brandish" means to point, wave about, or display in a threatening manner.
I have zero confidence that anti OC people won't look at the bold portion and attempt to use it against OCers. By adding an exception, we can show that the legislature sought to say that OC is OK.

MCRGO is concerned about losing case law, which is different than the specific effect of these bills. I think that the similarity between these bills and 7101 will still allow us to utilize existing case law, however IANAL. Based on my communication with MCRGO, it was a concern that was raised before reading the actual text of the bills. I'm not sure if their stance has changed.

On the other hand, other 2A lawyers, believe these bills may help. There was a long discussion over on MGO awhile ago. http://www.migunowners.org/forum/showthread.php?t=267827

Is the language of the two bills ideal? No, but if we want to be able to sell these bills (to Snyder) as codifying what we already have, and have a shot at keeping existing case law, then we need to go with something that is very similar to 7101.

There will always be people who attempt to abuse the law. Our thought is that these bills will help to limit that and increase our odds of winning if they do.
« Last Edit: November 22, 2013, 11:46:02 AM by bigt8261 »

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #41 on: November 22, 2013, 11:44:52 AM »
Why do we need to "codify what we already have"?

Case law is established.

Done deal. (Not to be confused with Done Deal.)

And, MCRGO may have made that statement prior to publication of the bills. But they certainly haven't changed it since.

The topic may have been discussed ad nauseam on another gun board. But they aren't the org pushing the bills. MOC is. In fact it seems that maybe someone within MOC drafted 5091.
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Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #42 on: November 22, 2013, 11:52:41 AM »
I think that argument is a good one and valid.

The thought among the legislative team is that neither what we currently have, nor these bills, are perfect, but that these bills will move us closer to that goal.

People are still being charged with brandishing for OC and their cases are not always being thrown out. If we can stop more cases before they begin and have more thrown out if they do start, I see that as a step in the right direction.

At the same time, I do recognize that you do not believe these bills will move us in that direction. I hope I am at least doing a good job of clarifying our intent and how we reached it.

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #43 on: November 22, 2013, 11:56:03 AM »
I will also add that I am currently dealing with a gentleman that was charged and convicted of violating a preempted municipal ordinance a few years ago. He did not know the laws and he did not have the funds to pay for a lawyer that did. Because the law was not clear, he was successfully prosecuted. To me, having everything in the statute is much easier to find for an overworked public defender than in an obscure AG opinion.
« Last Edit: November 22, 2013, 12:02:50 PM by bigt8261 »

Offline Jeff

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Re: OC Codify HB 5091 & HB 5092
« Reply #44 on: November 22, 2013, 12:13:17 PM »
I still fear that if you define one thing as not brandishing it will confuse a lot of people and make them think that about everything else is brandishing.  When you use common sense you can see that it doesn't work that way but others might lack that understanding.

If brandishing is clearly defined, then anything other than that is not brandishing.  So there doesn't need to be a "not brandishing" definition.

Offline bigt8261

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Re: OC Codify HB 5091 & HB 5092
« Reply #45 on: November 22, 2013, 01:26:48 PM »
I still fear that if you define one thing as not brandishing it will confuse a lot of people and make them think that about everything else is brandishing.  When you use common sense you can see that it doesn't work that way but others might lack that understanding.

I understand what you are saying and think it is another legitimate concern. However, in order for us to put a good deal of weight behind it, we would need to feel that it's not just possible, but likely. I do not believe we meet this threshold and here is why. We are not creating a list that says what brandishing isn't, we are just adding one more item to the list already in existence.

Quote
Sec. 234e. (AS IT CURRENTLY EXISTS) (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.

All 5091 does is add one more item to the list as a matter of clarification / fail safe.

Offline LD

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Re: OC Codify HB 5091 & HB 5092
« Reply #46 on: November 22, 2013, 01:59:12 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 saysAdjusting 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.

By your explanation, the phrase "holstered or on a sling" doesn't make IHOC brandishing and goes along with AG 7101.
Using the same logic, eliminating the phrase would not take ANYTHING away from AG 7101 and would not allow being " holstered or on a sling" to be used against anyone that MIGHT get caught with a gun (pistol or long gun) in their hand.

I am having trouble seeing how the elimination of that phrase can hurt this bill. AG 7101 doesn't change in any way or become less effective.

Offline TheQ

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OC Codify HB 5091 & HB 5092
« Reply #47 on: November 22, 2013, 03:49:16 PM »
Binding case law is NOT established on this matter. There is no CoA or higher case that deals with Brandishing/OC.
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Offline TheQ

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OC Codify HB 5091 & HB 5092
« Reply #48 on: November 22, 2013, 03:51:43 PM »
Also everyone should keep in mind: we are not married to the language in these bills. People with constructive language suggestions that would accomplish our intended goals should state their language proposals.

Much opportunity exists to change the language as we go down the legislative road.
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Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #49 on: February 27, 2014, 10:42:52 AM »
So Phil, Tom, and I were at the meeting.

The following amendments got adopted for 5091 and 5092 as well:


Amendment H-1 for 5091
Amendment H-1 for 5092
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Offline gryphon

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Re: OC Codify HB 5091 & HB 5092
« Reply #50 on: February 27, 2014, 10:50:51 AM »
Or, we could take brandishing out all together.  Some states don't have "brandishing" laws.

Offline Ezerharden

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Re: OC Codify HB 5091 & HB 5092
« Reply #51 on: February 27, 2014, 10:58:50 AM »
I have a concern with the wording in 5092: Specifically the section C: "Brandishing" means to intentionally point, wave about, or display in a threatening manner that would induce fear in a reasonable person.

I may be over reaching here, but people like Mayor Heartwell are assumed to be reasonable people however the sight of an open carried weapon appears to cause him fear. I worry that it could be used by over zealous police and/or prosecutors to go after open carriers because people are "intimidated or afraid" of the open carried weapon.

Just my 2 cents.
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Offline jgillmanjr

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Re: OC Codify HB 5091 & HB 5092
« Reply #52 on: February 27, 2014, 11:10:46 AM »
I have a concern with the wording in 5092: Specifically the section C: "Brandishing" means to intentionally point, wave about, or display in a threatening manner that would induce fear in a reasonable person.

I may be over reaching here, but people like Mayor Heartwell are assumed to be reasonable people however the sight of an open carried weapon appears to cause him fear. I worry that it could be used by over zealous police and/or prosecutors to go after open carriers because people are "intimidated or afraid" of the open carried weapon.

Just my 2 cents.

Trust me, I've always had qualms about using a "reasonable person" standard. The kick to the nuts is that it's not going away as it's used in a lot of cases. I see where your concern comes from for sure. Maybe Tom can address this better than I.
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Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #53 on: February 27, 2014, 11:23:09 AM »
Seeing as how this bill would become part of the Penal Code, it lacks the element of a crime... "intent."
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Offline Xpiatio

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Re: OC Codify HB 5091 & HB 5092
« Reply #54 on: February 27, 2014, 12:17:19 PM »
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

And here my mind was imaging hip thrusting or doing some weird dance move to the song "Jaine's got a gun".

But I think these two are a good starting point. It does provide some openness to interpretation still. BUT last thing we want to do is pigeon hole or restrict it to the point of non-functionailty and not being reasonable.

Offline detroit_fan

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Re: OC Codify HB 5091 & HB 5092
« Reply #55 on: February 27, 2014, 12:33:54 PM »
why can't an amendment be added that states OC is not brandishing? if they are not willing to do that, i have serious concerns about what the true intentions of this bill are.

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #56 on: February 27, 2014, 12:39:39 PM »
Oops. Just saw "revised wording" that came out today. Much, much better than the initial bills.

I do however think that it HB5092 could have been worded better to include actual "intent" in the subsection.
Something like:
"'Brandish' means to point, wave about, or display in a threatening manner, with intent to induce fear in another person."
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Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #57 on: February 27, 2014, 12:40:39 PM »
why can't an amendment be added that states OC is not brandishing? if they are not willing to do that, i have serious concerns about what the true intentions of this bill are.
I'd prefer to not mention OC at all, because it is the beginnings of codifying the activity.
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Offline Xpiatio

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Re: OC Codify HB 5091 & HB 5092
« Reply #58 on: February 27, 2014, 12:58:13 PM »
Something like:
"'Brandish' means to point, wave about, or display in a threatening manner, with intent to induce fear in another person."

who would determine if you "induced fear"?  Is it the person that is offended by you OCing?

Offline CV67PAT

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Re: OC Codify HB 5091 & HB 5092
« Reply #59 on: February 27, 2014, 02:32:32 PM »
who would determine if you "induced fear"?  Is it the person that is offended by you OCing?
First, it would have to be established that it was pointed, waved about, or displayed in a threatening manner, with intent.
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