Brandishing!

[SamD]

Bottom line with all this is that we can only find 2 cases where someone is convicted for “brandishing” and several where the person was taken into custody but not convicted and Trip 20’s assortment of idiots sporting, musical and otherwise who like to use weapons to intimidate people in a criminal manner. We also have one unfortunate Pennsylvanian arrested but not convicted by idjits in the P.R. of Philthydelphia but charges dropped.

The situations where we do have criminal action are all assaults:

2. An assault is also an act done with an intent to inflict bodily injury upon another, tending, but failing to accomplish it, and accompanied by the apparent present ability to inflict the bodily injury if not prevented. It is not necessary that bodily injury be inflicted.

.

To my great misfortune, I have to do a lot of traveling in Texas, a place where every third poster seems certain of being arrested for brandishing whenever the wind blows his coat open.

Trip20(person from a state that he is not allowed to CCW in, although I hope that changes) , I did look it up myself. I was asking for the opinions and first hand information from others not snide remarks. Whether or not someone is triggerhappy is not something that even you can determine from a posted question and is quite an impolite insinuation.

Sam

[LaVere]

The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)

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 "[s]ubsection (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).

[delta58]

"CCW holder accosted by homeless man with knife. Man grips his Sig and tells the homeless man if the man advances he'll shoot. Man leaves, homeless person reports he was threatened by a man with a gun. Police arrest him, seize his firearm and carry permit, charge him for carrying without a permit, making threats etc. To top it off, they get a search warrant at his house and seize all his other guns. Months later, the felony carry without a permit is dropped, but the homeless man is still pressing charges for making "terroristic threats"



Sounds like he would have been better off to shoot the homeless man huh?

[CraigJS]

He would have been better off calling the police and reporting that HE had just been threatened by a man with a knife... HE then would have been seen as the victim. If you carry a gun , carry a cell phone! And use it ASAP when something goes down.

[Weeg]

Our society is slowly going

PANZY


:barf:

[CraigJS]

And stupid..

[Jack Malloy]

Where I currently live, about four or five times a month somebody gets arrested for brandishing.
Its not always scumbags getting an extra charge lobbed on them either. That is what "obstructing justice" is used for.
When I lived in Lexington, Ky, I knew of people who got arrested for "brandishing" a weapon, when in reality they just wore a holstered sidearm on a belt or shoulder rig without even moving a hand towards it. Yes, the law said that open carry was legal, but try and practice it, and you got so much heat (including unlawful arrests) it was just not worth the aggravation....
In fact, back in those pre-house bill 40 (our CCW law) days, lots of savvy handgunners carried concealed anyways because in those days, carrying concealed was a misdemeanor with a 100 fine.
Lots of people I know tell me they dont have ccw permits because you can carry openly in this state. I tell em its best to spring for the training and permit to avoid being arrested for brandishing.

[guntotin_fool]

First thing our CCW instructor asked us, was who had a cell phone. It was his opinion that it was better to leave the house without your gun than without your cell phone. Every time you touch your gun, you need to call it it in. EVERY TIME. I have had to pull my weapon several times, every time I have called it in. Cops come out see the circumstance and I get a pat on the back. PLUS I more or less get immunity from a scum bag saying i threatened him.

Last month i was collecting rent from a building and there were three punks who kept looking for me, I am in the buildings all the time and these guys were not from the building. I was on the third floor and i heard the front door open but no apartment door open nad close so i figured they were in the building., I called 911 and asked for a squad car on base of suspicious youths. I told the dispatcher I was on the third floor and would wait for the officers and I was armed. Before the cops got there i heard footsteps coming up the stairs and I pulled my weapon and got in a spot where it was dark but they would be in the light. They saw me and told me to give them the littlebag of cash, I said no way it was all checks, they just laughed at me and said no one in the building had a checking account. I presented the weapon and told them i was armed and the police had been called and were still on 911 (they were not, next time i will learn) as i held the cell phone toward them, I also hold still i wanted to take their picture with the phone...They made some comments but they ahd lost their will and walked away. by the time they got to the second floor they were flying to get out of the building. Few minutes later Cops called out from the door "POLICE OFFICERS!!" i said hello, I was the one who called and was on the second floor now, said "i put the gun away, here are my hands, i am walking to you now", and they said "ok fine." One officer asked me about my weapon, I indicated it was on my hip, and he looked to the other officers and they just shrugged. I showed them my id and my business card which tied me to the property management company who had a sign on the wall. I was asked if I was ok, I said I was, I said I have a picture of them on my phone and what did they want me to do with that, they looked at it and said save it for the detectives who will be calling you.

The point of this opus is had i just pulled my gun in fear for my life and property, (which i was) and not called the cops, I would have been at risk for being accused of displaying or brandishing. A CCW does not give the right to settle and arguement or threat by showing the gun without consequences. If you understand the process, you will mostlikely comeout ok. if you think you can just pull it out and scare them off and that is the end of it, it does not work that way.

[Jack Malloy]

I don't own a cell phone. And if I did, I would leave it at home before I left without my gun.
one of my freinds is a circuit court judge. He used to have a legal secretary who was a fairly good looking and intelligent young woman.
One time, we were talking and we got to discussing personal safety. She said that a lot of her female friends gave her a hard time about the fact she did not own a cell phone.
"They say, it could come in handy in an emergency, but I point out that nine times out of ten, when you would need it the most, you would not get a signal," she said.
I pointed out that I agreed, which was why I usually depended upon a firearm or other weapon for personal safety.

Cell phones are mostly toys carried by the majority of the public. A gun is a survival tool.
Granted some people use their cell phone like a tool, (guntotin fool being a good and wise example) and some people use their gun like a toy. (the Tactical Ninja/Chairborn ranger types).

[zzirg]

moral of the story make sure the BG has a weapon in his or her hand and is closer then 21 feet and you fear for your life ,before pulling your gun.Then make sure he or her are dead,they cannot tell their side of their bull**** story that way.

[Marky]

At the class when I got my CWP the cop/instructor made it very clear '' you can only use/pull your weapon if/when your life, or the life of another is immediatly in danger''. That woman that pulled her gun on the mechanic gave all of the gun haters more ammo to fire back at us. People like her shouldnt have guns. Now in theory she could have started a fight with him and if he was beating the hell out of her and she felt her life was then in danger maybe that would be a different story. But our instructor warned all of us, he said '' if you have to use your gun, or brandish it you have to be able to 'articulate' to authorities that you had no other choice''. She was a idiot and didnt help people like me a bit.

[Jack Malloy]

Courts have ruled in the past that you cant start a fight when you are armed, and just because you are getting the worst of it, come up shooting.
Happened in Martin County a few years ago.
Some guy was sitting in another guys public housing apartment 'drankin' a few byars" and the husband came home and told him to leave. The Byar-drankin' Hay-ull raiser decided he did not want to and picked a fight with the husband. The husband kicked his ass good, so he pulled a gun and started shooting and later tried to claim self defense.
I was there when the judge actually laughed at him, and pointed out that you can't pick fights when you are armed.

[Ghost Rider]

I was a lurker and saw this thread and it prompted me to register and reply w/ real world expierence. We live in Holland, Michimexico and I was convicted of brandishing 4 years ago. I'll try to make a long story short. A Latin King drug house across the street 5 years ago when we moved in. Loud parties, drug traffic,all that BS. The bangers built a 2 story tree house behind our place, not on my property but just outside my property. Late night parties and screams, not of passion but pain. I worked w/ local LE for a year on this, calling in every time there was trouble. I found burgalar tools back by this tree house, turned those over to law enforcement and of course grafitti. Latin king and gangster disciple crap. Ottawa County S.D. told me the screaming late at night was probably initiations. The residents of this house across the street were all convicted felons, mostly burglary of other houses in the neighborhood. A father, and two sons lived there. All members of the kings. Well January 22nd 2001 I had left for the car wash and coming back to our place I saw a person wearing yellow/black jacket walking in the woods behind our house, on my property. Black@yellow are latin king colors so I knew it was one of them. I got out of my truck, went in the house and immedietly out the back door and could see this little ******* go back to the tree house and pick up a canvas bag. I went inside, grabbed my 12 guage and went back into my yard, out of sight to him. He grabbed the bag and started heading back towards my house. At this time I went outside the fenced in area of my yard and into the woods. I had my dog and the 12 guage. Our property extends out into the woods and I was still on our property when this punk came onto my property still carrying the canvas bag. I came from behind some trees and surprised him. I asked him what he was doing, he said nothing. I asked him if he was the one pulling B&E's in the neighborhood or if it was his little bitch brother? He was scared ****less, I NEVER pointed the gun at him the whole time. I went on to tell him that I was not going to stand for gangs or drugs in my neighborhood and he laughed. He then started to walk away and when he was 140 ft. away and down a 4 ft. grade I turned 180 degrees away from him and fired a shot into the ground. I thought it was over but 15 minutes later the Ottawa ounty Sherrif Dept. called me and told me to come out of the house w/ my hands up. I went out to meet the deputies, knew most of them because of all the calls I had made about the drug house, the S.D. knew what the house was and knew me. They asked what happened and then left. I was never arrested but 6 months later I get a letter from the ottawa county prosecuter, (name of valesquez) see a pattern developing here? He was charging me w/ brandishing! I had to go to the station and be fingerprinted and then came back home. In my interview w/ the probation officer before my arraignment, she the probation officer (Alma Valenzuela) see the pattern continuing? She told me and put in her report to the judge that I was more of a threat to the community that the latin kings!!! At my arraignment my attorney told the judge I was going to plead innocent and wanted a jury trial. That's when the prosecuter told my attorney if I didn't plead to brandishing he was going to charge me with felonius assualt!! My liar, sorry, lawyer told me to plead to the brandishing. I did and got 1 year rpobation and had to take anger management. They drug tested me every time I went in to report, never used drugs so the couldn't get me on the piss tests but the were trying to get me on a violation. I was released from probation after 8 months but I feel I was railroaded into pleading. At the court hearing after I pled my lawyer, my wife and I were approached by a greaser and threatened. He walked right upon us and said "I got a problem w/ you and paybacks are comin" My lawyer went right back into the courthouse and reported this to the first deputy he saw but nothing was ever done about it. Since then I have been threatened by the latin kings, though not for over a year now. They know I like guns and probably figure I'm crazy. I later found out the greaser that thought he could punk me is a leutinent in the latin kings and is hardcore. I , we I mean now live in condition yellow and have added security measures at our place. Two of the enforcers for the kings in Holland are Eric Ruibal and Javier "chewey" Rodriguez, both in prison right now but they will be out one of these days and I'm sure I am still on the kings to do list. Sorry to be so long winded but felt a need to tell my story w/ you folks here. I guess what I learned is even if the bangers are on your property let 'em be but if the come into my house thay will be terminated w/ extreme prejudice!

Ghost Rider out.

[PythonGuy]

And that, Ladies and Gentlemen, is another happy ending.....

[stephen426]

Gun Totin Fool,

I'm glad nothing bad came out of your situation. Three punks against 1 person is considered potentially deadly or bapable of great bodily harm. In those circumstances, lethal force is justified. In addition, they were tresspassing and you were at your place of employment. I think that gives you further rights as opposed to being on public property. I'm not advocating shooting them, but if they continue to approach in a menacing manner, I would probably shoot. One thing to consider is getting a camera system to cover your butt. The cost of a decent digital recording system and "vandal proof" cameras have dropped to the point where they are quite affordable. PM me if you want some more info.


As for Ghost Rider,

Sorry to hear about your situation. I think you crossed the line when you fired the shot into the ground. I think most members of this forum would agree that would be considered illegal discharge of a firearm. It sucks that you have gang bangers for neighbors. They obviously know where you live and there are probably many of them. You don't know most of them. I would say get the hell out of dodge and find a better place. You can't take on a whole gang. They could pop the dog easily or poison it so don't think you will get some kind of advanced warning. If the police are not will or able to do anything about them, it is time to up and leave. I know it is your home and all, but what good is it if you don't even feel safe in your own home.

[wahsben]

I believe there was a case of a woman in Mass. that was being harrased by a truck driver while on the road and she held up her pistol to scare him off. He called the police and I believe she went to jail. There may be a link to this at the GOAL website.

[WarDoctor]

One of my rehab patients, a fellow in a wheelchair due to a lumbar fusion gone bad, has the misfortune of having a former son in law with serious mental,moral, and impulse control problems; recently my patient and his wife were, legally, babysitting their grandchild, when the former son in law, illegally, demanded visitation. LongStoryShort, he threatened to run his car into my patient's home, and verbally threatened to "kill you and your whole family if you don't let me see my daughter."
The thug drove up my patient's driveway, pulled into his front yard and spun round and round, yelling obscenities out his window. My patient went to the front porch with an UNLOADED 357 in his hand, and told the thug to leave or he would kill him. This was after calling the sheriff, who basically said they could do nothing unless the thug had harmed someone.
The local sheriff's government thug (this patient lives in buttlick, TN were the genelines are thin) came and arrested my patient for assault with a deadly weapon. He was booked and released on bail and his gun was confiscated.

Hearing of this, I called NRA and SAF (two organizations upon which I dump serious money every year); both were very concerned but were in my opinion unhelpful/functionally useless. I finally got the patient hooked up with a lawyer who went to court with him two weeks ago. He got a
situation where if he has no problems with the son in law for 6 months, the charges are dropped; o/w, the charges are reapplied and he is tried for assault. This seems a major travesty to me, and if a frontier state like Tn is like this, God help anybody in a blue state or worse.

Any thoughts on this?
(Tennessee is supposedly a "Castle Doctrine" state wherein a man's home is his castle and he has the right to defend it; now I wonder. My personal attorney gave me a bunch of blah, blah about how this is a criminal matter, not a gun issue (yeah right!))