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Offline TheQ

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Question about LEO packet
« on: July 02, 2010, 01:42:03 AM »
All,

I am new to owning a handgun.  I just picked up my first, a Springfield XDm 9mm on July 1, 2010.

I was reading your LEO packet.  It says:
Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney General Opinion 7101, 2/02 states “…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.” In regards to disorderly conduct, due to the nature of this code, officers have cited this law in order to suppress or discourage lawful open carry. Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, (nor is there any duty for anyone licensed to conceal their handgun), open carry is not disorderly conduct. The open carrying of a firearm is not by itself threatening, nor does it cause a hazardous or physically offensive condition.


I'm sure anyone who has read AG Opinion 7101 knows the Opinion was based on a question about "Reserve Officers" carrying a firearm in a holster.  I don't know about you, but I am not a reserve officer.  How has the wording "Reserve Officer" been construed to mean "any Michigan resident who legally owns their handgun"?

Can anyone provide any references to legal cases where this interpretation of AG Opinion 7101 has been tested?


Thank you for helping me understand better.

"Q"
I Am Not A Lawyer (nor a gunsmith).

Offline Master Control

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Re: Question about LEO packet
« Reply #1 on: July 02, 2010, 03:24:05 AM »
All,

I am new to owning a handgun.  I just picked up my first, a Springfield XDm 9mm on July 1, 2010.

I was reading your LEO packet.  It says:
Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney General Opinion 7101, 2/02 states “…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.” In regards to disorderly conduct, due to the nature of this code, officers have cited this law in order to suppress or discourage lawful open carry. Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, (nor is there any duty for anyone licensed to conceal their handgun), open carry is not disorderly conduct. The open carrying of a firearm is not by itself threatening, nor does it cause a hazardous or physically offensive condition.


I'm sure anyone who has read AG Opinion 7101 knows the Opinion was based on a question about "Reserve Officers" carrying a firearm in a holster.  I don't know about you, but I am not a reserve officer.  How has the wording "Reserve Officer" been construed to mean "any Michigan resident who legally owns their handgun"?

Can anyone provide any references to legal cases where this interpretation of AG Opinion 7101 has been tested?


Thank you for helping me understand better.

"Q"

Greetings:

May i ask where are you reading that?:
"I was reading your LEO packet.  It says:

Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm "  ???

I havnt noticed that in the LEO information that I have, can you refer me?
"Liberty's too precious a thing to be buried in books...Men should hold it up in front of them every single day of their lives and say: 'I'm free to think and to speak. My ancestors couldn't. I can. And my children will."
,,, So Mote Be


Offline TheQ

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Re: Question about LEO packet
« Reply #3 on: July 02, 2010, 08:15:48 AM »
Greetings:

May i ask where are you reading that?:
"I was reading your LEO packet.  It says:

Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm "  ???

I havnt noticed that in the LEO information that I have, can you refer me?

http://www.michiganopencarry.org/node/4
I Am Not A Lawyer (nor a gunsmith).

Offline TheQ

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Re: Question about LEO packet
« Reply #4 on: July 02, 2010, 08:18:06 AM »
I Am Not A Lawyer (nor a gunsmith).

Offline autosurgeon

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Re: Question about LEO packet
« Reply #5 on: July 02, 2010, 10:41:54 AM »
Reserve officers are just folks like you and me. They are NOT MCOLS certified and in most cases have no more powers than you or I except when they are working as the steed of a certified officer (have been sworn for a certain period to work as an extension of that officer)

Therefor any AG opinion that applies to non certified officers applies to you and I!
Anything I post may be my opinion and not the law... you are responsible to do your own verification.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."

Offline Master Control

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Re: Question about LEO packet
« Reply #6 on: July 02, 2010, 01:11:59 PM »

 Personally I find the dialogue very problematic, especially "(2)" I think we need to have further discussion on this part of the language in the LEO packet.
The way I read it, and the way it reads appears to be an a untrue statement.
"Liberty's too precious a thing to be buried in books...Men should hold it up in front of them every single day of their lives and say: 'I'm free to think and to speak. My ancestors couldn't. I can. And my children will."
,,, So Mote Be

Offline autosurgeon

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Re: Question about LEO packet
« Reply #7 on: July 02, 2010, 01:31:18 PM »
STATE OF MICHIGAN

JENNIFER M. GRANHOLM, ATTORNEY GENERAL

 

CRIMINAL LAW:

FIREARMS:

LAW ENFORCEMENT:

PEACE OFFICERS:

POLICE:
   

Reserve police officer carrying exposed but holstered handgun is not brandishing firearm in violation of Michigan Penal Code

A reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.


Opinion No. 7101

February 6, 2002

Honorable Bill Bullard, Jr.
State Senator
The Capitol
Lansing, MI

 

You have asked if a reserve police officer, by carrying a handgun in a holster that is in plain view, violates section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

The Michigan Penal Code, MCL 750.1 et seq, revises, consolidates, and codifies the state's criminal statutes. Section 234e(1) of the Code criminalizes1 the brandishing of a firearm in public as follows:

        (1) Except as provided in subsection (2), a person shall not knowingly brandish a firearm in public.

Subsection (2) of the same section states that "[subsection (1) does not apply to . . . [a] peace officer lawfully performing his or her duties as a peace officer."

The term "peace officer" refers to members of governmental police forces who have been given broad, general authority by law to enforce and preserve the public peace. People v Bissonette, 327 Mich 349, 356; 42 NW2d 113 (1950). Most governmental police officers, i.e., officers who are employed by the state or its political subdivisions, possess such authority and are, therefore, "peace officers." 1 OAG, 1955, No 1891, p 72 (February 24, 1955); 2 OAG, 1958, No 3212, p 60 (February 21, 1958). Conversely, police officers such as motor carrier enforcement officers who possess only restricted or special enforcement authority do not meet this standard and therefore do not qualify as "peace officers." People v Bissonette, supra; OAG, 1987-1988, No 6530, p 362 (August 5, 1988). Thus, a reserve police officer with limited law enforcement authority would not qualify as a "peace officer" under subsection 2 of section 234e of the Michigan Penal Code. A reserve police officer with general law enforcement authority who is regularly employed would qualify as a "peace officer" under subsection (2) of section 234e. See OAG, 1973-1974, No 4792, p 78 (August 27, 1973), and OAG, 1979-1980, No 5806, p 1055 (October 28, 1980).

Section 234e of the Michigan Penal Code does not define the crime of brandishing a firearm in public. The Michigan Criminal Jury Instructions, published by the Committee on Standard Criminal Jury Instructions, does not include a recommended jury instruction on brandishing a firearm. Research discloses that while the term "brandishing" appears in reported Michigan cases,2  none of the cases define the term.

In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions. People v Denio, 454 Mich 691, 699; 564 NW2d 13 (1997). According to The American Heritage Dictionary, Second College Edition (1982), at p 204, the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously. –n. A menacing or defiant wave or flourish." This definition comports with the meaning ascribed to this term by courts of other jurisdictions. For example, in United States v Moerman, 233 F3d 379, 380 (CA 6, 2000), the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," 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.

It is my opinion, therefore, that a reserve police officer, by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.

 

JENNIFER M. GRANHOLM
Attorney General

1Violation of this section is a misdemeanor punishable by imprisonment for up to 90 days, or a fine of not more than $100, or both.

2 See, for example: People v Jones, 443 Mich 88, 90; 504 NW2d 158 (1993), People v Kreger, 214 Mich App 549, 552; 543 NW2d 55 (1995), and People v Stubbs, 15 Mich App 453, 455; 166 NW2d 477 (1968).


The part in Red defines a reserve that is not a peace officer. This is what we all fall under as a reserve that is not a peace officer IE not MCOLS certified is just a citizen with a uniform.
« Last Edit: July 02, 2010, 01:33:06 PM by autosurgeon »
Anything I post may be my opinion and not the law... you are responsible to do your own verification.

Blackstone (1753-1765) maintains that "the law holds that it is better that ten guilty persons escape than that one innocent suffer."


Offline TheQ

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Re: Question about LEO packet
« Reply #9 on: July 03, 2010, 01:01:40 PM »
I think MCL 28.422 has a lot of bearing here.  Particularly section 3:

(3) The commissioner or chief of police of a city, township, or village police department that issues licenses to purchase, carry, possess, or transport pistols, or his or her duly authorized deputy, or the sheriff or his or her duly authorized deputy, in the parts of a county not included within a city, township, or village having an organized police department, in discharging the duty to issue licenses shall with due speed and diligence issue licenses to purchase, carry, possess, or transport pistols to qualified applicants residing within the city, village, township, or county, as applicable unless he or she has probable cause to believe that the applicant would be a threat to himself or herself or to other individuals, or would commit an offense with the pistol that would violate a law of this or another state or of the United States. An applicant is qualified if all of the following circumstances exist:

http://www.legislature.mi.gov/%28S%28yz13wl30gxi5nk451qjvyi55%29%29/mileg.aspx?page=getObject&objectName=mcl-28-422

I won't past all of the requirements, I'm guessing you all either know them or can follow the link.
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Offline TheQ

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Re: Question about LEO packet
« Reply #10 on: July 03, 2010, 01:16:38 PM »
Reserve officers are just folks like you and me. They are NOT MCOLS certified and in most cases have no more powers than you or I except when they are working as the steed of a certified officer (have been sworn for a certain period to work as an extension of that officer)

Therefor any AG opinion that applies to non certified officers applies to you and I!

Has there been any case-law supporting this interpretation?  Can anyone cite a case that a judge has upheld that this AG opinion (which was written with a reserve officer as the subject) applies to every citizen?

I'm challenging the veracity of the statement "Therefor any AG opinion that applies to non certified officers applies to you and I!".  If this were Wikipedia, I'd put the [citation needed] template after it.
I Am Not A Lawyer (nor a gunsmith).

Offline venator

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Re: Question about LEO packet
« Reply #11 on: July 03, 2010, 03:12:15 PM »
All,

I am new to owning a handgun.  I just picked up my first, a Springfield XDm 9mm on July 1, 2010.

I was reading your LEO packet.  It says:
Brandishing and disturbing the peace are not an offense while lawfully openly carrying a firearm (3). Attorney General Opinion 7101, 2/02 states “…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.” In regards to disorderly conduct, due to the nature of this code, officers have cited this law in order to suppress or discourage lawful open carry. Since a person who is not licensed to carry concealed MUST open carry their firearms on foot in order to avoid criminal charge, (nor is there any duty for anyone licensed to conceal their handgun), open carry is not disorderly conduct. The open carrying of a firearm is not by itself threatening, nor does it cause a hazardous or physically offensive condition.


I'm sure anyone who has read AG Opinion 7101 knows the Opinion was based on a question about "Reserve Officers" carrying a firearm in a holster.  I don't know about you, but I am not a reserve officer.  How has the wording "Reserve Officer" been construed to mean "any Michigan resident who legally owns their handgun"?

Can anyone provide any references to legal cases where this interpretation of AG Opinion 7101 has been tested?


Thank you for helping me understand better.

"Q"

If you read the opinion closely the basic question is about a researve officer, but the opinion would apply to any person.  The AG looked at the definition of brandishing and applies it to a reserve officer and by extension to anyone that can lawfully possess a handgun.

BRANDISHING Opinion No. 7101 February 6, 2002:  …In the absence of any reported Michigan appellate court decisions defining "brandishing," it is appropriate to rely upon dictionary definitions…..the term brandishing is defined as: "1. To wave or flourish menacingly, as a weapon. 2. To display ostentatiously.  A menacing or defiant wave or flourish."  This definition comports with the meaning ascribed to this term by courts of other jurisdictions…the court recognized that in federal sentencing guidelines, "brandishing" a weapon is defined to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."   Applying these definitions to your question, it is clear that a reserve police officer, regardless whether he or she qualifies as a "peace officer," 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. It is my opinion, therefore, that…by carrying a handgun in a holster that is in plain view, does not violate section 234e of the Michigan Penal Code, which prohibits brandishing a firearm in public.
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Looking forward to having more smites than posts.  Thanks all.
The above are my opinions only.  Please seek an attorney concerning all questions of law.

Offline venator

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Re: Question about LEO packet
« Reply #12 on: July 03, 2010, 03:18:49 PM »
Reserve officers are just folks like you and me. They are NOT MCOLS certified and in most cases have no more powers than you or I except when they are working as the steed of a certified officer (have been sworn for a certain period to work as an extension of that officer)

Therefor any AG opinion that applies to non certified officers applies to you and I!

Has there been any case-law supporting this interpretation?  Can anyone cite a case that a judge has upheld that this AG opinion (which was written with a reserve officer as the subject) applies to every citizen?

I'm challenging the veracity of the statement "Therefor any AG opinion that applies to non certified officers applies to you and I!".  If this were Wikipedia, I'd put the [citation needed] template after it.

I would guess that if OC was brandishing then hundreds of us would have been charged by now.  Some departments are looking for any reason to arrest OCers so I would think they have looked at this one first.

Of the thousands of hours people that have been OCing in Michigan over the last three years I would think at least one would have been charged with this.  To date none have.  You can interpret the opinion all you want and it's good you are careful, but there is nothing like real world data.

I doubt, under the current definition of brandishing you would get a conviction let alone a charge just for OCing a gun in a holster.  Possible, but highly improbable.
Family book on OPEN CARRY go to: http://www.myparentsopencarry.com/
Looking forward to having more smites than posts.  Thanks all.
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Offline Evil Creamsicle

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Re: Question about LEO packet
« Reply #13 on: July 05, 2010, 04:06:19 PM »
Reserve officers are just folks like you and me. They are NOT MCOLS certified and in most cases have no more powers than you or I except when they are working as the steed of a certified officer (have been sworn for a certain period to work as an extension of that officer)

Therefor any AG opinion that applies to non certified officers applies to you and I!

Has there been any case-law supporting this interpretation?  Can anyone cite a case that a judge has upheld that this AG opinion (which was written with a reserve officer as the subject) applies to every citizen?

I'm challenging the veracity of the statement "Therefor any AG opinion that applies to non certified officers applies to you and I!".  If this were Wikipedia, I'd put the [citation needed] template after it.

You aren't asking the right question. The question to consider is, what makes a reserve police officer different from you? Or a volunteer firefighter? Your answer should be 'nothing'. That includes this opinion. Its not really a matter of interpretation
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