Using brandishing statutes to chill Second Amendment rights (Michigan)

[shadowrider]

I have written before about the abuse of statutes such as Disorderly Conduct and Disturbing The Peace to punish otherwise legal behavior such as open carry.

Therefore, when I read the February 25th article by John Schneider in the Lansing State Journal in which Michigan lawyer Shannan Kane declared unequivocally that open carry was barred by Michigan’s brandishing statute, I knew that here was yet another attempt to use a poorly drafted statute to chill Second Amendment rights.

In that article, Kane was reported to have stated unequivocally that MCL 750.234e outlawed all open carry based upon a definition of brandishing as "to display ostentatiously." Following that logic, she subsequently implied that open carry, in all its incarnations, is presumptively ostentatious and therefore prohibited.

What Ms. Kane should have been aware of as a member in good standing of the Michigan Bar is that Attorney General Granholm addressed, and dismissed, this particular issue....

http://www.examiner.com/gun-rights-in-minneapolis/using-brandishing-statutes-to-chill-second-amendment-rights

[jpak]

1. Good - open gun carry is offensive and intimidation in a civil society

book 'em Danno

yup

[elocs]

2. The teahadists used open carry to intimidate people at health care reform meetings. n/t

[jpak]

3. Yup - and the NRA defends that practice - and Mexican cartel gunrunners

yup

[PavePusher]

21. Where? When? Cite?

I open carry fairly often here in Arizona. It is not intended to intimidate anyone but criminals. Were there many criminals at the meetings? There didn't seem to be at the ones I went to....

[Union Scribe]

6. Like gun-toting cops, what the fuck is up with those guys?

[jpak]

8. Trained law enforcement with a legal mandate that's what

Very different than a teabagging moran brandishing for political intimidation.

yup

[PavePusher]

20. I am a trained Citizen and I have a legal mandate.

Not that Civil Rights require such.

[jpak]

26. Your 1st and 2nd A rights are not absolute and have limits - CCW is a privilege in Maine right now

not a right

Dems want to keep it that way

yup

[Ken_Fish]

28. Yep and Jesse Helms was so upset in a post brown world he switched parties..

seriously the gun control crap will not even be on the platform in 5 years. The silence from the POTUS is compelling.

The world has changed, jim crow and gun control are concepts whose time has passed.

the board of ed changed, so should the antis. they seem to be drying up.

[aikoaiko]

14. Only to some people. You don't speak for civil society.

[RSillsbee]

17. When I open carry most folks don't even notice NT

[pipoman]

4. She better be prepared to prosecute every police officer

and security guard for brandishing then....equal protection and all that..either it is or it isn't..

[Kolesar]

7. Lame...eom

[jpak]

9. yup

n/t

[shadowrider]

10. Care to expand on that one word response? n/t

[Kolesar]

13. Yeah, I was being polite

Ha ha ha ha ha

[Name removed]

22. Deleted message

Message removed by moderator. Click here to review the message board rules.

[pipoman]

16. As usual, nothing to add..

[Tuesday Afternoon]

44. lame? inherently not. eom

[Bonhomme Richard]

5. As a fairly recent CCW permit holder I do find open carry offensive.

I consider myself a fairly open minded person when it comes to guns but I can't get out of my head the use of open cary to intimidate people at town hall meetings. The truth is that a lot of people do get upset when they see someone with a pistol and there are those on the other side that do it for that reason. I see it in my own friends, both conservative and liberal. They literally get nervous when a pistol is around.
The answer, I'm not sure, but wearing a pistol in the open can't help the gun rights cause. In CT they make it difficult because you can be charged with breach of peace if someone see's your pistol, for example reaching for your wallet and it exposes the pistol, and that kind of law is over the top in my opinion and it appears to be changing after a lawsuit which is a good thing. In the end I think the gun rights community ought to discourage open carry. In my head it really comes down to manners.
And yes, I know there are all kinds of scenario's people can come up with when open carry may have helped someone but that in itself would be subject to debate.

[jpak]

11. Exposing a CW "accidentally on purpose" is intimidation - and should be outlawed

yup

[ProgressiveProfessor]

18. Like to know how that would be proven

Also if it stops a crime in progress is it a bad thing?

[jpak]

23. You can tell it to the judge and jury - if the gun is truly concealed then no one knows its there

If a CCW holder brandishes this so-called invisible gun and the police find a concealed weapon based on a complaint

it's an open and shut case

brandishing

felony

confiscation of all guns

yup

[Ken_Fish]

27. Good luck with that. In NC you have both, so if the wind vblows your coat you are not a felon

your agenda is not only lacking in common sense but has no chance of ever becoming law.

[jpak]

33. They should be felons - and lose their right to bear arms

yup

[Ken_Fish]

42. Shoulda woulda coulda.. Not happening

get used to it. The days of gun control in the US being a political option are done.

[Euromutt]

56. "'When I use a word,' Humpty Dumpty said, ..."

"... in rather a scornful tone, 'it means just what I choose it to mean — neither more nor less.'"

The word in this case being "brandishing."

[pipoman]

67. Of coarse your disingenuousness is showing

you know that this story is about 'open carry', not 'concealed carry'..an act which, if it continues to be challenged, will draw a SCOTUS case, which will result in a decision of constitutionally protected.

[shadowrider]

12. I conceal carry, not open carry

Although if others choose to do so, it's their right. I certainly don't find it offense by any stretch. Your opinion differs, no harm no foul.

[PavePusher]

24. I open carry everywhere.

I was doing so when I went to a Giffords event two years ago.

Why should I do anything differently?

[Hoyt]

30. Yea, why should you care how it affects others? Keep open carrying, please.

[NHRAhotrodder]

31. New here

but why should I care how my exercising a civil right affects other people? If other people don't like it, well, too bad.

[Hoyt]

32. If you don't view yourself as part of a civil society, I see your point. But don't agree.

There are people afraid of guns, rightly or wrongly. My wife was and she was the daughter of retired policeman. Kids don't need to see people walking around with guns in peaceful parks, etc. Some people are afraid of folks who carry guns, whether warranted or not. Some folks view it as indecent exposure.

For me, personally, I think it is downright silly for a grown man to openly carry a gun in parks, family restaurants, church, etc. (or concealed for that matter in many places).

Finally, I think post #5 is the most reasoned response I have seen on this.

[NHRAhotrodder]

36. That is certainly your opinion and you are rightly entitled to it

however, I have a different opinion of open carry and if people are intimidated by it and are afraid of guns, well, not my problem

[jpak]

37. I agree. Guns kill and people who carry openly do so to intimidate others

People are perfectly correct to fear guns in public.

yup

[Hoyt]

50. Of course they carry to intimidate and stick out. Why else would they strap a gun to their leg?

[AtheistCrusader]

58. Because he's a police officer.

Dense much?

[Hoyt]

63. Police should carry. Most of the pro-carriers here think they are trained as well as police & such.

The rest should leave em at home ready to bear arms if the well regulated militia needs em.

[AtheistCrusader]

72. I appreciate you telling me what to do.

Any other advice for me, that I can summarily ignore?

[RSillsbee]

69. When I open carry most folks don't even notice NT

The trick is going about your business like the gun doesn't even exist

[jpak]

34. Because, if you intimidate them, they lose their rights to live without fear

NH Freestaters are a bunch of fucking loons

yup

[NHRAhotrodder]

38. I am not intimidating anyone by open carrying

if they feel intimidated, once again, they're problem, not mine, and as long as it is legal in the state I live in, I will continue to do so and it hasn't seemed to be a problem here.

[jpak]

39. Yes you do - and it is your problem

yup

[NHRAhotrodder]

40. Tell me

how is it my problem, I've never had anyone tell me that I am intimidating them and where I live, most people don't care one way or the other.

[Katya Mullethov]

47. You are correct in that you smell fear

There is a rising tide of fear corresponding with the growing realization that once they let us drink out of THEIR water fountains , EVERYONE else will see that we dont suck on the nozzle or pee in it , and they aren't getting our cooties .


There is great fear that the net result will be all these vitriolic shrimp-dicked-Rambo-vatican-assassins with tiger blood and Adonis DNA are gonna kill us all " allegations will continue to look dumber and dumber .

[Hoyt]

49. Actually, the main concern is that most gun carriers are right wingers who hate liberals.

Where I live, most gun toters are right wing, tbaggers, who hate minorities and liberals. I'd just as soon not have to eat and play where I feel compelled to stay close to them and keep an eye on their behavior. But, it looks like many here don't care that they enable right wingers to ruin our time in the park.

[jpak]

52. The recent Maine open carry events were not sponsored by progressives but the teabaggers & the GOP

and the intent was political intimidation

yup

[Katya Mullethov]

55. If they fail

I have absolutely no doubt you will quickly find someone or something else that has caused you to have yet another miserable fucking time .

[Kolesar]

68. Lame...eom

[cleanhippie]

81. is that a new word for you? you seem to be using it a lot.

I know how exciting it is to expand your vocabulary, but over use is as bad as ignorant use.

[AtheistCrusader]

60. There's a solution to that.

There's an old saying

Keep this rifle in good hands; yours.

Nothing stopping you from open carrying either.

[PavePusher]

75. And they have actively threatened you?

I suggest you pull a card from their playbook and carry a voice recorder. When they threaten you, report them to to appropriate agency, and provide the electronic proof of their actions.

It'll be ever so much more effective than mere hand-wringing and moaning about "the children".

[Katya Mullethov]

78. And I just wanna see one cry

Sobbing and wretching , rocking then rolling , into a fetal position . Yep , he's a pro at that .

[PavePusher]

74. The bill for my keyboard cleanings this week is really getting out of hand... n/t

[Katya Mullethov]

79. I'm a Twin Otter Bro

I got platypus blood and Glenn Curtiss DNA running in MY veins baby .

[AtheistCrusader]

59. Your fear is your problem, not mine.

There is a legally identifiable difference between BRANDISHING and OPEN CARRY.

Legal in WA. The more you whine about it, the more likely I am to buy a retention holster and open carry.

[RSillsbee]

70. You don't have a right to live W/out fear

If you do, then you are violating my rights because authoritarians like you who want to restrict my rights scare me

[hack89]

77. Too bad there is no such right - nope. nt

[PavePusher]

73. It doesn't affect others in the least.

Well, actually it seems to outrage some folks sense of fashion...

[cleanhippie]

80. please, do tell how open carry affects you in any way.

Other than stoking your irrational fears, which is not a protected right.

[Euromutt]

65. It's the Teabaggers who made it offensive

As I've posted elsewhere (http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=118&topic_id=373040&mesg_id=373499), there are two kinds of open carriers.

The "Open Carry Movement" (henceforth "OCM" for ease of typing) existed before anyone outside Illinois had even heard of Barack Obama. Their objective was to normalize open carry: to get the general public used to the idea that a person openly carrying a firearm does not necessarily present a threat to public safety. In other words, their objective was precisely not to intimidate.

Then there were the Teabagger types who showed up packing outside Obama's town hall meetings over the summer of 2009, and have continued to do so intermittently. Their purpose is to intimidate, I can't argue with that, though I'm inclined to think the entity they want to intimidate is the federal government, rather than other private citizens present.

Because the Teabagger types showed up at (the periphery of) presidential events, they attracted way more media attention, and thus created a misperception on the part of the general public that they were representative of the OCM, when in fact few to none of them were part of the pre-existing OCM. In fact, their shenanigans did a lot of damage to the OCM's cause, setting it back by at least five years, and prompting a major effort at damage control on the OCM's part, including a voluntary moratorium on open carry for the remainder of 2009. The OCM was--and probably still is--rather angry at the OCing Teabaggers over this, and any Teabagger who shows up on the Open Carry forum is likely to get a frosty reception at best.

[aikoaiko]

15. Openly carrying a sheathed knife or a hostered firearm doesn't bother me.

YMMV, but civil liberties come first.

[ProgressiveProfessor]

19. She forgets about private property

[jpak]

25. Bullshit - she is right

yup

[ProgressiveProfessor]

29. No she is wrong...some us carry openly on private property out of necessity

for our own safety.

yup yup

[jpak]

35. I'm glad I don't live in fear all the time - but if everyone can carry, most people will

The GOP/NRA sucks

yup

[NHRAhotrodder]

41. I'm glad you don't live in fear

and neither do I. Just because I do carry a firearm doesn't mean I live in fear despite what some internet psychiatrists want to believe.

[ProgressiveProfessor]

43. I don't live in fear, I live in the remote desert

The rattlesnakes are coming out and cougars are always hungry. Everyone carries when out in the brush around here. Has nothing to do with fear.

Any stats to show that in AZ, most people carry? How about in New Hampshire? You clearly keep making things up as you go. :rofl:

[GKirk]

45. Why do you insist on intimidating

those Cougars and Rattlers? :)

[NHRAhotrodder]

46. In the immortal words of a certain poster here

Good one.
:rofl:

[ProgressiveProfessor]

48. It promotes civility

I try to get the snakes to go elsewhere when I can.

The big kitties and I have had a good understanding...though they tend to wander around the house at night.

[jpak]

51. "The rattlesnakes are coming out and cougars are always hungry" - sounds like fear ro me

I've run around remote deserts and never saw a rattler or a cougar - and never thought of carry a gun except when quail hunting.

Lions and Tigers and Bears!!11

Oh My!

:rofl:

[AtheistCrusader]

61. Fear is a survival mechanism, and a product of evolution.

You seem to be denigrating it. I'm not sure why?

[ProgressiveProfessor]

64. Then you were not looking or like some urban flatlander had no clue what you saw

I find tracks in my "front yard" on a regular basis

[RSillsbee]

71. I've run around remote deserts and never saw a rattler or a cougar

That's because you're loud and obnoxious and they hear you coming a mile away. I've walked around the corner of a trail and come face to face w/ black bears in the Colorado back country

TYPO

[PavePusher]

76. "loud and obnoxious"

Gold-medal comment of the day.

[Abq_Sarah]

53. Except for that fear of firearms thing, right?

I guess if enough people had a fear of newspapers and books, it would be acceptable to restrict where they can be seen.

[lawodevolution]

62. "I'm glad I don't live in fear all the time"

good, then you agree, no need to limit gun rights.

[Euromutt]

66. You seriously need to straighten out your stance on "fear"

In post #34, you assert that people have a right "to live without fear," adding in post #37 that some fears are perfectly reasonable.

Then in post #35, you pride yourself on not "living in fear all the time," thereby implying in denigrating fashion that people who (purportedly) do, do so unreasonably.

On the face of it, this seems a little inconsistent, not to say self-serving and hypocritical; your fears have to be deferred to, the fears of others are the subject of derision.

You may counter that some fears are reasonable, while others are not, but considering both sets of fears are basically about violent crime, you're going to have to put a bit more effort into explaining why being afraid of being mugged or carjacked is unreasonable (even though muggings and carjackings are known to happen), while being afraid that an individual with a holstered firearm who isn't even paying attention to you will suddenly launch into a murderous rampage without provocation (even though instances of this are vanishingly rare) is quite reasonable.

[Bonhomme Richard]

54. People have a right to do a lot of things that they refrain from...

due to civility and good manners. There are always going to be those that have a my way or the highway attitude about a lot of things and every so often we run into them. It's life. I acknowledge them for what they are and move on.

[friendly_iconoclast]

57. I love how the prohis think they know MI gun law better than the Attorney General:

(emphasis added):

http://www.ag.state.mi.us/opinion/datafiles/2000s/op10176.htm


....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...