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Using brandishing statutes to chill Second Amendment rights

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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 in a 2002 opinion requested by Senator Bullard (2002 Mich. OAG No. 7101) regarding the question of whether a reserve police officer (who is not an actual law enforcement officer subject to the exception in MCL 750.234e and therefore similarly situated to any other citizen) commits the crime of brandishing when she openly carries a properly holstered handgun.

In that opinion, Attorney General Granholm noted that neither the Michigan Penal Code nor the Michigan Criminal Jury Instructions include a definition of brandishing, nor has it been defined in any case decided before the court in Michigan. Therefore, she concluded that it was appropriate to use dictionary definitions and to look to the meaning ascribed to the word in sister jurisdictions. AG Granholm noted that the dictionary definition in The American Heritage Dictionary, Second College Edition (1982), at p 204 is "1. To wave or flourish menacingly, as a weapon." and that sister jurisdictions have looked to the definition in federal sentencing guidelines which defines "brandishing" to mean "that the weapon was pointed or waved about, or displayed in a threatening manner."

AG Granholm concluded her opinion by noting that "[a]pplying these definitions ... 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." In other words, as is the case throughout the country, in Michigan, threatening behavior is the touchstone for brandishing.

Finally I should note that a thorough search of published and unpublished Michigan cases (all of which are as available to Ms. Kane as they are to me) does not yield a single prosecution for brandishing that did not involve the firearm being out of the holster, in the hand, and used to threaten or intimidate.

Based upon the totality of the evidence, it seems clear that the simple open carry of a properly holstered handgun is outside the scope of the brandishing statute. And I base that opinion upon far more legal evidence than Ms. Kane used in making her merely conclusory statement.

DISCLAIMER: As a law student, ethics require that I make it clear that all material presented here is offered as the layman's opinion of the material and is NOT intended as legal advice. Those seeking legal advice should consult a Michigan licensed attorney (although probably not Ms. Kane where this issue is concerned).

UPDATE: In response to a number of comments (my own included), John Schneider noted the controversy surrounding Ms. Kane's interpretation in his March 1 column.

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