Author Topic: Legal uncertainties about OC guns in Michigan present challenges for LEOs  (Read 3092 times)

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Offline gryphon

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The horrible article title is based on the fact that brandishing is not defined in law.  Anyway, ignore the first part about LGOC (not excerpted below). I'm posting this because it has good info about LEO training for HGOC in the second half.  Excerpts below.  Lots more at link.

Legal uncertainties about openly carrying guns in Michigan present challenges for law enforcement

Kalamazoo Public Safety officers are trained to approach an open-carry situation in the same manner as any incident when a person has a weapon, he said. But dispatchers who receive those calls are directed to ask a series of questions so officers can have a better sense of whether they will be approaching a potentially hostile person or someone exercising their right to openly carry a gun.

“Our dispatchers are trained to ask questions like: Is it holstered? Is it in a sling? Is the person walking around? Are they waving it around?” Webster said.

Officers are told to decide whether they believe a person is “brandishing” the gun, which is essentially “waving or displaying the firearm in a threatening manner,” he said.

“The big difference in brandishing a weapon versus open carry is mostly with open carry the gun is in a neutral position, in a holster or a sling,” Webster explained. “It’s not in a person’s hand, he’s not walking around and pointing it at people in a way that makes people fearful for their life in that situation.”

Kalamazoo County Prosecutor Jeff Getting said brandishing is not defined by Michigan law, which can complicate matters for law enforcement.

“Because it’s not defined in the statute, it does make it a little more difficult to interpret what that means or what brandishing means in the law.”

When deciding whether to issues charges, prosecutors refer to a 2002 opinion from then-Michigan Attorney General Jennifer Granholm that defines brandishing in three ways: “To wave or flourish menacingly as a weapon; to display ostentatiously; a menacing or defiant wave or flourish.”

Granholm cited federal sentencing guidelines, which say brandishing occurs when “the weapon was pointed or waved about or displayed in a threatening manner.”

For him, brandishing is something less than directly pointing a gun at a person and threatening them, which would qualify as felony assault, punishable by up to four years in prison.

“It’s something less than a direct threat, but something more than openly carrying,” said the Kalamazoo County prosecutor, whose office has authorized seven charges for brandishing firearms since Jan. 1, 2012.

Michigan Open Carry

Phillip Hoffmeister, president of Michigan Open Carry Inc., notes that Michigan doesn’t have a law that expressly permits or prohibits the open carrying of firearms.

“We’re in a common law system of law,” he said. “The rule under common law says anything is legal unless it’s prohibited, so the reason it’s legal in Michigan is there’s no law prohibiting it.”

Like law enforcement officials, Hoffmeister expressed frustration over the uncertainty surrounding what constitutes brandishing, something he hopes will change with bills pending in the Michigan Legislature.

House Bill 5091 would define when a person can legally brandish a weapon in public, which under the bill would be only in the defense of one’s self or another. House Bill 5092 would codify brandishing as,“to point, wave about, or display in a threatening manner with the intent to induce fear in another person.”

“Not particularly noteworthy”

Hoffmeister, whose organization advocates for “lawful open carry for a holstered handgun,” said the ultimate goal for Michigan Open Carry is to help the public become comfortable seeing law-abiding citizens openly carrying holstered handguns, so people aren't fearful and don't unnecessarily call police.

“In many states it’s not particularly noteworthy,” Hoffmeister said, citing Arizona in particular as a state that's grown accustomed to its citizens openly carrying.

“More and more in Michigan, people don’t notice if you’re openly carrying, or if they do, they don’t care,” he said.

Webster didn't want to hazard a guess why more people are exercising their right to openly carry guns than in the past. He said he has no problem with people exercising that right responsibly, but the Kalamazoo Public Safety assistant chief doesn’t quite share Hoffmeister’s optimism about the public’s growing acceptance of it.

“I think society has not (adjusted to open carry),” Webster said. “That’s why you get calls on it. Society has not accepted folks carrying guns around.”